How should impeachment be carried out, according to the Constitution? This episode explores the constitutional process of impeachment, from investigation and passage of articles of impeachment by the House of Representatives, to the Senate trial, and the aftermath. Rep. Elizabeth Holtzman, who served on the House Judiciary Committee during the Nixon impeachment, and Gene Healy, author of Indispensable Remedy: The Broad Scope of the Constitution’s Impeachment Power detail the constitutional framework under which impeachment has been carried out in the past, how those precedents compare to what’s happening today, and what might happen next. Jeffrey Rosen hosts.
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PARTICIPANTS
Hon. Elizabeth Holtzman is an attorney with Herrick Feinstein LLP in New York. She was a four-term Congresswoman who served on the House Judiciary Committee during Watergate and voted to impeach Richard Nixon. She also co-authored the Special Prosecutor bill, and held the record as the youngest woman elected to Congress for 42 years. Holtzman is the author of The Case for Impeaching Trump and co-author of three other books.
Gene Healy is a vice president at the Cato Institute where he researches executive power and the role of the presidency. He is the author of Indispensable Remedy: The Broad Scope of the Constitution’s Impeachment Power and several other books, and is a frequent media commentator.
Jeffrey Rosen is the President and Chief Executive Officer of the National Constitution Center, the only institution in America chartered by Congress “to disseminate information about the United States Constitution on a nonpartisan basis.”
Additional Resources
- Walter L. Nixon v. United States (1993)
- Congressional Research Service Report, “An Overview of the Impeachment Process” by T.J. Halstead (2005)
This episode was engineered by Dave Stotz and produced by Jackie McDermott. Research was provided by Lana Ulrich, Bridget Golob, and Frank Cone.
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TRANSCRIPT
This transcript may not be in its final form, accuracy may vary, and it may be updated or revised in the future.
Jeffrey Rosen: [00:00:00] I'm Jeffrey Rosen, president and the CEO of the National Constitution Center, and welcome to We the People a weekly show of constitutional debate. The national constitution center is a nonpartisan nonprofit chartered by Congress to increase awareness and understanding of the constitution among the American people.
Today we'll explore the constitutional procedures underlying the impeachment process. We'll focus on what the constitution says about impeachment and ask: Are there rules for impeachment in the constitution that Congress has to follow? What is the Senate required to do if the house impeaches, if anything, and what might happen after impeachment? Joining us to explore these fascinating and important constitutional questions or two of America's leading experts on the constitution and impeachment.
Elizabeth Holtzman is an attorney with Herrick Feinstein in New York. She was a four-term Congresswoman who served on the house Judiciary Committee during Watergate and voted to impeach Richard Nixon. She also co-authored the special prosecutor bill and held the record as the youngest woman elected to Congress for 42 years. Uh, uh, Congresswoman Holtzman is the author of The Case for Impeaching Trump and co-author of three other books. Uh, Congresswoman Holtzman, thank you so much for joining.
Hon. Elizabeth Holtzman: [00:01:22] No, thank you. Great to be with you.
Rosen: [00:01:25] Wonderful. And Gene Healy is vice president at the Cato Institute, where he researches executive power and the role of the presidency. He is author among many invaluable, uh, works of Indispensable Remedy: The Broad Scope of the Constitution's Impeachment Power and uh, many other books and is a frequent commentator on the constitution and friend of the We the People podcast. Gene, it's wonderful to have you back.
Gene Healy: [00:01:49] Hey, thanks so, so much for having me on Jeff.
Rosen: [00:01:51] Well, let's jump right into the constitutional provisions relevant to impeachment. They appear in article one and in article two and we're going to begin with article one, section two, which says the House of Representatives shall have the sole power of impeachment. Representative Holtzman, what does that mean? Are there any constraints at all on the house's ability to decide to impeach or not? Uh, we're speaking on a day when House Republicans have stormed a committee room on the grounds that the secrecy is unacceptable. Are, is the house required to hold open hearings to take a vote on impeachment or to do anything at all in the course of exercising its sole power of impeachment?
Holtzman: [00:02:37] Well, the, uh, House of Representatives is bound by other provisions of the constitution, which prescribe, first of all, the grounds for impeachment, um, which are treason, that's defined in the constitution, bribery, you have a pretty good idea what that means, uh, and other high crimes and misdemeanors. So while the, um, section you read is very broad, the House of Representatives shall have the sole power of impeachment.
The fact is that there has to be grounds for impeachment that meet the constitutional standard of treason, bribery or other high crimes and misdemeanors. The Congress has pretty broad leeway in how to conduct these proceedings, how to draft Articles of Impeachment. Um, you know, in the case of Andrew Johnson, I think the Congress didn't even have Articles of Impeachment drafted when they voted to impeach him. I mean, that probably wouldn't stand a very good, uh, smell test today.
But, uh, there are requirements, uh, with regard at least to the grounds for impeachment, generally in the past, the impeachment process has worked as follows, uh, an impeachment resolution is forwarded to the Judiciary committee, normally the house Judiciary committee sits on, uh, in, on questions of impeachment. So that's standard operating procedure. There's no requirement that that happens, but that's been tradition.
In the Nixon impeachment, what happened was that, uh, most of the investigations had been done before we started our work. The Senate Watergate committee held hearings. There was a federal grand jury that held, uh, here, I can call it here, is that, it heard witnesses. Uh, we received, uh, materials from the grand jury and of course we also had, um, the materials from the Senate Watergate committee. We took, it took some time, many months for us to, to finish our work. And we did it in a way that one overwhelming public approval and resulted in the resignation of, uh, Richard Nixon.
Rosen: [00:04:58] Gene Healy, I hear, uh, Congresswoman Holtzman saying that, uh, there's no special procedures that the house has to follow. Uh, traditionally impeachment is initiated by resolution of a house member referred to the house Judiciary committee, and there's an investigation and then a majority in the house can vote to adopt the Articles of Impeachment. But is it correct that the house could vote to, uh, adopt the articles without holding hearings, without any formal vote and without a resolution. Are there any constraints at all on the houses ability to vote or not to impeach?
