• We The People Podcast

What Would Madison Think of the Presidency Today?

November 28, 2019

The National Constitution Center’s initiative, ‘A Madisonian Constitution for All,’ is launching an essay series where leading scholars explore what James Madison, the “father of the Constitution”, might think about the presidency, Congress, courts, and the media today. This week, two of the authors celebrate the launch of the series by diving into all things presidential – how the office was conceived of at the Founding, evolved throughout history, was impacted by the rise of political parties and partisanship, and increasingly expanded its power. They also give their takes on the current impeachment investigation. Scholars Sai Prakash and Sean Wilentz, authors of the ‘Madisonian Constitution for All’ essays on the presidency, join host Jeffrey Rosen.

This podcast is presented as part of the National Constitution Center’s A Madisonian Constitution for All initiative and made possible through the generous support of the John Templeton Foundation.



Saikrishna Prakash is James Monroe Distinguished Professor of Law, Paul G. Mahoney Research Professor of Law, and Miller Center Senior Fellow at the University of Virginia. His forthcoming book, “The Living Presidency: An Originalist Argument Against Its Ever-Expanding Powers,” will be published in 2020. He is also the author of “Imperial from the Beginning: The Constitution of the Original Executive.”

Sean Wilentz is George Henry Davis 1886 Professor of American History at Princeton University. He is the author of No Property in Man: Slavery and Anti-Slavery at the Nation’s Founding and The Rise of American Democracy: Jefferson to Lincoln which was awarded the Bancroft Prize and was a finalist for the Pulitzer Prize. He’s also the author of The Age of Reagan: A History, 1974-2008. A contributing editor to The New Republic, Professor Wilentz is also a member of the editorial boards of Dissent and Democracy.

​​​​​​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

This episode was engineered by Greg Scheckler with editing by Dave Stotz, and Jackie McDermott and produced by Jackie McDermott. Research was provided by Lana Ulrich, Robert Black, Frank Cone, and Jackie McDermott.

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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 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. And for those of you who are listening on Thanksgiving weekend, happy Thanksgiving.

Next week, The National Constitution Center, we'll release a new essay series, a Madisonian Constitution For All. In these illuminating papers, leading scholars from diverse perspectives examine the state of the constitution today through the lens of James Madison. They ask, "What would Madison and the other framers of the constitution think about our current presidency, Congress, courts, and media? And how can we resurrect Madisonian values of reason rather than passion in our polarized age?

Joining us to discuss James Madison's conception of presidential powers and what Madison might think of the presidency today are two of the authors of our great essays, Sai Prakash and Sean Wilentz. Sai Prakash is James Monroe, distinguished professor of law and Paul G Mahoney, research professor of law at the University of Virginia Law School. His forthcoming book, The Living Presidency an originalist argument against its ever expanding powers will be published next year. Sai, it is great to have you back on the show.

Sai Prakash: [00:01:35] Great to be with you folks.

Rosen: [00:01:36] And Sean Wilentz is George Henry Davis, 1886 professor of American History at Princeton. His latest book is No Property in Man Slavery and Anti-slavery at the Nation's Founding. And we had a phenomenal discussion of that here at the NCC last year. Uh, his many works include the rise of American Democracy, Jefferson to Lincoln, which was awarded the Bancroft Prize. Sean, it is always an honor to have you on the show.

Sean Wilentz: [00:02:03] Oh, always used to like Jeff and could just see everybody.

Rosen: [00:02:06] Wonderful. Well, let's jump right in. Sai, in your essay for the Madisonian Constitution for All series, you argue that the framers created an energetic and formidable executive, fixed and limited but flexible and strong. And the title of your essay is From a Fixed Limited Presidency to a Living, Flexible, Boundless Presidency. Uh, give us a sense of how the framers during the convention conceived the presidency and why its powers grew throughout the debate.

Prakash: [00:02:44] Well, certainly, certainly I'd love to do that, Jeff. So the, the, as, as many people sort of understand the constitution was created in the wake of some failed state experiments and a failed a national experiment for that matter with respect to the construction of executives. The executives created in 1776 and onward in the States and at the federal level tended to be weak, uh, tended to be plural executives, uh, tended to have powers, uh, held at the sufferance of the state legislatures. And this was all provided for in the state constitution.

And so when they gathered together in 1787, many, many of the delegates concluded that, uh, what the nation needed was a stronger executive because weak executives lead, you know, constructed in response to King George. These weak executives just had proven to be failures. And so when they got to the convention, there were some people who conceived of the executive as just the servant of the legislature. And they wanted to, some of them wanted to create a plural executive.

And, uh, over over the course of the convention, um, the, the executive or soon to be called the president grew stronger and stronger. They settled on one person and they gave the president a limited veto over legislation. They gave him the executive power, which I have argued and others have argued covered, uh, both the power to execute the law, the power to control foreign affairs, subject to the many limitations expressed elsewhere and the power to, uh, uh, direct and remove subordinates.

And so by the end of the convention, I think the presidency was stronger than originally conceived in the Virginia plan. And delegates actually said, multiple delegates actually said that the office was essentially constructed with Washington in mind, and in the sense that everyone understood that once there was one executive, there would be, uh, it would be Washington who would be the president.

And several people complained that that caused some delegates to put their guard down and create a stronger executive than they might've preferred because they were thinking of virtuous Washington and not thinking of corrupt executives of the sort that obviously would pop up from time to time.

Rosen: [00:04:53] Sean, your essay for the Madison commission is called The Constitution, The Presidency and Partisan Democracy. Congress revises the electoral college 1804. And you argue, uh, agreeing with Sai that the framers had Washington in mind that they created an electoral college that presumed, uh, a lack of partisan politics and men of virtue who would choose presidents like Washington. Tell us more about how the original vision of the electoral college, uh, fit into their original conception of the office and whether you agree with Sai that they created a relatively strong executive in the process.

