Richard Nixon 1974 Impeachment Hearings 50th Anniversary : CSPAN3 : August 19, 2024 12:40am-2:45am EDT : Free Borrow & Streaming : Internet Archive (2024)

good morning, everyone, and welcome to the american enterprise institute.

i'm robert doar the president of aei and i am pleased to welcome you to this event where we will reflect on the 50th anniversary of the house judiciary committee's vote recommending the impeachment of richard nixon. today's event is the latest in a long standing effort to learn from our nation's past through a commitment to serious scholarship reflection and public engagement. the task of renewing our nation's institutions is more urgent now than ever these days. and impossible to accomplish without an honest understanding of the forces values and individuals that have shaped our country. for more than 250 years. so i'm proud and honored today that we are joined by two panels of distinguished guests to better understand the events of 1974 and their lessons for the present. now, our first panel will focus on the house judiciary committee

by bringing together scholars with veterans of the inquiry. and we are very pleased to have with us today former defense secretary and former united states senator william cohen, who has a young representative from maine was one of seven republicans on the committee to vote in favor of impeachment. we are also joined by francis o brien founder, the free charlie group, who was chief of staff to peter rodino, the chairman of the judiciary, who did so much to shape the inquiry's outcome. and representing the staff of impeachment inquiry, we have judge robert sack, currently a senior judge on the u.s. court of appeals for the second circuit. judge sack was senior associate special counsel on the impeachment inquiry, providing historians perspective. we have dr. timothy naftali, a faculty scholar at the institute of global politics at columbia school of international public affairs. dr. naftali authored the chapter on the impeachment nixon impeachment and impeachment in american history.

now, first panel will be moderated by air senior fellow and presidential expert gary schmitt, who is writing a history of the original understanding of the presidency. i'd like to also just say a word about our second panel, which will assess the broader state of the impeachment power today. and our panelists, that panel include jeffrey tullis, professor emeritus, university of, texas at austin, and author of numerous on the presidency, eic, your fellow philip wallach warlick author of why congress will be with us as will keith whittington, the david boies professor law at yale and author of forthcoming book the impeachment, the law, politics and purpose of an extraordinary constitutional tool. we are hoping that a non-res audience senior fellow and learned hand professor of law at harvard, jack goldsmith, will be our moderator. but understand the flights from boston are moving slowly.

so if jack can't do it, i will so. but he'll be better than me. and so let's say a hail mary for jack. now, one last thing before i turn things over to our first panel. i think it might be to briefly review the surrounding watergate and the judiciary committee's inquiry to familiarize the audience with that essential context. now, the undoing of the nixon presidency took place a two year period between june 1972 and august 1974. and i'm going to put up a chronology on the screen. it began on june 17th, 1972, when five men were arrested breaking into the offices of the democratic national committee at the watergate complex. from august to october, 1972, bob woodward and carl bernstein of the washington post published stories describing involvement of the nixon administration in the financing of and response to

the break in. on november 7th, 1972, president nixon was, elected in one of the largest landslides. american political history taking more than 60% of the popular vote and winning state except massachusetts and the district of columbia. on may 18th, 1973, the senate, watergate begins its nationally televised hearings on the watergate affair. on may 26, 1973, attorney general designate elliot richardson appoints solicitor general archibald cox as the justice department special prosecutor for watergate. on october 20th, 1973, president nixon fires archibald cox and attorney general richardson resigns. on november 1st, 1973, acting attorney general robert bork, a former air scholar appoints leon jaworski, the second special prosecutor.

and then in december 1973, the house judiciary committee inquiry begins under chairman peter rodino and john dawes, named special counsel. on february six, 1974, chairman rodino asks the full house of representatives for a explicit authorization to conduct the impeachment inquiry. the resolution. with a vote of 400 and tend to four. may 9th, 1974, the formal house committee evidentiary hearings begin on the impeachment of president nixon. these hearings are held in executive session and go on for ten weeks. july 27th, 32/30, 1974, 50 years ago. three articles of impeachment are debated and approved. the house judiciary committee. seven republicans vote for at least one article, as do all of southern democrats who came from districts that had voted overwhelmingly for president nixon. and an august 5th, 1974, president nixon releases. transcripts of the conversations

revealing nixon's involvement in the watergate cover up beginning in june 72. this confirmed the assertion contained in the judiciary committee's first article that subsequent june 17th, president nixon participated personally and his subordinates in the concealment of unlawful activity. and on august 8th and ninth, first, president nixon resigns and vice president gerald ford becomes president. now, having provided that introductory context, i turn discussion over to gary and first panel. thank you very much. thank you, robert. and thank you all for joining us. and joining us online and. eventually on c-span. the format today, really quite simple. i'm going to begin by asking each of my panelists a a first question. and after that, hopefully, we'll

have a conversation among the panel and myself. occasionally, i might toss in and question or two, but i really want to have a conversation among folks who actually know from inside the ongoings of the impeachment inquiry that the house judiciary committee was undertaking. and then finally turn to questions from you all at the end of the first panel. so let me begin with francis. so after the saturday night, saturday night massacre, it's pretty clear that the house will have to begin an inquiry. you're relative, relatively new to the hill. chairman peter rodino is a new chairman. and on top of all of that the only precedent one has for impeaching inquiry is the andrew

johnson impeachment inquiry. that's a century old and pretty problematic at. so let me begin by asking you, how did the chairman sort of sort through how to approach this new essentially unprecedented impeachment inquiry? what were the principles that he had in mind? and secondarily, sort of what's one of the major obstacles that had to mind you? and he had in mind or you had faced with in trying to conduct the inquiry as you wanted? please. thank you. well, let's take it before. the october 20th, the saturday massacre. so these for those who were old enough, the hearings on the watergate were just mesmerizing. they on television and they just were if you were in politics you were glued to your television and would. bernstein fact after fact kept pouring out a about all the

doings of this administration. very strangely over the house. there was almost no activity at all. now, that doesn't some of the most activist members of the democratic party weren't commenting on nixon, etc., but the word impeachment was almost nonexistent nonexistent. i think and tim can correct me, i think during that whole up. to october 20th, maybe or two members introduced articles that would be maybe john conyers from michigan and maybe bob drayton from massachusetts, maybe they're very what i call activist on the activist wing of the of the democratic party. but i've given this talk before and i say the saturday massacre, october 20th, shocked the political class. if you weren't alive, then and

active, you don't know what i mean. but i now, 50 years later, can tell you of something that just happened, that changed everything. and that was the past month, the debate the the that debate shocked the political class. it's the exact same theory. that we had 50 years ago. it just. it just took your breath away and you draw a line for nixon from 20th to august 8th of the next year. and. you can draw a direct line from that debate. president biden, i think i'm suffering from biden died here for president biden to his decision not to run. it was that same shock that took place. so the interesting thing is, while all this is going on in the in the and conversation, no one thought of impeachment a, as

gary said, it was, it hadn't been used and it was used in effective over 100 years ago. it was considered a very extreme measure. and before the october 20th of that year. peter rodino, who had been by then, mr. chairman and myself and others, we never talked about it. it was not part of a conversation. you watch the you watch the events. not good, but impeachment was not private or public. a conversation that took on the house, the night that saturday night that took that monday. it was topic number one. and i can remember, i was in new york at the time, came back and the chairman was was in new jersey. he was congressman from newark, came back. i can remember sitting in the office and i don't know i can't remember 50 years ago was there he said, but he said i think

this is going to become an issue. now it's interesting. he was not a fan of this. he thought again of liberal democrat party line liberal. he was not an activist. and i always distinguish that between being liberal or conservative and are you an activist and he was not. he was a very party line. been in the senate for the house for many years. people in the house knew him. no one outside the house knew him. because a congressman named danny seller had been the chairman that committee for many years, a critically. one known congressman as he led most of the civil rights legislation that came out in the sixties. and so the chairman was brand to the committee as. gary says i was too. but this is not something. it did not fit his personality.

