Which Impeachment Movie Are You Watching?

2019-12-19 · Guest: Gene Healy (Vice President at the Cato Institute) · 52:09

Filed under: Elections and politics · The Constitution and the courts
Topics: Constitutional Law · Donald Trump · Executive Power · High Crimes and Misdemeanors

Historical and legal nuances of presidential impeachment

Bob Zadek and Gene Healy of the Cato Institute discuss the historical, legal, and political nuances of presidential impeachment. They explore the original intent of the Founders, compare the current proceedings against Donald Trump to past cases like Nixon and Clinton, and analyze whether the process is an “indispensable remedy” for an overreaching executive branch.

Topics: Impeachment, Constitutional Law, Executive Power, Donald Trump, Richard Nixon, Bill Clinton, High Crimes and Misdemeanors, Cato Institute

Speakers: Bob Zadek, Gene Healy

The Hysteria Over Impeachment [00:00]

Bob Zadek: Hello, everyone. Welcome to the Bob Zadek Show, the longest-running live libertarian talk radio show on all of radio. Show of ideas, never, ever, ever the show of attitude. And the show that tries to stick to an important principle that I find what people believe to be kind of boring. I find why they believe it to be fascinating. So whenever I have a conversation with anybody about anything, I want to rush past what you think, but I’d love to dwell on why you think it, because that’s juicy stuff.

Well, this morning, if I have to hold myself to my own test about why I think it on the subject of impeachment, I don’t have a clue. Impeachment has me stumped. I don’t know if impeachment should be hard or if impeachment should be easy. I don’t know what the phrase “bribery, treason, or other high crimes and misdemeanors” means. I have a vague sense from studying history, but I’m not positive that I’m right. I don’t know, once I nail down what it means, I don’t know if Donald Trump committed an impeachable offense. I don’t know if the Senate should call witnesses or just have a speedy discussion and a vote—we kind of know the conclusion. In short, I don’t know why I think anything or even what I think.

Well, when I can’t figure out the answers, I do what anybody would do: I go to the mount. And I invite on the show somebody who can help me and hopefully all of us figure out what’s right and what’s wrong, what should happen, who are the heroes, who are the villains. And I’m happy to welcome back my good friend, colleague, Gene Healy. Gene is the Vice President at the Cato Institute, the premier libertarian free-market think tank in America, an organization that I support as very best that I can. I love the work of Cato. Gene has been on the show several months ago when he published his new book, Impeachment: The Indispensable Remedy, which kind of tells us how Gene feels. And I invited Gene back this morning because Gene published a fascinating, wonderful article, a must-read, which I can summarize as: “Don’t freak out about impeachment,” subtitle—this is Bob’s subtitle, not Gene’s—“It’s no big deal.” So Gene, that kind of gives us a hint about how you feel about impeachment. Welcome back to the show this Sunday morning.

Gene Healy: Thanks for having me on again, Bob.

Bob Zadek: Now, Gene, we had discussed several months ago, and I commend our listeners to listen again to that show where we discussed your book, The Indispensable Remedy. But your most recent article, a must-read—it’s wonderful, it’s humorous, it’s insightful, it’s historically accurate, and it, I dare say, it puts impeachment into its proper perspective. What is the premise of the article, which I’ll entitle “Don’t Freak Out”? What is the point you wished to make in the article, and why do you wish to make it?

Gene Healy: I guess I wanted to throw cold water on all the hysteria over impeachment. You know, you see it on both sides of the aisle. Nancy Pelosi has her caucus wearing black; it’s a somber, sad day. Certainly, the Republicans act as though the sky is going to fall because we’ve taken this step, and you know, the gravest step, some of them called it, that we could take to put a president on trial.

But most of the—on the rare occasions when we do have a serious debate about this, you know, last time was over 20 years ago, you get all of this agonizing over the process. People act like it’s a Doomsday device wired into the Constitution and, oh my god, how will we get through this? And, you know, if you look at our historical experience with presidential impeachment, none of these scare stories turn out to be true. It is not that disruptive. It doesn’t, unfortunately, paralyze government. It doesn’t wreck the economy. It’s really not a national trauma. It’s rarely done any serious harm and, in at least one occasion—that’s 1974—it’s done a lot of good. So if anything, we should be less angsty and emo about this process. I think the extent to which we treat it as a world-historical, earth-shaking, and emotional event is itself a reflection of the cult of the presidency and the outsized importance that we place on that office.