Wilentz: [00:05:30] Yes. Well, I certainly agree that that's what, what happened. Um, although, you know, again, it was, um, it, it got bigger and bigger as the convention continued in many ways. But um, yeah, it was a, it was an idea of a virtuous man, like Washington would be the executive. Washington was very much the person they had in mind. He had been the president of the convention in Philadelphia, so he was going to be the president.

The problem was that he wasn't going to be forever. Um, the electoral college was designed in part to, uh, there were many different conflicting reasons, um, or, or attitudes about how you should go about selecting this executive at the convention. You know, there were, there was the idea of direct election was actually out there. Um, and it had some supporters, um, including James Madison, actually, Gouverneur Morris, a couple of others.

Um, but you know, the convention was not full of Democrats with a small D. Um, there was a great deal of um, mistrust. Um, even though there had had been direct elections of officers in the States, there were many who thought that this was simply wasn't going to be able to be possible at the national level. So the question was then who was going to choose the president?

And, um, one idea was to have Congress do it. Um, but many delegates said, well, wait a minute. That's going to make the executive far too dependent on the Congress. So we can't do that. We haven't had a greater separation of powers. And after a long, long debate, at the very end of the convention, actually they settle on, um, the electoral college. It had been actually with the Congress for much of the convention, but they settle on the electoral college.

They wanted to, so it's a compromise really between having Congress do it and having a direct election system. So they device this with the idea that, you know, it would become a kind of a, a vetting if you will. I mean the States would come in with their, their decisions about who they wanted. They had no idea of parties. Parties were not going to be part of this at all. They, they disliked parties. They thought that parties would dissolve the common will in the Commonwealth.

So their idea was an electoral college that was going to be there to kind of sort out who the best men would be. Hopefully that they'd be able to choose the best man. But you know, if that didn't work, they had a provision for it to go to the house of representatives. And I think many of the, um, the founding generation, the framers generation thought that some, if not most elections would end up actually in the house.

At any rate, that was the system. But it was as, as you can pick up, it was very nonpartisan, um, politics that they were practicing. They, the founding generation thought that parties were bad, that they would have abet corrupt individuals, um, that they would be able to use to inflame popular passions. They just didn't want, want political parties. The problem was that, um, very early on in the, um, Washington administration, it became clear that they're going to be very, very stark differences over policy and over the what the future of the country ought to look like. And you know, the classic division was pushing Jefferson, Thomas Jefferson, secretary of state and secretary of treasury, Alexander Hamilton, and whether you should establish a US bank.

Well, to make a long story, short, parties came into existence in, in no uncertain terms and the party battles of the 1790s. I mean, you know, things are ferocious now, but things were really ferocious back then as well. And, um, you know, name calling, you name it. And it was a passion that was based not just on, um, you know, it was a passion that was based not just on dislike of other people. It was, it was rooted in ideas of where the country ought to be. Whether you believe in a Jeffersonian, a more agrarian democracy or a Hamiltonian, much more dynamic commercial, um, um, um, Republic.

So, you know, the parties were there, what was going to happen? Well, lo and behold, in 1800, although it went to the house of representatives, Thomas Jefferson who was in the opposition, won the presidency. Um, now this was nothing that the, the framers could have, could have looked, you know, could have, could have anticipated. Um, you know, the idea of one party taking over from another party, the fact that parties are going to be there with something they didn't like.

The idea that one party was going to be able to success was going to be able to peacefully succeed another, this is something that was outside the realm. The problem had been though that in the formation of these parties, the elections were very, very messy. Um, and the election of 1800 was particularly messy and the reason was pretty simple that the way it had been designed by the framers, um, the perception of the president by the electoral college was that they would have a number of people in front of them, a number of names in front of them. And the, the one who won the most votes would become the president and the one who won the second number of votes would become the vice president.

Well, that's fine if you don't have parties, but if you do have parties, it's going to be a mess. As what happened in the voting in 1800 when in fact, um, with this system, one voter forgot to withhold his vote for the person who was supposed to be Jefferson's vice president, Aaron Burr and they ended up tying in the electoral college, which led to a real crisis of the Republic, um, in January, February of of 1801.

So it's pretty clear that they were going to have to redesign the system, um, in a way that would actually accommodate the reality of political parties. Not that they were also hot on political parties even then, but they had to find a better way so they wouldn't fall into these crises when every time they elected a president, or at least at a crisis would be threatening every time they elected a president. So they ended up debating and eventually passing. And then the States ratified the 12th amendment, which separated the, the, the, the, the process of electing a president of vice president, two different things, two different ways. You're not going to run into the problem that you did in 1800. So these were all on anticipated, you know, um, consequences of, of, uh, of, of coming up with the electoral college system.

Rosen: [00:11:07] Sai, Sean has helpfully shown us the ways that the framers electoral college didn't anticipate the rise of parties and it was an effort to accommodate the rise of parties that the 12th amendment was passed. Pick up the story from here. Tell us how the 12th amendment attempted to accommodate the rise of parties, whether you think it worked and how the rise of parties transformed the presidency at the beginning of the 19th century.

Prakash: [00:11:34] I think, I think Sean has done an excellent job of summarizing the initial impetus behind the electoral college and the problems it generated. I think, you know, they, they envisioned that the electors would, would cast votes and the person with the second number, second highest total would be the vice president. Uh, that system didn't work well when party men were, were not, uh, were both voting for casting all their votes for their, their part co partisans. And as Sean discussed, there was this problem in the 1800 election.

And so the, the 12th amendment is, as Sean indicated, uh, allows the electors to vote for president and vice president. And so you're no longer, uh, just giving the vice presidency to the second highest vote getter, um, which facilitates, uh, party voting and the electoral college, which makes sure that both, uh, both offices are with one party rather than being split as they were in the Adam/Jefferson uh, you know, uh, administration where Adams was the president and, and, uh, Thomas Jefferson was the vice president.