Healy: [00:05:32] Well, if there are, they're not found in the constitution. And then there's, Representative Holtzman points out, uh, in, in, in the Johnson trial, they did vote to, uh, impeach, uh, on high crimes and misdemeanors before they went back and actually drafted the specific articles. And that actually wasn't uncommon for the first century of procedure in the house. Uh, the, I, practically impeachment, if I recall correctly, uh, you know, there was a vote to impeach of high crimes and misdemeanors.
And then there are, a committee would, uh, would draw up specific articles and, uh, then there'd be another vote to, to, uh, to, to approve those articles. Uh, which really wouldn't, you know, the, the, uh, the current rallying cry for, uh, president Trump and his [umay 00:06:25], uh, amen-corner is that, uh, you know, the, uh, house inquiry is violating due process, but the procedures in the house have always been extremely flexible.
And, uh, while he's, uh, you know, his, uh, White House Council is appointed to some of the procedural protections that were, uh, given to, uh, pres- presidents, Nixon and Clinton, uh, that's not a matter of constitutional law. That was a matter of discretion for the house. And, uh, you know, I think there is a decent argument that to, that the house leadership now should respect past practice or norms, if you will. Uh, but you know, you'd struggle to find where that's enshrined in the constitution. If, uh, the due process clause, uh, applied to impeachments like it applies to criminal trials, uh, there would be, you know, there'd be grounds to challenge, uh, practically every impeachment in American history.
Rosen: [00:07:30] Congresswoman Holtzman, how, what, what procedural protections were afforded to president Nixon? Y- y- you described the investigations by a grand jury and the Senate before it went to the house. How unusual are these protests to the closed hearings? How unusual are the closed hearings themselves and, uh, the president's, uh, lawyers have also claimed that the house is obligated either by precedent or fairness to hold a formal votes to initiate impeachment proceedings. Is that, uh, supported by the Watergate president or not?
Holtzman: [00:08:02] Well, in Watergate, we started our work well before, uh, there was any vote by the House of Representatives to authorize us to commence an impeachment inquiry. When Saturday Night Massacre took place, which is when Richard Nixon ordered the firing of the special prosecutor because he was trying to get evidence that would have incriminated Nixon. Uh, the American people Rose up and demanded action from Congress. And, uh, the committee knew at that point, I don't know whether it was osmosis or how we knew it, but we knew we were going ahead with impeachment and we did.
Uh, the chair of the committee picked impeach- we had special impeachment council. That was John Dewar, actually he was a Republican. Uh, the Democratic majority picked a Republican council to lead the impeachment inquiry. The Republicans pick the Republican council. So we had two Republican councils running the process, which was, I think a Testament to Peter Rodino's sense that impeachment wouldn't happen unless the American people thought the process was fair and um, not a kind of got you process.
And so that sent an important signal. It was only months after we, the Saturday Night Massacre and the whole process of hiring staff and studying what the constitution meant with a high crime and misdemeanor, uh, that we actually got to vote in the house to authorize us to move forward.
Uh, by the way, the complaint about not having an authorizing vote is I think a distraction. It's not constitutionally necessary. It did happen as a matter of precedent. I don't, I think frankly that it would be wise to take that issue off the table and just say, "Just get an authorizing vote," because it's a distraction from the substance. Um, and one of these things by the way in Watergate is very important to remember, is that Rodino's view was, keep everyone focused on the facts, not on the procedures. So when there was, we had relatively few disagreements of that procedure because for the most part, if the Republicans wanted it and the president wanted it, Rodino gave in.
So, uh, I think that's really important to remember. That, that allowed people to focus on facts, on the substance, on the merits. And it wasn't a distraction. So we didn't have these procedural fights as we have now. But the important thing also is, um, to remember that all of our work, the House Judiciary Committee's work on, on the impeachment of Richard Nixon, except for, uh, procedural issues like the issuance of a subpoena or the final debate on the Articles of Impeachment.
All of our work was done behind closed doors. And so this is, remember that and that went on for several months and there was some criticism, mostly because people thought we were delaying things. Of course we weren't. There was a huge amount of information to, uh, breed, study, understand, get your head around. Um, so we weren't delaying. But in the end, I think it's really important to, to recognize that that process was approved overwhelmingly by the American people. They thought the process was overwhelmingly fair. There was no serious criticism of it.
So the idea that you're holding hearings behind, you're holding depositions behind closed doors and that that's somehow a violation of due process or somehow fundamentally unfair. It just untrue and it doesn't accord with the one impeachment process then I think everybody now can agree on. Presidential impeachment process at least was complete, was extremely fair. There were special, uh, accommodations to the council and the president that don't exist now, uh, in the House Judiciary Committee rules, I think they should try to make exactly the same allowances for, uh, the presidents council now as they did during Watergate. I think that that's really important. Uh, Trump should get exactly the same amount due process as Richard Nixon got, but not one iota more or less.
Um, and, uh, so I, that's what I, I think is really important is that the, is that to whatever extent is possible, people ought to, the, the Democrats ought to move away from procedural issues, be accommodating to reasonable request and force Trump and his views, [inaudible 00:12:55] I agree with that, uh, and his minions, to, to deal with the facts and substance. I don't want a diversion. You don't need a diversion. The fact that too important, too serious, too grave and too threatening to our democracy to get caught up in, in, I guess someone called it a riot, an obstruction, a physical obstruction of the committee activity. That didn't happen in Watergate. There were a lot of [deed 00:13:19] feelings, but people respected the process, and members of Congress need to spec the process.
Rosen: [00:13:27] Uh, Gene Healy, uh, Representative Holtzman just said that, uh, there, President Trump should get as much, uh, due process as President Nixon and that might include a formal vote as well as accommodation for his counsel. Uh, uh, but notes that the Watergate hearings were in fact conducted in secret. Do you agree or disagree? Are there any procedures that you think that the House Democrats should give the president that they're not giving him now? And could those have any legal implications? For example, if the president were to assert executive power over a subpoena, would it matter that the house had formally voted on impeachment or not?