Is Impeachment Legal or Political? [03:59]

Bob Zadek: And a lot of the Republicans have been using the phrase—and pundits, or alleged pundits, have been using the phrase, “This is nothing short of a coup d’état.” This is like somebody’s head is going to be on a pike down in Paris somewhere. A coup d’état. And it struck me, a coup d’état is kind of ineffective if somebody picked by the president and of the same party then becomes president. I’m not sure there’s a lot of drama involved and a lot of change if Donald Trump is then replaced by Vice President Pence. So the “coup” is kind of utterly absurd to use it with regards to impeachment.

But now, impeachment—there’s been a lot of discussion about impeachment is a political process, not a criminal law process, and impeachment is undoing the will of the people manifest by an election. Should impeachment be looked at as a political process, nothing other than another notch up from the House or the Senate censuring the president? Is it political? What frame of mind should we have? Political, criminal, something else?

Gene Healy: The way I look at it is it’s part legal and part political. It’s part legal because the Constitution doesn’t say you can remove a president every time you have a majority of the House and a supermajority of the Senate. It sets out in Article II, Section 4, the standard: treason, bribery, or other high crimes and misdemeanors. So you need a theory of what that phrase means. And even if the Supreme Court, despite what President Trump and Alan Dershowitz seem to think, even if the Supreme Court is never going to rule on whether something was a high crime and misdemeanor or not, it’s still important to try to figure out what that means. So that’s the legal part.

The political part is, once you’ve decided that something is an impeachable offense within the meaning of the constitutional language, it doesn’t solve all your problems. So for example, the legal part can tell you what’s an impeachable offense. So is obstruction of justice an impeachable offense? I think the answer would be yes. Richard Nixon had articles of impeachment about obstruction of justice; he was driven from office. Bill Clinton was impeached for obstruction of justice. But that doesn’t answer whether it’s necessary, prudent, or a good idea to remove the president. In the Clinton case, the Senate decided it wasn’t. You know, there are all sorts of prudential judgments and, frankly, rank partisan political judgments that go into answering the politics part of it. So it’s a mixed operation of law and politics. One thing I think it is not, though—and this is pretty clear from the historical record—it’s not a criminal process. It doesn’t require a crime. Crimes are neither necessary nor sufficient to make an impeachable offense. So, long-winded answer there, sorry about that, but I would say it’s a mix of law and politics. The law part doesn’t answer everything, but in the main, it’s not a criminal law analysis.

Historical Precedents for Impeachment [07:23]

Bob Zadek: And of course, history shows us that it’s not limited at all to a crime. The first federal official to be impeached, Judge Pickering, I think 1804, he was impeached because he was drunk a lot and kind of just kind of a loser as a judge, but mostly he was drunk and abusive to those who appeared before him. And in 1804, our young country decided that was sufficient to impeach. And since it was pre-prohibition, being drunk was not a crime, but he was impeached nevertheless. And our Founders were all around in 1804, except of course Washington, who died in 1799, but our Founders were around, and if they felt that that was not sufficient grounds for impeachment, they sure kept it to themselves. So I think that’s of course 100% correct.

But on the issue of an impeachable offense, there is a word that is kind of slurred over, it’s passed by, in the constitutional phrase: “treason, bribery, and other high crimes and misdemeanors.” Some observers believe that “other” means whatever follows—that is, high crimes and misdemeanors—have to be at the same level as treason and bribery because it says “treason, bribery, or other,” which means more like that, other high crimes and misdemeanors. It’s not a big point, but I just wanted to mention it. Any thoughts on that, Gene?

Gene Healy: Sure. I mean, I don’t disagree with that, but you have to decide what—it’s an old canon of construction. I can never pronounce the Latin for it, but yes, that whatever follows treason, bribery, has to be like treason or bribery. But you have to decide what it means to be like treason or bribery. Does it have to be as if the president was in the pay of—or the impeached official was in the pay of a foreign government? It doesn’t seem that the Founders interpreted the language like that because treason, bribery, or showing up to work drunk and ranting like a maniac from the bench in the case of Judge Pickering, you know, that was considered an impeachable offense.