The rise of parties and not, you know, not only affected, uh, the election of the president and required a change, uh, via the 12th amendment. It also, uh, it also empowered the president in ways that I think the founders couldn't have foreseen. So, so for instance, impeachment, um, becomes I think a more difficult option when you have parties and presidents tied to particular parties because the president's co partisans in the house and in the Senate are less inclined to impeach and remove a president, less inclined to impeach and remove, uh, executive officers. And, and for that matter, less inclined to remove judges who might be perceived as aligned with a political party.

And so, you know, the impeachment process, was laborious enough and it was difficult enough to navigate, but it became more difficult still when presidents in their co partisans could expect a level of support in, in both chambers, sufficient to block an impeachment. Another way that parties have have mattered is that the, you know, the president always had a limited legislative role. He could recommend measures to Congress and he could veto legislation.

But I think political parties have helped, uh, presidents become, you know, what others have called a chief legislator in the sense that, as we know now, presidents run on a policy platforms promising a slew of statutory reforms. That's not, that was not present in the early days of the presidency, but it becomes more plausible for a president to make these reform proposals as a candidate because the president suspects or knows that, uh, dominant, uh, a huge portion of Congress will back his proposals because he's now not only the president, he's also the party chief.

Rosen: [00:14:25] Sean, Sai has identified two effects of the rise of parties, more partisan impeachments and the rise of presidential platforms will take up impeachment in a moment. But I'd like you to spell out the argument of your essay, namely that the 12th amendment made a bad situation worse by inflaming partisanship. You quote a Federalist Senator from Delaware, Samuel White, who foresaw with the 12th amendment would create.

He averred that there was a great potential for candidates to exercise intrigue, bribery, and corruption. And also he said, the United States are now divided and will probably continue so into two great political parties rather than being selected by virtuous men. Uh, increasingly the president would be subject to the vagaries of, uh, partisanship and the people tell us more about your argument.

Wilentz: [00:15:18] Yeah, well, I mean, there's no question that the 12th amendment, you know, in- increased partisanship. Um, Senator White, however it was, you know, a pretty high Federalist. I mean, for him, democracy was always [laughs] going to be chaotic and it was inevitably going to be this way. And, you know, I'm not so sure that it made a, it made things worse necessarily. Um, it was possible to have, and we've had for much of our history, um, you know, fierce partisan battles that still remain within the confines of the constitutional order.

And, uh, you know, corrupt people are, are not always made into the president United States. In other words, there was a Jeffersonian view, which was very much enshrined in the 12th amendment, which was that this kind of dem- democratic party system was, was a good idea that, that, that people ought to be involved in politics more. That, you know, the coffee houses and the places of debate which Sammy White looked down upon, well those are parts of civil society that ought to be come part of the political system.

So it's, it's, it's neither good nor bad. The, the point I wanted to make though is that although there were parties that came out of the 1790s, they weren't exactly, um, you know, modern parties, modern modern political parties. I mean, once the Federalist party disappeared after the war of 1812, there was really only one party left. Um, you know, we went for a period, it's the so-called era of good feelings. Although I teach my students, it was really the era of bad feeling. We can go into that another time, where there was only one party, only the Jeffersonians, there was no opposition party.

As a result, James Monroe, of whom Sai's chair is part of, um, was, was not, he became president almost by default. There was no opposition to him in, in 1820. The system, however, began to break down again in 1824. It's only in 1828 with Andrew Jackson and the arrive, the rise of the democratic party that you see a modern two party system coming into existence. Now, with Jackson, of course, you see not just the invention of that, that kind of modern party, but you see a change in the executive.

The executive becomes under Jeff under Jackson, much more powerful than it had been. Um, in part because Jackson is willing to use that limited veto in ways that his opponents thought were hardly limited at all, were almost monarchical. They referred to him as King Andrew the first. Um, in, in vetoing internal improvements in vetoing the, the rechartering of the Bank of the United second Bank of the United States.

In all of these ways, Jackson truly believed that he had, he was a coequal branch with the legislature and the judiciary and that, you know, he was the only person who had been an elected by all of the people along with his vice president and that he was going to exercise his powers to the max. That was a product in part of the partisanship. But the partisanship and the increase in the powers of the presidency as Jackson saw it went hand in hand.

Rosen: [00:18:02] Sai, after Jackson, there were other important changes in the nature of the presidency that both increased its powers and increased partisanship. Maybe let's fast forward to the election of 1912 where we have two candidates, Wilson and Roosevelt running on the grounds that the president is a steward of the people who can directly channel their will. Very different from the framers conception of a representative limited presidency. Tell us about the evolution of the office in the progressive era and the new deal and, and, and, and, and what other significant changes increased the powers of the presidency.

Prakash: [00:18:39] That's a great question, Jeff. I actually wanted to go back to Andrew Jackson. Um, Andrew Jackson is, as Sean said, perceived himself as the representative of the people and the only representatives of people and the, his wig opponents were aghast at the proposition. They pointed out quite correctly that the people don't vote for president. The people, some people vote for some electors and the electors collectively vote for the president.

But that that conception quickly got tossed in the dustbin of history as every state moved to popular election of the electors. And as electors came to be seen as rubber stamps for their party, not people who exercise independent judgment as to who ought to be president. And so the system of, you know, refined individuals choosing who the president ought to be was just tossed aside in part because of partisanship reasons, but also in part because of the expectations that these people would follow the party line.

