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Why Impeachment?

Brennan Center President Michael Waldman and Supreme Court lawyer Neal Katyal discuss the Founders’ thinking about impeachment — and how the Ukraine scandal stacks up against the high bar they set.

Published: December 6, 2019
Waldman and Katyal on Impeachment
©Slezak: Courtesy of NYU Photo Bureau

MICHAEL WALDMAN: Good evening, everybody, and welcome to this important conversation on a critical issue, a critical moment in our country’s history, a big moment for the country, and a big moment for the Constitution. There have only been three other serious attempts to have a presidential impeachment. It is a core constitutional function, a core way our system over two-plus centuries has envisioned checking and balancing and curbing the potential power of an abusive chief executive. It’s a moment when we’re all learning a lot together at the same time.

And we are really fortunate and privileged here tonight to be hearing from and taught by, as you’ve heard, one of the country’s top constitutional scholars, who’s written an important new book called Impeach: The Case Against Donald Trump. And we are all ready to learn and be the students tonight.

Neal, the most basic of questions, I suppose, is, why did you write this book and how did you write this book?

KATYAL: Well, first of all, I want to thank you, Michael, and the Brennan Center because what the Brennan Center does is so near and dear to my heart. When I had the privilege of arguing the Voting Rights Act case and defending its constitutionality, your work as a center was so important in how I thought about it. And even just last week I was looking at the incredible fines and fees report that you put out, another thing that I spend a lot of time litigating and thinking about. And you are at the forefront of really trying to make this country a better place, and it’s such a privilege to be here tonight with you.

WALDMAN: Thank you.

KATYAL: So the book didn’t even exist as an idea until the night of October 4th. And so I guess that’s two months ago, basically. I was at dinner with a bunch of my friends, and I had just written a piece on September 20th, hours after the Ukraine allegations broke, saying that I thought it was very significant and would lead to impeachment. And my coauthor was a notorious guy named George Conway. And when we wrote the piece in the Post a bunch of people, including someone who claims to be the nation’s impeachment expert, were like, that’s ridiculous, Neal, you don’t know anything about politics, nothing’s going to happen.

Well, as, events unfolded by October 4th, it was clear that something was happening, that this was a very serious thing. And, so, I asked my friends around the table, what should I do? I mean, I had calls for doing a TV show, podcasts, this, that, the other. And I didn’t know — I wanted to ask them what would work because I thought this was simple and incredibly serious. And what I was so worried about was that we were going to have the same thing of what happened in the Mueller investigation, which is spin, obfuscation, chaff, — and everyone getting so confused that the truth kind of falls by the wayside. And I naively thought — like, you heard me, I’m a Supreme Court lawyer. I’m not a person on TV. That’s not what I do. But I naively thought a year ago, well, maybe if I did that, if I talked about it on TV and talked about it to big audiences, that people would understand the stakes. And the truth is the chaff and everything overwhelmed it. So that’s what I was asking them: What is there to do?

And one of my friends, Howard Yoon, said, well, you’re going to hate this, but I really think you need to write a book. I said, I can’t write a book; I got, like, five Supreme Court cases this year and everything else going on. And he’s like, no, you need to do it. And I said, I can’t do it. He said, you can do it in two weeks. I said, that’s impossible. He said, yes, you’ve got a great collaborator, great coauthor, and, you’ve taught impeachment 20 times at Georgetown; you can do it. I said, no way. I had, like, four more glasses of wine — (laughter) — and went home, went to sleep. At 2 a.m. I woke up and I’m like, I can do it. (Laughter.) And so I got up at 2 a.m. and I started banging out the proposal. By 7 a.m. or so a proposal — a draft was done. And I made one phone call when it a decent hour, probably 9 a.m., and I made it to Sammy Koppelman, who’s somewhere around here — there.

So Sam is the most brilliant young writer I know. And I knew this because I had this speech that completely freaked me out. My alma mater asked me to give the commencement speech, and so I was totally freaked out. This was back in May. And I did, like, 48 drafts or something. And then I showed it to my friend Brian, who said, what you really need to do is have my son Sam read it; he’s the best writer I know. And I showed it to Sam, and he made the thing beautiful. And so on that morning, October 5th, I called Sam and I said, hey, I got this kind of crazy idea; you want to do it with me? He’s like, yeah. So — (laughter) — so that’s how we did it.

And we wrote it in two weeks, basically. And we went to the publishers and said, who can print this the fastest? This is the first book I ever did. I’m not a book person. And, it was so crazy. There’s a tree shortage, and — (laughter) —some of the publishers used paper from China, and Trump was screwing around with that. But ultimately, Houghton — and the folks are here tonight — they said, look, if you can give us a final on October 25th, we guarantee it’ll be in stores on shelves November 26th. So we did. So a week ago today the book came out.

WALDMAN: So how fast do you type? That’s the — (laughter) —

KATYAL: I type at 130 words a minute, actually.

WALDMAN: Oh, that — see, there you go.

KATYAL: I learned on a mechanical, and so — yeah.

WALDMAN: For your second book you can take a month. That’s — (laughter).

So take us back to Philadelphia in the summer, the sweltering summer of 1787. When the Founders were drafting the Constitution — and we, of course, know a lot about it because of Madison’s notes, which were not released at the time — they didn’t give that much thought overall to the presidency and its powers, but they gave a lot of thought to this. Why did they put impeachment in the Constitution? And where did they get it from?