Healy: [00:14:04] Uh, on the last point, uh, it might matter, uh, you know, I, I don't think given the fact that the, uh, house seems to want to get this done quickly. Uh, you know, I, I don't think this, uh, is ness- or we're gonna be waiting for the outcome of litigation on subpoenas that are resisted. But it does seem a little too cute to say that it's a official impeachment inquiry just because the Speaker of the House started calling it one.
And you can imagine that mann- mannering in an executive privilege case. Uh, but you know, as Representative Holtzman points out, the, nothing in the constitution requires, uh, the proced- the, uh, protections that Richard Nixon and Bill Clinton got Uh, you could make an argument that, uh, you know, criminal law analogies are dangerous in the impeachment context because uh, it's not a criminal process, but if it's like anything, it's like a grand jury and a grand jury is in a full [tress 00:15:10] trial. The tr- the trial happens and that's what, where there are more protections.
But I think, uh, taking these objections off the table as, as she put it, it would be prudent. Uh, you know, if it is a bluff, the president has signaled that, uh, he might be open to cooperation if, uh, some of the, uh, procedures that he and the White House council are demanding were granted to him.
Well, if that's a bluff, there's a, a good way to find out, which is, uh, you know, grant most of these, uh, most of these protections give him, uh, you know, give the, uh, the right to be represented by counsel, to pr- present some evidence, uh, give some subpoena power to the minority and, uh, you don't see if he is going to continue with his announced policy of a blanket stone wall, uh, any lawful congressional subpoenas.
Rosen: [00:16:09] Representative Holtzman, um, your, uh, response and also take us up about what happens next in the House after the, uh, committee's report. Is there a debate on the floor? Are individual articles voted on separately? We didn't see that in Nixon of course, 'cause he resigned before, it went to the floor. But what can we expect procedurally on the floor of the House in this impeachment?
Holtzman: [00:16:31] Well, the first thing I wanted to say is that I didn't, I don't think, and I don't think I said it, that a vote authorizing the committee to, the committees to conduct an impeachment inquiry is a, a due process issue. I don't think it is. And uh, I don't think it's necessary. I just think it's a, it's a practical [inaudible 00:16:52] matter, it won't be done. Uh, but with regard to what happens next, um, in the, um, Nixon proceeding, which to me is kind of a gold standard because it was bi-partisan, and won huge public approval. There's never really been a serious attack on it.
Uh, there were, the Articles of Impeachment interestingly enough, again, it's part of a, part-partisan effort on the part of the chair who was very keen on including as many Republicans and Republican input as possible. The Articles of Impeachment, they were three of them against Richard Nixon, and they were drafted actually by a group of Southern Democrats on the committee was districts are probably as pro-Nixon if not more than most of the Republicans' districts and moderate Republicans, to, to get the largest um, amount of support that they could be on the committee for the vote.
Uh, the Articles of Impeachment covered three basic areas. Uh, one was the coverup of the Watergate break in, you might look at that as a kind of obstruction of justice, but basically the committee took a very firm stand on the point that you do not need show that any criminal activity took place. So in that Article of Impeachment, there was no mention of any criminal statute that was violated, nor was there any such mentioned in the rest of the Articles of Impeachment.
So the first article dealt with the coverup in all of its manifestations and there were a lot of things that happened in the coverup. Just to remind your listeners, number one, there was the firing of the special Watergate prosecutor. Number two, there was a, the dangling of pardons before the Watergate burglars to keep them cooperating with the prosecutors. There was the payment of hush money to keep them from cooperating again, the burglars from cooperating, there was subordination of perjury by the president himself. There was a, [inaudible 00:19:06], I won't go through the rest of the litany, but there were a lot of things involved in the coverup. That was the first Article of Impeachment.
The second Article of Impeachment was framed as, in terms of abusive power. And that included all of the acts of the coverup because they were not only, uh, an effort to, uh, prevent justice from being done, but they were also the president abuse his power and, um, in the coverup. So that was specifically designated as an abuse of power, but it was not only the cover up we dealt with there, the development of it, the enemies list, which, uh, president Nixon ordered, um, the trip, the IRS to audit, uh, people on the enemies list. These were political opponents, mostly people who posted on the war in Vietnam.
Then you had the break into, uh, Daniel Ellsberg's psychiatrist's office, which was carried out by this little illegal group of, uh, people in the White House and their accomplices. Uh, that was another part of that Article of Impeachment. Then you also had illegal wiretaps. President Nixon authorized wiretaps that were illegal and they were kept out of the normal chain of command. They were not kept in the justice department. They were kept in his own office.
So there were [laughs], and there were some other things in that, uh, in that article too, so, bo- both article one and article two were very broad and included many, many different offenses and abuses of power. And then there was a third Article of Impeachment, which was for the, uh, the obstruction of the committee's investigation. The president's refusal to cooperate in many respects with the committee, either giving us, uh, fake transcripts that had been doctored or giving, refusing to give us, uh, tapes and documents and other things that we had subpoenaed. By the way, that article then Patriot got the fewest number of votes. Um, the second Article of Impeachment, which talked about abuse of power got the most
Rosen: [00:21:20] Fascinating. Thank you very much for that, uh, wonderful primmer reminding us about those three articles, obstruction of justice, abuse of power and obstruction of Congress and how they fared. Gene w- w- what is likely to happen on the floor of the house? Th- the secret hearings will end after a point? Uh, will it be a report to the whole house and then will the, will, will there be a debate on individual articles and a vote on individual articles and what will happen procedurally after that?
Healy: [00:21:51] Well, uh, what's been happening procedurally is a little irregular relative to the, the previous two in impeachment efforts. So it's a little difficult to say. I'm sure there is, there will be a floor debate and, uh, you know, what, what seems to be, where we seem to be going is two Articles of Impeachment, uh, one probably based on the second Article of Impeachment, uh, passed against Richard Nixon by the, uh, House Judiciary Committee in, uh, summer of '74.
And there, I think the, uh, why the close parallel is with what, uh, representative Holtzman, uh, mentioned, the, uh, corruption of the IRS. You know, the- there's the famous phrase from the John Dean memo about the enemies list, uh, about using the available federal machinery to screw our political enemies. And, uh, you can analogize that and that kind of motivation to, uh, the, uh to what, what appe- appears to have gone on with the, uh, Ukraine call and everything surrounding it.