And presidents quickly seized on the notion that they were representative of the people and gradually expanded their influence over legislation. Sean mentioned, uh, Andrew Jackson issuing five vetoes. The veto was always a possibility. Some early founders discussed the president as a third chamber, but our early presidents chose not to vigorously exercise it. Subsequent presidents in the late 19th century and beyond that issued hundreds of vetoes on the idea that they were fully the equal of each chamber of Congress. And if Congress didn't like what they were doing, they could override the veto. That, that was certainly a change from the Washington area and certain presidents thereafter.

Another thing that changed is presidents started running on platforms that initially they would endorse the party's platform. Um, but eventually they, they, they became dominant in the creation of the platform themselves. And so by, as you said, by the time of Wilson and, and Roosevelt, they viewed themselves as sort of the tribunes of the people and able to do things almost without regard to law. Uh, uh, you know, Wilson believed, famously believed in the living constitution. Roosevelt, um, famously said, "I think I can do anything as president so long as the constitutional laws don't affirmatively prohibit it." And of course the constitution doesn't directly prohibit the president from doing anything. There's, there, there are, there is no provision in article two that says the president can't do X, Y or Z. It's, it's all inferred from article two and from a provisions in article one, section nine.

Rosen: [00:21:10] Sean, what themes would you highlight as we move from Jackson to the early 20th century or to the new deal? You've identified the rise of parties, but you've argued that they were sometimes unifying coalitions that brought together disparate views rather than pure agents of ideological purity. And you've also identified the rise of an increasingly popular presidency accountable to the people. So, uh, at the 30,000 foot level, what can you tell us about the evolution of the office up until about the new deal?

Wilentz: [00:21:39] Well, the one thing I would, I would is a 19th century story, but also it's important. We, we can't forget the civil war, which was the breakdown of not just, you know, um, um, the presidency as, as, as conceived with the entire political system is shattered by, by secession. And here things were tested as they'd never been before and I hope will never be again. And so president Lincoln, um, made the decision right away as his predecessor, uh, James Buchanan did not, that he actually could do something about the seceding States.

He could, you know, basically crush this counterrevolution that he was faced with. Which meant that he was going to be a different kind of president than any that had proceeded him as well. Um, faced with that crisis. Um, I mean after all, he is the president who not only suspends habeas corpus for, um, portions of the country that he deemed to be disloyal, but he issues the emancipation proclamation, which although it's, you know, um, has all the moral grandeur of as a, of a bill of lading as a story once said, nevertheless, it was an extraordinary act of executive power, um, against a seceding States to be sure or States that he considered to seceding States.

But any case, Lincoln, uh, you know, for a time, um, you know, ceases executive powers, unlike anything before him. After the civil war, that of course recedes and the pre- you know, there's a period of the presidency actually following the impeachment of Andrew Johnson where the presidency actually begins to recede, um, from the, the scene of American national politics. Um, it's, there, it, it still has the powers that it always did, but we enter a period that Woodrow Wilson famously described as a period of congressional government.

Um, and so the powers of the presidency had to be revived yet again as they would be in the progressive era. And then carrying on through FDR, um, it's there that we see the modern presidency I think truly coming into its own.

Rosen: [00:23:28] Sai, tell us about the modern presidency that emerged during the new deal and under FDR. And you talk about the rise of executive orders and the post new deal, administrative state and ways that further expanded, uh, presidential authority beyond even with the framers intended. Describe that evolution.

Prakash: [00:23:48] Sure, Jeff. Um, I think, uh, part of what happened in the new deal was a sense that, um, Congress had limited expertise and limited time. And one consequence of that was to delegate authority both to independent agencies but also to executive branch agencies and the president himself. And I think, um, we moved from a situation where the president was a check on legislation to a situation where presidents are increasingly the authors of rules and regulations that have the effect of law and are really no different than laws. Um, and their operation. You can go to jail for violating these rules and you can certainly be fined for violating these rules.

And so I think the, the rise of the administrative state and then the perception that, um, the economy needed to be regulated greatly contributed to, uh, a more legislative president than we had in the past. It went from just being a third chamber to being in effect, a secondary law maker that exists parallel with Congress.

Rosen: [00:24:50] Uh, Sean constitutional originalists argue that the expansion of the presidency from FDR throughout the 20th century represents a violation of the framers original understanding and an unconstitutional usurpation. Uh, some progressive, uh, constitutional scholars like Bruce Ackerman argued that the new deal itself was a kind of constitutional amendment and the Imperial presidency Schlesinger called it that emerged during the 20th century was perfectly consistent with a new understanding of the constitution, reformed for its times. As a historian, which of those views do you find persuasive and how would you reconcile the modern imperial presidency with the constitution?

Wilentz: [00:25:32] Well, I mean to understand first of all that, you know, the presidency started evolving from the moment that, um, you know, that George Washington put down the Bible [laughs] at federal hall in 1789. I mean, it's, it's, it, it didn't emerge. Um, you know, things were emerging already from the very beginning. Uh, things were evolving from the very beginning. So it's not as if it took until the 1930s and 1940 for the presidency to change, we've been talking about that, um, for most of the, of, of, of the podcast.

What I think I would add to what Sai was talking about though is the importance of, of diplomacy and warfare and international affairs in the presidency. Um, you know, the president is the commander in chief that is all there in the constitution. Nevertheless, the United States has a very different role in the world after 1945 than it had had in 1789. And the presidency necessarily expands and takes over new, um, you know, it takes on new responsibilities as a result of that.

Um, there's nothing that the framers could have predicted. Um, but it's something that is a reality. And so I think when we talk about the, the presidency since the new deal, including what, what's the Schlesinger called, the imperial presidency, we have to look much to the exercise of war powers, the exercise of diplomacy. Um, the, the, the, the, the president as the maker of foreign policy takes on a whole new, um, um, takes the idea of the president as the maker of foreign policy becomes far more important, um, once the United States becomes one of the great superpowers in the world.