that's all i can say. it just. that he thought was a very extreme undertaking. but pressure mounts quite dramatically. and he felt that. the committee could start doing a couple things. and and one of the thing is, no one knew the first thing they said, let's do some research. what's the writing's on this what is this? having had 100 years or years, there was a scurrying around of trying to figure out what's precedent here. and of course, there wasn't. a couple of staff were hired and necessary committee to do some research which but as we moved deeper into october and november the chairman came to the that you're going to a separate staff from the judiciary but first of

all to back up a he had to be a decision had to be made by the by how albert and tip o'neill the speaker the majority leader that the investigation would reside in the judiciary committee and that peter rodino would be the chairman of that investigation. there was pushback about that, again, from the most activist members of, the democratic party inside of congress and outside of congress, because no one knew rodino. they knew he was a liberal line, but he had no reputation in. the political community at large. there was no doubt in the speaker's mind or lovejoy leaders mind the peter rodino would be the head because they had they had known him and trusted him, and felt he was the exact personality, the exact person who would lead a very fair undertaking. and it's interesting, 50 years

later, so rodino, in those early days did not think this was a tool that should be used. nor did he ignored at that did he ever think that the president, president nixon, would would would be charged with this very different 50 years later? the chairman of of the judiciary committee today was an advocate for for impeachment. it just it a totally different culturally why he's important in congressman cohen. senator cohen can talk about that as a freshman member of the committee. his his attitude was was to be as include sive as possible. he said he said this 100 times to myself and then he eventually chose john doar to name you're somewhat with in this group as

the as the chief counsel of the committee. one one staff bipartisan. general a man named jenner prominent lawyer from jenner and block in chicago was the republican choice to co-counsel with with john doar. eventually this staff bob sykes bob bob sex and others came to about 120 people but the message always was. the public has to feel this is a undertaking. he drilled that into every one of us whatever that decision would be. it had to be. didn't matter if you agreed or didn't agree, be it republican or democrat, you had to think it was a fair undertaking. and that was this constant message. and one of the attractions of of his choosing. john doar, was, was actually instinctual. he felt that he shared that john doar shared that same kind of

belief that this had to be a fair, not a partizan undertaking, so that. go ahead. are you are you finished? i don't want to interrupt. do it or you know, i can shop. okay. i sorry. i don't want to cut anybody off, so. but sarah cohen, as friends, has mentioned, your first term congressman, i presume when you were running, you weren't thinking about things like impeachment, inquiries. can you talk a little bit about the impeachment inquiry begins? what your views about impeachment of the president how you think about it at that, but also if you can kind of tie together how you you evolved in your thinking about impeachment with how the committee was being run. because i think the two really,

really important. gary, thank you very much. robert doar. it has indicated we should be brief and that's almost an impossible task to tell a former senator to be brief. so i'll try to summarize as quickly as we can, if i can, on two things come to mind this morning. we were just talking about last evening that president biden made a speech in the oval office doing something we've only seen once or twice in our history on a person handing over peacefully the transfer of power before his term has expired. he did it with elegance last night. he spoke the heart and he talked about something that was really relevant to me as a young congressman being faced with the decision to possibly overturn the overwhelming vote for the

president of united states, someone that had voted for and campaigned for. and so it was the gravity of the circ*mstances then. and then we looked to what we've had with a president forced out because of nixon of corruption. he left before his term was up. so you have these bookends in history. nixon because of corruption biden, basically of age, but a very different example of the peaceful transfer of power. but these two bookends are really important because going back to the president, united states, we first had to decide what to do. high crimes and misdemeanors mean is it a criminal act? can it be less than a criminal act? can it be? what's a misdemeanor? how do we judge? so we had to go back into history beyond simply the impeachment of. andrew johnson. we had to go back into english

history. and that's where i started reading some of the decisions in english history and a quote that i came across important to me. it said, impeachment is like goliath sword to be removed. the temple or the shoes on great occasions only. that's how important it was to talk about impeachment only on great occasions, because you are undertaking to overrule potentially the vote of millions and millions of the american people. it had to be something truly brave. a threat to our system. so in looking at listening last night to what joe biden talked about, do we insist upon character like he used word, honor and honesty and another quote that came to mind when i was a young is that of justice. he said, public servant is a

trustee, a fiduciary, and a trustee owes. you something higher than the morals of the marketplace. we owe you honor the punctilious of not honestly alone. at important but the punctilious of an honor. the most sensitive. and those words may meant something to. me that we want our president to be up here. we don't want to lower what he or she can do. we want the president is a trustee. that's what mean by a public servant serving the interests of the public. so we want you to act with honor in honesty. and so standards were the ones for me as i looked and listened to all the evidence i had memorized, the hearings that took place in the senate committed them all to memory. so that i would understand the witnesses who came before us, whether there were any change.

and so i had that as a base and then i listened to the tapes. and i will you if not for the tapes, there would have been no impeach moment. and one thing i've learned from the impeachment process, you must be bipartisan. you must a bipartisan consensus in that committee. if it's simply a majority, you can pass it. but it's meaningless. it will not go to the senate. it won't have any meaning. so you take goliath's sword and you turn it into a butter knife. it doesn't mean anything unless you have people willing to say yes, that is on acceptable. yes, it's unacceptable for a president to bribe just to pay money to purchase silence. we saw most recently in the trial in new york, a person paying money to purchase silence, different issue, but nonetheless, we had nixon paying money to purchase silence. we had nixon calling upon the cia to intervene in the investigation of the fbi.