KATYAL: So one of the reasons I wrote this book was to tell this story and some other stories, because the neat thing about this — and I know we’re all now post-Hamilton and so we all think, oh, American history can be interesting. This is really interesting and simple and fun.

And so the story about Philadelphia is that a lot of Founders didn’t actually think we needed impeachment in the Constitution. Elbridge Gerry said, look, we have reelections. The president’s going to run for reelection. And this was before the constitutional amendment that limited presidents to two terms. So, Gerry said, look, why don’t we just basically use that to police an erring executive or really evil executive, vote him out of office? And others — Madison and Hamilton in particular — said, well, wait a minute, what if you have a president who is beholden to a foreign power? What if you have a president who cheats on the reelection? And that leads even Gerry to say, oh, no, we need an impeachment clause in the Constitution. So the most remarkable thing about this is that if Hamilton and Madison and Gerry and others were here and you asked, what’s the paradigmatic case for impeachment, this is literally it. (Laughter.)

And there was a big debate in Philadelphia about what should be the standard for an impeachable offense. And ultimately, they settled on the phrase “treason, bribery, or other high crimes and misdemeanors.” There was an initial proposal that “maladministration” would be encompassed, and that was rejected because it would weaken the executive too much. And that’s something I deeply believe. So as we think about impeachment — and, I get so much hate mail about this from the Left every day, like, why isn’t child separation in there, for example, as an article of impeachment, and so on. I’m as torn up about child separation as anyone, and I think it is evil and grotesque. But I don’t think that is what our Founders thought of as a high crime and misdemeanor. I don’t think they meant it for policy differences. What they really meant it for, when you go back and study Philadelphia, is one simple thing, which is, is the president putting his personal interests over those of the American people. And that’s why that word “high” is in there.

So “high” — in terms of “high crimes and misdemeanors” — doesn’t actually mean a crime. It really means an offense against the state, and that’s what the word “high” is to signal. Kind of like kings and things like that. You’re doing something that is a betrayal of your oath. As lawyers, one of the terms we use is “fiduciary responsibility.” So if you’re a trustee, you have a fiduciary responsibility; you’ve got to put your interests — subordinate those to the interests of the institution. Like if you’re a trustee of NYU and you’ve got Sexton as your president or something like that, you’ve got to do that. And that’s really what I think the word “high” means here. And so that’s why the Founders settled on that, I think, formulation. It is a tight standard. It is not something that’s going to encompass policy differences.

 

So “high” — in terms of “high crimes and misdemeanors” — doesn’t actually mean a crime.

— Neal Katyal

But it doesn’t always mean that there has to be a crime. And we know that a crime is neither necessary nor sufficient. We learned this very early on in our history, when we had a guy named Burr who shot and killed Hamilton. And Burr was, of course, the sitting vice president at the time. The book tells the story in hopefully a lively way. Basically, there wasn’t a call for Burr’s impeachment. He committed a crime, no doubt, but it wasn’t a high crime. It wasn’t a crime against the state, and against the people, the public’s trust. And therefore, it was not an impeachable offense.

WALDMAN: He didn’t shoot someone on Fifth Avenue, but that was — (laughter) — his mistake.

KATYAL: No, New Jersey. (Laughter.)

WALDMAN: They were very worried about tyranny and they were very worried about abuse of power, and they knew George Washington was going to be the president, and they reassured themselves that, well, we don’t have a Cromwell or a Caesar. But they were quite aware that the president would be the head of state, and that removal of the head of state was something that had not really been done before. As Ben Franklin said, well, the other remedy is assassination. Why did they design it the way they did, with the House voting for impeachment and then the Senate engaging in a trial?

KATYAL: So I think maybe you have to take one step back and understand a little bit about the constitutional design. So our Constitution — and this is my view; it’s the view of, I think, many scholars but not all scholars — but that our Founders really did establish a strong presidency, what I believe is a true unitary executive. Not the way that Cheney and others have perverted it to mean basically the president can do whatever he wants, but it is a strong presidency — as Hamilton says in the Federalist, a president that can act with “secrecy and despatch” and has awesome powers. You want that because oftentimes — I know this is a shock to everyone — Congress can’t get stuff done, and so you need a president sometimes to come in and do and act when there’s a swift need to do so. And so step one of the Founders’ thinking was we want to have a very robust presidency.

Step two is then the discussion we’re having between Michael and I right now, which is, OK, if you have a strong presidency, what do you do when that president errs? What do you do when that president does something gravely wrong, is beholden to a foreign power? And as Michael says, Ben Franklin said, well, one — if we don’t have impeachment in the Constitution, then the alternative is going to be assassination; obviously, not a great result, and so impeachment is put in as a way within the legal system to try and remove a president. But again, they wanted to do so only with a really serious bar, a high crime and misdemeanor, and then this bicameral process, which is in general the way our Constitution works. It works for ordinary legislation as well. You need the House and Senate to pass it, two to tango.

There’s only four instances in the Constitution in which a single house can do something, like the Senate can vote to confirm a nominee to a judicial appointment or whatever, or ratify a treaty. But in general, the architecture is House and Senate, because they represent distinct interests, one more states’ interests, one more popular. And so that’s the way in which that compromise developed into the impeachment clauses itself: a simple majority vote in the House of Representatives is enough to impeach; a two-thirds vote in the Senate is necessary to convict and remove a president. And that two-thirds vote is also required, for example, for treaties.

