 Aaron Powell Welcome to Free Thoughts. I'm Aaron Powell. Trubber's out this week until co-hosting with me is my boss, Cato Vice President John Samples. Thanks for filling in, John. John Samples Thanks for having me. Aaron Powell John and I are joined today by Gene Healy, Cato Vice President and author of the new paper, Indispensable Remedy, the Broad Scope of the Constitution's Impeachment Power. Welcome to Free Thoughts. John Samples Thanks for having me on. Aaron Powell Were there debates about impeachment at the Constitutional Convention? Gene Healy Sure. It got quite a bit of debate, particularly in July. And all of the debate really about impeachment at the convention focused on presidential impeachment. And what you, there was a minority of the delegates, Governor Morris, Charles Pinkney, maybe one other who were against the idea of presidential impeachment altogether. And that view practically got shouted down at the convention with an onslaught from Madison, Franklin and others to the point where Morris actually confesses that his mind has been changed by the assembled delegates and the enthusiasm for the necessity of presidential impeachments. And he admits that at the end of that debate that there were, that impeachments for the president were necessary. John Samples Yeah, wouldn't it be like having a Constitution without an amendments clause? I mean, a theory, you got to have a theory of mistakes to go with these institutions. And if you, how would you get rid of a president that was off track if you didn't have the impeachment? Gene Healy Well, the idea would be regular elections. And that was Morris's case. Madison said that, you know, the security, that regular elections were not a sufficient security. He says, for example, that the president might lose his capacity for after impeachment, he might turn out to be corrupt. And I think, you know, one indication of how much broader this remedy was considered to be than we typically recognize today was Madison's statement that during this debate that some mode of displacing the chief magistrate was indispensable because of the possibility of the incapacity, negligence, or perfidy of the president. John Samples What did the English laws about impeachment look like? Because presumably that was, that's the tradition that the framers were operating within and what they were looking to, for example. Gene Healy Well, impeachment has about four centuries of history before we even get to the constitutional convention. And it developed as a means of targeting people that were too highly placed to be amenable to ordinary legal process, king's ministers. And that history was known to the framers in some detail. And that's actually where the phrase high crimes of misdemeanors comes from. It was understood not to be limited to... The funny thing about the phrase is it has an odd resonance in contemporary language. It sounds like it's one of the reasons people somewhat understandably confuse impeachment with a criminal process, because, well, it mentions crimes and mentions misdemeanors, which we think of as lesser crimes punishable by up to a year in jail. It didn't really have that connotation in English practice or... And that was understood by the founding generation. In contemporary language, high crimes and misdemeanors sound something like grave felonies, but lesser offenses, too. Actually, it's a broad category of offenses committed by men in high places who are... And it's something that... In a similar way that you could not enumerate all the rights of man in the debate over the bill of rights. You could not enumerate all of the possible abuses of power, offenses, misbehaviors that a highly placed federal official might commit. So Hamilton says in the Federalist Papers that these are offenses of a political nature and they can never be tied down by such strict rules as commonly governed criminal cases. Do we have evidence of the debate about this at the Constitutional Convention? So they pulled this term out of... It was a term that had been in use, but did they debate the specific meaning of what high crimes and misdemeanors were at the convention? Well, high crimes and misdemeanors comes a bit late in the convention. There's several... Throughout the convention, various drafts, various proposals. There's language about you know, maladministration, misfeasance, corruption. High crimes and misdemeanors actually gets introduced by George Mason. And it's at a point where one of the committees has narrowed the language for impeachable offenses to treason and bribery. And Mason says, well, treason and bribery, that wouldn't reach a lot of great offenses against the Constitution. He mentions the trial of Warren Hastings that's going on in England that started just before the Constitutional Convention. He said, Hastings is not guilty of treason. So, Madison... Mason suggests maladministration as a standard. Madison objects to maladministration as it would basically mean that the President served the pleasure of the Senate. And Mason apparently concedes and offers high crimes and misdemeanors, which has had become this sort of term of art in British impeachments. Now, there's a debate because of that exchange that... I don't know how much into the weeds