Rosen: [00:27:03] Sai, in your essay, you describe how structural features of the presidency in particularly unity in the executive branch, uh, what, uh, Hamilton called a tendency toward decision activities, secrecy and dispatched, allow the presidency to grow, uh, and at the expense of the other two branches. And, and, uh, tell us about the role that foreign policy played in that. And then take us up to the, uh, beginning of the 21st century in terms of the constitutional growth of the imperial presidency?

Prakash: [00:27:40] Well, definitely I completely agree with Sean that the presidency, the modern presidency has greater authority over foreign affairs and war than at the founding. I think that's in part a reflection of the America standing internationally and the perceived need for America to be involved more overseas. But it's also a change in, I think, conceptions of the office.

I think in the 18th century, a commander in chief was nothing more than a commander of a set number of troops. And there were hundreds, if not thousands of commanders in chief because every individual unit had a person who commanded in chief. And so during the revolutionary war, and even, even afterwards, we had, America had multiple commanders in chief as did Britain.

But, um, over time, the commander in chief clause and location in the constitution had an effect on people's sense of the title. And people started in viewing the office with greater and greater military authority. So by the, by the time of the Korean war and thereafter presidents, uh, claim that they have authority to not only move troops here and there, but also to wage war against foreign countries. And that this is not in derogation of Congress's power to declare war.

Uh, this would have been, um, astonishing to the founders because in the 18th century, the power to declare war was the power to decide to wage it. It wasn't just a power to issue some piece of paper, but it was also the power to decide whether the nation would wage war. Uh, but, uh, as I said, change consumptions make that, uh, accretion of presidential power possible.

With respect to foreign affairs more generally, I think the constitution had a more complicated system at the founding. I believe that a lot of foreign affairs powers are vested in Congress directly. That war powers one of them, but also the commerce power. Some powers that would be exercised with the Senate appointing ambassadors and making treaties. I think the remainder of the executive power of foreign affairs was vested with the president.

What we've seen in the last half century plus is presidents using the sense that foreign affairs is an executive domain to infringe or expand into areas of congressional authority, both with respect to treaties, but also with respect to, uh, uh, the conduct of foreign affairs more generally.

Rosen: [00:30:00] All right. Well, it's now time to talk about impeachment and in the impeachment power was one of the mechanisms by which the framers hoped to check an overweening executive. Sean, what, during the framing era did the founders have in mind when they created an impeachment mechanism for treason, bribery, and other high crimes and misdemeanors? What were they concerned about?

Wilentz: [00:30:25] Well, I think they were trying to enshrine what had been in, you know, in English common law would had been in, you know, there had been impeachments in Britain, impeachment of Warren Hastings. There was a familiar theme to the, to the framers, to the f-, to the founding generation. So, you know, they wanted to make sure that there would be a check against a corrupt president.

Not everybody was going to be, not every president was necessarily going to be George Washington. So there had to be a, um, a means to, um, eject a corrupt, um, um, um, president. And they designed a system which, you know, it's not quick. It's not, um, it's, it's, it's not something as we've seen that that can be done very lightly. Um, it requires, you know, not only the, the house, but two thirds of the Senate to remove a president.

They, they made it, it's a bit like other aspects where they slowed things down a bit, like the amendment process, if you will. They made it very difficult to impeach a president or at least to remove a president. What they were worried about, and Hamilton expresses this very, very well in the, um, in the Federalist papers, was that, that somehow, um, you know, despite the fact that there wouldn't be parties, they predicted that cabals would arise and that the presidency could be held, um, you know, hostage in effect by, um, a group of people in the Congress.

And they designed the, the impeachment clause precisely to find a way between [inaudible 00:31:44] being, you know, having a corrupt president, but [inaudible 00:31:47] being, having a Congress that could just get rid of a president at its, you know, at its whim. So they designed in particular kind of way to make sure that both of those things would be avoided.

Rosen: [00:31:57] Uh, Sai, uh, what would you say that the framers had in mind when they talked about treason, bribery, and other high crimes, and misdemeanors. You've talked about the English legal standard, which you've said that, uh, it didn't need to be a crime and we know that cause people were impeached for the advice they gave to the crown. Uh, and you've also said that, uh, many offenses can be impeachable, but the question is, should the president be removed from office? So tell us about how the framers thought about how some offenses, uh, of treason, bribery and other high crimes and misdemeanors that were impeachable might not merit removal from office.

Prakash: [00:32:34] Well, um, I, I agree with what Sean said. I would, I would, uh, I would say that the impeachment standard is quite broad as, as you mentioned, Jeff, it doesn't have to be a crime. It could be something as, as seemingly inconsequential is advice. Although in the English system, advice was very important because, uh, they couldn't go after the King. Uh, they couldn't impeach him legally. And so they would often express their extreme displeasure with what the kingdom had done by impeaching and jailing, in fact, they're the Crown's advisers.

And so, uh, I, I think it, you know, impede front bribery, sorry, treason, bribery and high crimes and misdemeanors is, is very broad. Um, as we discussed earlier, I think it becomes more difficult to impeach, um, executive officers, judges and the president once you have the rise of political parties. I, I don't, I don't think that the standard itself was tailored for the president and I don't think there's a different standard for the president either higher or lower.

Um, the, the clauses, you know, you might think impose an obligation on both chambers. I'm not so sure they do in the following sense. It's, it's possible that the constitution creates a process for removal, um, of, of these officers, but doesn't require that the house and Senate engage in the process every time they think there's been an impeachable offense. And the reason why I say that is two fold.

One is you might think they're that, you know, impeachable offenses are actually not that uncommon and you don't want to have Congress either chamber merely engaged in impeachments for, uh, you know, for their duration. You think they ought to be doing other sorts of things. Um, and you know, secondarily, there have been moments in our history where presidents and others have been censured and not impeached. The constitution does not mention censoring. But, uh, if you're in that lane, let me put it this way.

