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Impeachment Today Podcast: What's Next?

In today's season finale: Can impeachment be fixed?

Posted on February 7, 2020, at 5:25 p.m. ET

BuzzFeed News

It's Friday, February 7, and the impeachment trial of Donald Trump is over. Every morning, the Impeachment Today podcast helps you separate what’s real and groundbreaking from what’s just, well, bullshit.

You can listen to today's episode below, or check it out on the iHeartRadio app, Apple Podcasts, Spotify, or wherever you listen to your favorite shows.

It's Friday, February 7th, 2020, 270 days until the presidential election. And this was Impeachment Today.

Good morning. I'm Hayes Brown, reporter and editor at BuzzFeed News. Welcome to our post impeachment world. It looks depressingly like the impeachment world we've been living in but now with 29% less faith in our institution's ability to constrain the powerful.

Okay. Today we're talking to Harvard law professor and impeachment hearing witness, Noah Feldman, about what Trump's acquittal and everything that comes with it means for the constitution. But before we get to all that, let's catch up on what happened yesterday.

On Friday morning, fresh off the Senate's acquittal of the president, White House Press Secretary, Stephanie Grisham made a rare press appearance to deliver this message.

Stephanie Grisham:

He's going to be honest, he's going to speak to the country with honesty and I think with a little bit of humility, that he and the family went through a lot, he and this country went through a lot. He's glad it's over, he'll certainly talk about that, but I think he's going to also talk about just how horribly he was treated and that maybe people should pay for that.

Hayes Brown:

That began at, ironically enough, the National Prayer Breakfast. The Prayer Breakfast, which, sidebar, is organized by a group that's the subject of a Netflix documentary called The Family is an annual event that's always attended by the president. And to his credit, Trump did spend some time at the Prayer Breakfast talking about religion, well, sort of if you count ripping into the religiosity of people who've wronged him.

Donald Trump:

Weeks ago, and again, yesterday, courageous Republican politicians and leaders had the wisdom, fortitude, and strength to do what everyone knows was right. I don't like people who use their faith as justification for doing what they know is wrong, nor do I like people who say, "I pray for you," when they know that that's not so.

Hayes Brown:

That last bit was a clear jab at two people; Mitt Romney for his vote to convict him on Wednesday, and speaker of the House, Nancy Pelosi, who previously told a reporter that she prays for the president. Pelosi was sitting on stage with Trump during that, by the way.

Now, before we go on, a quick flashback. This is part of president Bill Clinton's statement the day after his trial ended in acquittal.

Bill Clinton:

Now that the Senate has fulfilled its constitutional responsibility, bringing this process to a conclusion, I want to say again to the American people, how profoundly sorry I am for what I said and did to trigger these events and the great burden they have imposed on the Congress and on the American people. I also am humbled and very grateful.

Hayes Brown:

I played you that clip so you can understand just how not that Trump's, whatever it was, yesterday was. Seriously, even the president didn't know what to call that.

DJT:

And this is really not a news conference, it's not a speech, it's not anything, it's just we're sort of ... it's a celebration.

Hayes Brown:

What you could call it is a campaign rally, one that began with President Trump entering the East Room of the White House to the sounds of Hail to the Chief and rapturous applause.

Audio:

Ladies and gentlemen, the president of the United States.

DJT:

Well, thank you very much.

Hayes Brown:

That really set the tone for the next hour or so. It was literally stream of consciousness, but no prepared mark for the president. He yelled about the Mueller investigation and the stock market. He showed off the acquittal headline on a copy of the Washington Post. He scorned his enemies.

DJT:

We've been going through this now for over three years. It was evil, it was corrupt, it was dirty cups, it was leakers and liars, and this should never ever happened to another president ever. I want to apologize to my family for having them have to go through a phony rotten deal by some very evil and sick people, and then you have some that used religion as a crutch. They never used it before. An article written today, never heard him use it before, but today, it's one of those things, but it's a failed presidential candidate, so things can happen when you fail so badly running for president.

Hayes Brown:

And heaped praise onto his friends.