WALDMAN: And let’s look at how that system has played out over the centuries since, since we’ve never actually gotten to the point of having the two-thirds vote to remove a president. One broad question, looking at the Andrew Johnson impeachment, the Richard Nixon impeachment, the Bill Clinton impeachment, and the times when Congress chose not to impeach — say, Iran-Contra would be an example — there developed the notion that you needed perhaps abuse of public trust, but there needed to actually be an actual crime involved also. Is that actually necessary, or is that a political folkway? Where do you see that argument?

KATYAL: I don’t see that argument at all. I don’t think either constitutional scholars or the precedent of these impeachments is really about a standard that you need a crime. I do think — and I hope we talk about that — crimes were committed here, so if that’s your standard, Trump easily meets it. But I don’t think that is the lesson from those impeachments.

And there are so many things that aren’t crimes, and certainly weren’t crimes in 1787, that are undoubtedly impeachable offenses. Indeed, bribery, which is in the Constitution as an impeachable offense, was not a crime in 1787 in the federal code, so I don’t think that could be the standard. It would mean the president undoubtedly has powers to, for example, just wake up and say, I really hate Justin Trudeau, I’m going to nuke him, and — hopefully hypothetical — (laughter) — but —

WALDMAN: He’s on to Macron.

KATYAL: Exactly. That would be absolutely an impeachable offense. It would be hard to pin it to some crime. There’s nothing in the U.S. Code that would be violated by the president’s action there. So I don’t think that’s a standard.

But I do think that each of the impeachments does teach us various lessons. You had mentioned the Johnson impeachment. So Andrew Johnson was really a terrible president and kind of got there quite a bit by accident and was impeached. But he was impeached not because of what he was really guilty of, which is sowing racial division and trying to destroy and undo the results of the Civil War and Reconstruction, but for something called the violation of the Tenure of Office Act, which was a technical violation about when you could fire Cabinet officials. And indeed, 75 years later the Supreme Court said the president has the power to do what Andrew Johnson was doing.

That didn’t actually capture the gravamen of the complaint against President Johnson, and so to me the lesson that is taken from Johnson is not, oh, there must be a crime — in fact, the Tenure of Office Act, I think, was a criminal statute, as well as a civil one — but rather, the articles can’t be “gotcha” articles that are just, like, oh, we found you on this or that, and it’s a slam dunk. They’ve got to actually be the heart of what the complaint is against the president. And so here, the heart to me is the president cheating or attempting to cheat on the 2020 election with the help of a foreign government. And yes, there’s other stuff that can come in, but that’s the heart of the complaint.

WALDMAN: As a former speechwriter, one of my favorite things about the Andrew Johnson impeachment is that one of the articles was that he went on a speaking tour and spoke in a “loud voice” and abused Congress in the speaking tour, and this was considered actually a breach of the norms of the time.

The Nixon impeachment, of course, was — and for those of you who don’t remember, after a year of congressional hearings and a year of criminal investigation by special prosecutors, when it was voted out on a bipartisan basis by the House Judiciary Committee in the summer of 1974. And I think most people regard that as having all the ingredients of what really ought to be looked for in an impeachment. What do you draw as lessons and analogies to the Trump situation from Watergate and how that played out?

KATYAL: I think one really important lesson as we think about Nixon is not the substantive underlying crime — there it was the break-in in Watergate; here it’s the cheating on the election — but what’s the president’s reaction to the investigation. I’ve had the privilege of working for two presidents. I didn’t work very closely with Clinton. I did work more closely in the Obama administration. And I have to say, Obama’s instincts would be less about self-preservation and more about the preservation of the institution of the presidency. That’s how he generally filtered stuff.

I feel like Nixon was our first president in a long, long time to really always view it through the lens of himself. And so when the Watergate investigation started to unfold, what did he do? He said none of my executive branch employees can go and testify in Congress, and I’m not going to turn over any information. What did the Senate do in response? The Senate said, OK, we’re going to start jailing executive branch employees. And that led Nixon to actually back down, not because he was principled and believed the American people should find out the truth but because he didn’t want his folks jailed and seeing that happen. And so, on March 12th, 1973, he backs down and allows his executive branch employees to go and give evidence in Congress. But then later, as the tapes are discovered, he then says, oh, I’m not going to turn those over; those are my personal, private tapes. He exerts executive privilege and all sorts of stuff over them. The investigators subpoena. That goes to court. The D.C. District Court rules very quickly that the tapes have to be turned over. The Nixon Justice Department files an emergency appeal to the Supreme Court. They skip over the Court of Appeals. And the Supreme Court of the United States, within two months of this case even starting — two and a half months, April to July 15th — says, Nixon, you got to turn over the tapes; unanimous decision, three of those justices appointed by none other than President Nixon.

That to me is the rule of law at its best, and if there’s anything that I tried to say in the book, it’s this vision of what justice is. I mean, it’s literally the statue is lady justice is blind. The idea is it doesn’t matter if you are rich or poor, or Republican or Democrat, man, woman, African American or white, whatever; you should get the same basic standard.

And so in the book — this is how I teach my law students on day one — I just say, everyone’s got their biases. If you like plaintiffs, you like corporations, just pretend the parties are reversed, and think about it from the other side.

