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Peter Robinson: In a matter of hours as we record this the trial of the 45th president will begin in the Senate but is this trial wise? Are the charges sound? For that matter, is the entire proceeding constitutional? Today on Uncommon Knowledge, three brilliant legal minds. Well, two anyway, I'll let you decide what you want. I have my doubts about three brilliant legal minds on the trial that is about to begin. Richard Epstein is a professor of law at NYU, a professor of Law Emeritus at the University of Chicago and a fellow at the Hoover institution. Andrew C. McCarthy is a senior fellow at the National Review Institute and a National Review contributing editor. He served as assistant US Attorney for the Southern District of New York. Note that, Andy is the man here with practical experience, putting people in the slammer. A fellow at the Hoover institution, John Yoo, served during the administration of George W. Bush as Deputy Assistant Attorney General and the Office of Legal Counsel at the department of justice. Mr. Yoo is a professor at the University of California Berkeley Law School, our online hosts so to speak today and also a fellow at the Hoover institution. Richard, Andy and John, welcome.
Richard Epstein: Thank you for having us.
Peter Robinson: First question and on this one, I don't want, in fact I would dissuade you from a long learned answers. It's a simple, yes, a nod of the head. I'm going to quote John Yoo, and his co-author in a recent piece, Robert Delahunty. "Trump has only himself to blame. He presented challenges to the 2020 election beyond all reason, he stoked an angry mob on the day that Congress gathered to count the electoral votes and he failed to call out law enforcement to protect the capital until too late." Can everyone in this conversation stipulate that that account is accurate. That is to say, we intend to defend the constitution. We intend to defend Donald Trump in as much as he has rights as an American citizen but nobody cares to defend Donald Trump's judgment. True?
Richard Epstein: No one should defend his judgment, but it's not at all clear that the mistakes he made are of constitutional import and I think it would be very dangerous to prejudge the case before you have an impeachment to see whether or not the allegations are true.
Peter Robinson: And that for Mr. Epstein passes as a one-word answer. Andy and John the answer from both of you is yes, correct?
Andrew McCarthy: I agree with John and Robert's description of that, yes.
Peter Robinson: All right.
John Yoo: I believe myself for now.
Peter Robinson: Now we go to-
Andrew McCarthy: Good job done.
Peter Robinson: Now we go to Richard's grave.
John Yoo: I'm going to be persuaded otherwise.
Peter Robinson: We go to Richard's grave, objection here or his grave question. Two quotations. This is the longest one, but it is a very necessary one. This is constitution of the United States. "The President, Vice President and all civil Officers of the United States shall be removed from office on impeachment for and conviction of, treason, bribery, or other high crimes and misdemeanors. Judgment in cases of impeachment shall not extend further than to removal from office and disqualification to hold and enjoy any office under the United States." That's quotation one, here's quotation two. This is Richard Epstein writing recently. "We must ask whether the Senate even has the power to try this impeachment once the president is out of office." As indeed he is now. "As a textual matter," Richard continues. "The answer is no." Andy McCarthy, why is Richard Epstein mistaken?
Andrew McCarthy: Well, I think the constitution textually doesn't answer the question that we're, it doesn't give a precise answer to the question that we're grappling with which is it doesn't in any place say, a former official may not be subjected to an impeachment trial. If it had a clear statement like that, we wouldn't be groping for textual references but I think the broader problem for me Peter, is that this is not a legal problem, it's a political problem. The framers intended this to be a political issue not a legal issue and the fact of the matter is whether we think it's wise, I don't think it's wise. Whether we think the charge that's been filed is constitutionally sound as you've teed it up at the beginning, I don't think it is. The fact is the constitution does clearly commit this to the Senate and the courts are not going to second guess what the Senate does and we are going to have an impeachment trial. So, we could talk all day about whether, the textual references or inferences to be drawn from them more strongly support the idea that you can or cannot or may or may not have an impeachment proceeding legitimately with respect to a former official. The fact is the Senate has decided we're having one and we're having one because the courts are not going to second guess them on that.
Peter Robinson: So Richard, quibble, quibble, quibble. The constitution, who cares what the constitution says, the Senate is plowing ahead. So your first burden, Andy surprised me with his answer a little bit. I thought your first burden was going to be an argument from the text of the constitution. Your first burden, is to explain to us why your second burden an argument from the text matters at all.
Richard Epstein: Well, the first point is I think it's a serious mistake to treat this as though it's a political situation. If you start looking at what's going on here, this is a kind of a special form of criminal prosecution. It says, "but the party convicted shall be liable for punishment and an indictment at law." A convictions or what's at stake, you don't commit people under political situation and the same thing on the other area is they say conviction of the treason, bribery, other high crimes and misdemeanors. I think it is a grievous mistake to say that this thing should be done in accordance with political rules. I think what that does is it completely opens everything up. The second point is that, I think we'd have much more information from the text than Andy would allow. It says when the chief justice is tried or shall be by the, or rather when the president's tried should by the chief justice. Well, he's no longer the president, the chief justice dropped down. Well, at this particular point, why did we have him in there? Well, it's because we understand that these things are deeply partisan and we want the proceedings to be governed by somebody who's neutral to the politics. A former president creates every bit as much of a political controversy, in this case even more. Now the chief justice is out, so if you read the Senate rules, it has to be Kamala Harris who was his opponent in the last election who sees. And what she did is she simply decided to dump the operation by saying that she was going to remain absent. The Senate rules do not allow for her to do that nor does it allow for her to delegate this to anybody else. And so you therefore have to think of a spectacle in which one party is now going to try its former opponent without any of the protections that you have. And the third point I would make, is the president is not simply out from under all legal sanctions if his conduct is indeed criminal, if he cannot be impeached he's out of office and I think it's quite clear since he could, if impeached be subject to criminal prosecution, even if he's resigns he can still be subject to criminal prosecution. On what the text says quite clearly is there is no absolute immunity from trial and I would bet you and I think Andy would agree, there's not a prayer in hell that they would be able to secure a conviction in an ordinary court of law if they had to make out the elements of an insurrection. And so I do not think that the change in form should ever tolerate a situation in which people who hate Trump and there's a long list of them, myself in some sense included. I do not think we want to turn this into that kind of a circus.
Peter Robinson: By the way, Andy does agree that they could not get a conviction on incitement and I'm going to quote him to that effect in a moment or two, but first John on the textual question, is this trial constitutional?
John Yoo: I don't think so. You could say this is from, this arises because of a gap in the constitution. We, I think should all assume that the constitution does not allow or provide for the impeachment of private citizens. For example, the Congress right now could not impeach Peter Robinson for writing a dreadful speech about pulling down the Berlin wall back in 1989, as a government official, right? He's long been out of office, he's a private citizen. So, and we also should agree, the constitution allows for the impeachment of sitting officers like president Trump was until noon on January 20th. The weird thing is what do you do with this gap in the constitution about someone who's in office when they're impeached, but then by the time the trials held they're out of office.
Peter Robinson: Can I just, are you granting Andy's point that the constitution is unclear or ambiguous or silent? I'm not quite sure how Andy would put it. But we really don't know what the constitution says in this strange instance. Are you granting Andy's point?