you want to get, but some people have said, see, maladministration was rejected at the convention. And it means that you can only impeach the President for being a crook or for abusive power. But there's a lot of indication that high crimes and misdemeanors, both in English practice and as understood by the founding generation, incorporated some forms of maladministration, that some forms of gross negligence, inability to do the job were understood even by Madison to be contained within the phrase high crimes and misdemeanors. So, to draw from this morning's paper, there's an op-ed in the Wall Street Journal that says or argues directly that Justice Kavanaugh could not be impeached now that he's on the court for things that happened before he went on the court. Is that in your understanding generally true of the impeachment power? It can only concern what goes on in the office itself? Yeah, I saw that op-ed by Rivkin and Casey and that particular part of it, at least as nonsense. The idea that you cannot be, in fact, our most recent impeachment of a federal judge in 2010 involves this issue, past behavior that took place, much of it prior to elevation to the post at issue. And this federal judge in 2010, Thomas Porteus, is impeached in part for lying to the Senate about his background and sort of corruptly procuring office. And at the convention, there were several delegates, Morris was among them and Mason, who mentioned various forms of say, corrupting the presidential electors as an impeachable offense. So, the idea that once you, and I'm leaving aside the specific circumstances at Kavanaugh, that's a different debate, but the general claim that they make in that op-ed that you cannot be, that you sort of, you enter the office, even if you lied your way into the office, that you enter that office with a clean slate and cannot be impeached for anything that you did up to confirmation for that office, that's just not true. When we're looking for evidence of what the scope of the impeachment power is, what high crimes or misdemeanors might mean, is it always looking at the political process? So, in the sense that what we do is we look at prior examples of impeachment and prior examples of whether it was actually, is it called conviction? Is that the term that, so you file the articles of removal? You do it, say convicted in the Senate trials. Okay. So, do we just look at that process or is this something that courts themselves have weighed in on? Like, could the Supreme Court weigh in on the scope of high crimes and misdemeanors if, say, the president were convicted in the Senate but rejected it, saying the Senate behaved unconstitutionally? Almost certainly not. The most significant time that the court has looked at this was in a case, Nixon versus the United States, not involving Richard Nixon but actually an impeached federal judge, Walter Nixon, kind of unlucky, unluckily named. And the court, Judge Nixon had been impeached and removed for perjury and what he challenged about his impeachment was this process by which the Senate, so as not to hold up Senate business entirely, had a committee of 12 senators who would review the evidence and prepare a report and then the entire Senate would vote on impeachment. Judge Nixon challenged that as not, as denying him his right to a Senate trial and in an opinion written by Justice Rehnquist in 1993, the court held that basically the Senate had the sole power to try impeachments and that this was a political question and it had been directly committed to another branch and the court wasn't going to touch it. I think in almost any conceivable circumstance that is going to be what happens. You're not going to see the, you're not going to see the House impeach, the Senate remove federal official and the Supreme Court weighing in and saying that wasn't within the scope of high crimes and misdemeanors. So, was Gerald Ford right when he was talking about William O. Douglas that high crimes and misdemeanors mean whatever a majority of the House of Representatives think it means? He's sort of right in a trivial sense, in the sense that if the House impeached and the Senate removed Donald Trump for the alleged high crime and misdemeanor of eating well done steak with ketchup or tying his tie too long, that even in that circumstance it's highly unlikely that the Supreme Court is going to challenge that determination. So in the sense that there is not going to be external review, then Ford was partially right, but I think mostly wrong in this sense. While there is not going to be an external arbiter like the court to weigh in on the scope of high crimes and misdemeanors, the legal standard turns out to matter in practical terms. One of the reasons that in our first presidential impeachment trial Andrew Johnson in 1868, one of the reasons that Johnson was able to escape conviction in the Senate was that they based the bulk of the charges on violation of the Tenure of Office Act, which said in essence that he couldn't fire his own secretary of war. The Senate Republicans had more than enough to convict Johnson on a party line vote, but they missed several Republican votes. He escaped by one vote and some of the Republican, the so-called Republican recusants, the