And so with I think any impeachment — and I felt this was true in Clinton, as well, when I was in the administration — you think about if the shoe were on the other foot, if for Ukraine, if Obama did all of this, how would you feel if he tried to go and cheat on his reelection campaign by going and getting information from another government. And now I think the question has to be asked — and I’m sure we’ll get into this later — but particularly in light of this House report today with over a hundred pages detailing the obstruction that Trump has engaged in, how would you feel if a president — Clinton, Obama, Elizabeth Warren, whomever — said, oh, this impeachment inquiry against me is illegitimate. I’m not going to bother complying. I’m going to gag every one of my executive branch employees. I’m going to prevent every document and email from trying to be turned over. That’s the end of our constitutional democracy.

WALDMAN: And in the Nixon impeachment, his obstruction of the impeachment investigation and other investigations was one of the principal counts. There was obstruction of justice involving paying hush money to burglars, but obstruction of the legitimate constitutional function was part of it.

It’s pretty clear that one of the challenges Congress has faced before this moved to impeachment is the difficulty of actually enforcing subpoenas, and enforcing document requests, and enforcing checks and balances. And the very first discussion, as I understand it, of executive privilege among George Washington’s aides — when they were talking about the Jay Treaty or something like that — 

KATYAL: St. Clair, yeah.

WALDMAN: — they said, well, of course, if this were impeachment we would have to turn over everything because that’s in the Constitution. This is Congress’s strongest moment constitutionally. Is that right?

KATYAL: A hundred percent. So, everything Michael says is right. Whether or not you can assert executive privilege if it’s an ordinary congressional investigation, that’s something that this Trump administration has been litigating in D.C. It’s something that other administrations to a far, far more limited extent have done. Obama invoked executive privilege once, for the so-called Fast and Furious investigation, but he still turned over thousands of pages of documents and there were, I think, twelve different hearings on the Hill with government witnesses, as opposed to the kind of just absolute 100 percent stonewall that you have today.

But that’s all about ordinary investigations. When it comes to impeachment, the rules are very different. So starting with the Washington example. President Polk, in 1846, who really details in a long way. Look, I believe in executive privilege, he says, there’s all sorts of reasons why presidents need to have some information that’s secret. But the one exception is impeachment, because that’s in the Constitution. It’s our key safeguard for separation of powers.

And just to make this not abstract but relevant today, the White House counsel — who is supposed to be the lawyer for the presidency, not the president, but this one I think only views his job as one thing — wrote a letter on Sunday — and this follows an eight-page letter that he wrote before, the so-called crayon letter — and this one says, basically, the impeachment investigation is illegitimate. We’re not going to participate. We’re not going to send lawyers to it — after they, of course, had complained that their lawyers weren’t allowed to come to it. And it says that we’re doing what past presidents have done, including Nixon and Clinton. And I want to talk about Clinton and your experience in a moment.

But no president has ever invoked executive privilege on the impeachment part. They do on other investigations — ordinary investigations — but neither Nixon nor Clinton did so when it came to the actual stuff about impeachment. And wasn’t that your experience?

WALDMAN: Yeah, both in the Nixon and Clinton cases. In the Nixon case there was a criminal investigation in the Justice Department and then two special prosecutors and congressional hearings, and in the Clinton case, it was entirely an investigation over the course of a year done through the special prosecutor, Kenneth Starr, and there were a lot of fights over witnesses and production of testimony. Could Secret Service agents be compelled to testify about what they heard or saw while protecting the president? And the White House, for the very first and I think last time, said there was a protective privilege. I mean, these were a lot of things, but they were in the context of a criminal investigation.

Both in 1974, when the grand jury turned over its material to the Congress, and in 1998, when Starr issued his report and turned that over to the Congress, the original work of investigation had been done by a grand jury or done by somebody else. What’s so striking now is that they’re building the car as it’s rolling down the road and actually taking these testimonies not in a grand jury but in these depositions and in these public hearings.

It’s emphatically the case that Clinton resisted as much as he could cooperating. But he did cooperate, as he had to, and he didn’t just say, oh, this is illegitimate. And he certainly thought Starr investigating that matter was illegitimate, but he didn’t feel he had the either constitutional ability or the public ability to just say, well, I think it’s a fraud and a hoax, and I’m not going to do it. He said that stuff privately, but not publicly.

KATYAL: I think so much of our Constitution is built on some modicum of good faith by the president and the actors in Congress. Even though Madison in Federalist 51 says, oh, men aren’t angels, and that’s why we need checks and balances, I don’t think they envisioned this level of constitutional shamelessness that we’re seeing. You have a president who just doesn’t care. He doesn’t care about the legacy that he is creating. All he cares about is right now and himself.

WALDMAN: And I want to turn to the current impeachment. One of the things both Nixon and Clinton had was they were both a little worried about their own party and that their own party might turn on them, or that enough people would turn on them to really cause a stampede. In Clinton’s case it was somebody like Joe Lieberman. And, obviously, one of the things that has always been a parlor game but it’s really playing out is how would those impeachments have played out in a world of Fox News, and the Internet, and Twitter, and everything else that creates the environment we’re in now.

So let’s turn to this impeachment that we’re all seeing unfold in real time. We all know that up until recently Nancy Pelosi was very reluctant to move forward with impeachment. She was reluctant even before they knew what the Mueller report was going to say, and then certainly had been reluctant up until that. But when this came down, there was very little hesitation, and you embraced that as well. Why Ukraine and not Russia, Emoluments Clause, the obstruction of justice that seems to have taken place under the Russia investigation, and everything else?