so we kept looking down the list of things we said, is this acceptable conduct for the president of the united states, a fiduciary, someone who must give us honor and honors? and that's how went about it with the other republican who went about it to say, we won't this. we want our president, the person we voted for, to be up here. we want him to be a trustee. we want him to be a criminal or to someone engage in conduct. it doesn't have to even be criminal in terms a crime. if he engages in conduct is antithetical to everything we believe that we want in the president to be an the states. that's the standard. and that's what i took away from chairman rodino and john doar. john doar made sure that we proceeded on a bipartisan basis. the committee staff on the democratic side, to be sure, burt jenner on the republican side, we have to see if we can

agree on on several issues. and if we can't agree, then it's going nowhere. and we finally came together with seven of the so-called fragile coalition and passed at least two resolutions. i'll stop there. thanks, senator. thank you very much, judge sack. you are a senior deputy to staff counsel john dore and in charge of the task force. looking into the abuses of power by president nixon. you were, as you might say, in your own courtroom, a witness to the inner of the staff. five take, five decades later. how do you remember those days and the character of the staff's work. i got to start. i'm a judge that were i start somewhere else. something happened in the last hour hour. i learned something. 50 years later that didn't know.

and that is how did i get down there from being a very young partner, doing a newspaper defense work. how did i get of washington? what they had come to my firm, patterson webb, a man named the robert owen. he his father was a person from texas. my father a rabbi from park slope in brooklyn. somehow we were almost exactly the same. and we were very, very close friends. and he came in and he said, geez, bob, are you doing for the next six months? and it was a funny question. and i said, gee, why? and he said, would you be willing to go down to washington for the next six months? and i swear my answer was my father spent it in the war. my father a year in new guinea. i can spend six months in

washington. i didn't realize. it turns out six months in washington. it's hotter than it is in new guinea. but i didn't know that at the time. so i say this all only because of what i went last hour and that is robert ture, who is named after my friend robert owen. and i didn't know that. and i'm of stunned. it's worth worth the whole trip here, in fact, to learn. i'm kidding. now i three. ultimately just three stories that i wanted to share with you. and i hope i will be able to share with you. but start with one of the three stories in the staff and that that was when we were actually across the street. it must have been july, where across the street for us, across the street in the in the hearing room committee. and my again, dear friend for

many years passed away a couple of years ago. his name was bernie nussbaum, very senior. a senior to me. bernie nussbaum was a fine, excellent, well-regarded. and in new york, lawyer and for for his entire career. but when wasn't working out of some some public service and we were making a presentation or staff making a presentation and bernie his parents were immigrants from poland and amongst things that he did is he spoke like a machine gun that he would run out like that and he was kind well known for that highly respected. but that was one of the things he was well known for. and so he gets up and he has to make a present case and he gets up and he says, members of

congress, members of the committee, i have to i see. it's going to be lunchtime. i have to report on this. but i will be quick and i remember it may be wrong as congressman, but i guess it is from north carolina, from virginia. virginia. and he says he says mr. please be bright. be brief. do not be quick. no, i plan to follow that instruction. and i trust you. let me get my my two stories. i am just a witness. mind you, i'm not not telling naftali who was an expert who studied this and knows what went on. i just was there 50 years ago and i remember well, a little shards of things.

but that's what i remember. and that's what a witness douglas says, what he remembers and that i hope i don't get cross-examined. cross-examined afterward. but that's what he does. and i i do remember all kinds of things. but we must face the fact that after 50 years, i think face the fact in the face in the last couple of days. but after 50 years, the memory doesn't exactly get sharper every year. my father, when he was roughly my age or younger, had told me that that he wanted me to know that he had seen simon's disease. i said that i had what is since i was deceased. he says that's when you can't remember the alzheimer. so i of course, there's an irony. the irony is that it was more than 25 years ago, and i

remember leave that alone. i remember. and this, i think, is what important that there were three different aspects, at least three that i knew one of impeachment, it was just one small one one experience. first and in my mind foremost. was we one people, four of them lawyers. and we were there, didn't know each other, selected all by well, at least the democrats by john or here we were in midst of a national crisis. we're kind of locked away together and old congressional hotel, we. we became each other's life raft. we were there for 12 hours a day. and we didn't know whether we were on some enemies list.

we surely terribly important to remember that. we did not know in january what was going to happen in february little what was going to in august. and so it was all suspense. we didn't know and we clutched to each other and became wonderful friends to give you an example, simple example. last friday night, last friday, we had a seven of us at six of us. excuse me, on a zoom call for an hour. 50 years later, i are just talking about what's going on in the world and what am i going to do today and and how is the weather? and it's going to happen a week from friday, and it's going to happen after that. 50 years later, my job was this intense, close friends are the people most of the most wonderful people are the people who we met there. now, if you want to know more

about the group, if for any reason you want to know more about that group, the answer is 13 years ago, almost 13 years ago, the. tim naftali did hell, no. how many? he did a of interviews for guess you can get it right right now i think they're on c-span, but you can get them. i've got them in the last weeks and they have the interviews of the staff members and believe it or not, 13 years ago, their memories and my memory was better than it is now. but they're marvelous. i spent the other day, i spent a good part of the afternoon with my old friend bernard nussbaum,

listening to him be interviewed. bernie has been dead for two and a half years and i spent a day with bernie. bernie nussbaum so if you want to know about the people i spoke go to the tapes. the second thing was what we did as a staff, what we did staff, we didn't virtually. we did a few interviews. no, we used the basic we did no investiture. haitian. and we we had a vast amount of material, multiple. there have been the ervin committee, which had a lot of it, a enormous amount of interviews and tapes, documents and. so we gathered that material up the special prosecutor's office. and i've kind of a what was then a famous moment delivered a suitcase full of material and. john dover went out in front of

the old congressional hotel room. we had lots and lots material, but no investigation. so our job for the first three or four months was nothing but people thought we were doing nothing, nothing but a 10 hours a day in each. we were divided into groups. and i was in charge of a big less group, which is called agency practices, not agency abuse. we would never use the term agency abuse because it's biased agency practices and we had 35 different subjects that we went into and we got all the documents and read them, put them in order and and turned them into what were called the statements of information. now mind you, they were called statements of information, not statements of facts, because we

were going to be as straight down, the middle as possible, the congress was going to decide what the facts were. we were going to tell them what the information was. so we had a vast amount of material documents coming in. sorted out into stories, and then put into the and then sat across the street, out the front door of the old congressional dome, across the street to the house of representative and people thought we weren't doing anything because we were out there investigating. but the if you i have since found out there really was a lot going on outside of what our staff was doing and they were that by reading more than twice reading robert dawes what's going to become for his book.