So I think that high crimes and misdemeanors, like treason or bribery, are behaviors that demonstrate the person’s unfitness for office. It’s not that high crimes and misdemeanors have to be grave betrayals in the sense that a conviction of treason would require, but they have to be behaviors that demonstrate the person has violated the public trust and cannot be trusted with high office. And if you look at the first few impeachment attempts contemporaneous with the founding, the one after shortly after Judge Pickering, the Jeffersonians tried to impeach a Supreme Court Justice, Justice Chase. And Justice Chase’s offenses were essentially being an extreme partisan, an extreme partisan Federalist as a sitting Supreme Court Justice. So you look at the early cases and you don’t get any kind of pattern where the Founders are interpreting that language to mean only things that are like treason in that, you know, the president is in the pay of a foreign government. It’s a much broader range of offenses, and that’s also consistent with the English practice where the Founders borrowed that phrase, “high crimes and misdemeanors,” from.

The “CEO Firing” Analogy [15:01]

Bob Zadek: In your article, “Don’t Freak Out,” you spend a fair amount of ink making the point that chief executives of major corporations are routinely fired. They have enormous power, they control lots of wealth, they affect the lives of lots of people, and they get fired routinely, and the enterprise moves ahead smartly as if nothing dramatic has happened. And you make that analogy to kind of make the point that firing somebody is no big deal. And of course, you mention in your article the very interesting point that Donald Trump became famous and maybe wouldn’t even have become president but for the two words in The Apprentice: “You’re fired.” So if ever there was a case of being hung on your own petard—whatever the heck a petard is, don’t know the answer to that—but here’s Donald Trump, who’s about to, perhaps—it’s not going to happen—but he theoretically could hear the words, “You’re fired,” which is kind of bizarre.

Gene Healy: Yeah. So I think that’s the way we should look at it. It’s an imperfect analogy, but it’s closer than, say, some of the others that have been offered. Former UN Ambassador Nikki Haley called the impeachment the death penalty for a public official, you know, as if at the end of this process he’s taken out and shot or given an injection instead of essentially losing his job. So I think there is something strange, and that’s what the article starts out with. America more than practically any other developed democracy, you know, we have employment at will. We’re comfortable with the idea of firing people. We read the business section to find out sometimes about CEO firings and we enjoy them. We made this show that Donald Trump hosted for 14 seasons that was based on the idea of firing people as entertainment. But then when we get up to the most important job in the country, you know, one where you are able to do an enormous amount of—you can wreak an enormous amount of destruction, and the rule we’ve adopted implicitly is only if that person, you know, gets caught in the middle of the commission of a felony with a smoking gun. Well, that’s not what the Constitution requires, and I think it’s really unhealthy to make this the most dangerous job in terms of what the destruction that it can do in America into the job with the most job protection. I think we should—the Constitution, unlike in England where you could, as a result of an impeachment process, you could be imprisoned or even executed, the Constitution limits the punishment resulting from impeachment to removal from office and possible disqualification to hold future office. So we should look at this more as a high-profile firing.

Protecting the Country vs. Punishing the Individual [18:43]

Bob Zadek: Another important, I think, another important way to look at the process to put it in context is that one can, I think, accurately conclude that the whole process of impeachment is not primarily punitive to the officeholder, the president. It’s not a punishment to the president; it is an act to protect the country. Most of the Founders, all of the Founders concluded the bottom line, if you will, is that the impeachable offense ought to be a breach of the public trust. That is, the president did something to harm the country, and he is to be—the country, for its own protection, needs to be insulated from more harm from the miscreant, the president who breached the trust. So if we look at it as what’s good for the country rather than let’s punish the son of a gun, I think it puts it in a more healthy context. So then the impeachment is what’s good for the country, with the reason for the impeachment being some discernible act, not just a general unhappiness with the president. So I don’t like the analogy to criminal law because the primary focus is what’s good for the country, not punish a bad actor.

Gene Healy: Yeah, I think there’s something to that, and that’s of course the reason that you have to meticulously prove every element of a statutory offense in a criminal trial is because that ends with the person’s loss of liberty and in the extreme maybe even their life. So they got a lot of due process, and they should. Criminal defendants should. But impeachment is a broader inquiry that results in loss of a job. So a lot of the arguments that we’ve seen from the Republicans about constitutional due process, particularly at the House inquiry stage, are just plain wrong. In fact, even in, you know, if you treat the impeachment stage, the House stage, as analogous to a grand jury in some sense, grand jury defendants do not get the right to call witnesses or confront their accuser or anything like that. That comes in the trial. And I think there’s something to the idea that the point is not condemning an individual bad actor and punishing him by loss of liberty; the point is identifying someone that is unfit for office and removing them from power.