Republicans who voted against conviction, explained their vote in part by saying that they didn't think violation of the Tenure of Office Act was an impeachable offense. So I think when you, the legal standard and the grounds for impeachment tend to turn out to matter in practical terms, even if there's no likely scenario in which they can be challenged in the courts. We've talked around this a little bit, but maybe it would help our listeners if we made it explicit. So what does the process for impeachment look like? How would, how does one play out? Well, there's not much procedurally in the Constitution. The House has the sole power of impeachment. The Senate has the sole power to try impeachments. The penalties are limited to removal from office and possible disqualification for office. In practical terms, what usually happens now is, if Donald Trump were to be impeached, the, it would first go to, an impeachment resolution generally goes to the House Judiciary Committee and the bulk of impeachment resolutions die in the House Judiciary Committee, but the House Judiciary Committee, if they're conducting an inquiry, if it's off it would report that out to the full House. And if the House voted the Articles of Impeachment, that's just a simple majority vote. Yes. They would select House managers to try the case before the Senate. They'd notify the Senate of the impeachment and then the Chief Justice presides in a Senate impeachment trial of the President and which doesn't matter a whole lot because the majority of the Senate can overrule a ruling by the Chief Justice. I think Rehnquist, when he presided over the Clinton impeachment trial in early 1999, at the end of it, he said, I did nothing in particular and did it pretty well. So they, so you said the House, the House appoint House officers to try it in front of the Senate. So are these, are these congressmen? Yes. So they pick, they pick like a prosecutor in a defense attorney basically or how is this? The President in the past has had his own defense counsel that's up to him. The House managers are essentially the prosecutors. You know, if you think back to the most recent presidential impeachment, you had folks like Lindsey Graham who was in the House at the time was a House manager and Bob Barr, the former, went on to be an LP nominee for President, was another House manager in that case. There's another aspect of this that comes to mind which is that impeachment in itself as a removal from office, the second part is, you know, it has a real follow on to it. You're removed from office, you may be exposed later to actual criminal indictments and so on. And so that's very concrete. But I think we also, you know, you never can tell about things, but you would sort of say looking down the road, it's going to be hard for anyone to have the necessary supermajority to remove a president absent some extreme and even if you might have extreme acts that in this kind of partisan atmosphere are not going to produce a supermajority, right? So it's hard to see and correct, you guys can disagree here, but how you're going to get a removal from office, right? Or that's going to be pretty unlikely. So what you really have is impeachment itself, which is the House side and is the indictment. And it's a very political act. What the Clinton, the harms to the president or the benefits seem to be political in nature, right? And with Clinton, what Clinton showed was while it looked like going in that impeachment was going to do him a lot of political harm, it actually ended up doing him a fair amount of political benefit, I think we have to say, because the popular judgment was that this was overreaching given everything that had happened. So is that really what we're talking about in a practical terms, looking down at least over the next decade or so that the impeachment is not going to remove anyone from office short of something tremendous. But it is, and it's a two-edged sword in terms of politics. Well, it is true that it takes extraordinary historical circumstances. So however broad the framers understood the scope of high crimes and misdemeanors to be, and I provide evidence in the paper that it was quite broad, they may not have understood how difficult they had made the change to the two-thirds requirement for removal in the Senate comes very late in the convention. They're tired, gets no debate. They didn't really predict the rise of political parties. Was it a simple majority before or? It had been a majority through most of the convention. It's the committee of 11 that makes it a two-thirds requirement, two-thirds of the senators present to remove. And it just doesn't seem to get very much notice. It doesn't really get any debate. They were not, again, they didn't seem to envision the rise of political parties as happening as quickly as it did. And the combination of that high bar to removal and the parties has meant that you only get impeachments in these sort of, you only get a close to presidential removal in extraordinary circumstances like post-reconstruction dominance of the Republicans in the Senate and Richard Nixon in 74. So the structural barrier does mean that in practical terms, you may need something like Nixon on the level of Nixon's abuses to