i'm to say that it's the only book to tell them what my left is. probably read more books that i'm ever going to read. i mean, more books i read, but i read them and started to understand how small a piece. what we were doing doing with that because we never crossed the street to the congress. let alone. go into the white house or to the senate. so documents was a big thing and it was a woman named maureen barden who ten years younger than i was, and she was in charge of a staff of young people and. they their job was to get the documents coming in, read whatever, put together whatever the we had the rest of the staff had done, the lawyers had had

done, and then put them into these books of information. and we took the books of information, big black books, and sent them across the street. and the second, three or four months we were trying to explain what the books of information had to, to, to congress. but again, the small number of amount of what we knew of what was going on reminded me of a story of my that my mother used to tell about it to a player in new york philharmonic. and they were doing mahler's first and following the tuba player had the next week off and they wondered what it was going to do and so he decided he was going to go to the carnegie hall and listen to the philadelphia orchestra play mahler's first. so it went listen came back and

his wife, what was it like? was that you enjoy it? he says it's amazing. mahler's it's amazing, he says. you know, well, i'm playing it and i'm playing with tuba. i'm going oompa loompa, did you know this beautiful music there? and it was kind of that way and it really okay now my two stories two stories and i'm sorry it takes long to two stories the. joe woods, a buddy of john doar from california, he was a lawyer person. he was in charge not of the facts, stress of dealing with, but the law and impeachment and day. i would guess it, was march. he had a little meeting in his in his room and 730, 8:00 and i was there was with fred astaire who you may know and hillary rodham who you probably heard

of, and the two of them. and joe was with it, me and and and i don't what it was a piece of paper with some told something i was asked to do so well joe woods came down with like a like a house of bricks. he thought it was terrible. and he told me how terrible it was and how and i, you know, i we were we were scared as it was. i thought i. terrified and angry and so sad. and i went and out, started to pack up my bag to go home to my family. and i go out and my car in congress, it was it was. seniority. and i was the least senior person in the world. so my car i it had one wheel in the potomac river mean it was way, way down. so i'm walking down block two blocks and then i hear this

little pitter patter of feet running behind me and. i turn around and there's fred olsen and hillary rodham running after me. and they came back, literally patted me back and said, look, don't worry about it. it wasn't that bad. nobody's going to remember everything's going to be fine. don't just don't worry about it. that was the sweetest thing anybody had ever done to me. i can't talk about it now without tearing up a little bit because was we were so vulgar and the support from our colleagues was a lifesaver. last story last story. oh, when eventually the transcripts came over, i think we got them from i don't mean the treasures tapes and excuse me tapes came over the transcripts came from the white house. the white house prepared

transcripts, which weren't very good, but they prepared transcripts and our staff, three people on our staff decided that they were told to make when they got better tapes to make perfect transcripts three of them to make perfect, perfect of the of the white house tapes the richard nixon tapes. and so they completed them. and then they were delivered across the street. and i think they were either delivered or how do they tell the difference to the press at that at that point. so one afternoon, one afternoon. yeah. i hear pitter patter of big coming down the hall and maureen barton and she bah bah bah bob i read some of us were white and she says bob, i've been getting calls from newspapers over the

washington post. sure, but places i never hear her ask, who is earl nash? which of course, i don't know. and she says, i love she says in these of our transcripts, it says it says, somebody asked haldeman a question, well, how so how something about, you know, security and some how we what's going on and haldeman erlichman says, earl nash and that's what our transcripts as our perfect transcript. earl nash so she could bob could you call him up and find who he is and what's going on? and i found a name in the phone book and in virginia, near virginia and find out who were on national press.

i said i was supposed to do i was asked. i did. i pick up the phone and i call and i rings a couple of times and then i get a woman on the phone and i say, excuse me, can you tell me who is earl nash? and she starts to cry. and then she starts to ball and she's little earl. this is husband. he's a traveling salesman i telling reach and i think he's somewhere in indiana now. and but they're all all these. can you explain to me why? what's good? do you know what's going on? and i said no, but we'll find out and we'll take care of it. i understand it has nothing to do with this. well, let the press know. don't. but he'll find out what happened. and so we go back to this are

perfect transcripts that we had prepared and we go to this and the president still call him that. the president said to all the men or women he says, how are going to explain this? and he said, or national security and that was transcribed into earl nash. and to this day when i have dinner with my friends, there's always a place on table for earl nash and i think, thanks, george. him as we introduce you as being the definitive historian on on the nixon impeachment. so what are we missing. we're one of the points that you know, you think we should also remember about the inquiry. well, i want to just mention christian youths name, because when i was director of the nixon

library invited me to come and speak for acis, my second time here. and i'm happy to be here. i want to make a few points to pull together what these heroes have said. i learned about the nixon impeachment, and i just interrupt. so, chris, the smooth an office in the basem*nt of the white house. yes. you were going to know. i was i was going to as of the oral history i had interviewed him. but i just wanted to mention that segment. well, i was just going to say the they moved him out of that office, put the taping certificate in. i want to make a few points because as director of presidential library, i work for you. so the research i did was for the american people and everything we've talked about. you can access your cells and

unusually, it was an unusual task that i had, but because the us government, at the request of the nixon family was taking over what had been a private nixon library and i was going to be the first director were taking over its museum and it had a watergate exhibit and the the, the family as it was explained to me, couldn't agree on how to alter it, revise it, since president nixon had actually edited the text of the museum. and so it was decided that as the first director, i would i would write the text of this public history of watergate in a federal institution. the irony was i was not an expert about watergate. i wasn't really an expert about nixon. i was hired for the job because i knew something about tapes. i'd run a program at the university of virginia, but largely i was hired because i dealt with russians and tough to deal with and the new archivist of the united knew that this would be a tough assignment

well, one of the things i learned about this and i want to share it with you, because i see some young faces in the audience. and i want you to, first of all, to forget about everything you know about impeachment, because you have seen two of them. i want teach you i want to explain to how impeachment is supposed to work and this and i want you to think about one of the takeaways. i want you to think about is whether i'm describing and society that existed once and will never existed before, or whether and this is my pious hope i whether partizanship is a choice because in what i learned as your as your steward, if you will, was that a number of made very important choices that perhaps generation the current one in power won't make but it doesn't mean future generations won't make. so i'd like to very quickly talk

about those choices and how interesting they are in a sense been hinted at by all of our our guests, your your guests. the first choice was the choices, the set of choices made by peter rodino. peter rodino. and francis knows way more about it. he but peter rodino was not a very well-respected chair. he was expected to be dominated by the top tier, the democratic party in other words, he was supposed to be partizan. it was assumed that this whole process would be. and this you will you will have seen this before a totally partizan impeachment peter rodino for reasons that francis knows well and i never had the good fortune to meet peter rodino decided that for this process to work, it actually had

to be bipartisan. now i want you, since you all live in washington, to think about how unusual it would be for someone whose first moment in the in the glare of public recognition, this man was not known. he had replaced a lion of the house who had been by the aoc of of that generation was holtzman. he chose to buck the partizans on his in his caucus to create a bypass partizan approach. and when i say buck, i want you to know there were efforts to remove him because he wasn't partizan enough. i imagine that in washing tent it's so easy to be partizan because all friends, all your buddies love you. imagine making the choice to do something for the nation.

and and so that's that's one. but it's not a story of one person. that's what makes this so interesting. this cannot be explained by one person. it's a series of people in different positions with different all of whom have read the constitution. all right. next, bob's father. i. i can hardly talk about mr. whom i had the chance to meet once without tearing up. i tear up. he was a very good man and i'm true was a great father. i tear because of what he represents. robert doar was he was a republican. he was an eisenhower appointee who believed in civil again for, young folks. there was a time when the republican party was party of civil rights in the united states. it may be someday in the future, and i won't make any more statements of the partizan. but. but it was all right.