Maladministration and the Founders’ Intent [21:54]

Bob Zadek: Now, Gene, the premise in both your book and in your article is, of course, that impeachment—in the book, you mention impeachment perhaps wasn’t used enough, and in your article, it’s no big deal. Are you in the George Mason camp that maladministration, which George Mason proposed but Madison rejected and the convention went along with Madison, that maladministration, which is probably a lower standard, are you a George Masonite that let’s lower the standard for impeachment, or are you in the camp that keep the standard what it is but get rid of some of the drama?

Gene Healy: Well, I think on the maladministration issue, yes, there is this exchange between George Mason and James Madison at the Constitutional Convention where Mason is talking about the Warren Hastings trial that had just begun in England and we should add maladministration to treason and bribery. Madison objects, says that’s too broad a standard. They end up with high crimes and misdemeanors, and that’s what we have. Now, I think people take that exchange and they make much too much out of it. You see people all the time, the Founders rejected maladministration as a grounds for impeachment. Well, no, there’s this exchange that nobody who ratified the Constitution saw because Madison’s diaries, notes on the convention, were weren’t revealed for at least 50 years after that. There’s this language, high crimes and misdemeanors, which in British practice included maladministration. And then there’s the fact that James Madison himself, after the Constitution is ratified, said several times that certain kinds of maladministration are impeachable.

So I think that I wouldn’t put it in terms of lowering the standard. I think the constitutional standard, properly understood, includes some forms of gross mismanagement. Now, it’s not just sort of ordinary run-of-the-mill negligence or not being able to do a great job because in fact it’s an impossible office; it’s too big for any one person. But I think some forms of maladministration or gross negligence are included in high crimes and misdemeanors. And I think, yes, I think we should be less emotional about the prospect of impeaching the president. You know, in parliamentary systems, maybe it’s because we combine head of state and head of government, but British people are not as—it’s not a national trauma if Theresa May has to quit or David Cameron has to quit or Margaret Thatcher is forced out by her own party over a long weekend. You know, these are in parliamentary systems, I think people tend to look at the head of government as more of a public servant and not some living god-emperor who embodies the national spirit. And I think we should look at it more like that. It’s not a tragedy for the company if the CEO is replaced; it’s not a tragedy for the country if the CEO of the executive branch of the federal government is replaced.

Parliamentary Systems vs. Presidential Impeachment [25:57]

Bob Zadek: I ache for that aspect of a parliamentary system. The only difference is the Prime Minister is not directly elected by the people; our president is. So it’s one branch of government undoing the will of the people. That maybe is the major distinction. This is Bob Zadek, I’m speaking with Gene Healy this morning, who is trying to help me get my arms around the very difficult, at least for me, issue of impeachment. And I’ll summarize it: what’s right and what’s wrong. We have lots more to cover. There’s all kinds of important issues on impeachment that mainstream media has been ignoring. We will not when we come back. More of the issues on impeachment to help you follow along what’s going on. We’re going to take a 30-second break. We’ll be right back.

[Sponsor Break]

The Imperial Presidency and Impeachment [28:04]

Bob Zadek: Welcome back to the Bob Zadek Show, the longest-running live libertarian talk radio show in all of radio. Show of ideas always, show of attitude never. Thanks so much for listening to my conversation this morning with Gene Healy. Gene Healy is a Vice President at the Cato Institute, has written and has shared his thoughts with us several months ago, has written Impeachment: The Indispensable Remedy. And most recently, Gene has written a wonderful piece in Reason magazine, basically “Don’t Freak Out, Impeachment is No Big Deal.” In that article and in the book, Gene puts impeachment into its proper perspective. Where does it stand in the panoply of events that can happen in a democratic republic? It is both the book and the article a must-read if you are like me, kind of confused about the issues and having trouble reaching your own conclusion.