John Yoo: Yeah, I think Andy is right to say the text is silent on such a power. Now the rule of construction though, is that if the constitution is silent as to a power, we don't infer as going to Congress, specifically not Congress or to the federal government as a whole. Then the second point, you can look at the ratification debates, you can look at the Federalist papers. I think people from both sides would admit no one during the founding specifically discussed this idea of trying a president who's left office. And so I think the best authority you can look at are the state constitutions that proceeded the US constitution. And those are interesting. The ones that were enacted right at the time of the revolution did specifically provide for the impeachment of people after they left office. Some of them only allowed for-
Peter Robinson: Which was, if I may... I'm sorry, I just, layman here. I wanted to make sure I'm with you on this. Impeachment of people after they left office was the practice of parliament in Britain and the very early constitutions state cons or I suppose they were colonial cons, no. Post-revolution, pre-adoption pre-ratification of the constitution. That's the period you're talking about.
John Yoo: Yeah.
Peter Robinson: So they were States in the American States and the early ones did adopt impeachment of officials after they left office. Have I got that right?
John Yoo: Yes. They specifically said so.
Peter Robinson: Okay.
John Yoo: And then some of the constitutions after that initial burst of the revolution New York and Massachusetts are the most important ones because they were the models for our federal constitution. Those two constitutions drop that out. And so my argument is, well, the founders knew how to say we want to try past officials because they would write it in, into the state constitution and they knew how to leave it out. So if you compare our federal constitution to those ones that were written around the same time by the same people, our constitution is silent, which to me implies that they didn't want to include the power.
Peter Robinson: Yes.
Peter Robinson: Okay. The first rule of construction is that the founders were highly intelligent and wrote what they wanted, wrote what they intended. Okay. John and Richard, you argue that the text takes precedence here. There were a couple of formidable figures, just in the last couple of days and I know we've all read these because we've all exchanged emails about them. Just in the couple of days, there were some formidable figures who agree with you that the text of the constitution comes first but they reach Andy's conclusion about this trial, not yours. Here's one, Mike McConnell of Stanford. I call him Mike, because he's a friend as he is to all three of you as well. And Kenneth Gormley of Duquesne. "Trump's impeachment by the house of representatives, seven days before he left office was unquestionably valid." I think all three of you stipulate that. "The only question is whether, now that he's back in private life, he maybe tried in the Senate. The constitution provides a clear answer giving the Senate," quoting the constitution now. "Sole power to try all impeachments." The key word is "all." "The Senate's authority explicitly extends to every constitutionally, proper impeachment." Simple syllogism.
Richard Epstein: Wrong.
- Was Trump's impeachment valid? Yes.
Richard Epstein: No.
Peter Robinson: Does the constitution give the Senate the right to try all impeachments? Yes. Therefore, the Senate has the right to try Donald Trump. What could be wrong with that?
Richard Epstein: Well, everything, I think. Let's just start from the beginning. The first part is, if you look at the house of representatives it says the sole power to bring any impeachment. Nobody would argue that since it has a monopoly over that that it could decide to impeach somebody after he's left office. That would be I think, incorrect. So I think the way you read the sentence is without the accent on the word all and treat it more evenly distributed like it's good poetry rather than bad interpretation. And what happens is the sole power to try on impeachments only means that the Senate has exclusive authority over these particular cases. It does not allow it to do whatever else it turns out at once. And indeed under their article of you, the house could impeach somebody who's never been in office or out of office because it has the sole power to do so. And so if you want to read the two things together the basic logic of this, is we have to make sure that we can get bad apples out of office, we have special procedures for the president. When the bad apples have gone we don't worry about anything else. And notice, when it talks about removal and disqualification it says judgements in cases of impeachment. So I disagree with Andy on another point. I think if this case is without jurisdiction as I believe it is and then as with any of the judgment it could be collaterally tax somewhere else as being void and of no effect because if this is a political trial, he's right. But if it's a legal proceeding, designed to be in substitute for criminal prosecution, then I think he's wrong.
Andrew McCarthy: But it's not a criminal proceeding. First of all, the constitution explicitly says that beyond impeachment, the person who was convicted of impeachment can be prosecuted in a court of law, but indicted, et cetera. So the proceeding we're talking about has no jeopardy protection which if it were a criminal proceeding, it would. It would preclude a subsequent prosecution. So I just simply disagree that it's a quasi trial or quasi criminal trial, I just don't think that's the case.
Richard Epstein: I think it's one.
Andrew McCarthy: What we're talking about is there's a political power that's being stripped by the political body to which the framers basically gave this judgment to.
Richard Epstein: I disagree with you on double jeopardy.
Andrew McCarthy: Okay.
Richard Epstein: What happens is double jeopardy is a provision, which says when it says you should not be trapped twice in jeopardy of life and limb, if you have a state prosecution it doesn't preclude a federal prosecution. And so in this particular case, I would argue that this is a unique Sui generis type of procedure and in fact since they authorize this, it would be extremely dangerous to read a double jeopardy provision, which has put in afterwards to prevent this thing from taking effect. And so the word conviction stands, it is a criminal trial, but it is not double jeopardy. And why is that? Because they knew that they were limited only to removal from office and disqualification. And if somebody should be subject for fines or to jail time, they wanted to make sure that it's works. And I would not read the fifth amendment back into this, I would simply read this as a harmonious structural hope.
Peter Robinson: Andy, I'll come back to you in a moment. First, if I may John. Another little bit of a surprise to me here in this conversation. Andy and Richard are bringing really two different modes of thought to the question of constitutionality. Andy is saying, look, and if I may, because I know everybody here, I've known you all for years. This also fits with Andy's background and to some sense, his temperament. Andy saying, come on! You are slicing this much too fine. The trials taking place, it's a political act. The Senate's going to do it. And Richard is saying, excuse me, the Senate is going to do so derived from the text of the constitution of the United States, a sacred document to which we owe our highest duties, including our highest intellectual duties. What? For a layman like me, I feel whipsawed, they both make points. What's the right way? What's the correct mode of thinking about this problem?
John Yoo: I just think the two are harmonious. I'm not trying to help you but-
Peter Robinson: You never do John. Don't worry. I never suspect that.
John Yoo: I think that two things make sense because and Eddie has this great book about impeachment he wrote about 10 years ago I think. Has it been that long? And he makes the argue, which I think the Supreme court also follows, which is the constitution sets out impeachment. And it sets out certain procedures and standards for impeachment. But then within that it saw the politics. There's no review by the courts, no imposition of any legal standards. So there was this judge, Judge Walter Nixon, who took a case to the Supreme court. He was impeached back in 1993. And he lost under my rule of Nixon, which is any time Nixon appears in court they lose no matter where they are. So Judge Nixon, he basically, he was tried by a committee of the Senate. The full Senate really didn't try him at all. So he said, taking the language, Richard just quoted. He said, it says the Senate tries the impeachment. So I want a full trial in front of the Senate. And the Supreme court said yes because the constitution gives a trial to the Senate, nobody else can try Judge Nixon. In this case no one else can try Donald Trump. Only the Senate can. But then here's the interesting, the Supreme court said but the way the Senate chooses to try, the procedures it uses, how much time it gives, all the things that we all think apply to criminal trials, the courts said we're not going to second guess the Senate it is only up to the Senate and they called it, the court said, that's a political question. So Andy's right when he says, this is all up to politics. All these questions about Trump, the trial, all that is going to be settled by the Senate, no court can review it, but Richard is right in that, the whole framework is set out by constitutional law. And so I would make the smaller argument, which is, yeah, once the trial starts tomorrow the courts are not going to review it. But I still think Trump could say, the whole thing is unconstitutional would be Richard's point. You can't try a private citizen. That's not a political question. It would be the same as if you or I or any of us were charged by the Senate right now as private citizens, we should be able to go to the courts and say, the whole, the Senate just doesn't have jurisdiction or power over us.
Richard Epstein: Can I-
John Yoo: There's still legal questions.