daddy king martin luther king's father was a devoted republican and john came from that tradition of. republicans who go back to lincoln, john doar therefore was a was was a civil servant in the department of justice who stayed under the next administration. john f kennedy and worked for robert f kennedy john doar was a master at winning cases in courtrooms that were biased. he had learned how to try cases in the south on behalf of people of color. and one of the things he learned was, you have to overwhelm the jury with information you can't have a case. you have overwhelm them. and it was that theory that he

took into this process and this is something that that bob sacks was was alluding to when he talked about that the the materi they amassed for this. it's not that he thought the republicans the committee were like southern jurors but doar recognize that in order to do something hard for which was impeachment, the country hadn't done it for 100 years. you would have to overwhelm folks with. the enormity of president crimes and abuse of power. and i'd like to i'd like to read something. this is actually from bob dawes. work that he gave to caldwell butler, who was part of the he he was on the and i did some research in his papers and mr. doar explained the following about his approach to thinking about if one were to make a case

about impeachment. i thought he he wrote in a diary. it was that mr. doar wrote this. i thought that the country shouldn't be left with making a decision about impeaching a president on the conduct of the president on one day i. thought that was not going to help the get over this. and so we tried to pull everything together of. the president's conduct over a period time. so this man was thinking of the nation. in fact he had a disagreement with prosecutors. the the special because he felt the special prosecutors were just trying to try a case in a court and they were looking for one crime. and then i i'd like to make to mention the members, the committee. senator cohen, secretary cohen represents a group of great.

they were they were republicans. but they were also democrats because they they showed political courage and that era for a democrat to show political courage it was to be against nixon southern democrats were part of a new coalition of conservatives that richard nixon was building because he actually which is one reason why he wasn't as popular with rank and file republicans in office. he wanted to move past the republican party. he wanted to create a new conservative party that would be based on southern democrats, which is why he loved, a man named john connally and wanted john connally, former governor of to be his vice president and he kind of would have been president. the united states republicans in the house said the president, you're not getting your choice for vice president. you're going to get our choice. gerald ford and that's how gerald ford becomes president of the united states in any case

the southern democrats and. decided to treat this impeachment the way the founders wanted it treated, which is as jurors in a constitutional trial, not as members of a party. remember, all us know this. the founders hated factions. they hated parties, didn't they didn't want parties. they did not anticipate there would be a president's party that would make removing a president by two thirds vote in the senate impossible. they just didn't think it was possible that and thought it. they expected these senators and the the senators in the trial and earlier the members of the house in what we consider a grand jury to think as americans, as. not as members of a party. that's what the bellwether group in the committee did.

and how they went about it. perhaps in the q&a, senator cohen can tell you more about it is remarkable. these were from all over from virginia, from maine, from south carolina, from from arkansas from wisconsin they were from all over the country it didn't matter where they were from. they were americans first and foremost this is a remarkable and then course, there's a final player in this story. that's richard nixon. richard nixon was, not bipartisan, but for all of his failures and all of his flaws, richard nixon believed in the of the federal government. and so even though he wanted to game the system and he did some dirty tricks for example, he tried to put pressure one member of the coalition and an illinois

republican and tried to get his chief fundraiser, his chief financial backer, john deere, to go against him if he voted the president, even though the president dirty tricks, he also believed the public expected him to respect the process. so he actually handed over material. richard nixon did, not stonewall the proceedings so everybody even the who would lose in the process believed that the institutions of the country required at least a semblance of constitutional duty and so just keep in mind partizanship is a choice. it's not expected by our founders. it is not linked to the nature of this country. it is a late form phenomenon in history. but impeachment is an early form of. american duty. and this generation attack that

and approach that duty the way the founders wanted them to. so the question is, we are ever going to be capable of that of commitment to, the ideals that made us the great nation we are. thanks. thanks kim. so we're going to to questions. but before doing, i wanted to give senator cohen a chance to make a few remarks, final remarks. i just pick up on what we're saying the question is. what are the lessons of watergate and do they apply today? is there any chance you would have that kind of capability to your bringing people together, pursuing and assisting upon the validity of the rule law? what is troubling me in this country is, we have lost respect for institutions and have people running for office who are determined to undercut that respect for institutions.

and so you can say i want to pull the justice department into the arm of the white house. what does that do in terms of respect for the rule of law? you have one candidate who says, well i feel we should be able shoot protesters in the street who are unarmed. is that consistent with the powers of the presidency under the ruling, the supreme court, that president can do whatever he she wants and the court will determine at some time in the future whether that exceed the bounds. so what i am worried about today is that we have lost the lessons of watergate that we insist upon the president of the united states as being highest official, the person that none of us we go abroad. we never speak ill of the he's our person and i want him to be as reagan was when he walked into the room. he was our president. and you knew that he believed in

the rule of law. but one exception. i won't into another time, but he believed in the rule of law, apologized for when it got out of hand in terms of the iran-contra, so do we today expect our president of the united states to be up here when joe biden night said honor, honesty, character. do we insist that or are we so caught up with entertainment, with with the trivialization of our process that we no longer have faith in the justice department, no longer have faith in the fbi we no longer have faith in any institution. we want to abolish them and start from the beginning according to some. so my fear is we have forgotten the lessons of watergate were great reforms after watergate. we said we cannot tolerate the abuse of power. we insist that we some limitation on fundraising.

we remember that we tried to limit the amount of money coming into our system today. there no limits and we don't even know where that coming. and we don't care. it's just free speech for corporations, for people, dark companies who have dark money, etc. so my fear is we've come of full circle. we've seen what impeachment was and the question what we've seen today is we don't have people willing to say, mr. president, you can't encourage an insurrection, you can. nixon had his burglar burglar group or another had his burglars and the proud boys and the others, the capitol there was no traceable transfer power. i'm holding on to it and we have to remember what this country is supposed to be about that we hold everybody. president especially true that rule of law you're acting as a

fiduciary. you are a trustee and we're going to make sure you conduct yourself as a trustee thanks senator. let the record show i've been a very moderator. so the question here and please wait for the microphone and identify yourself. and as always, a question, j.p. hogan, mike and remember bill and hillary introducing themselves to me in 1972. before this, i was not age they but on this it's going to to j edgar hoover because team nixon was a had legitimate cause to investigate them at the headquarters so why was hoover to do a legitimate investigation then that then became well before this chronology of you know the break in happened there's a case that mark felt opened up a case file and the case file would have a nickname, deep throat. so there's a history of mark felt state secret protecting

minors. and nixon lost his presidency more. so you have to ask the question. the question there. but the question is about why wasn't nixon was impeached? because he botched what could have been a investigation. but it's a matter of anybody looking another question? well, i do want to i will say one thing that that the that this was the period of the imperial presidency and democrats before nixon had used the fbi to certain extent to a certain to do political investigations. there was a gray area in the constitution which the supreme court has now decided to wrap together and hand to the future a future president as a as area where they can now engage in criminal activities without any