Now Gene, you and I have made reference to the Founders—you can’t do too much of that—to Hamilton in Federalist 65. We discussed a few moments ago the exchange between George Mason and James Madison at the Constitutional Convention, the drafting convention. But there is a question I wonder, and I’m of course soliciting your thoughts, I wonder if in this regard a discussion of impeachment and making reference to the Founders and 1787 and 1788, I wonder if it’s not that relevant. And here is my point: the presidency as drafted created a chief executive which of course had specific powers in the Constitution. They were very few in number. The president was not—didn’t have anywhere near obviously all of the power the imperial presidency—my phrase and others—have today. To what extent was the Founders’ view of impeachment affected by the relatively less power the president had in the original concept versus the power the president has today? Would the Founders have felt the same about impeachment if the president was as powerful as it is today?

Gene Healy: Well, you know, it’s tough to put yourself inside the mentality of the Founders and decide what they’d conclude. What I can say is that as limited as the office was, they were still particularly concerned about impeachment as a remedy for a presidency that goes wrong. The bulk of the discussion at the Constitutional Convention about impeachment is with reference to the presidency. The whole July 20th, the longest debate in 1787 on the impeachment power, is entirely with reference to the impeachment of the president. And Madison addresses this at least obliquely in that he talks at that debate about how important it is to have impeachment, an impeachment remedy for the presidency. One of the reasons he says it’s indispensable is that the presidency is the one office that they’ve set up that is headed up by one man. And he says that, you know, if a judge goes wrong, if a congressman or two are corrupt, you know, they’re sort of drowned out. The multiplicity of members, I think is a phrase he uses, sort of dilutes the damage any one of them can do. But when it comes to the office of the presidency, it’s run by a singular individual, and there he says incapacity or negligence or perfidy in that office could be fatal to the republic.

So it seems to me if that’s the view that this office is in some sense uniquely dangerous because it’s headed up by one person, that only becomes even more compelling when the office gains all the vast new powers it’s gained over the course of more than a century. So this is also something that crops up in impeachment debates now. You know, a lot of when people are opposed to impeaching a particular president, I’ve seen law professors say that too much depends on the office of the presidency. You can’t remove the president because the presidency itself has become so indispensable and so important. It seems to me that cuts the other way. We can survive a crooked federal judge, we can survive even a crooked cabinet secretary or an underperforming one, but you’ve got this one official that has nuclear weapons and controls the federal law enforcement apparatus. If that person is unfit, it’s a continuing danger.

Impeachment of Other Civil Officers [34:43]

Bob Zadek: Two observations. You mentioned the discussion at the time of our founding and most of the impeachment discussion was about the president. Gene, I think that’s because there weren’t that many federal officials other than the House and Senate, and they can’t be impeached because each body runs itself. So I don’t think—I think I’m correct about this—the House and the Senate…

Gene Healy: Well, they were envisioning a judiciary. And the funny thing is, in that discussion, Madison at least is not clear on the fact that impeachment doesn’t apply to congressmen and senators. That’s something that was decided pretty much in the first impeachment. The first impeachment, 1797, was Senator William Blount. And in the Senate trial, there’s not a vote of conviction, and it looks like it was basically because they said they didn’t have jurisdiction because a senator is not one of the civil officers of the United States who could be impeached. But at the time, you know, some of them like Madison don’t seem crystal clear on that, because Madison mentions the possibility of impeaching congressmen. And federal judges were certainly in the mix, and so it’s a remedy that they extended further than just the president. So it seems to me a little bit odd at least that there’s so little discussion of other civil officers, and that even the weak presidency they designed, some of them were aware that it could be a source of mischief.

Indirect Election and the Will of the People [36:19]

Bob Zadek: There’s another, I would think, point to be made in extrapolating the views of the Founders with the country they created to applying those views today, and that is the president was not popularly elected. So impeachment in the eyes of the Founders was not undoing the will of the people. The president was elected by a truly independent—although it never really worked—but the theory was the Electoral College was kind of an independent body, much like the Senate is independent. They’re elected, or the House, they’re elected, but when they pass legislation, when the Senate votes on legislation, the Senate was selected by the state houses. So impeaching the president was not undoing the will of the people at the time of the founding. It was undoing the will of the Electoral College, a much different deal. So it’s very interesting how we look to the Founders for guidance, but the country that existed when the Founders wrote the Constitution is so different than the country politically we have today that sometimes you have to wonder whether those views really translate from 1787 to 2019. Just an observation, specifically about the indirect election of the president.