DJT:

When you read those transcripts, Tim Scott, I don't know if Tim's here, but he said, "Sir," ... he was the first one to call me, "Sir, I read the transcript. You did nothing wrong." And Mitch, he stayed there right from the beginning, he never changed. And Mitch McConnell, I want to tell you, you did a fantastic job, and I see it. Every time I see it, when I first got to know him, Jim Jordan, when I first got to know Jim, I said, "Huh, he never wears a jacket. The hell's going on. He's obviously very proud of his body." I have to start with Kevin. Man, did you do a job? Lucky you're there. Lucky you're there because it wouldn't have worked out. If you don't have the right, I'll tell you, Kevin McCarthy has done an incredible job.

Hayes Brown:

Truly, this is clearly someone who has several senators who voted to acquit him, said, has learned-

DJT:

We went through hell unfairly, did nothing wrong, did nothing wrong.

Hayes Brown:

He's learned his lesson. So to sum up.

DJT:

They took nothing and brought me to a final vote of impeachment. That's a very ugly word to me. It's a very dark word, very ugly. They took nothing. They took a phone call that was a totally appropriate call. I call it a perfect call because it was, and they brought me to the final stages of impeachment. But now we have that gorgeous word. I never thought a word would sound so good. It's called total acquittal. Total acquittal.

Hayes Brown:

Meanwhile, the thing Trump was accused of doing, trying to get Ukraine to meddle in the 2020 election by abusing his office and pressuring its government into announcing investigations into Hunter Biden and his work in Ukraine, well, who needs Ukraine's government when you've got the US Senate? BuzzFeed News' Emma Loop report on Thursday afternoon that three Republican senators have been gathering information on Hunter's finances from the administration for months now. And unlike the documents the House requested in the impeachment inquiry, the treasury department has been more than happy to turn those documents about Biden right on over.

And now we have today's reading from our Nixometer.

Our scale is zero is a normal day in a normal White House and 10 is President Richard Nixon resigning and flying away in Marine One. And this morning we're at ... You know what? I think this thing has served its purpose. The next Nixometer was always meant to be a shorthand, a stand in for something that can't really be measured, in this case, the instability and confusion that the impeachment process brought on. But things seem pretty certain for the time being, at least. For now, Donald Trump is safely ensconced in the White House with the Senate at his back. And so, with a heavy heart, we retire the Nixometer.

After the break, we talk to Noah Feldman about how the constitution is holding up after these last few months. Stick around.

Hayes Brown:

All right, it is time for the final edition of this fucking thing. It's where we zoom in on a person, place, or thing that's shaping the impeachment saga. Today, it's the constitution, which feels really fitting at this moment. Joining us today from Cambridge, Massachusetts, we have Harvard law professor, constitutional scholar, and host of the podcast, Deep Background, Noah Feldman. Thank you so much for joining us, Noah.

Noah Feldman:

My great pleasure.

HB:

So if your name sounds familiar with some of our listeners, A, they're nerds, but B, it's probably because you were one of four scholars that testified in the house about the constitutionality of the case against the president. So what was it like for you watching the trial play out?

NF:

Well, I would say nerds are my people, so that's all to the good. It's been completely fascinating and also a little depressing. The fascinating part has been I had the chance, as you mentioned, to be a participant in the process by testifying in front of the House Judiciary Committee, and that was nerve-wracking, but it was also a little bit uplifting in so far as I saw that the system that the constitution created was to some degree, capable of working. And here's what I mean. Under the constitution, as the framers intended it and as it's historically operated, if a president abuses his office or her office and tries to break the system by cheating in an election, the available remedy isn't really a criminal prosecution, the available remedy is supposed to be impeachment, and that's, in the first instance, up to the House, it's in the constitution, and the House did what it was supposed to do. It gathered information, it talked to witnesses, it held hearings, and it impeached the president.

NF:

So to the extent where I want to think of it as a glass half full, the constitutional part there really worked. Then obviously things moved to the Senate and it was a lot more complicated.