Richard Epstein: I want to come to Andy in a moment on what should have happened because he's very eloquent on how the house got things wrong. Just a moment, Richard, let me set up one more. But I want to try two more questions. Two more questions about the constitutionality of the trial. One from the noted legal scholar and practitioner Chuck Cooper and the other from the noted legal scholar and practitioner me. So we'll go with Chuck Cooper first. Richard, this is for you, this isn't today's wall street journal.
Richard Epstein: Yes.
Richard Epstein: Chuck Cooper argued many times before the Supreme court, has his own firm in Washington, Former Assistant Attorney General for the Office of Legal Counsel. The constitution, he argues, "authorizes the Senate to impose an optional punishment on conviction." Now he's quoting the constitution. "Disqualification to hold any office under the United States." Now back to Cooper himself. "That punishment can only be imposed on former officers." Hence the text of the constitution itself does indeed countenance the trial of former office holders.
Richard Epstein: I think he's wrong. But let me first answer one question to answer John, I think he misstated at one point.
Peter Robinson: Go ahead.
Richard Epstein: You may have the ability to internally organize but the final vote must be by the entire Senate. That was also required in Nixon. And if it had not been that trial would have been null and void. So the principle of delegation to a subcommittee inside a body like that could not be done. Okay and on the other point I think that Chuck is again wrong. I mean, if you look at this, what it says is that he said that this was a kind of a minimum mandatory sentence but nothing above it. What it doesn't say it doesn't say that at all, but it says there he shall be removed which is a direct command. There is a serious glitch in the constitution because now suppose what you do is you try the president for something less than a high crime and misdemeanor, right? He is not required to be removed from office but if you will look at the text then only article two, article one government and it appears as though he could be removed from office for a lesser offense, which seems to be very, very crazy. And so what the practical conjunction of this has always been, if it's going to be the president you've gotta be in for all, or you gotta be in for nothing. And the only provision that ever governments is section four. And I think in effect that it's really odd to do it the way in which he says, because if you decide that essentially the president's safer jaywalking a criminal offense in some location maybe not a high crimes, not a high crime the minute says that you could still him try for impeachment and then you could remove him from office. And so the historical practices are the only thing you could do is try him for a high price crime and misdemeanor and the only thing you do is to force him out of office. But notice this is not a textual argument, it's an argument that arises because the text itself doesn't coordinate effectively with the two provisions that are an issue.
Peter Robinson: Okay. Last line of inquiry on the constitutional question. If I may, and I presented this as my little argument that's a ridiculous, of course, it's just an argument I, myself find especially compelling. And this is the argument, not from the text of the constitution itself as a procedural matter but from the text of the constitution as it applies to Donald Trump's rights as an American citizen. And Andy I'm especially interested in your view on this because the argument in its most compelling form that I've found was put in the wall street journal by a former prosecutor, Jeffrey Shapiro. The president's critics. So he argues that the one article of impeachment from the house is titled incitement to insurrection. And Shapiro says as all three of you I believe have already granted, no court is going to convict Donald Trump on incitement. You can explain why in a moment, but all three of you believe that. Shapiro says the same thing. If a court won't convict on incitement then Shapiro says, "the president's critics want him charged for inflaming the emotions of angry Americans." He did that. "Inflaming emotions does not satisfy the elements of any criminal offense and therefore his speech is protected by the constitution that members of Congress are sworn to support and defend." Non-criminal speech is defended by, is covered by the first amendment and the members of the Senate who will sit in trial on Donald Trump beginning tomorrow morning are sworn to uphold and defend the constitution of the United States, including the first amendment. Andy, that's a prosecutor's argument. What do you make of that one?
Andrew McCarthy: Well, it's actually one that I had to grapple with back in terrorism cases back in the mid nineties. I think the interesting way that this works itself out is that if you're talking about the use of speech as evidence of another crime, in other words you're not criminalizing the utterance of the words itself but to be more concrete about it the fellows who are sitting in the back of the Raven night social club and the Don turns to the button and he says, whack that guy. When they eventually have the trial for conspiracy to murder, when the prosecutor proves up the statement, whack that guy, Bruce Cutler doesn't get to come in and say, not for nothing but like first amendment, my rights here, right? What he ends up having to, what ends up happening is the speech is not the words, whack that guy, are not a criminal offense, they are evidence of the charge of conspiracy to murder. So I think that if Trump had been, if Trump said things that were an actual incitement then he would be in an in the exemption of fighting words that could cause, could trigger violence imminently, criminally, et cetera.
Peter Robinson: That would be criminal speech, correct?
Andrew McCarthy: That would be criminal speech it wouldn't be protected under the first amendment. He hasn't committed incitement, he hasn't come close to committing incitement. His words, even in their worst interpretation would not be sufficient to prove solicitation to a crime of violence under federal law. So therefore I think there is force to this first amendment argument. However, what I would have charged Trump with, in this aspect-
Peter Robinson: Hold on, hold on, I'm giving you-
Andrew McCarthy: Okay.
Peter Robinson: There's a whole segment reserve for what you, what the house should have charged him with.
Andrew McCarthy: All right but then I should just say Peter, without going there then, I do think his speech would have been admissible if they had charged misconduct that was actually impeachable misconduct.
Peter Robinson: Okay. So Richard, on this point that the article charges him with incitement to insurrection. It's an overreach. The speech he engaged in is protected by the first amendment.
Richard Epstein: It's worse than that. One of the things that happens is, is a duty of candor in these cases. You cannot take a single sentence out of context and ignore the sentences that come before and after. And so they say is we'll fight for our rights but there are a couple of things that he mentioned. One is he says, I want you to make a peaceful protest in front of the government and second, I don't want you to overthrow the government. I want you to ask the Senate to postpone making a final decision on this until they examine the facts of the underlying case. To give you an example of what is a criminal act which I think it's Nancy Pelosi, announcing that she will punish Mr. Trump with impeachment unless Michael Pence decides under the 25th amendment to say that he's unable to hold office. That's a direct form of coercion that's being put in this by asking a man to make a statement, which is false. We may not like Trump, but there was nothing whatsoever in this conduct of public affairs not withstanding his crazy situations in Georgia and anywhere else, which suggest that that's an illustration of incitement or punishment. Andy am I wrong about that as a technical criminal matter? Not that the house is going to basically do this to the chief, but I think in effect the serious kind of charge that has to be right, direct contrast with what happened with the president of outside.
Andrew McCarthy: Yeah, she did try to extort him into-
Richard Epstein: Yeah, well that's a cramp.
Andrew McCarthy: Well, it is.
Richard Epstein: Yes, it is. It's a cramp, let's not be nice about it.
Richard Epstein: In some, well, she's a member of Congress, it was a legislative act. I don't know.
Andrew McCarthy: No, it's not, it does not come-
Richard Epstein: Oh, come on!
Peter Robinson: Okay, boys, fellas, fellas. This is the strange... John, I had no intention of casting you as the mediator, the peacekeeper here but go ahead over to you. Make peace if you can.
John Yoo: People always accuse me-
Peter Robinson: On this first amendment question.
John Yoo: People always accuse me of being a peacekeeper and the moderator in the room. Mr. so what are you talking about? So, again, I think it's actually goes back to the question you asked earlier, Peter about how do you reconcile Richard's more, law approach to understanding impeachment to Andy's political approach is the constitution doesn't require that president Trump be charged with a crime for impeachment, right? It says high crimes and misdemeanors. Of course acknowledging that we're only applying the standard in article two. One point that I think you may agree as if X presidents can be charged and it's not limited by article two, why is it limited to high crimes and misdemeanors. But suppose it is, suppose it is limited to high crime, I think we all agree at the time of the frame this was not limited to crimes. The Federalist papers talk about this as being a political offense against the body politic as well as perhaps some kinds of crimes. If that's true, the house, I think I agree with Andy and Richard, I think they mischarged Trump. Andy's made a good case there, he should have been charged with dereliction of duty maybe which is almost like a court-
Peter Robinson: We'll let Andy make that case in a moment.