KATYAL: I think this one was different for three reasons. One is this involves the president’s actions as president. A good chunk of Mueller was about what Trump and the Trump campaign did in 2016 as a candidate. Remember, I talked about that compromise the Founders did; strong presidency, but also impeachment. Here the allegations are the president was using his strong presidential powers over foreign affairs — things like holding up aid, things like when you can have a White House meeting — so he was flexing his commander-in-chief powers for his personal ends.

It’s different if you or I do so. It’s still horrible if we’re running for the highest office in the land and do it. But there’s something distinctly wrong when you have a person as a sitting president using the powers that way because if this president gets to do it, then every president gets to do it. And even that one check that was in the Constitution originally — reelection — ceases to be a check because of the awesome powers of the presidency to go and seek information, help, assistance from foreign governments to help your reelection campaign. So that’s one thing.

The second is the velocity I think really mattered here. Mueller gets bogged down in a 22-month — I mean, he’s a serious investigator, there’s a bazillion facts and all this stuff in Russian that’s got to be translated, and all these peripheral figures have to be indicted in Russia and other places. The investigation takes a long time, and because of that, the public starts to get numb to it. By contrast, Ukraine is really simple and clean.

That brings me to a third point. Here you’ve got a smoking gun, and it’s the gun the president himself released. He released what he calls a perfect transcript — a beautiful and perfect transcript. It’s not a transcript, as the very first lines say: this is not a transcript. (Laughter.) But it’s also not really beautiful or perfect unless you’re seeking to remove him from office, in which case it’s pretty good. (Laughter.)

WALDMAN: Well, it’s not a transcript because, as Colonel Vindman testified at least, they left the word “Biden” out. That was a kind of interesting revelation.

KATYAL: It may be the word “Burisma.” I don’t think it was “Biden,” but maybe I’m wrong.

But the transcript wasn’t even complete. There’s definitely stuff that’s missing in it, including stuff that may be highly damaging to the president. And it is kind of unusual, right? I mean, the whole thing seems a little weird. Wait, you had a call with a foreign government and just magically certain words appear to be missing, but the guy who’s testifying against you from your own administration says those words happen to be about Biden? Everything here seems a bit shady. But even just on what they released, it’s so damning.

And the reason I wrote the book is because, remember, I said at the beginning I thought Trump was going to throw up a lot of chaff, as he did before with Mueller. All I want people to do is focus on this July 25th transcript. That’s all you need to understand that the president should be impeached, because in that July phone call the president of Ukraine says, I really want these Javelin missiles. And then Donald Trump says, OK, but I need a favor from you, though — I need a favor from you, though — and then goes into wanting to investigate the Bidens and the like in the transcript.

And the Republican defense often forgets that word “though,” so much so that the House minority leader, McCarthy, was on television — and the book has this. He was on one of the Sunday shows and there he’s being asked about a quid pro quo, and they say there’s no quid pro quo. And then the media person says to him, well, it says, I need a favor from you, though. And McCarthy says, oh, it doesn’t say “though” in there. It's not in there. And he’s like, yeah, it does. He’s like, oh. (Laughter.)

And this is Lindsey Graham. At the beginning, when this was released, he’s like, there was definitely no quid pro quo. If there was a quid pro quo, absolutely we’d have to look at it. And then, of course, there’s totally a quid pro quo, and now I don’t know what he’s doing. He’s hiding under the bed or something like that. (Laughter.)

WALDMAN: So I want to do some prognostication of what’s going to happen next, but I want to ask one more question to you. Putting aside the kind of throwing up the dirt that has been the defense strategy up until now, if you were hired to be Donald Trump’s lawyer here —

KATYAL: (Laughs.) Oh, God forbid! (Laughter.)

WALDMAN: What would you argue —

KATYAL: Is there some other option? (Laughter.) Suicide? (Laughter.)

WALDMAN: Do you decline to answer on —

KATYAL: (Laughs.)

WALDMAN: What argument would you make? And then, as Neal Katyal in real life, why is that wrong?

KATYAL: Well, I think we’re seeing all the arguments play out in real time, and they’re all collapsing. First the president said, well, there are no firsthand witnesses to this; it’s all hearsay. Then there were firsthand witnesses who defied the president’s orders and came and testified, or people who heard the phone call, like Vindman, and that then crumbled. The reason why there were no firsthand witnesses is because he was gagging them all. He said they’re not allowed to, and it took the bravery of people like Dr. Hill and Vindman and others to just defy that. And so that’s fallen apart.

He then said, well, this was about fighting corruption, which is a weird argument because Trump actually, right before it, cut the budget for fighting corruption in Ukraine. And when asked was there any other place in the entire world in which you cared about corruption — there are 194 countries — nowhere else in the entire world. It’s just the one magical place that he appeared to care about corruption was the place in which his chief political rival’s son had an interest.

And then, finally, the new one which is being spun in yesterday’s House report is that Ukraine was a really corrupt country and we couldn’t give the aid to Ukraine because it was so corrupt. OK. There are two problems with this.

Number one, the Trump administration, just before the aid cutoff, had certified that Ukraine was not corrupt and could receive the aid. So that was an official determination by the administration, as opposed to a determination by Rudy Giuliani.

And number two — think about it: If the claim is Ukraine is a corrupt country, why do you pick up the phone and call that corrupt country and ask them to launch an investigation into a United States citizen? I mean, the very fact that it was corrupt was part of the attraction, not the thing that they were trying to avoid. That’s why they were doing it. So that one’s fallen.