fear of of of adjudicate action. so when nixon did not get the institutional assistance, he wanted to engage in public in political use of events since then he created his own. so what had happened is the the the the the fbi in particular because hoover it changed his approach had moved away from saying yes to presidents to do what it used to do what it had done for lbj and for for for jfk. and for eisenhower and for truman and for fdr, hoover. do it for nixon. but those aren't legitimate uses of the fbi. it was this that hoover wasn't willing to do them anymore. similarly, the cia was not willing to do everything that. nixon wanted the cia to do in the united states. so nixon set up an organization to undertake illegal covert

operations in this, because the existing institutions wouldn't do them anymore. and he gets caught because he reuses the same team for his domestic covert operations. daniel ellsberg he reuses them for his illegal domestic espionage operations. the 72 election. and that's what happened over here. i'm charlie fiore i'm a government relations intern here at aei and. my question for the panel is, how do you think the the watergate scandal, the subsequent impeachment, nixon changed the way american public views the presidency and the powers of the executive branch. well, i, i think, again, was a seminal issue at the time in 1972. i think it's lessons have been weakened and, ignored in terms

of the concentration of power and the abuse of power. i would say today that watergate was is not as significant an issue in today's environment. but we didn't have social media and we didn't have the level of information disinformation seeping through our society and the amount of cruelty and the amount of violence we had death threats of back in 1972. i certainly them the committee, we see them, we a bomb threat. so it's not as if didn't have violence and but not at the level today where you disagree with someone you can have an act of political violence which is as a legitimate expression of free speech that is a real danger today that we have mobilized to think it's okay to threaten other people by phone,

in person, by letter, by email that that is a form intimidation. that's okay. you can dox people. you can give their names and their addresses and then suddenly you've got people who are receiving death threats, including members of the supreme court. so today have a very different level of concern about power, political power in the legitimate use of the where can have a president of the united ask his secretary of defense, why can't we shoot him in the knees i mean, think about that you have a president say, why can't we stop protests? they may be peaceful, but they're interrupting commerce. so them and had a secretary of defense who said no. so we have gotten used to the notion that the use of power by a or those in high office doesn't have it does not have restraint. and i think the most recent supreme really is very dangerous

in terms of that you you really can't you can no more constrain the far edges of power. and so they left it to the future to define that is and so anyway i could carry on about this but you have other members of the other panel that may have something to say. i just think the lessons we have lost them. they were good for a while. they were searing in the nation's conscience. they became relevant during iran-contra, etc. but the notion that the president must abide by the rule of and jim will tell you that president nixon did believe in the rule of law ultimately handed over power for a different reason. he knew was going to be removed. but he handed it over. president biden handed it over because of health issues. you had another president saying, no, no, take it from me you know. and so we have a different we have a different mood all together now, people do not

respect the rule of law, the way we on the committee and the reverence for our institution that is no longer there and needs to be back. well, we've run out of time for this panel. i apologize. we've had an interesting discussion and comments and a bit of housekeeping. if you stay seated while we have our second set of panel, palace up here and make exchange. but before doing that, please join me in thanking our panel for a wonderful time. thank you. all panel. i think jack goldsmith robert has already introduced our panelists and we're running a little bit behind so we're going to jump right into the conversation which is about the state impeachment today. philip wallach is going to start us off by talking current events putting the recent impeachment

events in context and together and then jeff tullis and keith whittington talk about larger perspectives on the impeachment process and where it is, what it has come to. then we'll a discussion and then we'll open it up for questions we're running a little bit behind times. we have to compress things a little bit. bill okay. well, let me let me start out with a quote. i'll tell you who said it in a minute. here's what he said at this particular juncture in america's, the senate is being called sit as the high court of impeachment. all too frequently. indeed, we are living in what i think can aptly be described as the age of impeachment. he went on to ask, how did we get here and offered to meditations on rise of independent counsels and quoted justice scalia's morrison v olson dissent about that statute. the independent counsel the context of this is acrid with the smell of threatened impeachment, he said. presidential impeachment is

tantamount to domestic war, filled with acrimony. it divides the country like nothing else. that was kenneth starr speaking on behalf of president at his first impeachment trial in the senate in early 2020. starr course famously was face of the push to impeach president clinton in the nineties. he for four years had a role as an independent counsel investigating. clinton and after years of investigating on a range of topics, eventually delivered the famous starr report to congress in fall of 1998 and republican at that time moved quickly toward impeachment. my main purpose here in running really fast through all the history of impeachment is since

since that clinton impeachment is to just substantiate what the folks the first panel already told you which is that the impeachment since nixon have not had a process that looked anything like the bipartisan process that played out in 1974 the republicans pushed for articles of impeachment and they did get five democratic votes in. the house of representatives for two, four, four, three of those articles. i think at least two of those articles, the ones that ultimately passed for and obstruction of justice five democrats, three of whom subsequently became republicans republicans. and they had few republicans voting against those impeachment. and then in the senate was a pretty straight partizan.

some republicans did not vote to convict on both counts, but saw that coming up short. really setting a feeling that impeachment was a partizan thing. it didn't sit very with the american people most most folks thought that it contributed to republicans poor showing in the 1998 midterm election. but there was and sort of by the of -- for tat it sort of seemed like it was not just watergate not just a one off with nixon, but something that was out there in the political bloodstream. since then, we've really seen a much steadier drumbeat of demands for impeachment we saw dennis kucinich mount a push for the impeachment of george w bush. that never got much from congressional leaders. but we did see kind of executive congressional souring through bush, obama years, right? we saw a lot of contempt get

voted through the house of representatives. harriet miers, josh bolton during the obama years, eric holder, lois lerner, obama. there was some push for obama impeachment, but john boehner mostly tamped down on that and they never got. but with the election of donald, it sort of surged back with a vengeance. it was clear that there were some people who wanted to impeach trump from, you know, then minus one before he took office. but thinking about ways to impeach him when democrats won the 2018 midterm, that became a very live issue, a central point of within the democratic caucus should move forward with what we've got. and nancy pelosi, the speaker, mostly tamped down on that thought. it wasn't opportune until the

famous whistleblower complaint came out in 2019 and they decided that that was a significant. misuse, abuse of power enough to move forward with impeachment in late 2019. you know, they didn't manage to make that bipartisan proceeding that that was sort of trump's troops rallied behind him. and in some ways, he sort of solidified his support among republican as a result of that impeachment. but then, of course, we get january and the second impeachment. i am a deep believer that democrats really missed an opportunity by not looking a way to cooperate on a bipartisan impeachment push in that short time available them before trump left office. we saw a as of you know the wee hours of january 7th some democrats thinking about how can

we push impeachment through. but they were acting as partizan democrats. they never really brought in republican partners, even though it was clear that some republicans were sympathetic to the idea that trump should be impeached for his conduct on january 6th. they didn't figure out a way that they could write that in a way that would bring in republican. they were also distracted by the possibility of doing a 25th amendment push to get trump out of office. but it really never got any bipartisan legs as as a formal push. it was a hard thing to do since there was so time, you know, and republicans -- for tat have looked for opportunities to joe biden. there's kind of a cottage industry of impeachment resolutions largely centered on representative greene's she's she's introduced a whole lot all by herself.