HB:

Absolutely. So on Wednesday afternoon, the Senate voted to acquit president Trump on two charges of abuse of power and obstruction of Congress. That was kind of always assumed that we wouldn't get to the two-thirds threshold. But what really stood out to me, especially towards the end, was the argument that, yes, he did it, but it doesn't really matter because it's not impeachable behavior. How did that argument track with you?

NF:

To me, that's the single worst outcome that we could have had here. I would have preferred some hypocrisy from the senators. I know that sounds weird, but that great old maxim, that hypocrisy is the tribute that vice pays to virtue, by which I think that maximum means that if you're a hypocrite, it shows you know there's a difference between right and wrong. You may have been wrong, but the fact that you're pretending that you didn't do it is a way of saying that you acknowledge the difference.

NF:

And so the worst thing, to my mind, would be if history took seriously the view of those senators who said, "Well, this is just not impeachable. The president can abuse his power. Abuse of power is not an impeachable offense. The president can cheat in an election, that's completely fine unless he committed a very identifiable statutory crime." I mean ,those views are gross distortions of how everyone has thought about the impeachment remedy for the last 225 years of US constitutional history, and if you go back beyond that, another 350 years of British history of impeachments. And so that kind of a change is bad news for the system, and you just have to hope that that's not how the outcome of this trial comes to be interpreted.

HB:

So one of the fascinating things to me in this whole process is watching the power structures of the government almost seem to shift in real time. Because the Senate really did seem to be saying, "Here, look, our power as an institution is whatever, just keep our party in the White House." What do you think that sort of thinking means for the separation of powers?

NF:

It's terrible for the separation of powers because it essentially means that if the party of the president controls the Senate, that not only will they vote not to remove a president, which is bad enough, but they won't even allow a normal trial to take place in the Senate, which is what the constitution requires. So this is the very first impeachment where no witnesses were called in the Senate. There's never been one before of judges or presidents where that happened. That sets a dangerous and radical new precedent that basically says, "We're not really going to have much of a trial." I mean, technically speaking you could say, "Oh, well, there was sort of a trial because both sides got to present their arguments," but nobody was allowed to present actual evidence or actual witnesses and that really weakens the idea that the Senate can function as a check on the president.

NF:

That's the whole point of impeachment. It was written that way so that Congress could act as a check. The house did its part, it did act as a check, and the Senate is supposed to do its part, at least considering the charges in a serious way. And I think a case can be made that they really didn't do that.

HB:

But all that is so wild considering in the closing arguments, Pat Cipollone, the White House counsel argued that the real abuse of power took place in the house of representatives, and that actually seemed to gain some traction. Do you think that future Houses will be even more hesitant to bring forward charges at all then or do you think the opposite is true and it'll be easier and faster and more often we will see the House just trying to bring charges knowing that it will probably go nowhere in the Senate?

NF:

First of all, I just want to say for the record how outrageous it is that the White House counsel, purporting to act on behalf of the president, would say that it's an abuse of power for the House of Representatives to inquire and then impeach a president for abuse of power. I mean, that's the most childish version of I'm not the puppet, you're the puppet.

HB:

I'm rubber and you're glue.

NF:

Yeah, I mean, it's just completely absurd. The constitution gives the House of Representatives the sole power of impeachment. That is its job, and for them to exercise that responsibility is the opposite of an abuse of power. It is the correct use of power. So that argument, I think, we just need to say it even though maybe a lot of listeners already believe this, that is ridiculous and it's bad.

Now, with respect to the longterm meaning, I actually think we have to ask a question that we don't yet know the answer to, which is, what will happen in the 2020 presidential election? If Donald Trump is not reelected, then future observers of this are going to say, rightly or wrongly, they could be right about this, they could be wrong, but they'll say it anyway, that the active impeachment by the House weakened Donald Trump and that therefore the impeachment process maybe didn't work perfectly, but did work to some meaningful degree because the House took action, they focused the public on the president's wrongdoing, and then he was not reelected. Again, that might be mythic, there might be other reasons that he's voted out of office, but people will say retrospectively that that mattered.

On the other hand, if Donald Trump is reelected in 2020, you can be very sure that people will look at it the other way and they'll say that Trump was impeached and it had no significant impact on his presidency at all. He will certainly see it that way.