Um, and, uh, you may see another Article of Impeachment based on that third Article of Impeachment against Nixon for resisting lawful congressional subpoenas. Uh, at least the policy that, uh, is pet is Nixon's, uh, uh, intransigence and duplicity was, uh, the policy that, uh, President Trump has announced, if he's gonna stick to it, which is a little blanket Stonewall, uh, is, is actually worse than, uh, you know, Nixon's partial and, uh, duplicitous, it's selective compliance, uh, with the, uh, Watergate inquiry.
I think it's not until, uh, maybe may of 1974 where he stops complying almost entirely, but that, that's sort of what President Trump has announced as the game plan up-front. So if they do want to, uh, you know, as, as they've said, uh, to try to get this done before we go full board into the, uh, 2020 campaign, uh, it would make sense that you, you see two Articles of Impeachment rather than, uh, long drawn out investigation of other possible, uh, uh, you know, bases for articles.
Rosen: [00:24:32] Well, the Nixon impeachment is proving to be a guide-star for the, for the Trump impeachment and Representative Holtzman, let me ask if there are say two Articles of Impeachment as Gene described. One about abusive power and the other about obstruction of Congress, how are they likely to be debated? Did, did Republicans who opposed the articles during the Nixon impeachment oppose them on the facts or the law? In other words, did they say those aren't, those don't rise to the level of impeachable offenses or we're not convinced on the facts, and how might that debate play out today?
Holtzman: [00:25:04] Well, um, we had, as you had mentioned earlier, there was no debate in the House because Nixon resigned after the House Judiciary Committee, uh, adopted the Articles of Impeachment. The adoption of those articles was publicly done. There was big debate that's probably that very well known, within the, uh, House, uh, among the Democrats on the committee. The chair did not want public, uh, discussion, uh, public hear- uh, debate. Did not want it televised. I mean, it was going to be public but not televised.
And it was the, uh, new members on the committee, particularly a Congressman from Utah, Wayne Owens, who prevailed on the chair and the rest of the Democrats saying, "This has gotta be televised. The American people have to see what we're doing. They have to understand what we're doing and they have to be in position to support it if they do."
And that was final, we had very full debates in the committee, uh, on each one of the articles. And, um, the Democrats actually were quite prepared, I have to say for the first debate, because the Republicans said, "Well, give us specifics." [Laughs]. "Be specific." And so the second, so everybody went back and then people were given specific roles and, and it was a much more formal effort to present the case and respond to the objections.
Nixon had some very, very strong supporters on the committee. Um, and of course they debated, they said the facts, they would say various things. They would say, basically it was a factual debate. Well, you don't really have the evidence that the president himself said it or it's ambiguous what he said, or we need more evidence. Or it was basically that kind of debate. Um, and uh, basically over the fact, uh, I don't think, I can't really remember, I'm sorry to say the debate over the, uh, over the refusal to cooperate with the committee.
Uh, even though we did get documents, I mean, we had to spend a huge amount of work, staff did particularly, to compare the transcripts. Nixon delivered, I don't know, some 40, I think, or 25 huge number three [inaudible 00:27:33] black binders filled with the transcripts of his tapes. But these transcripts were doctored. So you had to read the transcripts against the tapes and, and, and figure out what words had been admitted, what words had been added. So it was a huge job. It wasn't just a, "Oh, he, you know, he really did cooperate." He, he tried to throw us off the, off the scent by giving us these doctored tapes. They were really never to disrupt the committee's work.
So I, I, I think you'll probably have some of the same thing that, uh, Trump was joking about this or Trump didn't really mean this or we don't have enough evidence to prove that this is really what he wanted to do, uh, that kind of thing. [inaudible 00:28:19] if um, if our debates or hold any, um, prelude to what's gonna happen now. Of course we never had debate on the House floor. Uh, that probably would have been anticlimactic given the intensity and the thoroughness and the scholarliness and the fairness and fullness of the debate we had in the house Judiciary Committee.
Um, and I think vote against Nixon would have been overwhelming in the house and maybe not unanimous but very close to it. So I, I bet it's hard to say how things will work out. I remember the president in both the Senate, on the Senate Watergate committee, and the House of Representatives had his people who were his allies, his A-men quarter, his prosecutors, if you will. Um, and ultimately in the end when the smoking gun tank came at, all of the holdout Republicans on the House Judiciary Committee said that they would support impeachment.
So you can't even say at this point, even though there's a lot of objection and storm and drawn, you really don't know until all the evidence is, is there. Uh, how, uh, how the opposition is going to shape up.
Rosen: [00:29:38] Thanks for that. And once again, the Nixon president is really fascinating and instructive. Gene, how, how do you imagine that the debate taking place on the House floor, given the evidence that's come out so far? Uh, ambassador Taylor's testimony about his perception of an explicit quid pro quo and so forth. Do you imagine more debate on the facts or on the law and, and what might the objections on the facts be and on the law what would the objection be that this doesn't rise to the level of a high crime or misdemeanor?
Healy: [00:30:09] On the factS, Uh, there seems to be a lot of, uh, talk about it, th- there's a standard that some of the president's defenders have said that, uh, almost amounts to, uh, if there isn't an explicit quid pro quo, uh, you know, on tape, then, uh, you know, we, we, it doesn't rise to the level or the case is not proven. I think a lot of what we've learned about the testimony over the last couple of weeks, uh, really star- is starting to undermine that story.
Um, I'm starting to think that, uh, one defense, I don't know if you'd call this illegal defense, but, uh, Nixon, uh, managed to get, uh, more of his offenses carried out. Uh, you know, the, uh, you know, it seemed that he could say, you know, break into the Brookings Institution and get me [laughs], get me the Pentagon papers, ransack the files, and people would at least make an attempt.
Um, a lot of President Trump's attempts to say obstruct justice, uh, detailed in volume two of the Mueller Report or, uh, even you know, extract this investigation from the Ukraine haven't really come to fruition in part because people, he's run into more resistance internally perhaps than Nixon did. I don't think it's a very good defense to say, "Well, our guy's just not great at high crimes and misdemeanors, or people don't take him seriously."