The other one is the impeachment process is unfair. Trump doesn’t have due-process rights. So that one’s a tough one for him to make. And it’s tough because the way in which the architecture of our Constitution works, the House of Representatives, the impeachment phase, is really like the grand jury phase in a criminal investigation. So Trump is complaining, my lawyers don’t get to participate — although now they’ve been invited to — but he’s saying, I don’t get all those protections. But that’s true also on the criminal side. You get them in the trial. So absolutely you’ve got a right to be present in the criminal trial, and to testify, and to cross-examine witnesses, and tell your story — absolutely — just as you do if you’re indicted. But that’s on the Senate side. And so he’ll have all the process that’s due; it just occurs then.

He late last night tweeted the process was so unfair that the Supreme Court should stop it. (Laughter.) That’s not a thing. (Laughter.) The Supreme Court can’t stop an impeachment, much as he’d like them to. In fact, there was a recent case — I think in 1993 — a case called Nixon versus United States, but it involved a different Nixon, Walter Nixon, who was a federal judge who had the unfortunate last name of Nixon and the unfortunate thing about being impeached. But anyway, Nixon claimed some similar stuff — that the impeachment process was unfair — and the Supreme Court unanimously said we don’t have any role in impeachments; that is something for Congress to do, not for us.

WALDMAN: Let’s fast forward a few weeks, because we have a number of questions from the audience which look at the possibility of a Senate trial. So now the House Judiciary Committee is beginning with law professors or, as one of President Trump’s lawyers denounced it, as overeducated law professors — (laughter) — as being the problem, and we know that Chairman Schiff actually did I thought an extraordinarily skilled job at keeping his cool and keeping his dignity even as the shenanigans and circus was attempting to erupt around him.

And we note with great pride at the Brennan Center that the chief counsel of the Intelligence Committee, Dan Goldman, was a fellow at the Brennan Center until earlier this year. (Applause.) I would love to say we trained him well, but that actually isn’t even slightly true. (Laughter.)

Assume there may not be fact witnesses before the House Judiciary Committee. There have not been, by and large, in other impeachments. And there will be a debate and a vote on the floor. And let’s assume that the House actually does vote to impeach. Then we’re really off to the races in a way that folks, I think, are beginning to understand is unlike what most of us are used to. What happens then?

KATYAL: OK. So first, before answering that question, I want to begin with a caveat, because there is a wrinkle that was injected into everything yesterday that we don’t know the implications yet. But there’s this case in DC before Judge Ketanji Jackson, who’s one of the great judges in DC, and it involves Don McGahn and whether or not information in the Mueller report, and in particular grand jury material, can be turned over to Congress. And in fact, in that lawsuit the House general counsel said, we need this information because we want to determine whether President Trump lied to Mueller. And this lawyer was my fellow at my Georgetown Center, an extraordinary guy. I did train him, and everything is a result of that. (Laughter.) No, but he’s a 35-year Justice Department veteran. He’s a very careful lawyer. Those words had to have been chosen with care. So there must be something going on there.

And the judge last week ruled and said the information’s got to be turned over to Congress, that there’s been a valid subpoena in the context of impeachment. Trump then fought on an emergency basis to stay that, to prevent the subpoena from coming out. She rejected it in the strongest language I think I’ve ever seen against the Justice Department; it just makes fun almost and calls it disingenuous, Trump’s position.

So that’s going to go on a rocket docket to the DC Circuit, the second-highest court, and ultimately to the Supreme Court. But I think the Trump arguments here are really weak, and I don’t expect the Supreme Court to hear this case. And so I think that subpoena is going to stand.

When that subpoena stands, the question is then what does it do to the other witnesses that Trump has gagged who are in the shadows, people like John Bolton; Mike Pompeo, the secretary of state; acting Chief of Staff Mick Mulvaney, all those folks? Will they now have to testify under subpoenas? If so, that scrambles the impeachment calendar.

We’ve been looking at something very fast with a vote in the House of Representatives to impeach by the end of this month or by the holidays; by December 18th or so. But if that unfolds, the House might say, hey, we want to wait and get a little bit more information, fact witnesses either in the House Judiciary Committee, depositions, who knows.

But ultimately something is going to go the Senate. Whether it comes with all of this extra information, whether it comes with Mueller allegations or just limited to Ukraine and the obstruction about Ukraine remains to be seen.

When that happens, there will be a trial. Mitch McConnell has said he’s going to follow the Senate rules, which require a trial. And it’s at that point that I think public opinion is going to start to shift. Right now, this has all been the fact-and-gathering stage. But when you’re going to see the president on trial in a solemn proceeding in the Senate and the question will be asked, do you think a president can really do this, do you want that in our system, it doesn’t matter. You may be the most ardent Trump supporter in the world, but that’s what the legacy you’re going to be leaving for our country.

I think we will see a real change in the way in which the people and even the people in Congress are going to think about this.

WALDMAN: So let me read a question from our audience relating to the trial. And it relates to the fascinating role of the chief justice in this process — the only time, I believe — and you can tell me if this is wrong — the only time the chief justice is given any specific responsibility in the Constitution is to preside over impeachment trials. Is that — 

KATYAL: Yeah, I think that’s right. By statute he has other ones, like he’s the head of the Smithsonian. So if you’re a law clerk to him — (laughter) — you get great seats. But — 

WALDMAN: The things you learn. But this is the question. Do you believe Chief Justice Roberts will, when conducting the trial before the Senate, actively pursue justice or just act as an administrator? In other words, how much is in his hands on compelling testimony and that sort of thing? How much is going to be fought out between McConnell and Schumer and the other senators?