get close to removal or to force a president out. That said, I don't think that it's the case that impeachments are pointless unless you manage to remove the official impeachments. There was debate during the Clinton years about, well, maybe we should just censure him. I'm willing to bet that neither of you can name three presidents who have been censured. Nope. Nope. Yeah. History is, you know, the one that people can name usually is Andrew Jackson over the Bank of the United States, which was then expunged. But censure, while it's possible, is sort of a non-issue. Impeachment turns out to be censure with teeth. It can be used to enforce important constitutional norms. And it becomes, for as infrequently as it's actually accomplished, impeachment in the House is something that presidents are scared of. You know, in, it's the first thing people know about Andrew Johnson. It'll probably be in the first paragraph of Bill Clinton's obituary. And history is a funny way of reevaluating some of these things. A lot of historians are reevaluating the Johnson impeachment, which was for years taken to be an abuse of power by the radical Republicans. And even right now, people are reevaluating the, people on the left are reevaluating the Clinton impeachment. I think the consensus view is still that it may have been, in some ways, a waste of time and money and a distraction. But it's an important part of Bill Clinton's legacy. And in the middle of the Me Too movement, I've seen quite a few folks, Michelle Goldberg in the New York Times, Matthew Iglesias, a few other people say that Bill Clinton really should have resigned. What he did was disgraceful. But in saying it's a political or even primarily a political institution now, that's not necessarily to say a bad thing in the sense that the presidency itself is much more of a political institution than it was probably intended to be in 1789. The other thing that struck me about what you said about the founders was they were sort of, on their behalf, choosing majority impeachment voting rule or two thirds or 60% or something. They also had this big concern about the presidency being too dependent on the legislature. So I can see where, from their position, they didn't foresee that, they thought the legislature, Congress was going to be the most powerful. They didn't see our circumstances, which is where you've really had a change where the presidency and the court are much more powerful than they look like they were supposed to be in the states and Congress are much weaker. So in a sense, history is undone. A judgment that might have been a reasonable one had Congress turned out to be as powerful as it's supposed to be. Yeah, Madison thought that the legislature was, legislatures everywhere were drawing all power into their impetuous vortex. In modern circumstances, it's clearly the executive branch that is drawing all the power to itself. What's strange is that as the presidency has grown over the years from a comparatively modest chief magistrate into this figure with full spectrum dominance over American and international life, at the same time, you've seen it drift from, you've seen almost a rejection of the very idea of discussing impeachment with regard to an elected president. We use the term the I word as if there's something blasphemous about it, and it's become, as the presidency has grown more and more powerful, we've shrunk more and more from what the framers thought was an essential remedy to abuse of that power or incapacity and negligence in the exercise of that power. I'd like to go through some of those. You lay out in the paper, we discuss kind of the big categories of grounds for impeachment. So the first one is you talk about is incompetence, I think. What level of incompetence are we talking about here that you think would be or that the historical record shows would be grounds for impeachment? Well, I think the early cases are usually a better indication. The ones that are sort of contemporaneous with the ratification, roughly contemporaneous with the ratification of the Constitution are a better indicator of the scope of high crimes of misdemeanors than later cases, for various reasons, proximity being the main one. And the first, the second impeachment trial, the very first removal of a federal officer was a federal judge named John Pickering, who is impeached and removed from office in 1804 essentially for showing up to work drunk and ranting like a maniac from the bench. What was at issue here was not just negligence, but a level of gross incompetence. In fact, Pickering was insane. He wasn't just a drunk, he kind of lost his marbles. His son was willing to provide testimony to that effect, but and there was some controversy in that trial about, well, can you really impeach and remove someone for not being all there, for not having any kind of mens rea just for being a crazy drunk and the outcome of that case was you can. It seemed awfully weird to argue the other way. So I can see arguments that we don't want to remove people for things that look like political reasons or even that we don't want to remove people for crimes that happened before they became a federal officer or even minor crimes, but but to take them out because they're just