HB:

Absolutely.

NF:

And the takeaway for him will be, "I can do whatever I want," but I think future presidents are going to be pretty disinclined to worry about being impeached and Congress may be much more cautious about impeachment if they see that it didn't even have a meaningful real world effect other than their symbolic declaration. And that would also be a real erosion of the system that the framers set up. Impeachment isn't perfect, but it's the only system we've got for checking a president other than an election.

HB:

Which is wild, because one of the arguments that was being made was why even bother to remove, we have an election coming up. So under your first hypothetical, that would be almost a vindication of that argument saying, "Well, no need to remove. See, the election happened and he was removed. It worked." So after all of this is done, we are currently zero for three on presidents being removed from office via impeachment. Is the impeachment clause broken? Has it always been broken or is it kind of working the way it was intended?

NF:

I have to say I think it's a mix. It's sort of working the way it's intended because the framers understood that by requiring two-thirds for removal, they were making it incredibly hard to remove the president. They did get that part. Technically, I would say we're a one for four rather than zero for three. Technically we are a zero for three, but in real life we're one for four, because in Richard Nixon's case, the House Judiciary Committee's recommendation of articles of impeachment was enough to get him to quit. So I see the Nixon case as the one case where the process in fact did work. So batting 250 isn't great, but it's better than batting zero.

The framers knew they were making it really hard to remove the president, and I think they did that intentionally. They could have just said it's a majority vote to get the president out and they didn't want to do that. So it is hard, but political polarization and the power of political parties, which is really greater over senators than it's ever been probably at any point in US history, does really weaken the effect. The idea, which we saw in the Nixon situation, that some senators said publicly that they were going to defect from their party, that they thought that what Nixon's actions were-

HB:

Right there.

NF:

Yeah, exactly ... deserve to be removed, that's very hard to picture happening today, and almost no matter what conduct Trump was accused of.

HB:

So we're going to wrap up this interview with really simple question for you. How do we fix this? How do we fix impeachment?

NF:

The only way, I think, to really fix impeachment is to start with the House realizing that if it wants to engage in impeachment, it has to start sooner, it has to be more thorough, it has to accept that there may be no opportunity for more witnesses to appear before the Senate, and so it has to make an even fuller and more complete record than it did in this instance. And it has to make it really publicly clear that the president's conduct is wrongful and costly so that the act of impeachment itself will do the heavy lifting rather than relying on the removal component.

NF:

To a certain extent, that is what happened in the Clinton impeachment. The whole process of impeaching him before the House was humiliating to Clinton, it drew huge public attention to his conduct, which otherwise might have been to some extent swept under the rug, and it hurt him and then it hurt the democratic party because then Al Gore didn't want to get help from Bill Clinton on the campaign trail for moral reasons, and the upshot of that was it contributed to Gore's defeat, a lot of people think. So In that instance, the House did do what it was supposed to do by its lights.

HB:

Fair enough. Noah, thank you so much for taking the time and joining me to discuss how the heck the constitution will be affected by all of this. I really appreciate it.

NF:

Thank you very much and it's a good way to end a long and painful conversation.

HB:

Amen.

Okay. We have time for one more set of questions from you, the listeners. This first one was sent via email from Anja in Australia. Hi there. I've been following your podcast from early on, not only to be informed about this super weird post-factual us political situation, but also as a deflection while sitting out inside the bushfires and their consequences in Australia. And since the start of the podcast, I have a question I wanted to ask and haven't found an answer to yet. Where the bloody hell is Trump? Why is he not at the trial? Can you just skip the thing and say, "Yeah, nah," and be a no show. I don't understand this at all, especially because of the speculation all the time about why he did what he did. Why not just ask the guy? Anyway, thanks for enlightening me on the issue of impeachment and greetings from Sydney. Anja.