Gene Healy: I think that’s right. At the time, the body with the clearest democratic pedigree was the House. And there was at least the hope that the Electoral College would be a filtering mechanism that would elevate the best characters. This hasn’t really worked out that way. I would point to something else, though, your point reminds me of, which is that we think of it now in terms of, okay, the president picks his running mate and they’re both—they run on the same ticket. And so this is absolutely not a coup because, if Donald Trump were to be removed from office in a Senate trial, he’d be replaced by Mike Pence, not Hillary Clinton, so it doesn’t reverse an election. On the other hand, before the 12th Amendment, when you had the vice president—at a time when the vice president was the runner-up in the presidential election, it really did reverse an election if you were to have an impeachment of John Adams. You replace him with Thomas Jefferson. So at the time that they ratified this system, they seemed to be a little more tolerant—either they didn’t think it through or they were more tolerant of the idea that an impeachment could result in major policy changes where different—they were hoping there weren’t political parties and that they wouldn’t emerge as quickly as they did. But it strikes me that prior to the 12th Amendment, you could really have sweeping policy changes as the result of a presidential impeachment, and they either were not sufficiently awake to that or they were okay with it. You know, that could have been much more disruptive than what we have now, which is the president is replaced by somebody of the same party that he worked closely with.

The Articles of Impeachment: Obstruction of Congress [40:18]

Bob Zadek: Okay, now Gene, now we’re going to design for the rest of the show time that we have—not nearly enough, but we’ll do our best—we’re going to design a voter information pamphlet as if we are asked by plebiscite—we the voters of our country are asked to vote by plebiscite whether it is proper to impeach and convict the president. And let’s imagine the voters are asked to decide, and let’s look at, as a public service to our listeners, the specific charges. And Gene, the beauty of this is you have all the luxury in the world to be wrong, to be a terrible predictor. Nobody’s going to impeach you if you are wrong. So you have free intellectual reign to voice whatever opinion you want and to take the principles from your book, The Indispensable Remedy, and from the article, “Don’t Freak Out,” and let’s see—let’s help the audience follow along like a little impeachment libretto so they can follow along what’s going on, because for sure it’s not happening in English. So let’s see if we can help.

Now first of all, you mentioned earlier in the show, and I didn’t comment at the time, that one of the two articles of impeachment, you made reference to the phrase “obstruction of justice.” And of course, the article is “obstruction of Congress,” a phrase I never really heard before. Maybe it exists and I just got schooled that day and didn’t learn about it.

Gene Healy: Right. Earlier I was talking about Article I of the Nixon impeachment or near-impeachment and Article II of the Clinton impeachment, so more obstruction of justice in the criminal process sense than obstruction of Congress. Yes, the second article of impeachment that the House just passed against Trump is obstruction of Congress. And that is based also on an article of impeachment that the House Judiciary Committee passed against Nixon in ‘74. The third article of impeachment against Nixon in ‘74 was also obstruction of Congress. And it was based on this idea that in an impeachment inquiry, the House’s entitlement to information from the president is at its height and that the president can’t just decide for himself what he’s going to provide. And that was probably the more—well, it was certainly the most controversial of the three articles of impeachment that the Judiciary Committee passed against Nixon. It got the fewest votes, only one Republican vote. And but on the other hand, the Trump article of impeachment based on Trump’s obstruction of Congress, Trump’s behavior has been more sweeping and categorical than Nixon’s ever was in this regard. In other words, he’s—Nixon partially complied, released edited transcripts of the tapes that Congress wanted, tried to do as little as possible, but not until the very end did Nixon just say, “Okay, I’m not cooperating at all.” Trump from the very beginning of the impeachment inquiries just said, “I think you guys are biased and this is illegitimate, so I’m not giving you anything.” So that’s the second article of impeachment against Trump is based on this Nixon article of impeachment, and your mileage may vary, but I think it’s pretty well-grounded.