you know, republican leaders have steered instead towards this impeachment of a cabinet secretary for the first time since 1876, we had a cabinet secretary. the senate treated that as a a partizan aberration, that they wanted to shuffle off as quickly as possible. so the state of impeachment today is as a partizan -- tat exercise that's almost become a de rigueur part of of our polarized political environment. it's a far stretch from what we saw in 1974. and you i think for those of us who are worried about presidential aggrandizement and abuse of power, it sort of seems like the energy has been sapped from tool in a way that's very that it's it's almost hard to imagine it transcending the bounds of this partizanship at this so i'll leave my remarks there. yeah. so my remarks sort of with what

timothy naftali senator, secretary said, i'm not sure i can improve on what they said, but i have a bit of a longer lens on. the on their observations and it begins with the observation that the entire governmental order in the united states when it was invented was extraordinary really original and complex. and that included the invention of the impeachment process and to highlight that complexity, i want to stress at the outset that the impeachment process basically designed constitutionally as a as an analogy it's analogized to a legal process. so the house is like a grand jury in senate tries that word trial is used but the prosecutors managers the turn

out to be actual politicians senators but they take oath the the the the is presided over by the chief judge when it's the president who is impeached by chief justice of the united states. the constitution mandates the word shall has to be the presiding so that the senate then is the same room and it's the same the same building and it's the same individuals. but they have to recompose themselves into a new body. there's something different than they were supposed to be when they're in ordinary and signifying, they take a completely new oath, even though they've taken an oath of office. all right. now, that notion that so that impeachment is like a legal process, it's different in the ways that i just outlined raises

the question and the easy answer is, well, it's a sort of quasi legal process, but that's another way of saying it's an attempt to create a process of high politics of high of politics, that unusual. it's still politics, but it's not ordinary politics. or in the of phil and some of the previous speakers, it's not ordinary partizan politics. so the architecture is designed to induce this new kind of politics and that kind of architecture is inherent, unstable. because if you take that really seriously you might say to seriously and well and if the defenders of one impeached exploit this aspect of it you can make it too legalistic. that's what happens with andrew johnson and because of andrew

johnson it happens also eventually with nixon, clinton and trump as well. where the polity is told that you to find some crime, that is recognizable to citizens as a crime and, the ordinary criminal code, even though a crime of high, would something may not be a crime in the criminal code, although it may include some that are a crime of high politics would be a form of serious abuse of office. now, if you point this out assiduously, you could have the unstable problem. go in the other direction. the one that phil started to outline, which is that you you realize that it is sort of political process, but then it becomes too or too partizan.

so the instability is either is too legalistic or too partizan. one of the good aspects, rare aspects, the failures of impeachment process in the trump is that it is reawakened people to the possibility that there might be a good notion of political that needs to be recovered. the serious abuses of office really need this solution became more palpable when the court decided that the disqualification aspects of the constitution wouldn't be enforced that it had to be either an election or an impeachment and conviction. and i want to take a close by taking a little bit of, however, with my colleague, who, by the way, has a really great out on congress that i highly recommend

phil's argument that what we have today is the failure of people to be to the failure of people to be by partizan. i mean it's true but that's not so much an indication of the the problem of the democrats that's the problem of the republicans and the reason it's the problem of republicans is because of a relatively recent that was first most articulate charted by a fellow of this institution norm ornstein. and that's the phenomena of hyper partizanship, hyper partizanship is when you stand up for your party as tried. no matter what the party does, including taking antithetical to the positions that your party had previously taken just in order to help somebody, even

though it's going to not advance purposes. you presumably have been for as a partizan, hyper partizanship came to mark the trump era in ways that are incredibly damaging and i just want to close by giving a bit of evidence for that. the first is that oath, the special oath of office that i mentioned that senators take when they become jurors was disparaged by mitch mcconnell, by lindsey graham, by ted cruz, not just they didn't live up to their oath they mocked the oath taking as bret itself. secondly in the second trump impeached in trial and this is not a question of hyper partizanship of judicial.

i don't know what the right word would be, but let's just say incompetent that the chief the chief justice of the supreme court refused to preside over the second the most serious impeachment that we've had in this country refused to preside over it. and, of course, the congress attempt to hold to to hold him to that. i want to end by saying the significance of this failure, of the most significant, serious impeachment inquiry and trial in our history, the second trump impeachment is, it suggests the failure of bipartisanship is, a symptom of a failure of, the constitutional order. it's not just it's not just a symptom of the failure of individuals though. i heartily endorse the earlier

speakers, both chastisem*nt and and heralding of hope that we would have more responsive leaders in the future. thank you. so i want to echo the themes related to what we've just heard about, which is the intrinsically political nature of the impeachment power and how to think about that political nature in general and for now, i don't want to emphasize the unavoidable fact that impeachments are to involve decisions by elected representatives, and that's necessarily going to mean that there's going to be some political calculation as part of that, of the type phil and jeff both mentioned. and that includes the fact that they operate within a partizan environment as well as a larger electoral environment. and that's going to be somewhat inevitable as part of their decision making. the aspect, the political nature

of the impeachment process, though, that i want to emphasize, is the extent to which the impeachment power designed to solve a certain kind of political problem. it's a feature of our constitutional of checks and balances in which the founders understood that there's going to be certain kinds, political problems that might arise within our constitutional structure. they're going to need solutions of a particular extraordinary type. and the impeachment is designed to resolve that. and those may criminal acts, although they may not involve criminal acts in particular circ*mstances. but you need a tool to address those political problems as they arise. and one feature of thinking about the kinds of high crimes and misdemeanors that arise is that may call for the use of the impeachment power, is it emphasizes to that in order to think about impeachment, we also ought to be thinking about what other tools are available us to try to address those political problems as they might arise. and to what degree is the impeachment itself? if we were to use it, to

actually going to be effective at addressing that underlying political problem and those things are likely to be tied up together. and so we heard earlier, for example, that one of the real concerns during the nixon was if you're going to advance this, it needs to be bipartisan. precisely because what's the point of pursuing an impeachment? it's not going to have bipartisan consequences because if you can get it through the house where you only need a simple majority, ultimately in order to pass articles of impeachment, it's going to fall, as it did later in the senate, where ultimately you need some bipartisan support if you're going to be able to actually a chance of getting conviction going on, which forces you, if you're at that very opening moments of the impeachment to be thinking about, what are we trying to accomplish here and how we pursue this in a way that we're actually going to be successful in accomplishing those objectives down the road and that the objective ultimately to remove sitting government official, especially a president united states, then that means we have to begin that process in a bipartisan way. we need to make those initial in a way that we can build the