John Yoo: But the house could say, and this is what they're going to start arguing tomorrow, is when we said incitement we didn't mean incitement the way it's charged by federal prosecutors. We mean incitement to insurrection some Broadway and this is more the political understanding. We're going to give it a political meaning and we're going to try to convict Trump of all the things basically that we forgot to charge him with but we're going to stop it until this incitement insurrection charge. And I think this goes to the bigger problem is even though the trial is going to be conducted starting tomorrow and not reviewed by the courts, it's not strictly governed by the due process requirement that we have in our courts. I do think this is another example of the unfairness of the trial, is to charge a president with one thing and then try him for something completely different. If that happened in any courtroom in America as Andy would say that case would, the prosecutors should probably be sanctioned for something like that.
Peter Robinson: Andy, okay so, you've argued at length and eloquently that the house just got it wrong. That the indictment, that the article of impeachment is simply mistaken. I'm quoting you now, "Trump committed two very clear impeachable offenses." Name those two and then I wanted to see what Richard and John make of that. John's the easier juror at the moment, but Richard, you're going to have to sway Richard here.
Andrew McCarthy: Yeah-
Peter Robinson: I'm the star chamber guy in reversing.
Andrew McCarthy: Well, the caveat here is I do agree with Richard that you would have to hear the case and we're making assumptions about how it would come out. But my understanding of the evidence, at least is as the case is going to be presented we'll see what their annual show. Is that for the hours during which the siege was underway the commander in chief basically sat on his hands while the seat of government was being attacked. And I think that's an obvious dereliction of duty and he could be impeached for that. I also think the January 6th proceeding is required by the constitution for the vice-president and the Congress to preside over the counting of the state's votes.
Peter Robinson: Right.
Andrew McCarthy: The States are sovereign over their own votes. Once they certify them, the federal government does not have any check on the State's votes. All the people who've reported that January 6th is the day the federal government certifies the winner of the election, that's wrong. The state certify the election, the feds count the votes. So what Trump was asking the vice-president and the lawmakers to do was unconstitutional. Their role was not to second guess the States or to question their certification which under federal law was final, as long as it was done before the safe Harbor day. Well by the safe Harbor day. So I think what he was asking them to do was unconstitutional and was a violation of his duty to uphold the constitution and to see that the laws are faithfully executed. But I would not impeach on that as a one-off, I think the unforgivable indefensible thing and as a prosecutor what you would want to build the case around is his failure to act while the Capitol was under siege. And while Capitol police officers, including officer's Sicknick who was murdered were under terrible duress.
Peter Robinson: What would you call that dereliction? Criminal negligence? What would you call it?
Andrew McCarthy: I would call it the dereliction of duty and I think if I'm remembering right John and Richard will correct me on this but I believe it's Hamilton in the Federalist papers who makes the point that impeachment sounds more almost in military justice than it does in penal justice, because the concept is that you are violating a public trust. Which is why Hamilton makes the point that it's a political offense not necessarily a criminal offense that you could indict in a civilian court.
Peter Robinson: John, we'll go to John first. I don't mind John to be the tiebreaker every single time. But John, incitements insurrection wrong article of impeachment. But if the house had got the right article of impeachment it would have been dereliction of duty. It would have been compelling and powerful, the whole matter would have been constitutional and the Senate should have and would have convicted. John.
John Yoo: I read Andy is making the grounds for a second charge which is a failure to enforce the laws. So if the Federalist papers are, if we're going to consult them they talk about the president having two fundamental duties. One is to enforce the laws of which the constitution is the highest and then to protect the country. And you could say in the events leading up to the counting the electoral votes, I probably don't agree with Andy that the president has to accept the electoral votes no matter what happens. Like if you had a Florida 2000 situation or the 1876 election conflicting electoral counts or you have disorder in States, I think there is some space for the president or actually pertaining the vice president and the Congress to use some judgment. But that wasn't present here, whatever the standard is, all of the States certified their votes. The electoral count should have gone on as it eventually did without really much controversy or hitch to it because there wasn't really a, the factual dispute of those. So by constantly challenging them, you could make the claim that the president had not taken care that the laws were faithfully executed which is his primary constitutional duty. And then I agree. I do agree with Andy the second one about dereliction. It's not really, there's no federal crime of dereliction that a private citizen could be charged with. It is more of a political crime where someone has not fulfilled their obligations to the constitution. And so you could say by not calling out law enforcement and military fast enough. While the attack on the Capitol was going on, the president violated that second constitutional duty.
Peter Robinson: Richard there was a compelling and constitutional impeachment and trial to be heard here, but the house screwed it up.
Richard Epstein: Well, I mean, I think this case is much stronger than the incitement case which should never have been brought. But let me first say, people talk about this as being a political act rather than a criminal act. I think that's incorrect. The correct way to say it has to be both. And so if you start looking at more of the crimes that are listed, conviction of treason, bribery or other high crimes or misdemeanor. Or what they're really saying is you could not engage in acts of extortion, for example. But I think in fact that it would not be an impeachable offense if in a fit of rage, what you did is you committed rape or murder against some private individual. If it was unrelated to this, you could still impeach him because it would be under the general power but it would not be covered by the second section. As firm as what the president does in in making a ridiculous argument that you should not have to count the votes, he's just wrong on that. The 12th amendment says the vice president and the president of the Senate in the presence of everybody else has to open the ballot, it doesn't even say that this man counts them. In fact nobody is specified as the counter of the balance, it's clearly a function done by a court. It would be regarded as a ministerial act which means that there's no discretion, which means that Trump is wrong. But every time a president orders an unconstitutional condition that becomes an impeachable offense, then the world is crazy. And I don't think that this is crazy, I think it would be a criminal offense if he tried to some extent, which he could not do, to literally go in there and take over the proceedings but I think the talk in this case would not be there. Dereliction of duty is I think a harder case and it's closer to the line because Trump did order people to do it peacefully and Trump was not directly in charge of the Capitol police when this went on. And so before you could make this a dereliction of duty question, the issue is, did you find something that took place on the ground level by other people or which itself was a serious breach of their duty? And I think that people really did believe that those people who were in charge of the preparations screwed everything up in a rather major way. And so given that the difficulty in this particular case is do you want to charge the president with dereliction of duty when they're minor officials who manage to get everything wrong in the preparation and the execution of this, when Trump was away in the middle of a political rally at some other point. And by the time it turned down that, you really needed reinforcement they were already called out. So I could argue that this was rather than dereliction of duty and mistaken judgment or I think the more powerful argument that all of these counts is in the chain of causation that people who are closer to and more immediately responsible for went on who have to bear the pluses and minuses and that would be, I think, a defense at least in part against Trump. Tricky case because there's always the argument of attempt of one kind or another. But on balance I think I would vote to reject Andy's charge giving him full credit for saying it's much more ingenious than the charge that was actually booked.
Peter Robinson: Andy it's just amazing. Yoo is willing to work with you, but Richard, Richard Epstein not an inch so far.
Andrew McCarthy: I get nothing, I get nothing.
Andrew McCarthy: Nothing, nothing at all.
Peter Robinson: You get a lot of respect, Andy.
Peter Robinson: I think this is the stone face juror I'm telling you. Listen, before-
Andrew McCarthy: Peter, I gave a summation one time where for two hours the juror sat there looking at me like this.