If you're in the house and you know for a fact that I'm not, I'm not, I don't mean to speak to today's controversies, but if you're in the house and you know for the fact that the president's not going to be convicted by the Senate, you, you might decide and I think quite reasonably so that it's far better for you to censure the president, um, rather than rather than trying to impeach him. If you're in the Senate and you think the president has done something wrong, but you can't convince the house to impeach him, then of course all you can do is really censure him because you can't remove him. And, uh, as, as Sean knows, and as you know, the chambers have from time to time censured, uh, presidents for taking that they deemed to be in violation of the constitution.

Rosen: [00:35:07] All right, well it's time to discuss the current vexations and Sean, in an essay, uh, in a Rolling Stone in October, Why We Must Impeach, the president's abuse of power has surpassed any we've seen in our history and Congress much must act. You've said there've been earlier impeachments and interferences with democratic institutions in our history, but nothing like this one. In this, as he likes to say, Trump truly stands alone. And in the essay you say, among other things that even if there weren't the issue of military aid, Trump's request, uh, to Ukraine would be a severe abuse of presidential power and never before in our history has a president been known to approach a foreign leader in this way, asking for a specific action against domestic political adversaries. Tell us in constitutional terms, why you believe that Trump stands alone and why his actions meet the constitutional standards for treason, bribery, or other high crimes and misdemeanors.

Wilentz: [00:36:01] Well, I mean, you just said it [laughs]. Um, I mean, I think in fact since I wrote that piece, I, and I'm, I'm not, I'm sympathetic to the Democrats is finding this is a case of bribery, which is what it was. Um, usually when you, when I first thought about bribery in the constitution, I was always thinking of the president being bribed by a foreign power to do something that the foreign power wanted it wanted the president to do. But bribery of course can move both ways. And I think this is, yeah, I mean I it, with the testimony that's emerged, um, you know, as the process has gone on, it's very clear that, uh, and it was not a rogue system that the, the president's foreign policy, um, people were trying to get something out of a foreign power that was of a purely political nature.

It had nothing to do with the national security, had nothing to do with the wellbeing of the country. Nothing to do with what the president's supposed to be doing, but rather to advance, um, the president's own political fortunes in the election of 2020. And using American policy and using American power and using American, you know, um, um, uh, fortitude, um, with, uh, with a country that is in fact our ally supposedly at war with, you know, at war with our supposed, um, um, adversary Russia.

Um, to use, uh, whether it's withholding a meeting or whether it's using military aid. Even short of that to ask a foreign leader to do that and to put pressure on a foreign leader to do that to me is almost a textbook definition of bribery under the terms of the constitution.

Rosen: [00:37:28] Sai, what do you make of Sean's argument, which the Democrats are making as well, that what the president's alleged to have done is a form of bribery. They argue that for the framers of bribe was not only something that a president received, but something that he offered. And if the president offered a thing of value, namely the aid in exchange for personal political gain that would meet the constitutional definition of bribery. What's your, uh, what are your thoughts about that argument?

Prakash: [00:37:55] I, I, you know, as I said earlier, I think the impeachment standard is incredibly broad. I think it covers both official and private acts. I think a, an official can privately offer a bribe to another official in order for that official to do something to help that person in their private capacity. So I, you know, I certainly believe people can commit treason in their private capacity, even their officials during the day and they commit treason at night and it does involve their exercise of official powers that would be impeachable and removable as well.

So I have a broad understanding of the clause. I think, I think the difficulty we find ourselves in is that both political parties believe that the other side used the instruments of power against their rivals. Uh, Sean has ably described what I think is the dominant Democratic perspective. There are certainly Republicans who believe that the president was the victim of a, an abuse of power by officials who were investigating his campaign.

Uh, there are Republicans who think that, um, foreign nations helped the Democratic party in the 2016 election. There was an article in Politico saying as much whether it's true or not, I don't know. And so I think if you believe that the president did all these things purely out of corrupt motives, then of course it's impeachable and removable. If, on the other hand, you believe that he was really trying to fair it out, some corruption with respect to either Biden, CrowdStrike or the Ukrainian, uh, involvement in the election, which parallels in some ways the supposedly Russian involved in the election, then you're apt to see that what he did was, was more defensible.

I think one's perspective on that is, is often, um, often often reflects one's perspective on the opposition. Right? Um, and so I, I think I, again, I think Democrats are certainly within their rights to impeach the president if they believe that he had acted out of corrupt motive. And I don't doubt their sincerity in so supposing, but I think they have to, um, I, I would encourage them to think about what Republicans would say about the use of government resources to investigative a candidate for president in a it truly unprecedented way.

Rosen: [00:40:11] Sean, what do you make of Sai's argument that it all turns on motive and that if president Trump, rightly or wrongly, but legitimately believed that, uh, he was the victim of a conspiracy in Ukraine and wanted to investigate corruption by Joe Biden and that, uh, investigation was ordered in good faith, then it was not a constitutional bribery and should not be merit removal from office.

Wilentz: [00:40:37] Well, I mean, you look, sure motive is a [inaudible 00:40:39] is involved, but, um, you know, any criminal can complete motive, not having the motive, I didn't mean to murder the person, but I murdered him anyway. I mean, I, I think, I think it's a matter of evidence in the end. I mean, it really is a matter of evidence and the burden on the Democrats is to provide the evidence to show that what I just described actually happened.

And, um, to the extent that, you know, um, for example, that it seems pretty incontestable that the Russians had a lot to do, if not everything to do with the hacking of the, of the Democratic National Committee in 2016 and a raft of other things. Um, you know, to, to, to just say that that is just preposterous to deny reality and to come up with your own story.