not capable of doing the job seems like the most obvious grounds. Yeah, and I think, look, the interpreting high crimes of misdemeanors is not like interpreting what interstate commerce meant in the 18th century. It doesn't give you you as clear answers. But yes, the sort of a level of incapacity we're talking about with Judge Pickering I think would be a starting point. There's also hypothetical offered by the law professor Charles Black, who wrote one of the great short treatments of impeachment in the 70s says, you know, if the president decided that he wanted to move to Saudi Arabia because he wanted to have four wives and to conduct his conduct the job over the telephone, you know, it wouldn't look like what we typically think of as an impeachable offense, but obviously you would have to impeach that person for a gross neglect of duty. So high crimes of misdemeanors, Madison said this and it stands to reason that it has to be broad enough to encompass negligent gross negligence to the point of almost abandonment of the office would be one starting point. But it seems also clear that it should not be understood broadly enough to encompass ordinary work a day negligence in mistakes made with in a position that has now include the executive branches now as over two million, you know, federal civilian employees, it would be I think an abuse of the impeachment power to start talking about impeachment every time, you know, someone in that vast and sprawling enterprise screws up. So I've read and it's great to have someone look into these things closely because you're always check your own prejudices and ideas you have in your mind you've been going around with and one I have is about the impeachment of Samuel Chase and the idea there that's always to he came up, I think one vote short of impeaching him and the idea chase was a Supreme Court justice and a federalist and like many federalists around 1800 he was in complete freak out mode except he would go on the bench and start saying things about Jeffersonian Republicans and the Jacobin elements and even, you know, I think he was pretty virulent even by our standards. And so he got impeached or he was they were trying to impeach him for it. And then the idea that comes out of this is the people who say like the Constitution has all of this and then you have practice that decides what it actually means and this was an important thing because the practice what happened with Chase said we're not going to impeach people for partisan political reasons right or just political reasons. Is that true or is that just a story that well I think I think so for the chase impeachment justice Rehnquist before he actually a few years before he got to preside over the impeachment trial president Clinton actually wrote a book on two key impeachments one of them was the justice chase impeachment in 1804 1805 and the other being the Andrew Jackson Andrew Johnson impeachment in 1868. But Rehnquist's view of the of the chase impeachment was sort of thank God it failed. You know this would have been terrible would have reduced the judiciary to you know just the you know in the same way that people were concerned about the presidency becoming a pawn of Congress this would have threatened the independence of the judiciary. Keith Whittington from Princeton I think has a nice treatment of the chase trial where he talks about how it actually you know maybe it's a good thing that they failed to remove chase in the trial but it actually it established a new and valuable constitutional norm which was that judges federal judges were not supposed to be openly nakedly partisan they were not supposed to the key charges and the one that I think that chase became came closest to removal on was a rant before a Baltimore grand jury riding circuit that sort of denounced by implication the declaration of independence and the and the Jeffersonians the other charges involved you know bias partisanship and unfairness against republican defendants and but after chase after Chase's impeachment trial he calmed down quite a bit the and a new norm was established that you could not be an openly partisan player as a member of the federal judiciary and it seems to me that's a valuable norm. That's really a good point because we've been talking in the last few years a lot about norms right and mostly you know it's sort of like well I don't know where that comes from and it's not in any book but I noticed when it's violated it's something like that but what you're really saying Keith was saying this is where one of the impeachment is valuable because it does create norms and then that's why we think that behavior by officials might be odd. It can also be used to enforce you know pre-existing norms and they in the chase case it's sort of established a valuable norm but it can also be used to you know to to vindicate norms that we already think are established. So I'll pose a provocative question for you what the norm coming out of the Clinton impeachment was it that what he did and related things was didn't rise to the level of impeachable norm or that it didn't rise to the level of impeachable norm as long as the economy is growing at 4% Well that that's certainly a factor I mean look impeachment is