Uh, and it also seems to me that, uh, you know, a lot of, uh, you know, Nixon did not get, uh, cooperation on, on everything he tried to pull off. Uh, you know, we, we mentioned the, uh, the demand for IRS audits uh, a few minutes ago. Uh, he did get, uh, the, his people did get some tax returns and some information, but, uh, one of the main requests uh, that John Dean made to the IRS commissioner was for audits or investigations on a list of several hundred, uh, McGovern, McGovern, George McGovern's supporters, uh, or contributors. And the IRS commissioner just flatly refused.
Uh, but that's still in the second Article of Impeachment that the house Judiciary Committee passed, uh, uh, against Richard Nixon. Uh, in fact, it's the first, uh, you know, after the, uh, preamble about abuse of power, it's the first, uh, the attempts to suborn the IRS, to corrupt the IRS, uh, is the first item listed, even though, uh, in kind of a parallel to some of what you've seen with Trump, uh, the, the, the IRS, the, the, within the bureaucracy, people were resistant to actually carrying that out.
So I mean, we may see a defense that, uh, even if President Trump had some bad intent, no harm was done because in the end, the aid to Ukraine, you know, was transferred. He wasn't able to obstruct justice. You could even say, and with the attempt to obstruct the congressio- congressional investigation, you're seeing a lot of administration officials who are testifying against the will of the president. So, a lot of it has been stymied by unwilling participants. But again, I don't think that's, you know, the, our guy wasn't competent enough to pull off the worst things he planned to do is not a very inspiring defense to an impeachment.
Rosen: [00:34:09] Well, I think, uh, we now move from the house to the Senate and uh, from article one, section two to article one, section three, which says, "The Senate shall have the sole power to try all impeachments. When sitting for that purpose, they shall be on oath or affirmation. When the president of the United States is tried, the Chief Justice shall preside and no person shall be convicted without the concurrence of two thirds of the members present. Judgment in cases of impeachment shall not extend further than to removal from office and disqualification to hold and enjoy any office of honor, trust, or profit under the United States, but the party convicted shall nevertheless be liable and subject to indictment to trial judgment and punishment according to law."
Representative Holtzman, that's a lot fuller than article one, section two, for the house. What can we expect to see in the Senate? Is the Senate required to hold a, atrial or not? What are the judicial precedents say and what will come after the house votes the Articles of Impeachment in the Senate?
Holtzman: [00:35:11] Well, before I get to the Senate, I just want to respond, at no point on the House of Representatives and what's being, what's being talked about now, whether it will actually work out this way, I don't know. But as I understand the plan, the um, three committees that are doing the investigations will finish their investigation and then turn the matter over to the house Judiciary Committee to draft, and do they, they present Articles of Impeachment, that's what the committee decides to do.
So it will be a Judiciary Committee, um, action, uh, if, uh, on the materials that are accumulated and presented to, to it, uh, by the three committees in the house that are acting. As far as the Senate is concerned, I mean, it's still pretty vague. Uh, I'm not an expert on Senate trial, I didn't sit on the trial because Nixon had resigned and I wasn't, uh, privy to that.
But, um, basically part of the, part of the seriousness of the trial is, is ensured by the presence of the Chief Justice and, uh, requiring a special oath or affirmation from the senators, well, basically it's been being, you know, such as we saw with regard to Clinton, which is namely that the evidence will be presented. There will be counsel on both sides. Uh, the Senators want to spend a lot of time trying to absorb the arguments and the fact, um, and the really difficult question will be, will there be two thirds votes?
And that's in part gonna depend on the outcome in the House. How, whether they're Republicans who supported, how many, what the public attitude is and of course the quality of the evidence. We still haven't gotten to the bottom of the evidence. This is like the quicksand [laughs] that we're in now. So I think it's gonna depend on that.
And frankly, if we ever got the full transcript, or there's some document that our transcript of that, uh, infamous phone call on July 25th, we actually got the full transcript or the tape recording of it, and that might end it at that point. I mean we're still not out of the situation. The possibility that President Trump himself would resigned before this is, before it comes to a trial in the Senate. Don't count on the trial in the Senate. The evidence is overwhelming.
Rosen: [00:37:39] Gene, there's, uh, an important, uh, precedent. The Walter Nixon case that the Supreme Court decided in 1993. Walter Nixon was a judge, uh, who's, uh, was convicted of a federal crime and the house impeached him and presented the articles to the Senate and the Senate following a rule called Rule 11, which allows a committee of senators to hear the evidence and to report that to the full Senate voted to convict him.
The judge challenged the conviction on the grounds that the Senate was required to hold a full trial and the Supreme Court rejected that claim, on the grounds that the Senate's uh, power to try all impeachments, its sole power to try all impeachments, allowed it to interpret that word try as it pleased and didn't require a full trial. The Nixon case noted that there were just three constitutional requirements, that uh, you have to be under oath when hearing an impeachment trial, that the Chief Justice presides when the president is tried and that no person can be convicted without two thirds of the members present. Ae long as those criteria are met, said the court, then the Senate essentially can structure its trial as it pleased. Is, is that right in, could Senator McConnell if he chose, delegate the evaluation of evidence to a committee and then just take a vote with the Chief Justice presiding or is he required to do something more than that by the constitution?
Healy: [00:38:59] Well, I, I think he's going to do something more that than that. He's uh, said he will do something more than that. He, uh, says his power is to say, not hold the trial at all would be very limited. Um, but a, if he did decide to, to do the, uh, trial by committee procedure, that's been done for some federal judges, including the unfortunately named Walter Nixon, uh, who's the subject of the case.
Uh, it seems, uh, crystal clear that the Supreme Court would not, uh, would not review that, uh, that they would, uh, stick to the holding of the Walter Nixon case that says it's a [non-judicable 00:39:42] political question. The, the, the court, uh, is often wary to, uh, to get in between two branches and particularly on an issue like this. Uh, there are, you know, that, that decision was unanimous. Uh, the, uh, there are further complications and if, uh, you know, if they were to judge, you know, say as a, A- A- Alan Dershowitz who suggested that, uh, that the court might review, uh, uh, an impeachment, a presidential impeachment proceeding, I think this precedent, uh, shows that they'd be extremely reluctant to do that.