KATYAL: Well, I think it remains to be seen a little bit. I’ll say this. The chief justice — I’ve argued 39 cases before him; I run the practice that he used to run — and he’s a remarkable man and someone who has got fairness in his DNA. He reaches decisions I disagree with, but I’ve never thought that they weren’t based on anything but the law. The law can be different than — I think the question was fundamental justice. 

WALDMAN: The question was justice. 

KATYAL: Law and justice are two different things, and I think he is someone who does follow the law. So I don’t think you’re going to get a presiding official here who’s going to say, oh, what’s the just thing to do? I think the question is, what is more the legal thing to do?

It means two things. Number one, Chief Justice Roberts clerked for Chief Justice Rehnquist, and I think that they’re cut in some ways from the same cloth. And certainly in terms of the chief justice’s institutional role, I think this one takes a lot from his former boss, Rehnquist.

And I’ll throw this to you, because you were there during Clinton, but my sense of Rehnquist at the impeachment proceedings was that he basically got out of the way. Yeah, he had some funny robes — stripes on his robe that people talked about — but he didn’t really do much; so much so, at the very end, he commented I did very little, and I did it well. (Laughter.) Was that your impression?

WALDMAN: And he cared a great deal about this role, even in a way of receding from being too obtrusive. He’d written a book about impeachments and the role of the chief justice. And you’re right that he had this special robe with stripes that he borrowed from a Gilbert and Sullivan character. (Laughter.)

He of course had a Senate that was less polarized than the current Senate, but he stayed out of the way, by and large. A lot of the big fights, for example, in the Clinton trial were over whether there would be live witnesses or not, and in the end there were three witnesses in front of the Senate, although they did it by videotape. And so one of the questions, of course, especially if the testimony has not happened in the House, is whether there’ll be an attempt to compel Bolton and people like that to testify. And, of course, nobody knows what they’ll say. And then that’s really for everybody working without a net.

And, at least if the Clinton precedent is followed, the senators all sit there in their desks, day in and day out, for days on end. There’s a whole set of arcane Senate rules. For example, as soon as the House votes impeachment, the chief justice is sworn in just then so the vice president can’t stage a coup, basically. These are things that go back a long way, and it could turn into something that is taken a lot more seriously than the kind of food fight that sometimes we see typically going on. 

KATYAL: Exactly. I do think that the solemnity of the proceedings is going to be different. And it’s not just because there isn’t a Jim Jordan equivalent in the Senate — though I think some are aspiring — but I think it’s because the Senate does have a rulebook. It’s a rulebook used from Andrew Johnson. It hasn’t really changed. It’s going to be the rulebook that’s used here.

And then, to just pick up on something you were saying, the second feature, I think, that this chief justice is going to have is my gut is he’s going to err on the side of giving more information to the American people. That’s consistent with not doing too much in the role, which is let the people decide. Don’t try and let these gag orders and other things happen.

So that’s going to be a very interesting strategic choice for the House managers here, because there are people like Bolton and Pompeo and Mulvaney who undoubtedly have information, but the prosecution’s already got the smoking gun in the transcript, so the rest is gravy. Do they go and seek the gravy or not? That’s a complicated question, but I do think if they decide we want this testimony from these folks in the Senate, they’ll call them. They’ll subpoena them. And I do not see this chief justice standing in the way and saying, oh, no, the president can get away with gagging these people.

WALDMAN: I’ve always thought, why would he recede from what he thought was his duty just to give Mitch McConnell an easier day at the office? It seems as though his task is pretty straightforward, if he has to do it.

KATYAL: Yeah, he’s certainly not going to approach it as, oh, I’m going against someone — Mulvaney, McConnell — or the other side, the House managers, an easier day. He’s going to approach it on what’s the right thing to do under the law. And when it comes to impeachment, since the whole design of impeachment is a public decision about whether or not the president has effectively violated his oath, you’ve got to get the information to the public for that determination to be made.

That’s why I think this Polk statement in 1846 is so significant and why no president up until this one has challenged it.

WALDMAN: I will tell you, from the perspective of the Clinton White House during that impeachment trial — and it was quite surreal — one of the things which we may see — so the president, for starters, has the right to appear in the Senate. Clinton did not avail himself of that. But in — 

KATYAL: It worked so well when he appeared in the grand jury. (Laughter.)

WALDMAN: Well, it depends on what the definition of “is” is. (Laughter.) But he did give his State of the Union address in the middle of the trial, and his approval rating was close to 70 percent at that point. The public pretty resoundingly, as a political matter, was done with it and had opposed it, and the senators had to adjourn the trial and very grudgingly trudge over to the House chamber and hear him give a big State of the Union speech and then go back to the trial. And so we could conceivably see a Trump State of the Union — if the House invites him to do it — in the middle of the trial.

But we knew that it was very unlikely that he would be, at a certain point, removed. And, in fact, none of the articles even got a majority. What are we to do about the Republican senators that are looking the other way and look like they will not vote to impeach? What do you expect from senators of his own party and whether they will take it seriously, or will just basically act as partisans?

KATYAL: Well, I think the Republican talking point is basically this is in the bag for us. We’ve got our party in lockstep. And that may be true in the House. I just don’t think it’s going to be true in the Senate as we start to focus on this. I mean, this investigation is moving with such velocity. It’s just been two months, and already we’re seeing popular opinion change quite a bit.