always a mixed question of law and politics and it's certainly when you're facing a senate trial it's it's certainly better to be in the middle of a red hot economy as Clinton was and as you pointed out one of the weird features of the Clinton impeachment was I think it's popularity peaked during the impeachment over so like 73% popularity in the middle of the House impeachment effort. Yeah you can never divorce politics from the outcome of the impeachment efforts. The other thing about that one is about in terms of norms is it was almost like a distinction was drawn between like perjury that would lead properly to impeachment and perjury that was sort of not really perjury in a sense it was kind of a it was perjury but it was caused by the circumstances that and there's a lot of interpretations of what went on in 1998 but it did seem that there wasn't a strict liability for perjury on the president that as an impeachable offense. No and I think look the legal analysis part of impeachment the constitutional analysis part of impeachment can tell you in principle is something like perjury or obstruction of justice or illegal war making in principle is that an impeachable offense what I can't tell you is in any given case is it a good idea to it doesn't answer the questions about prudence so you could have about prudence about wisdom about whether it's worth the candle to pursue this effort that those are all political judgments that you hope will be made in better faith than a lot of political judgments usually are but you know the the legal analysis can answer that question so what happened in the Clinton trial is it the Clinton impeachment effort very few people on the democratic side denied that obstruction of justice was an impeachable offense in principle what seems to have happened is that a lot of people decide decided in this particularly set of circumstances it it didn't rise to the level of something that that requires the removal of the president what about incapacity that so you've mentioned you can be impeach for incapacity which I guess incapacity to extents is just like an absolute form of incompetence because you're just not you're not capable of fulfilling the duties at all but if you can be impeached for it then how is that related to the 25th amendment well yeah incapacity I mean we talked about a pickering the pickering case drunk an insane federal judge in the context of sort of gross negligence but it's probably better understood as a case of incapacity the 25th amendment comes along it's ratified in 1967 there's there was no specific mechanism for removal of an incapacitated president prior to then but but I would argue that that's because the mechanism was impeachment in most cases the pickering case shows that it's available for incapacity and we've arrived at this weird because we have adopted a view of the scope of high crimes and misdemeanors that says and you know it needs to be a Nixon style criminal abuse of power we've and because we have the 25th amendment we've sort of got this idea that well if the president is a vegetable then you can remove him through the 25th amendment if he turns out to be a horrible crook then you've got impeachment but for anything in between you're kind of just have to ride it out until the next election or until he's term limited but you know one of the in the impeachment debate at the convention that's one of the things Madison mentions is that the president could lose his capacity after after his election and he says that and that could be fatal to the republic fatal to the republic at a time when the president presidency was a lot less important and a lot less central than it has become by the 21st century so I think in the 25th amendment they were thinking first of all about Kennedy because there was speculation about him weirdly in retrospect speculation about him having survived the shot and but also didn't Wilson play a role in there and Wilson's interesting because actually you've got a small r republican problem because actually the elected person did not run the government but it wasn't his wife and his chief of staff that was actually running the government yeah I think they pretty much shut the vice president at the time out yeah Wilson's stroke comes up in the in the debates over the 25th amendment and what the what the legislators who crafted and ratified that amendment seemed to be envisioning was yeah a you know to back up the 25th amendment says that provides for for two means of removal of a president who is quote unable to discharge the powers and responsibilities of his office one is voluntary that's usually that's section three it's usually invoked during colonoscopies where the president sends a letter to congress and says you know while I'm under anesthesia Dick Cheney is president or is acting president the second one that's that's garnered so much discussion in the since Donald Trump was elected is section four of the 25th amendment which provides a means for doing it involuntarily so the vice president and a majority of cabinet offers officers or such other body as congress made by law provide decide that the president has become incapacitated unable to discharge the powers and duties of the office sends they send a