Uh, among other things, uh, just the Justices themselves are subject to, uh, impeachment. Uh, even though that has only happened once in US constitutional history, uh, it does allow them to in a sense be judges on their own case. Uh, so I, I, this is an area where I think, uh, you're not going to see the court being involved other than, uh, Chief Justice Roberts would preside in a, in a Senate trial. Uh, hopefully with not, without the, uh, distinctive uh, yellow stripes that Justice Rehnquist designed for his own robe when he presided over the Clinton trial.
Rosen: [00:41:03] Yes. Gilbert and Sullivan lovers across the land will be disappointed-
Healy: [00:41:06] [Laughs].
Rosen: [00:41:06] ... without the yellow's stripes, but they're unlikely to recur. Uh, Representative Holtzman, do you agree that the court is unlikely to intervene to review the results of a Senate trial? Uh, Professor Dershowitz was citing concurring opinions by, uh, Justices Souter and White in the Walter Nixon case and elsewhere, where they said, uh, well if, if there were a coin toss, uh, to decide whether to remove the president, that might be reviewable, 'cause that's not a trial.
But short of that, uh, the Senate gets a lot of discretion. And then with granularity, can we expect of the trial, you, you mentioned that there'll be managers from the House that will present the case against the president. The president will have defense lawyers. The Chief Justice will preside. How important will the Chief Justice's role be? And, uh, what does the Clinton impeachment tell us about what to expect in the trial in the Senate?
Holtzman: [00:41:54] [inaudible 00:41:55] question-
Rosen: [00:41:55] [Laughs].
Holtzman: [00:41:55] Um, [laughs], I, I agree with, uh, Gene Healy's, uh, analysis of the court's reluctance to get involved. And remember when the impeachment power was first discussed, uh, at Philadelphia, at the Constitutional Convention, there was a question about where to put, and the Congress, uh, that meant then, uh, the convention decided that they were not gonna give it to the Supreme Court. So that's a really, really powerful statement, that this is, the power of impeachment undoing an election needs to be done, uh, without the, it needs to be done in a very Democratic way.
And secondly, remember, the Supreme Court Judges, Justices are appointed by the president. So that would be another reason not to interfere. It would be, again, the president's hand, uh, pressing down on the scale. If you're gonna remove a president for these serious cri- um, [laughs], constitutional crimes of treason, bribery, and high crimes and misdemeanors, then the president's hand can't be on the scale. That's, that would be wrong.
So I think the Supreme court will stay advent. I think [inaudible 00:43:18] Dershowitz is completely wrong on that score. And I don't think the sentence is gonna flip a coin. Because everybody in the end, although some members of the House don't seem to get it, understand that this is a process of extreme gravity and extreme seriousness. You don't tamper with a democratic election, uh, small D, unless they are grave, grave, grave reasons to do that, which I believe exist now.
And so I don't, I, I don't believe, and I hope that we won't see the Senate act in a way that's not consonant with the gravity and seriousness of, um, uh, charges that are likely to come out of the House of Representatives. So I, I just don't, I think that's just something we not, I mean, I just hope we don't, and I don't think we'll see that.
Um, I, I, I think we will see very, if, if, uh, the Clinton trial is any, uh, precedent here, I think we'll see very competent attorneys, uh, certainly for, on both sides. Um, the managers on the House will be, will present the case and the president will have counsel to defend him. Uh, I, I presume they'll be competent. Um, and they'll put on a strong defense. And of course the president will be able to, run a defense outside [laughs]. His A-men corner will be able to, uh, put on a defense outside by stroking the media by, uh, all kinds of statements that they make in public and so forth.
But I think that, uh, if we get to a trial on the charges that have, that we know about now, I think it's gonna be taken very seriously by the American people, taken seriously by the Senate. And, um, and we'll see what happens. I think, uh, there's a, but my own view is that, if more evidence comes out, we may never even see a second trial.
Rosen: [00:45:16] Gene, tell us about the role of Chief justice Roberts. Uh, w- during the Clinton impeachment, Chief Justice Rehnquist did make some procedural rulings about evidence, but they didn't seem central to the trial, if I recall. Maybe you can give us more detail on the Clinton impeachment and also on the impeachment of Johnson and Chief Justice Chase's role there.
Healy: [00:45:38] Well, one of the things that, uh, that the, uh, the Chief Justice is the presiding officer, is not really like the, uh, you know, uh, a federal judge. He's certainly not as dominant in that role as he is, uh, is his, in his normal role. Uh, the, this happened in the Johnson trial. I forget whether it happened in the, uh, in the Clinton trial, uh, but, uh, the Senate, uh, can, you know, he can make evidentiary rulings, but the Senate, uh, carried by majority vote, uh, over- overturn those rulings.
Uh, so I re- if I recall correctly, Chief Justice Rehnquist, uh, one of the things he ruled on, uh, someone objected to, uh, uh, one, maybe it was a House manager calling the Senator's jurors. And they went to a ruling for the, from the Chief Justice. And he said, "No, they're, they're not jurors." Uh, that's really the only, uh, uh, ruling of note. I remember from the, the Clinton trial, uh, perhaps there was another. But I, I think the, the role turns out to be more ceremonial than people might expect, particularly given that, uh, the Chief Justice's rulings on, say matters of evidence, will not be final if they're challenged.
Rosen: [00:47:05] Uh, Representative Holtzman, the debate in the Senate will track that in the House to some degree about the facts and the law. The standard is higher, a two thirds vote rather than a majority vote. You've said that if a transfer comes out, it could be a kind of smoking gun that would be a game changer. But how do you expect the debate in the Senate to trans-fold short of a smoking gun? And will we see more, uh, the same kind of debate about the facts and the law?