Peter Robinson: Really?
Andrew McCarthy: So I had mentioned on my jury before.
Peter Robinson: Nothing worse, I can't imagine.
John Yoo: Richard's from Chicago and so Chicago jury, he's just waiting for his bribe.
Richard Epstein: Another high crime and misdemeanor, right?
Peter Robinson: Andy, listen one thing, small ish point but I'll return to it in a moment if there's time. You write the Democrats intentionally... So the question is, if they got the articles of impeachment wrong why did they choose that incorrect article of impeachment? Andy McCarthy. "The Democrats intentionally highlighted insurrection because they're laying the groundwork for an invocation of the 14th amendment section three disqualification clause. Democrats would like to use section three to disqualify other Republicans besides Trump." Can you just explain that?
Andrew McCarthy: Sure. I think that this was a political gambit from the beginning. Everybody knows Trump is not going to be convicted here. So what this mainly was, I think is two things Peter. One is, it's a political narrative and you're seeing this threaded through a lot of what we're seeing in the way of policy in the new administration. But this is a big part of the exercise where they want to say that the big problem in the country now is domestic terrorism. And it's not all domestic terrorism, it's one very specific kind of domestic terrorism. White nationalism, or white supremacy and Neo Nazi-ism. And they want to connect that to the attack on the Capitol and connect it to Trump. And by virtue of that taint Trump supporters and in some ways, conservatives and Republicans all with this tar them with this rush. So I think that's one big part of it. And I think the other big part of it is, and there's a lot of a progressive scholarship for this proposition. The 14th amendment has a provision in it for exactly the purposes that we're talking about, disqualification from office, for people who are involved or implicated in insurrection. And I think they wanted insurrection, even though it should be a very controversial word. Let's not forget that for six months, we've had insurrectionist violence in major cities across this country and they took no notice of it, but they want this to be insurrection because there will be moves at some point to go into court and say that those Republicans who supported Trump's quest to get the election overturned were involved in instigating, in inciting the insurrection that happened and that will be the basis for trying to get those Republicans disqualified from holding office.
Richard Epstein: The other word left is rebellion in that section. This is just downright evil, kind about, an overcharge. There is a serious-
Peter Robinson: Hold on, Richard, just wait a minute. You wanna go beyond, everybody grants that this is partisan. This makes you so angry or so concerned as-
Richard Epstein: 'Cause it's a dishonest.
Peter Robinson: All right. Evil, evil is the word you want to use.
Richard Epstein: Yeah, that's a good word.
Peter Robinson: All right. Okay, listen. So let's stick with the article of impeachment itself for a moment. Incitement to insurrection. Andy's just explained why the article includes the word insurrection. It only makes about two or three specific charges against the president. Former, now former president. I don't want to get hung up in the text. The text of the constitution is worth getting hung up in. It's always fascinating when I hear people like you talk about it. This text is not worth getting hung up in so, but I still have to read bits of it to you. Donald J. Trump engaged in high crimes and misdemeanors, he repeatedly issued false statements asserting that the election results were a product of widespread fraud and addressing the crowd on the ellipse on January 6th, he reiterated false claims and now quotes the former president, "we won this election and we won it by a landslide." Trump's lawyers have now submitted a formal answer to the article of impeachment. Again, a quote from this quickly. "The former president had the right to express his belief the election results were suspect since with very few exceptions, under the guise of COVID-19 pandemic safeguards states' election laws and procedures were changed by local politicians or judges without the necessary approvals from state legislatures." And those kinds of changes, there were changes all in election procedures, all across the country, that's a matter of record that did happen before the election. So Trump in his usual crude ham-fisted way got his specific allegation wrong, but he was onto something. The election was riven with irregularities. There were changes in election procedures, almost all of which disadvantaged the Republican candidate. He's got something and if he's got something that's not impeachable.
Richard Epstein: I would put it the following way. The courts decided these things, I think in many cases it decided them all, in some of these cases it actually-
Peter Robinson: Wait, you're talking about the post-election challenges of which they were about five dozens.
Richard Epstein: And the pre- election challenges. In Pennsylvania took place before the election.
Peter Robinson: Okay, so you're talking about the whole spectrum of challenge.
Richard Epstein: The whole smear.
Peter Robinson: All right.
Richard Epstein: This is race judicated. And that means you can't re-litigate it but it doesn't mean that you can't challenge it afterwards on the ground that it was flawed. I mean, time after time, somebody says, well, race judicator and red Scott means you can't challenge slavery, no. It turns out that Trump is entitled to raise those arguments and to say that it's unsound on this side of the other ground. It turns out one of the great tragedies is all of the reporting on this simply says that the allegations are baseless. What we really need is an investigation in which the people who want to get after him give their roundhouse punches and the answer has to be specific. This is wrong because, as opposed to general this is just worthless. And what has been scandalous on the other side is a blanket denial is given as a substitute for an answer, a specific allegations of misconduct. Which are fair play when it comes to the political proceeding, even though they could not be used to upset the election.
Peter Robinson: Okay, so John and Andy, if Donald Trump had said that just what Richard said and further said, I leave office on January 21st and afterwards I intend to dedicate myself to election reform to finding out what happened and to reforming the system. No problem, right? Couldn't lay a finger on him no matter what any mobs did that certainly wouldn't have been impeachable. Right or not?
John Yoo: I think one way to help think about this about what's impeachable or not, and what's peach or not is to maybe distinguish between Trump as a candidate and Trump as a president. Trump as a candidate running for reelection he can say whatever he wants. He's a first amendment right. Campaigning for office. He can't, I don't think he can be impeached for that. What he can be impeached for is the actions he takes as president. And all the things you've just described Peter are just the president rendering his opinion about things. What matters is, what Andy said, Oh, did Trump actually try to interfere with the recount in Georgia? Did he actually try to pressure vice president Pence to miscount the votes or to halt the votes or to reject the votes? That's exercise of public power, he can be impeached for that. But again, this is the prompt the house impeaches him for statements. They include these statements and the articles of impeachment.
Peter Robinson: Right.
John Yoo: He has the say, he has a first amendment free speech right to say those things-
Peter Robinson: Okay, so let's go on quickly. Again, as quickly as I can. The dispute concerns words and I have to repeat them or else this conversation won't be intelligible. The article impeachment charges is same as I just read to you with it's impeachable in the view of the article that he claimed that the election was irregular, fraudulent and so forth. Here are the other couple of specific charges that he used the phrase, if to the crowd on the ellipse on January 6th, if you don't fight like hell, "President Trump willfully made statements that in context encouraged and foreseeably resulted in lawless action at the Capitol such as, "if you don't fight like hell, you're not going to have a country anymore." Trump's lawyers. "It is denied that the phrase, if you don't fight like hell you're not going to have a country anymore. Had anything to do with the action of the Capitol as it was clearly about the need to fight for election security in general." I'm just going to act as the finder of fact here quickly, because I looked at the speech and Trump's lawyers are right. In context, he clearly was not calling for violence and the articles of impeachment, willfully misconstrues, it violates the duty of candor. The article of impeachment also accuses him of leaning on the Georgia secretary of state. I'm reading the article of impeachment "to find," they use the word find which emerged from the transcript of Trump's phone call with the Georgia secretary of state. "To find enough votes to overturn the Georgia presidential election results and threatened secretary Raffensperger if he failed to do so."
Richard Epstein: With what?