Well, you can always invent your own motives, but in the end you have to deal with the evidence. And the evidence has to be there. And you know, I don't think that bad faith, right. Can be a, um, you know, you know, and ex-, I don't think the bad faith can be exculpable. Right? And, and that's really what it comes down to, but it's a matter of evidence. Again, it's not a question of whether we think this man is good or bad. The question is what do the, what does the evidence show? And the evidence is coming out.

Now, you know, it's an enormous burden of proof, by the way, I should say. I mean, I presume that the president is innocent. This is not a case of, of, of, of law. This is an impeachment to be sure, but you know, as a citizen you have to do that. It's a question of whether, whether the evidence is there or not. Um, and that's, but the, and the burden of proof is, is quite high on the Democrats, but you know, we'll see if they, if they, um, come up with it.

The question that you asked originally though, Jeff, is whether I thought that the chargers were serious enough to warrant an impeachment investigation on that. And on that I'm absolutely clear.

Rosen: [00:42:19] Sai, run us through what you think the Republican's most powerful defense in the Senate trial would be. You've already said that it turns on motives. Sort of spell that out a little bit more. And then in historical context, would a decision not to convict, be consistent with what the framers expected or if the facts that Sean alleged were proved, uh, would, would in an acquittal represent some sort of thwarting of the framers hope for what impeachment would, uh, accomplish?

Prakash: [00:42:51] Well, Jeff, I, I wanna, you know, I, I think I, you know, I wanna make clear that I'm, I'm not denying that the Russians were involved in the campaign. I was referring in part to the investigation of operative close to the, uh, candidate Trump without telling him and the other sorts of, you know, what some people have called spying on the campaign, uh, which I find extraordinary.

Um, I think more from what I can gather, more ought to have been found before they, they opened that up and of course they opened up that investigation and took the measures they did. I guess what I'm saying is I, the way I view this situation, um, and I've written this, I view each party as insincere. I don't really believe the Democrats are terribly concerned about, uh, foreign involvement invest- in, in, in these campaigns because there's been stories about Ukraine helping the DNC and there's no interest on the part of Democrats to get to the bottom of it.

I think the, you know, the, for the Republicans, they, you know, I think if the shoe was on the other foot and if this were a Democratic president, many Republicans would be calling for their impeachment. So I, I, you know, I both, both parties, you know, have the tendency to view this affair through their partisan prism. Uh, Democrats understandably are suspicious of the president. Republicans are understandably suspicious of the investigation that took place by, uh, Mr. Mueller and the investigation that took place of candidate Trump.

And I think that that environment obviously poisons how people or affects how people view, uh, what happened in 2016 and what's happening today. As far as whether it's impeachable or, and I, I, I'll go back to what I said earlier. I think if you think the president, uh, wanted to get, uh, Ukraine to investigate the Bidens and wanted information on CrowdStrike and wanted information about the, supposed the DNC contacts with the Ukrainian embassy only for the purpose of favoring his personal position, then of course it's impeachable.

And of course, you know, you then have to decide whether you should remove him for it. Uh, and I, you know, if you have the view that impeachment is a requirement, I think as, as Sean mentioned, then you're going to think that they have to do that. My, my experience with the Clinton impeachment, I think has caused me to revise my views. I'm not sure there right now, I'm not sure they were wrong before, but, uh, during the Clinton impeachment era, I was certain that the president had committed impeachable offenses, including obstruction of justice and lying before grand jury.

Um, I think that's been born out by the facts. But at the time people said, you know, it wasn't, it wasn't worthy of removal. I think I was, uh, somewhat deaf to that in part because I wasn't focused on the personal nature of, of the reasons why he might lie. Um, but that episode also made me consider the possibility that not every impeachable offense, um, will be impeached and removed.

Again, I think there are plenty of impeachable offenses that are never acted upon in part because executive branch officers, um, leave office. There, there are episodes in our past where members of Congress or the house has actually impeached someone after they left office. Um, so they're not impeaching people who leave office because the remedy itself is removal, but removal by itself doesn't preclude future office, as we all know. President Clinton can serve as an officer of the United States 'cause he was not convicted and not, they did not impose any punishment on him.

Rosen: [00:46:19] Uh, Sean, Sai throws down an important gauntlet to you and also to me, since in those days when I actually had political views, I defended president Clinton as you did when we both testified before Congress.

Wilentz: [00:46:31] Yes, we did.

Rosen: [00:46:32] And, and as well, let me, I'll just ask the question. Does the Clinton impeachment look different to you now than it did then, both in terms of whether he committed the alleged offenses? And also does the fact that he was acquitted, uh, how does that influence your views about whether an offense might well be impeachable but put perhaps a conviction is not required?

Wilentz: [00:46:54] Well, I mean, I mean, first you, I mean, I am respectfully and strenuously disagree with Sai on the Clinton impeachment. I don't think that this was an impeachable offense, but, but I don't want to get back into, into arguing about all of that. Um, we can, we can, you know, honorable people can disagree about all of that. Um, but, um, and, and the reason is simple. I mean, it's because what occurred, uh, Clinton was accused of lying about under oath, about a, um, a private matter. And I think that the, the, the, the, the charge is much more sonorous than in fact the actual, what he actually did.

What he did was he was caught up, I, I truly believe that he was caught in a perjury trap and, um, dissembled the best he could to tell, to cover up without telling, without committing perjury. I'm not a technical, I'm not a lawyer, so I can't tell you what the jury did or not, but this is a vastly different situation than we have, let's say with president Trump.

Regardless of what, you know, the burden of proof is the kinds of crimes that he is accused of on a vastly different scale from what president Clinton was accused of. But you know, and, and, and, and I don't think that the impeachment clause is so broad that it can cover both as being impeachable offenses. So that's what, what Sai and I disagree.