Holtzman: [00:47:33] Uh, undoubtedly. And um, yes, and, and there may be some effort, would be very interesting to see. Maybe some effort to issue subpoenas in connection with that trial and to see whether some of the witnesses show up for that. I don't know. So that's something that could very well happen. A president would have a harder time, it seems to me, justifying refusing to cooperate. That wouldn't sit well with the American people because members of Senate is controlled by the Republicans and, uh, there's a request for, for evidence, subpoenas issued, then, uh, uh, refusal to comply could be quite serious for him in terms of public opinion.
So I don't, I think there's a lot to be, um, thought about in terms of, uh, what's gonna happen in the Senate, uh, but it's very hard to predict, um, at this point because we don't know really the full shape and the depth of the charges and the supporting evidence for the charges, uh, in an impeachment in the House.
Rosen: [00:48:42] Gene, an interesting possibility that the witnesses might be subpoenaed. Uh, might we see, uh, a fuller debate than we saw d- during Clinton? And could that bait change public opinion and the outcome of the trial or not?
Healy: [00:48:57] It's hard to say, but, uh, I do think it's, uh, it is premature when people have said that, uh, you know, impeaching a president when you don't know you have the votes in the Senate, uh, is a act of futility. Uh, I think that's wrong for at least two reasons. Uh, the one is, it seems to me that, uh, impeachment itself in, that is impeachment in the house, performs a lot of the functions that people typically want censure, congressional censure to perform.
But, uh, but which it doesn't, uh, you know, we've had two presidents impeached, uh, Johnson and Clinton and, uh, you know, it's in the first I haven't checked, but, uh, probably in the first paragraph of, uh, their, their Wikipedia entry, uh, it is considered a, a black mark. Even if, uh, as in the case of, uh, the Clinton Impeachment, it, it was controversial at the time.
Um, so that, that's one reason I don't think it's an act of futility to impeach with, if you can't get a conviction in the Senate. The second is that, uh, you know, these things are very fluid. And uh, if you've looked at, there, there are a few articles recently that track, uh, the polling on, uh, you know, impeachment and removal the president, president during, uh, the Nixon years. And, uh, you didn't get to, uh, in, in the Gallup polls on whether the American people wanted the president removed. You didn't get to above 50% until the mid-summer of 1974, uh, shortly before, uh, you know, President Nixon quit.
And, uh, so I think that shows, you've already seeing polls that are in that neighborhood now, uh, for president Trump. But I, I think the Nixon experience shows that the act of, uh, uh, impeachment in the house and, uh, you know, potential, uh, sorry, Nixon was not formally impeached, but the [inaudible 00:51:11], the, an impeachment inquiry in the House, uh, can change the political facts on the ground. And because, uh, at the time they, they started pulling, uh, the, the popularity of impeachment for, uh, in, in the Nixon years, uh, you know, that they, it certainly looked like uh, you are not going to force out a president with this process. So I, I think it's too glib when people, uh, assume that we know, uh, that the outcome is uh, for or ordained one way or the other.
Rosen: [00:51:46] Well, one last series of questions and that's what the Senate can do. We remember from article one, section two, that judgment in cases of impeachment shall not extend further than to removal from office and disqualification to enjoy, uh, offices of honor and profit. Uh, the decision to, uh, convict someone and remove them from office requires a two thirds vote, but then there is a separate vote about whether to disqualify someone from holding office again, which only requires a majority vote. Representative Holtzman, w- w- w- was there any debate in the Judiciary Committee about whether both to remove President Nixon and to disqualify him from holding office? And how do you see that debate playing out in this impeachment trial?
Holtzman: [00:52:35] Well, um, there was a discussion about whether actually to force a vote on impeachment even after Nixon's resignation to ensure that he would never be able to hold a position of responsibility again. But that [inaudible 00:52:52] their heads decided not to do that. But there was, um, substantial talk about that.
I wasn't aware that you needed a separate vote on that. I thought that that was automatically part of the consequence of impeachment. That once you've been impeached and removed from office that you could no longer hold position of authority, um, and, um, profit, trust, honor, trust or profit in the United States. But, but that's a separate issue. But I do think that, uh, assuming that, uh, more facts come out about this and even if they don't, I would say that the president and some of his top aids certainly may be facing, um, serious, um, other charges, um, and may be liable as the constitution said, and subject to indictment, trial judgment and punishment according to the law. And that could also happen to the president.
Rosen: [00:53:55] I'm getting those, the two-vote, uh, notation from the constitutional prep team, [TJ Holst 00:54:01] is an overview of the impeachment process, which is a congressional research service report from 2005 but we, the people, listeners, let's all check it out and make sure I have the bifurcated vote correct.
Uh, Gene in your review of the constitutional text, do you to other relevant provisions in article two, article two, section two says, "The president's otherwise sweeping power to pardon doesn't extend to cages of impeachment." And article three, section two says, "The right to trial by jury doesn't apply to impeachments." Um, could we imagine a situation where President Trump is removed from office but not disqualified from holding future offices and runs again and is re-elected? Or do you expect that if he were to be removed from office, he would also be disqualified from holding future office? And what does history tell us about that?
Healy: [00:54:50] Well, it's, it's right that there is that there is a separate vote for disqualification, if I recall correctly. Uh, the, it's only maybe three times in, uh, American impeachment history that there's been a separate vote, uh, to, to disqualify. And the reason we know there's a separate vote, uh, well, one reason, uh, is a Congressman Alcee Hastings, uh, who was impeached and removed as a federal judge, but they did not have a separate vote to disqualify him. Uh, and, uh, he ran again and was elected, uh, in, in Florida. Uh, well he ran for Congress some years later. He was elected in Florida and ended up, uh, I believe he's still in Congress and he was definitely in Congress, uh, during the, uh, Clinton impeachment effort.
Um, so there, these are sort of fun constitutional teasers. Um, you can imagine, uh, if there was actually a vote to convict the president that, uh, you know, which you know, 'cause there hasn't been a successful conviction in a Senate trial of a president in American history. But if this was the first, then perhaps they would try to, uh, also add a disqualification, uh, you know, vote after that.