Peter Robinson: Georgetown law professor, Jonathan Turley. Who's read the transcript, "The call Trump participated in was a settlement discussion over election challenges with a variety of lawyers present. He was discussing what he viewed as uncounted votes that far exceeded the margin of roughly 12,000 and noting as part of the request for access to data that they did not need to find much to overturn the result." As far as I can tell, layman here. Lord knows I have my own political leanings, but as far as I can tell both of those specific allegations and this article is brief they only quote him a few times and every time they quote him, they yank it out of context and willfully misconstrue. They are attempting to perpetrate on the Senate of the United States, a kind of fraud. Is that right?
Richard Epstein: It's a criminal offense that given indictment which you know, to be false. Right Andy?
Peter Robinson: John? Yeah.
John Yoo: Yes.
Peter Robinson: Come on, I want somebody else to get a stoid as... Richard's calling it evil and I'm actually pretty worked up about it myself.
Andrew McCarthy: I don't want to cut John off, but see this is why I'm not... I'm happy to live in a political universe. If you're going to have charges like this and you're going to have procedures, which they have which from soup to nuts violate the norms of due process in a trial. And you're going to have a proceeding, which itself for all the reasons that John and Richard have explained is one about which reasonable binds on both sides of the constitutional debate differ about whether it's even legitimate. He's never going to be convicted.
Richard Epstein: He should never be tried.
Peter Robinson: Right, well, back when we had more common sense the knowledge that the president would not be convicted would be enough to stop the house from impeaching him in the first place. So I don't think the problem is impeachment, I think it's the political culture.
Richard Epstein: No, I think it's aligned. Just let me give a couple of things. They use the word lean on as an impeachable offense, right? What did Nancy Pelosi do to Michael Pence? She didn't only lean on him, she threatened to impeach him at the office if he did not go along. Now, you want to talk about in CYA to riot, Chuck Schumer gets on the steps of the Supreme court then basically starts to threaten people. He's there. People are there. And I believe that there was actually efforts to kind of storm the Gates at that point. Is under this standard, I think it's a stronger case of basically incitement to riot of some form or another, maybe insurrection, if you want to be fancy about it, again, Schumer than anybody else. The double standard in these cases, going after Trump for his silly speech and ignoring every act of violence and bloodshed against federal buildings in places like Portland and Seattle is just mind boggling. And I mean, this is a kind of disgusting the generation. And I just don't think that the political process should do this, I think in effect that the Senate should not hear this case. I've given all the arguments about it and if the only reason we're going to bend these proceedings is to allow this terrible case to go forward, it's a sad day in American constitutional history.
Peter Robinson: John.
John Yoo: I made just one little point here. One is, I agree with Andy that it's political but that doesn't mean partisan politics should decide. When I meant political, I think what Andy means political is that it just means it's not traditional. Political decision makers are going to decide how to hold the trial, what to indict for, it's not subject to review by the courts. But all the members of the house and the Senate take an oath to obey the constitution two, they should be trying to do their best to give meaning to the constitutional text. And so the real, one major defect here and why I think the trial's unfair is that the house did not really conduct any kind of investigation before impeaching Trump. And so if you think about, it's kind of like a weight the less that the house did, the more that the Senate has to do on a trial. The fact that the house, for example, it doesn't appear look the tapes the time when Trump spoke, more people already trying to break into the Capitol, right? That would be important to see where there was. The house didn't really do any of that. And so actually that means the Senate-
Peter Robinson: I mean, no effort to find facts. There was not a single hearing. Not a single hearing.
John Yoo: Yeah, so then the Senate has to do that in the trial. If we really want to have faith in any kind of conviction of impeachment. And so the Senate and the way has to make up for the houses defects and this impeachment. But unfortunately from what you read in the papers they want to rush everything through, right? They want to have the proceedings over in about five to seven days.
Peter Robinson: John Yoo writing just a few days ago. "Trump's lawyers could halt the impeachment trial in its tracks, by filing a writ of habeas Corpus directly with the Supreme court." Should they do just that? By the way take a moment to explain what a writ of habeas Corpus would be.
John Yoo: So I know Richard's really going to get on this because of the Latin words are being used. So Roman law must be involved. But actually, this is not Roman law, this is just-
Richard Epstein: It most certainly is.
John Yoo: But the writ of habeas Corpus originally was, you, me, we all have the right to file a writ of habeas Corpus when we're being tried by a court that does not have jurisdiction over us. And by jurisdiction, I mean has no power.
Richard Epstein: That's what I said.
John Yoo: That's the original root of the writ. So Trump could, I think under the rules go to the Supreme court directly and say the Senate is a court for impeachment, it has no power over me because I'm an ex-official now. And then he could go to the Senate and say who are you to hold the trial, while the Supreme court's considering whether any of this is legal.
Peter Robinson: Should the supreme court hear? Should they consider that?
John Yoo: Let me give you a hypothetical. Suppose a Republican Congress comes in someday and they say that George Soros guy, he's up to no good. He's been funding all these extremists, progressive groups. We're going to impeach George Soros even though he's never held public office. Under the same argument that Chuck Cooper's making, why impeachment? Why is it not? Why does it extend to private people too? I would think George Soros would have a right to seek or write and say, I can't be tried by the Senate, constitution doesn't say you can try private official. Private people.
Richard Epstein: That's the point that I made at the beginning when I said this was beyond the jurisdiction but there's a second part to it. I'm not sure that you can get habeas Corpus when a proceeding is not yet completed. There are all sorts of doctrines about delay and deferment and so forth, it's a complicated wreck. Because otherwise what would happen is in virtually every case, you could just hold up the state proceeding by going into federal court and making some kind of an allegation. But the other point is true. Suppose they convict him, suppose they decide he's not able to hold office. At that point, he then applies for job, they say, you're not there. And he says, this decision is of no effect because there is no jurisdiction. And at that point, you don't have to worry about habeas Corpus, he's got standing to say that this was an illegal proceeding which indeed it is.
Peter Robinson: Hey, last questions now. This is for Andy. The house rushed the article of impeachment to a vote without holding a single hearing, violated the duty of candor, I'm using Richard's fancy language. But I would say as they willfully misconstrued the evidence in the article of impeachment. Your own account, Andy they charged Donald Trump with insurrection so they could charge others with insurrection as well. They're dragging the 14th amendment which was enacted to heal the country after the civil war, they're dragging the 14th amendment into political uses for their own convenience at the present time. The whole effort is not just partisan but Craven one could argue and I'd be very tempted to do so myself and Richard already has. What do you advise, Mitt Romney, there are five senators who seem, five Republicans who have already voted in a way that indicates they believe that they're likely to convict Donald Trump Mitt Romney, Murkowski of Alaska. Let's set them aside they've already declared and you're the man who understands practical political realities. Once you've put your stake in the ground you're going to leave it there. That leaves 45 other Republicans, including good, I would argue remarkable wise people who try to uphold the constitution, who try to serve their constituents, who try to hold the country together, including for example Rob Portman of Ohio, John Hoeven of North Dakota. You don't know their names because they're not on cable news, screaming every night they're in the Senate trying to hold the place together. What do you advise them to do? Should they insist on giving up, standing up and giving speeches and denouncing this entire proceeding? What is your advice to the centrist Republicans on whom this whole trial will turn?
Andrew McCarthy: Well, I think there's two honorable positions here and I've wrestled with this a lot because I actually think the violations of due process are even more extensive than you've described just in the last few days they've tried to basically amend the indictment or amend the articles of impeachment through a legal memorandum which you would never be able to do in a trial.
Peter Robinson: They figured out that McCarthy was right. They did bring the wrong charge, so to speak.