Um, I do think there's another point though, and I want to bring it up because Sai made an excellent point earlier, which is that impeachment is not simply about the presidency. It's also about other federal officers. And there was a time very early in American history when it looked as if the judiciary was going to be a blood bath battleground for, um, for impeachments under Jefferson, under Thomas Jefferson. Um, when Jefferson saw the Federalists having taken over, he thought the federal judiciary and he went about it in launching impeachments or his people went about launching impeachments.

Got one federal judge in New Hampshire impeached him name Pickering. You know, I mean, Pickering may not have committed a high crime or misdemeanor, but he was drunk a lot on the bench and he was delivering vituperative, you know, semi coherent, um, um, rulings. So maybe he should have been removed. But they also went after Samuel Chase who was a, uh, could be vituperative was very strong Federalist, uh, opponent of the presidents, but they went after him and that failed. That impeachment failed.

And I think that that example, in fact, it was one of the reasons why impeachment didn't go on very much until you came to Andrew Johnson, which was coming after the civil war, which was a great crisis. So there are examples in, in our history of I think, what should we say, um, improper use of the impeachment, um, um, uh, power, uh, or people going too far or people overreaching.

And you know, I think that Jefferson actually came to recognize that he overreached in the case of Samuel Chase, I think we always, always have to bear that in mind. And that, um, we have to chasten our sense of how often, I mean, this goes back to what Sai was saying earlier, there may be even an impeachable offenses that you don't want to bring up because you know, they're really not going to affect the, um, the fate of the Republic.

Um, uh, we have to be careful about letting the impeachment clause getting out of, get out of hand. Um, we've now had, you know, um, um, we, for the Nixon impeachment, the Clinton impeachment, we've had three impeachments in my lifetime. Right? I don't think that my parents, my blessed parents, um, saw a single one. Well, I guess I saw Clinton at the very end, but that was it.

Oh, no, sorry. They had Nixon. They only had Nixon. One, in their entire lifetime. Um, you know, I don't want to see us getting into a kind of politics where one party simply going about impeaching lightly the president of the other party. That would be a disaster for American democracy.

Rosen: [00:50:24] Well, Sai if president Trump is acquitted, what will that say about the future of impeachment? Might we see a series of impeachments with increasing regularity resulting in acquittals? Has it become too hard to convict, uh, because of the rise of partisanship as you suggested? Or is this new normal of impeachment along partisan lines of followed by acquittals, uh, something that the framers could have tolerated? Help us put this into some kind of historical context?

Prakash: [00:50:57] Sure, Jeff. I, I think it's a little too early to say what will happen if he gets acquitted. I think partisanship has had the effect, generally of strengthening the presidency in the sense of the president has a loyal group of followers in both chambers who will support his agenda and support his presidency and that obviously affects their willingness to impeach and remove him. Um, but I will, I will add that impeach, you know, that partisanship also has the effect of turning, um, the other party into a rabid attack dog of the president.

And I think, you know, when you have a Democratic president, the Republicans are see scandal everywhere and are eager to attack the president to use the oversight power, perhaps abuse it. I don't think that's any less true, uh, in, in, in when, you know, the roles are reversed and give it a Republican president, a Democratic house or Senate.

I will say one more thing. I think with respect to whether we have more impeachments, it's a function of whether Republicans and Democrats feel that this impeachment, um, damaged the president. That is to say, if it turns out that the president's damaged as a result of the impeachment and Democrats don't pay a price for it, then of course I think both parties will come away with the lesson that they should be more aggressive with respect to impeachments.

On the other hand, if, if Democrats pay a price at the polls and the president's reelected, people will rightly or wrongly take away the lesson that the impeachment boomeranged on the president, I'm sorry, on the, on the house Democrats. And you know, I think there's so many other things that go on in elections. It's a mistake to focus on the effect that impeachment has alone. But I think that was the wisdom after the Clinton impeachment, the wisdom was that Republican suffered in the midterms. And so the both of Democrats and the Republicans stayed away with it and stayed away from the process.

Having said that, I think, you know, certainly being the vice president of bill Clinton, uh, uh, adversely affected Al Gore and you could argue that the impeachment of the president played a role in the negative perception of Gore.

Rosen: [00:52:58] Thanks for that. Sean. Same question to you and then we'll have closing arguments. If president Trump is acquitted in the Senate, uh, what will that say about the future of impeachment and the rise of partisanship as it relates to the framers impeachment mechanism?

Wilentz: [00:53:14] Well, I want to make two points. One is the historical one before I answered your question, Jeff. I mean, I do think we're seeing in some ways an unraveling of everything that's happened since 1974. I mean, I think that there was a lot of resentment of what happened to Richard Nixon. Roger Stone wears it on his back. Um, you know, and I think a lot of Republicans thought that the Democrats got away with murder in, in getting rid of, of Nixon, despite the fact that Goldwater and the others went along with it. I think there's a lot of resentment and I think that that was where this history begins. Because it's the first of these impeachments.

But what will happen if, if, if Trump is acquitted? A lot will depend on what happens in the trial, I think. Um, don't forget there will be, if, I assume there will be a full trial in the Senate and I think a lot of what happens if he is acquitted will depend on what the kind of case, the, uh, the Democrats present. If the Democrats mount a very convincing case in the Senate and yet the Republican majority in the Senate acquits him anyway, that might be actually the equivalent of the Ford pardon of Nixon in a funny way.

I mean, because if it looks so bad for the president in terms of the actual evidence, depending on the case of the Democrats present and they acquit him anyway, that's going to look like a very political act, which I think would have consequences politically. If he's acquitted, um, um, in, in any case, it's going to depend on the election. I mean Sai is abs- absolutely right. I mean, you know, the acquittal is one thing. If he is forced from office, then I think we're going to have a very, very, you know, the partisanship will, um, intensify.

However, also nothing's simple in politics. The Republican party will look different without Donald Trump if that would happen, if that were to happen. So I'm not so sure that we can predict much of anything

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