notification to congress and the vice president steps in is acting president and holds that position told congress sorts it out but isn't I mean really we've discussed this obviously isn't this a short of a wilsonian like situation isn't this really just not operative I mean it's because the president or an existing president that is physically able to move around can keep coming back at you I mean it just seems like a invitation to disaster at the highest levels when people talk about a impeachment as a constitutional crisis it's nonsense but if you want to talk about the potential for a constitutional crisis invocation of the the 25th amendment might actually court that kind of that kind of difficulty you would have a situation and some of the Jean McCarthy and Bobby Kennedy sort of envisioned this in the debate over the 25th amendment you might have a situation with two presidents and two cabinets there's enough uncertainty in the language while it seems clear that the ratifiers intended that after a declaration of incapacity that the vice president holds the reins until congress votes there's some uncertainty about that so you could have a situation where Pence sends the notification imagine Pence was willing to do this Pence sends the notification Donald Trump sends notification no actually I'm just fine and then fires the whole cabinet and then you've sort of like the secret service has to figure out who to frog march out of the building it's a really impeachment itself is a pretty unwieldy remedy to executive incapacity or misbehavior it's definitely a lot more of a clutch and a lot clunkier than say a vote of no confidence in a parliamentary system but compared to the 25th amendment section 4 you know impeachment would go a lot presents a lot fewer problems and on top of which the this is the sorts of things that the people using the 25th amendment hashtag are talking about are not what the 25th amendment was designed for it was designed for Wilson for Kennedy surviving the assassination some of the discussion involves scenarios like a kidnapped president so it unable to discharge the powers and duties of the office means really unable not seems like he might do something stupid when he's to start discharging the powers and duties of the office so I think this whole idea is fun to talk about but a non-starter it's a good point though that to me interesting that you've made also in another aspect which is that originalism isn't just for judges right I mean if we're having originalist reading of the 25th amendment and there's no reason why we shouldn't have and why Congress shouldn't try to do that then we reach the conclusion you've just said but also the term high times and misdemeanors at some level and I think that's part of your policy analysis is also I mean the words are in the Constitution they have meaning all the logic of the originalist court theory right applies to Congress too there's no reason they shouldn't try to figure out what this means and how to apply it yeah there's a tendency to to punt everything in the courts but all branches all members in in in each branch have an independent constitutional responsibility responsibility to try to understand the words of the Constitution and and to act accordingly and I think that's incumbent on on Congress as well so if you had an impeachment effort I think this is something that's clearly outside the scope of high crimes and misdemeanors it's not just Donald Trump you know my Donald Trump stake example but something that's purely political for example there's an American University Professor Alan Lichtman who was first out of the gate with a book about impeaching Trump among the charges that he outlines is the quote crime against humanity of not taking global warming seriously enough well that's a political that's the president should not be impeached on policy grounds on policy disagreements there are other tools available to to Congress you know to to assert its will and so that's a the idea that legislators themselves have a responsibility to try to figure out what high crimes and misdemeanors means and to act accordingly I think comes up also in situations like that and not signing on to to impeachment efforts that are not justified by the text of the Constitution we've seen a flurry of calls for Trump's impeachment quite a lot of them coming even before he took office we had people calling for his impeachment we've had books as you mentioned we've had law professors writing up op-eds and articles all over the place we've had members of Congress introducing articles of impeachment that have never that haven't gone anywhere and if if the Democrats pick up seats in November we're likely to see even more of that of of the things that Trump has been accused of as impeachable offenses or have been offered as impeachable offenses which ones do you think are maybe the most likely or the most kind of squarely within what you think are impeachable offenses is there anything there or is this all just kind of people upset that their guy didn't win or their gal didn't win and so kind of flailing four ways out well I rather scrupulously try to avoid coming down on one side of the other and a lot of these things in the paper but I'd say I'd say in