Andrew McCarthy: Right, well, but the main impeachment prosecutor or a manager Raskin is trying to demand that Trump testify. Which is, I mean, I must say I had several very long trials, we could have wrapped it up a lot quicker if I could have just brought the defendant and we could have tied that up in a day. So these are gross violations of the norms of due process, it turns the proceeding into a kangaroo court. And if you get to a certain point where even if you believe in good faith that an impeachable offense got committed if the process is so lacking in integrity, I think you have to say, I vote to acquit. My problem here is, it seems to me that there was a clear impeachable offense. Now I'd want to hear the evidence. I want to hear minute by minute, what was Trump doing while, for three, four hours, they were asking the defense department to send reinforcement-
Peter Robinson: You want an elementary finding a fact.
Andrew McCarthy: Right. I want to know what he was doing. And I would have a hard time if they had charged us right, not convicting him of dereliction of duty under these circumstances, where people died including a Capitol police officer who was murdered. On the other hand, it's gotta be a proceeding with integrity. And if you can't hold your head up high about, that at least had a modicum of due process that we can say we can have confidence in the result and the way you arrived at the result, it would be very, very difficult to convict anyone, even if you were absolutely convinced that the guy was guilty.
Peter Robinson: Can I ask, if we could put you, if we could give arrange for you to have 15 minutes alone with Mitt Romney, I mentioned Mitt Romney because he's a man of conscience and he's already voted in such a way as to lead everybody to suppose that he intends to convict Donald Trump. And indeed in the last impeachment and trial he was the only Republican who did vote on one article to convict Donald Trump. All right. So the question would be this, Senator, we understand how offensive you find Donald Trump's actions on January 6th, how offensive you find his many statements about the election leading up to the events of January 6th, Senator, I grant that. I understand that I'm with you on it. And McCarthy is with him on it. But Senator the precedent, that voting to convict Donald Trump on this procedure, on this article of impeachment, the damage that would do to the constitution of the United States and to all those generations who must live under it yet to come, outweighs the offenses that Donald Trump may have committed. Is that what you would say or not? How would you balance those two?
Richard Epstein: Whom you're asking?
Peter Robinson: Andy.
Andrew McCarthy: It's not what I would say. I would say we'd have to see how the whole thing comes out. I think there was an impeachable offense here, I would not tell somebody not to vote to convict just because the charge was written incorrectly. And that's because I don't think this is a judicial court, I think it's a political court.
Peter Robinson: Okay.
Andrew McCarthy: But it still has a responsibility to come up to an acceptable level of integrity and we'll have to see whether it gets there or not.
Peter Robinson: Okay. Richard and John, you've both argued in detail that the trial is unconstitutional. I should know by the way, that we didn't get a chance to let John present his historical research in any great detail, but you have written an article in the last couple of weeks that goes through in detail what the state constitutions of the time set about impeachment and so forth. Fascinating piece. It's unconstitutional. Now listen, to the two of you, the trial. Listen to John Podhoretz and commentary recently. "A door to nihilistic evil, once opened must be locked, nailed shut, epoxied, bricked up and then after that hardened from assault like a nuclear silo. That is the justification for the impeachment. The events of January 6th were incepted, encouraged galvanized and implicitly directed by Donald Trump." Something so repugnant happened that the nation needs to condemn it. And yet there is Richard Epstein and there is John Yoo and Richard is slicing and dicing his legal arguments, very finely and John is drawing historical parallels and you're both saying, I don't care how bad it was, the constitution prevents us from doing anything about it.
Richard Epstein: Nope.
Peter Robinson: Richard.
Richard Epstein: That's not what I said. What I said was it prevents an impeachment but there no immunity to bringing a criminal prosecution in the ordinary course of law which will have disadvantage, if you're going to do it correctly it will have some legitimation when the result comes out. But if this is a kangaroo court which is the way in which it looks to me right now there are 75 or so million Trump supporters out there who will simply say, this is another ugly illustration of the way in which the deep state takes after our people and this thing will have no justification whatsoever, it will make it much more difficult for Joe Biden to govern, because he has been embarrassingly silent on this whole thing. It turns out that the correct view for the sitting president of the United States right now is to say I wish the government, I do not wish to see this trial go forward but he does not have the moral courage or a good sense or some combination of the two to say that. So bring your criminal prosecution, get you a best prosecutors if you want to do it. My view is that at this particular point, it's very different. You can't do it in a week. You're going to have duties to turn over every piece of evidence that you get to the other side. And you're going to get that timeline studying or get in a great particularity-
Peter Robinson: In a criminal proceeding.
Richard Epstein: Yeah, in a criminal. But you're going to also get the question of whether or not what he said or didn't say made any difference given all the other things that went on at this particular point in time. So why would you want the habit thoroughly irresponsible proceeding presided over by a partisan and this particular case is already voted to get them out of office. When you could get a neutral tribunals to do this in an ordinary fashion. I think that this is a national scandal.
Peter Robinson: John.
John Yoo: I hate to accuse our common friend, John Podhoretz for this but I'd say his words there are just as rash and impulsive as the actions of the president, he wants to lock up forever. And this is a feature I think of a Trump presidency, maybe this is the way to close the door on Trump's presidency. Is just something that's always struck me about it is that the people who accused him of being so unpresidential are such a threat to the constitution themselves wanted to distort the constitution in order to get him. And I would say, you don't need to do that here. I think actually you look at the end result, the constitutional system has worked. Trump did not manage to change the outcome of the electoral college, which disperse the party throughout all the States to pick the president. He didn't manage to convince vice-president Pence to reject any electoral votes. And in the end the American people rendered the verdict on Donald Trump. Think about impeachment, the two punishments are removal from office and disqualification. The American people already voted to remove president Trump from office on November 4th. He's not serving as president right now. And the American people can disqualify president Trump from office simply by never electing him to a federal office again. So I would say, it reminds me of, yeah this comedy about the man of all seasons and sir Thomas Murray, if you cut all the laws down to get at the devil and the devil turns around on you you have no laws to hide behind any more. And I fear sometimes, friends like John Podhoretz and other critics of the president are willing to chop down some of the constitutional protections for all of us because there's so after getting Donald Trump, the bad man.
Richard Epstein: I have one sentence to make Peter. You know I called for Trump's resignation in January of 2007.
Peter Robinson: You called for Trump to resign the day after he took office Richard. You cannot be described as a Trump supporter.
Richard Epstein: Yeah and the reason I did in part because not only is his behavior so disgusting but he has the rare capability of bringing out the worst possible behavior in his enemies who have behaved in many cases every bit as bad as he did. If you had somebody in there less polarizing the Democrats would be in a far better place today than they are.
Peter Robinson: Okay. A question that gets at that. I've only got another couple of questions here, and these are both relatively brief. Well, until they get to Richard, they are.
Richard Epstein: Depends how we answer.
Peter Robinson: Elapsed time, from the first impeachment of a president, the impeachment of Andrew Johnson to the hearings for the impeachment of Richard Nixon, 105 years. From the Nixon hearings to the impeachment of Bill Clinton, 25 years. From the Clinton impeachment to the first impeachment of Donald Trump, 21 years. From the first impeachment of Donald Trump to the second, one year. Does this start to feel to you like something from the pages of Gibbons? Are we at the late stage of the Roman Republic here? Are institutions just breaking down? Or was it a once in a century hurricane named Donald Trump and it's over and things will go back to normal and the institutions will resume their functions? Andy.
Andrew McCarthy: Bush lied, people died. Remember that?
Peter Robinson: Of course I do.