Well, thank you. Now, Anja, as you noted, the president didn't turn up at his trial at all, which is actually the norm for impeachment proceedings. Partially, that's to help keep the dignity of the office and separate the person from the proceedings. It goes back to the first of these affairs when president Andrew Johnson's lawyers advised him very strongly not to show up, because like Trump, Johnson was prone to say whatever came to his mind, including threats against his political enemies and inconvenient glimpses into his true motives. And for the record, the last time Trump was pushed to provide answers under oath during the Mueller investigation, he managed to get by with just submitting written answers, and even those may have contained falsehoods.

Okay, next. We have Virginia from Seattle who sent in a question via voice memo.

Virginia:

Hi there, it's Virginia from Seattle. I really love the podcast. It's the exact amount of snark that I need to deal with this. My question is what is the Republican's end game? I mean, what do they think is going to happen when they acquit him till the election? Like what do they think is going to happen? He's suddenly going to turn into this great guy and behave like a great president. Of course he's not. He's probably going to abolish the presidency and bring us to the brink of nuclear war. What the hell are they thinking? Thanks. Bye.

HB:

That's a great question, and unfortunately, I think one that doesn't really have a satisfying answer, because it varies on who you ask or who you're asking about. For some Republicans who support him the most, the end game is to ride his coattails and keep winning reelection based on his message and the way that he invigorates the Republican base. For some, it's just not being the target of a Trump tweet or a primary from your right. And for some, it doesn't really matter. So long as they get to keep Trump's base voting for their party and Trump keeps naming judges onto the federal bench and cutting taxes, meh, he's going to keep doing all this, and that's fine.

Which leads me to a final question, one that was asked to me by one of my coworkers the other day. She asked, "So what was even the point? Why go through this process if there was never even the chance of President Trump being removed? And I think the answer is because of what it would mean to not go through this process. The House of Representatives had evidence that the president was using his office to win an election.

If you're the Democrats, you've just won the House back, and going after the president on this issue could mean losing it again. Meanwhile, the Senate in its current form was always going to acquit the president. 20 Republicans weren't going to vote for his removal even as several of them said, "Yes, what he did was wrong." But the alternative to launching this impeachment process is to say that it doesn't matter, that the rules don't matter, that laws don't matter, that the constitution doesn't really matter, and that I think would have been an even worse situation than the one we're in right now. Because as maddening and confusing and fucking dumb as this process has been at times, you deserve to know what your government is doing. We deserve to know what our president is doing, and he may disagree, but that's not his call to make. So what was the point of this all? The point was to say that it matters.

Okay. That's it forever. That's it. Shut her down. Turn out the lights Fresh Prince of Bel-Air style on your way out.

I've heard from a lot of y'all that you'd want some kind of news podcast from us going forward, which has been great to hear, and not bad on the old egos around these parts. We are going to be working in the next few weeks to figure out what that might look like, so hang tight friends and watch this feed for updates. I promise you'll be the first to know.

And now to paraphrase a certain set of cruise ship musicians, here's a group of people it's been an honor playing with these last few months. Our show was produced by Dan Bouza, Alan Haburchak, and Jacopo Penzo, with editorial assistance from Tom Gara. Veronica Dulin provided audio assistance from Washington DC. Thanks to Crystal Waters and Maggie Taylor for helping coordinate, and to Joseph Friedman for engineering or interview with Noah Feldman. Editing was done by Josh Fisher, Taylor Hosking, Rosemary Minkler, Kevin Dye, and Ryan Kailath. Julian Weller is our supervising producer.

Special thanks to Mangesh Hattikudur, Nikki Ettore, Samantha Henig, Maggie Schultz, and Ben Smith. A very special thanks to my fiance Deirdre for putting up with long hours, late nights, and me trying to record huge chunks of this show under a blanket in our studio apartment every night. And finally, I especially want to give a shout out and thank you to everyone out there who listened and subscribed to Impeachment Today. It has been a hell of a ride and it's only been possible because you wanted to know what the hell was going on with our government. And with that, I also want to give a shout out to every member of the BuzzFeed News team, every expert, and every other journalist who took the time to come onto this show to help us understand what the fuck was actually happening over this very, very confusing time.

You guys out there, you've been an amazing kind and engaged audience. Glad y'all stuck around so we could see how this all ended together.

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