terms of what's been introduced so far and what I think is likely to get most traction without saying whether I think it rises to the level necessarily would be obstruction of justice it was the first the combi firing but it was the first formal article of impeachment introduced against Trump in 2017 and I think that's going to be the one that has the the most legs the you know we it's one of the areas where you have the most presidential precedent Nixon first article of impeachment Clinton the obstruction of justice and particularly if we keep hearing rumors periodically about whether Trump is going to decide to fire Jeff Sessions or Rod Deputy Attorney General Rod Rosenstein and or try to to fire special counselor Robert Mueller I think if you were to do the latter in particular you would that would be a case for impeachment that would definitely have legs the Saturday Night Massacre when Richard Nixon had special prosecutor Archibald Cox ultimately fired to prove to be the catalyst for impeachment in it's really what drove impeachment in 73 74 so I would say that that general area is what I'd look to the the issue of various people have made proposals although I think only one article has been formally introduced so far about undermining freedom of the press and these have ranged from people that say that you know there's there's some that that cite you know Trump's use use of the term enemy of the people and fake news the charges that are of undermining freedom of the press that are based on you know Trump's Twitter feed in these terms I don't think are very persuasive it's sort of just a less articulate and clever version of Sparrow Agnew's attacks on the media nattering Nabobs of negativism I don't think calling the media fake news is an impeachable offense when you do start talking about and you've seen this in some of his tweets about broadcast licenses about Jeff Bezos Amazon Washington Post shipping rates then you you start to get into certainly you know the president it is when you talk about important norms the president should not be talking about using the power of the state to punish somebody that owns a paper that makes him unhappy you might want to see if it turns out that those comments troubling enough in their own right have a little more to them that they're they've led to an effort to take action you know there's something more than the equivalent of shouting at the TV then I think those would be solid grounds for impeachment you want to see like Richard Nixon didn't article two abuse of power among the charges were abuse of the IRS you know trying to turn the IRS against his political enemies he didn't actually have as much success with that as his predecessors did or as he would have liked to but he made serious efforts to obtain the tax returns and to order audits of his political enemies and that's an impeachable offense and I think you can certainly make the case that an effort to say raise shipping rates for Amazon on grounds that seem driven by the president's you know irritation with the Washington Post would be an impeachable offense just struck me that maybe one way to think about this it is wholly extra constitutional it's not about the language is that you could think of it this way we've got a way to remove the president particularly one in the first term which is elections right so the real question in the first term about a president is it is this person done something that we really don't want to wait for the for the actual election to pass judgment on him and because it's so dangerous or he showed it's a sign that what he's done suggest if we wait a couple of years in any president this would be really risky or the second version of it would be if we let it you know we can't wait for the election because if we let this go then future presidents it'll become a new norm it'll become acceptable and that's really what you're trying to get at here those two things is the current risk and the long-term norms and then you sometimes you know you can push the language back into that right yeah there's definitely a prophylactic forward-looking element to impeachment you know it is not there as much to punish bad actors as it is to to remove threats and you know one one threat can be a current threat you know the idea that and this this is probably one reason why the among many that the Clinton effort failed it's a one-off now he knows not to fool around with the interns he's been burnt but he wasn't thought to represent you know continuing danger in the way that say an abusive criminal president trying to turn the powers of the state against his political enemies would represent but then there also there is also as you point out the idea of well if we never take this this constitutional tool you know out of its plastic wrapping if we never use it because we we've come to think of it as a doomsday device instead of a safety valve then you are stuck with the erosion of norms there is no way to to stop that slide without without imposing some price for it thanks for listening free thoughts is produced by test terrible if you enjoyed today's show please rate and review us on itunes and if you'd like to learn more about libertarianism find us on the web at www.libertarianism.org