Andrew McCarthy: There's nothing singular about, I mean, there's many things that you could say are singular about Donald Trump, but I think it's a matter of degree rather than a difference in kind the way he's been treated compared to the last Republican incumbent. And I have to say when the next Republican incumbent comes along, there'll be at the point finally of favorably saying things about Trump in order to relatively speaking make that next person look even worse. So I think the sickness here is in the political culture and what we haven't factored in is how much has the way the media is today, it's not just the institutions, it's one institution I think in particular that has turned being elected to be a member of Congress into basically being a television celebrity who delegates his actual job to the bureaucracy or to the executive branch or to the courts while these guys want to be, cable news stars. And I would have hoped that because the last impeachment last year was such a dud on television that maybe we would have gotten more years between then and the next impeachment. But I do think that this is all about political theater more than anything else. And the sickness is the current culture and particularly the media effect on our politics.
Peter Robinson: Richard, thanks for breaking down on Donald Trump he's in Mar-a-Lago, we don't-
Richard Epstein: Let us go through the record, right? I mean, what we did is we had the hearing with respect to and there were charges that were made that were presented in the most irregular fashion imaginable. I regard them as having been totally false but the whole thing was never resolved because he was not of important. There were people who submitted false affidavits who are spies of the court, all right? And they've managed to spur an investigation. There was Jim Comey who an act of courage had a friend of his David Richland announced that there was something wrong with what was going on because he knew if he had said it, he would have never been able to trigger the hearing. Who then runs the hearing, it's a Comey buddy who turns out to be Robert Mueller appointed another buddy, Rosenstein and so forth. The prosecution of Michael Flynn that associated with the Logan act and so forth. These are all utterly groundless kinds of proceedings as far as I can tell. And the great irony about this is if you now ask me, I'm going to ask Andy, who knows more about this. Which prosecution was initiated by Donald Trump? Which essentially was done excessively and solely for political motivations. I am not aware of any. Whereas I think the behavior on the other side has been that great. And when you cover yourself in glory, by virtue of the fact you're trying to take down somebody whom you hate, what you do is you make the fundamental mistake. Guilt or innocence is one thing, political desirability is another. And just because you want to vote against a man does not mean that you can oppose phony criminal charges in an effort to get him and some of his Confederates out of office. So I'm going to ask Andy and John is there a single prosecution in the system that either Jeff Sessions or it turns out Bill Barr initiated, all while in office as attorney general.
Andrew McCarthy: I think, no, John, you could correct me if I'm wrong. I think the answer to that is no, it may not be because of Trump. I think it's because he agitated for it and his attorney's general took care of him to make sure they didn't allow him to go into that-
Richard Epstein: Nobody took care of the guys on the other side. Nobody took care of Adam Schiff, right? When he put these things out, they find it. And then when the finds a court gets a guy who admits the crime what they do is they give them time, they don't even give them time in jail. That's a high crime and misdemeanor as it was to submit frauds on the affidavits to a Pfizer court in order to propel an investigation. I mean the enormity of these kinds of offenses, and they're always justified, well, it's that guy would going after. And I think in effect, the rule of law does not matter very much when you have your friends being trapped. The point is, it's really important when the people who are being tried, are people whom you hate for religious, personal or political reasons. And then you say, as that justifies these kinds of fraudulent statements. That's where the real rock comes in, it's not just the impeachment pivot. This is the last of a repeated set of things that have gone on for the last four years, all of them as best I can tell approved unfounded. And when you're trying to figure out what Donald Trump did well, you can say, as he talked to his attorney general, who didn't listen to him Trump is a gasbag. He'll say all sorts of stupid things all sorts of time. The question is, did he ever overruled them when he could have? And the answer is this guy's bark is worse than his bite. And the other guy's bite is every bit as bad as their bark.
Peter Robinson: Very tentatively John set up the question, essentially is America doomed or can we all cheer up? And Richard took it and made it even worse. John.
John Yoo: About that two points. One is, let me, Peter, you keep saying making it sound like I live in the 18th century. There are a lot of positive things about the 18th century compared to now. But dental care and things like healthcare are not one of them. Though I still like the 21st century better but let me make an 18th century point. Which is, one of the innovations of the founders was the creation of an independent presidency. One that's not elected by Congress. They wanted to make it really difficult for Congress to remove the president which is why impeachment is so hard. And they really expected the people to do the job of removing presidents at the elections. And so one thing to be cautious of is that, overuse or misuse of the impeachment power even stretching it a little farther by saying let's impeach now, former presidents will represent more congressional control over a president. You could say, you're going to turn this into a partisan tour, if you're a house and you don't like the president, why not impeach him on day one? Just like Richard said, I want Trump to resign on day one. And then the Senate can try that president anytime for decades. I mean, you can see this pre turned into a partisan tour congressional control over president. And so that's why I think we should resist it even now in the 21st century. 'Cause you, I love your point about the Roman Republic. Alexander Hamilton, who, when he chose his, person he most want to be like, he chose Julius Caesar. Well, you can say the Roman Republic had like 200 years. They did okay. But it wasn't so bad, the empire lasted for another 450 years. I don't know necessarily if we're on the road to ruin, Americans are really unusual and that we're constantly worried about these cycles of history and as America, right? No longer, great anymore. As Andy pointed out, we've been through these cycles before and I've been always impressed. You look at American history how we have been able to rejuvenate ourselves and move past these crisis. I think the 1970s and 1980s were worse and not just because of the ties and the clothes but because we were facing Nixon and Watergate and we faced the Russians and the Soviet union. I still think we're still, America is still doing very, very well and material conditions are really great. All we have to worry about is China but I don't see this as our Gibbons and internal deterioration of our constitutional system and collapsing into some kind of dictatorship.
Peter Robinson: Thank you, John. I feel much better now. Last question. I promise last question because I'm getting notes from our producer, who's suggesting that if I don't bring this to an end it's going to last longer than the trial will last. Last question. 50 Democrats in the Senate, 50 Republicans, Kamala Harris would break a tie if it came to that although you need to convict by two thirds. So suppose all 50 Democrats vote to convict, that would require 17 Republicans to vote, to convict, how many will do so? Prediction time. How many will do so? Just, how many Richard?
Richard Epstein: At most four or five.
Peter Robinson: At most four or five, John.
Richard Epstein: And they may not because the people could object on the jurisdictional grounds and still agree with Andy on the merits.
Peter Robinson: Yes, yes, actually that I... Sorry, go ahead, John.
John Yoo: I actually think maybe just two. I think actually that the number of republicans is going to get smaller because I think these proceedings are looking more and more unfair.
Peter Robinson: Andy
Andrew McCarthy: Seven, if they have a powerful presentation, especially the video evidence of what went on and you may add one or two to the five who were inclined to go the other way. And I don't think Peter that Kamala Harris has any role in this. Only the Senate gets to vote on this.
Richard Epstein: That's right but she should preside.
Andrew McCarthy: Right.
Peter Robinson: She's president of the Senate. Is she not?
Richard Epstein: But she's not a member of the Senate.
Andrew McCarthy: She's not a member of the Senate.
Peter Robinson: Got it, thank you. Thank you for that correction. All right, fellows. Absolutely fascinating. Could easily continue for another three hours but we won't. Richard Epstein, Andy McCarthy and John Yoo, thank you.
Andrew McCarthy: Thank you so much.
John Yoo: Thanks.
Peter Robinson: It was fun, wasn't it Andy? Andy.
Andrew McCarthy: It was a lot of fun.
Peter Robinson: Yeah. Andy, It didn't start too well for Andy, but as we knew, he would the man from New Jersey held his ground.
John Yoo: The common prosecutorial trick to start with weakness. Crescendo your winning argument the end in front of this closing good to jury. Come on.
Peter Robinson: For Uncommon Knowledge, the Hoover Institution and Fox Nation I'm Peter Robinson.