I don’t have the soft bigotry of low expectations here either for the American people or for the Republican Party. I think that our country is built on the idea of beating these expectations, whether it’s 1776 or 1787 or 1863 or the civil-rights movement or the marriage-equality movement. We’ve heard this stuff before, and we’ve been able to rise up and say there is a right thing to do.

This one is not hard. I’ll concede, Mueller was hard. This is not hard. This is easy. And I think if people pay attention — I don’t care about the Fox News, Twitter, and fragmentation and so on — I do believe there’s still a core in this country that believes in the rule of law and decency and following kind of basic principles and not electing people who put themselves first but put the country first.

I am not one to say the towel has been thrown in here, but if it is, it is the end of the Republican Party. I mean, if you leave this guy in office after knowing what, you don’t stand for anything except raw power, and that will be a very sad day for this country when there’s no principle on one side of the aisle at all. And maybe you all think we’re there yet. I don’t. I think that the Democrats have been weak and afraid in not ever calling the Republicans out on it. So I want that solemn vote in the Senate. And if they’re really going to say this is OK, it’s the end of their party.

WALDMAN: This is a really interesting question relating to even the solemn playing out of this. Do three impeachments in relatively few years — Nixon and Clinton and Trump — indicate a decay of our democratic system? In other words, think about it, in the first almost 200 years of the country, there was one, and it was regarded basically as illegitimate. There have now been three. Does that suggest a normalization, a weaponization of impeachment? And is that a bad thing? Or does it suggest that presidents are misbehaving more than they used to?

KATYAL: I think it’s a unique fact about these particular individuals. I mean, as I said, I had the privilege of working for Obama. I don’t think that there was any serious thought whatsoever towards impeaching Obama. I mean, sure, people might have said it on talk radio or something like that, but there was no real, credible threat. And indeed, nobody I know in the Obama administration hired a lawyer. Here in the Trump administration, you’ve got to have lawyers for the lawyers who defend the lawyers who defend the Trump administration employees. Look, I’m a Washington lawyer. This is like the greatest jobs program around. (Laughter.) But no, I would resist that. 

I do think in general we’re seeing a society that may be less guided by a moral compass in general than before, but there were any number of transgressions before, too. But I think that we can elect people on both sides of the aisle that are not like this.

WALDMAN: After a scandal — and you talk about this in your concluding chapter of your book — it is often the case that there is a period of reform; not always, but often. And that was true in the Progressive Era, not with impeachment but with a great deal of political scandal. And it was certainly true after Watergate, where you had a wide range of responses, including the enactment of campaign finance laws and the presidential public financing system, the special prosecutor statute, the Ethics in Government Act, the budget process, the creation of the FISA court and the intelligence committees. All these things were part of a wide-ranging season of reform that followed the election of a bunch of what they called Watergate babies, new members of Congress who were very focused on this.

You lay out a series of seven possible changes. What do you regard as the most important? And how likely do you think it is that there will be a response?

KATYAL: I think the most important thing is that we get back to a common conversation about the virtues of the rule of law and this idea that the shoe is going to be on the other foot, what I call the yardstick rule in the book. And you need to have a set of principles so when the other part is in power, you don’t just switch everything up and say, oh, now I believe something else.

Attorney General Barr is the best example of this; he magically believes in executive power during Republican administrations and thinks the president can do nothing [wrong], but if Obama or Clinton is in power, you never hear anything about it. I mean, that’s just not a way to think about our grand document, the Constitution, or our great system in America.

And I am so worried. I will tell you, the thing I’m most worried about is that a Democrat wins and then they just take what Trump did and do it again, just to help them. Some of those policy preferences are going to be ones that I really agree with, maybe on tax and the environment and things like that. But that’s the legacy he’s leaving, that you can just throw out the rulebook, do whatever you want. Your core supporters are always going to be there for you. You just go and make fun of the other side. And if you’re funny enough and buffoonish enough, they just let you get away with it.

And Democrats are perfectly capable of doing all of those things, so to me the biggest reform — and there are reforms in the book, like changing the special counsel regulations and — real novel idea — requiring that tax returns be made public before someone runs via a federal law; things like that.

But to me the most important thing is to try and regenerate this common conversation. Here we are at NYU Law School, which has stood for these ideas, and almost every lawyer gets this, for example, and most high school kids get it too, that that’s what the system’s based on. And it doesn’t matter. You can be as partisan Republican as you want or Democrat, but that’s the genius of our country. That’s why my parents came here. I’m sure you many of you have similar stories. And so that’s the thing that I think is the most important.

WALDMAN: Well, on that note, I would say, first, if I were before the Supreme Court, I would certainly want you arguing my case. (Laughter.)

We are very fortunate, all of us, to have your moral clarity and your explanatory ability. And we want to thank you for being here, for what you have done with this book. And we’re grateful that you came to NYU School of Law.

And again, for those listening at home, I’m Michael Waldman. I’m the president of the Brennan Center for Justice. And on behalf of the Brennan Center for Justice at NYU School of Law, we want to thank everybody for coming here.

Please do keep up with our work at BrennanCenter.org or by following us on social media. It has some very positive aspects, social media. Following us is one of them.

And Neal will be signing books. The books are for sale out there in the lobby, and he will be planted over here, I believe, at the signing table.

We want to thank you again for coming. And thank you, all of you, for being part of this. (Applause.)