Executive Privilege and the Courts [44:31]

Bob Zadek: Now, of course, Trump said, “I’m asserting”—and it was a very strained reading—“executive privilege,” that is, “I don’t have to.” So Trump asserted some very vague, not well-articulated principle by which he claimed he had no duty to comply, and he said, “Take me to court.” So what’s wrong with Trump just saying, “Okay, if the court tells me to do it, I will do it,” and all Trump has done is delay the process, and he’s not being charged with delaying Congress, he’s being charged with obstruction. But it’s not obstruction until a court, the third branch of government, until a court says do it and he then doesn’t do it. There are some observers—and one of the things that makes me nuts is there are some really smart observers who I read rigorously and I’m always often persuaded, law professors and the like, by their point of view—and there is profound disagreement even at that high level of scholarship about this significance. Any thoughts on the president merely saying, “I’m just asserting my rights,” if you will, or my prerogatives as chief executive?

Gene Healy: I think we’re kind of interpolating an executive privilege claim here. You know, at least in the most public document about non-cooperation with the impeachment inquiry is the letter from the White House Counsel, which if it mentions executive privilege, it’s not a real claim of privilege. The bulk of the letter is just, “This is unfair, you’ve wanted to impeach me from day one, you got it out for me, so I’m not going to cooperate,” which is not a claim of privilege. You know, Nixon at least made up the idea that the Watergate tapes contained some confidential communications and possibly national security information and made formal claims of executive privilege. Unless one of the subpoenaed officials has made that formally in court, the main argument that Trump has been making is, “I don’t like what’s going on here, this is a coup, you guys are partisan and biased,” which is not a claim of privilege. And, you know, they—we can do this process through the courts, and some of this is going on through the courts, but Congress also has an impeachment remedy that it doesn’t have to wait to use.

The Ukraine Phone Call and Motive [47:28]

Bob Zadek: Now the second question, because we’re running out of time, I want to discuss—we only have a few minutes left—is the phone call that could bring down a president. The world’s most perfect phone call, the Zelensky phone call, where the issue is that Donald Trump’s motive in the phone call was to benefit himself by Zelensky investigating the Bidens. And so the accusation was that Trump did something and his motives were soiled, his motives were bad. And Gene, I’d like you to examine that and apply that to the following hypothetical.

Let us assume that Donald Trump has some evidence, some evidence that Vice President Biden was guilty of treason. Pure treason, nobody would disagree. And Biden is also a possible candidate for the president as a Democrat. And Donald Trump says, “I got the son of a gun.” And Donald Trump asks Zelensky and says to Zelensky, “Investigate and tell me what you can tell me about the possible treasonous act of Biden.” And by the way, in my hypothetical, Biden is also a possible presidential opponent. Trump is compelled to ask Zelensky for help. So if in the—compare those two hypotheticals and tell me how…

Gene Healy: Well, you’re answering your own hypothetical if you say he’s compelled to ask for help. That wouldn’t be the way a normal investigation would ever work. You know, take Biden out of it. It doesn’t go at that level. It’s contacts between the Justice—if there’s evidence that Joe Biden committed treason, it would be done by prosecutors of the Justice Department, not Donald Trump in a diplomatic meeting.

Bob Zadek: But if Trump did it the way that I described, is it impeachable?

Gene Healy: Let’s say no, in that hypothetical, no. Let me try another hypothetical for you, or at least something that takes…

Bob Zadek: By the way, Gene, we have just a word of caution, it has to be a short hypothetical, we’re going to run out of time, but go ahead.

Gene Healy: Let’s say he asks Zelensky for, “I want you to do a favor for us, I need you to license a Trump Towers in Kiev,” and that’s what the military aid is held up for. I think people would recognize that as a corrupt abuse of office. And the question is, which of these two hypotheticals is closer to what we think actually happened on that phone call and the surrounding events? Biden committing treason or Trump asking for a Trump Towers?

Bob Zadek: I see. So we’re trying to help our listeners, and we give them two impossible-to-reconcile hypotheticals, which will make them more confused than ever. That’s not my version of a public service, Gene. Gene, thank you so much for your book and for agreeing to be on the show and to helping us wade through the intractable issue of what’s right and what’s wrong in impeachment, and for helping us calm down. It’s no big deal. After all, the stock market is at a new high. Nothing can be that bad. So Gene, thank you so much. You’re a wonderful guest and your writing is just superb. It helps me sort out how I feel about these really important and fascinating issues. Gene, thank you so much, and good luck with your book sales.

Gene Healy: Thank you, Bob. Anytime.

Bob Zadek: Have a good day, everyone.

Show prep notes

Bob’s own preparation for this episode.