Um, there was actually some debate about whether the presidency is an office of honor, trust, or profit under the United States. Uh, and, uh, there are some who argue that that was not how that term was understood, uh, in the, in British law and in the late 18th century, you know, during the constitutional ratification. Uh, so I, I think that's going to end up being interesting and academic though if we even ever got to that point because, uh, if the president's, uh, political fortunes are so dim that, uh, you know, 20 or more Republicans crossed the aisle in the Senate to vote to convict him, uh, I wouldn't put much stock in his chances in running for re-election.
Um, you know, that, that would, that eventuality would, would reflect a, a real turn in the public mood against him. I think to, to have a conviction that requires, uh, uh, that would require so many votes in, in the Senate. And so I think, uh, whether or not the Presidency is one of these offices that's subject to the disqualification penalty, uh, I don't think it would matter. Uh, but it, it is interesting to think about.
Rosen: [00:57:40] Well, it is time for closing arguments in this absolutely fascinating and, and truly illuminating discussion about the constitutional procedure involved with impeachment. Uh, Representative Holtzman, the, the first one is to you and I, I guess the question is, do you believe that the impeachment procedures set out by the constitution are well suited to establish whether or not the president committed high crimes and misdemeanors?
Holtzman: [00:58:07] Well, let's just say it's a very cumbersome process. Um, it's a process that uh, was intended to be difficult. Um, [framers 00:58:17] did not want a situation where a president would be subject, where we would have a parliamentary system of government. So they made it difficult. You have to have House vote and also a Senate vote and a two thirds vote in the Senate.
Um, but the fact of the matter is that I believe that the process, that's what we have, we don't have a parliamentary system of government. And the framers debated this very question. Was there even any need for impeachment because we have a system of elections, so why not just wait till the elections took place? And they, that argument lost because the framers understood that a president could so endanger our democracy, be such threat to our democracy that he or she would have to be removed from office before the election took place.
And, uh, I think that their understanding that that could be the case, unfortunately has been true. I think it's true now. I think it was true with regard to Nixon, may have been true in other circumstances, whether this is the best proceeding to deal with, with a, a president who endangers our democracy is another question. It's what we have and we have to make it work. And the way to make it work, is to have procedures that are fair, to have evidence that is solid, uh, for the, uh, Democrats in the House to conduct themselves with dignity, um, and um, the American people, they understood in the Nixon impeachment and they can get it here. Don't dumb down the process, then the people can understand [inaudible 01:00:02] Article of Impeachment, they understand many facts. That's what happened in Watergate. They want to be able to see a process that's extremely fair, possible bi-partisan and one that's based on very solid evidence.
And um, that's what's going to move both the House and the Senate, how the American people respond. And I think that's maybe the genius about impeachment. That's it. In the end it is a democratic force because it relies on, on the will of the American people and their view of the evidence and the law.
Rosen: [01:00:34] Gene Healy, the last word is to you. Uh, do you believe that the constitutional procedures set out for impeachment are well suited to identify whether or not the president committed high crimes and misdemeanors?
Healy: [01:00:47] Well, they are certainly cumbersome as Representative Holtzman said. Uh, this may not be the best year to, uh, sing the praises of the parliamentary system, but I've long admired the fact that, uh, parliamentary systems, uh, in general make it easier to, uh, remove a mal-performing or malicious Chief- uh, you know, head of government. Uh, you know, I, I think, uh, there, we, we have a system that, uh, you know, requires, uh, a full dress trial and a multi-month process. Whereas, uh, you know, uh, a, a British Prime Minister can be turfed out, uh, by his or her own party in the case of Margaret Thatcher or by a vote of no confidence.
So I don't know, designing on a blank slate, uh, I might have, uh, made it somewhat easier to remove, uh, a president. Uh, I don't think the framers wanted to see impeachments become as frequent as say, government shutdowns who've become today. I don't think anyone, any of them viewed it as trivial. Uh, but I don't think they, uh, there's, there's not a lot that you can find in the debates that we're, uh, there is anxious about it and they, that they think it's as fraught a question as so many of us, uh, seem to today.
Uh, you know, they, they didn't seem to believe that, uh, it was, uh, a regicide or a patricide, uh, that and that, uh, uh, you know, some kind of doomsday device that you, you only use, uh, you, you, that you never have to use, or it seems to have been viewed more as a emergency brake on a train or a safety valve. And, uh, I, so I, I think one thing they, that they might not have understood and it got very little debate, uh, the effect of that two thirds requirement in the Senate, which yes, does cut down on, uh, [inaudible 01:02:57] on partisan impeachments, uh, but has, in practice made it nearly impossible to remove a, a president.
And I think, uh, many of them would be surprised uh, that in, you know, 230 years of our constitutional history, uh, we've only managed three and perhaps now four serious impeachment efforts. So, uh, I think the uh, but it, uh, at the end of the day, uh, this is the process that we have and I agree that it ought to be, uh, taken seriously and pursued fairly. But, uh, I, I also don't think that we need to shrink from invoking it when it becomes necessary.
Rosen: [01:03:43] Thank you so much, Elizabeth Holtzman and Gene Healy for a rigorous, uh, illuminating and educational discussion of the constitutional procedures relative to impeachment. Representative Holtzman, Gene Healy, thank you so much for joining.
Holtzman: [01:03:58] Thank you.
Healy: [01:03:59] Thank you.
Rosen: [01:04:02] Today's show was engineered by Dave Stotts and produced by Jackie McDermott. Research was provided by Lana [Erick 01:04:08] and the constitutional content team. Homework of the week, uh, dear We the People friends, uh, why not read Grand Inquests: The Historic Impeachments of Justice Samuel Chase and President Andrew Johnson by Chief Justice William Rehnquist. It's a readable account of the Chase and Johnson impeachments and will wet your appetite for learning more about the history of the impeachment process, which is as we learned today is so useful for understanding our current situation.
Please rate, review and subscribe to We the People on Apple podcast and recommend the show to friends, colleagues, or anyone, anywhere who is hungry for constitutional education and debate, and always remember, We the People friends, that the national constitution center is a private nonprofit. We rely on the generosity, passion, engagement, and devotion to lifelong learning of people like you from across the country who are inspired by our nonpartisan mission of constitutional education and debate.
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