political support that's going to be necessary within. congress and not necessarily in the nation as a whole, in order to think we're going to accomplish that core objective, which in this case means removing that government official, which ultimately means we have to get bypass and support in the senate down the road. but there may be other circ*mstances where we imagine, look, we're concerned with that. we don't necessarily think we're going to be able to remove that government official. we don't think it's ever any possible to win political support. so removal is off the table as a starting point. we may think removal is not actually necessary in a particular case, which raises questions about should you be pursuing the impeachment path at all if that's the calculation that you've made and you are going to be pursuing the impeachment pathway, you're to accomplish by doing it, and i think there are things you can accomplish by using the impeachment tool, even if it doesn't lead to the removal of government official in the first place. so we might imagine, for example, that impeachments are a way of greater oversight so that you get more transparency and, visibility into what mistakes have been made, for example, in

the executive branch through the impeachment process than we might otherwise reveal the of what we heard earlier about the nature of the impeachment process as it was being played out. nixon situation was precisely extent to which it was developing information and assembling that information, clarifying that information, verifying that information in order to publicize the abuses that taken place. normally, there's particular objective in that context. gathering information was designed to serve, which was to build the case for removing a sitting president. the united states. we can also imagine that if you don't think you're going to get the removal of the president, the united states at the end of that process, it nonetheless is worth accumulating and publicizing that simply to reveal what had happened relative to abuses that are taking place within the executive branch and further that investigative process more generally. and the impeachment power may be the best tool for accomplishing that. we might imagine the impeachment power being in order to emphasize norms that are being violated or norms that we need to establish about how we expect

government officials behave in their offices forward. and part of what the impeachment power does is call our attention to things we're going to characterize as abuses, which requires, in part, a discussion about what counts, an abuse of power. in this context, one thing that came up in the earlier context was to what extent nixon doing something that was in fact unusual for mid-century presidents, and to what degree was he engaging and set of activities that back some earlier presidents engaged in to some degree or another already that we had seen lbj engage and jfk had engaged in other presidents before that part of what was happening during that nixon process was also a conversation about how do we expect presidents to use powers, what counts as an abuse power for the presidents? what's appropriate behavior by a sitting president going forward, not just relative to the past and the impeachment process becomes a vehicle for talking about those abuses, talking about the expectations that this particular office and setting some expectations about norms, about how government officials ought to conduct themselves going forward, even if it doesn't necessarily mean you're

going to remove this government official in this particular. but it also means we should think about what other tools might be available to try to accomplish those kinds of goals, what we see in front of us is a particular kind political problem. it may be that the only thing that can solve that problem is actually the removal of the sitting president or some other sitting official that we're going after in this context right. but you can imagine there might be other tools are available that can help alleviate the political problem that's in front of, you might imagine statutes can help alleviate that. and part of what emerges out of the nixon process and the larger watergate scandals is a rethinking of presidential powers and a set of statutes designed precisely order to contain and reduce the powers presidency in order to make it less likely these kinds of abuses occur going forward. impeachments might be a vehicle for helping, but we might think the statutes can do that kind work on their own. we might imagine other kinds of oversight mechanisms that can accomplish the same kinds of public zation of bad behavior by an officer that doesn't require the actual impeachment per say. we might imagine kinds of

activities in which goal is how do we minimize kinds of abuses are in front of us, how do we minimize the bad behavior or the particular political problem that we see in front of us that may not require the impeachment power or maybe the impeachment power is either going to be an inadequate tool for those problems or may not be a very effective tool at addressing those problems down the road. might better off seeking a different kind of and in some cases seeking that better solution may in fact be. what we really need to do is win the next election and that that would be more effective accomplishing the goals we're trying to accomplish than actually pursuing the impeachment power such but all that requires thinking about this in a political from the very beginning. we need to be thinking about what are the strategic objectives by which we're pursuing this particular constitutional tool? what are we trying to accomplish by going through this process? what decisions do have to make? then as we go through that process, in order to make it most likely, we're going to achieve those objectives down the road? and what other tools do we have available to us that may be as effective or maybe even more effective at addressing the

problem that we have before us? thank you. thank you all. i want to start by philip, a chance to respond to jeff's remarks about his claim claim. hyper polarized of republicans. well i have to say that even if you believe that that's a pervasive problem, they could have done things differently. trump had his republican critics, some of voted for impeachment two times and they were not centrally involved in the process shaping those impeachments. they were very much on the outside and then happy to give their support to it. you could have brought in liz or adam kinzinger and said how do you think we should write this if we're trying to get the most support we possibly can? that was very much not how they did things. when i think about the kind of profile that adam.

came to have compared to what we heard about chairman. it could hardly be a starker contrast. so i just think, you know, and a brief word on keith's last note, you know, i think that an awful lot of contempt impeachment efforts have just shifted into this mindframe of, well, we're obviously doing this because we think it's going to work. we're doing this because it's too embarrassed. our opponents as, much as we are so much of american politics is about embarrassing our opponents, much as we possibly can. and, you know your mileage may vary. you may that embarrassing the other guys really is the most important thing because they're that bad but to me that just seems a very awful equilibrium that we're stuck in. so i've got some questions, but any remarks about what one another said?

so just a few thoughts. i mean, the foundational way that the most important thing to understand about the impeachment process we've all alluded to this is the two thirds bar and two thirds requirement and conviction almost always require a supermajority and three almost always requires members of the president's party. and that is a serious constraint on conviction. and in comparing the watergate situation to today, the way political were organized, the way they related one another was so completely than there was overlapping in the parties. ideologically, congress was viewed viewed its interest institutionally in much more seriously than today. today we what levinson impelled us call a regime of separation of parties, not powers we have the parties splintered among one another like they've never been before. we have structure rule things that have developed campaign finance way congress is organized, etc. that makes the

parties be intensely partizan, all of which makes extremely unlikely except in the most extreme circ*mstances, that in the current organization of parties we're going to reach that two thirds vote and think keith is basically picking up on this and saying, so we need to think of other things that we're not going to get convictions. and i think the second trump impeachment was maybe the proof of that that. maybe impeachment itself without conviction can serve useful roles. it used to be i think there was a mild norm that if you didn't think, you could get the conviction, you wouldn't have the house wouldn't go for impeachment. that's that. norm is clearly gone. so i just am i right in thinking that the party structure is so different that we it's just not likely we're the foreseeable future and that we're going to see the two thirds vote be reached to. we can imagine some super

extreme circ*mstances. and then the second question to pick up on, what are the implications of that he propose is maybe that as i understood him, that the impeachment process, the impeachment process as opposed to the eviction process could serve other roles. it could conserve public information, it can conserve it could conserve accountability by getting information out. i'm a little skeptical of that because. everything is so deeply partizan that all of that information is is kind of partizan. i've to use a bad word. so those are some thoughts. and i'm wondering if anyone has any reactions to those thoughts. well, i might start. justin i think that's right, that the party structure is is critically important to thinking about the success of any kind of impeachment effort at actually removing a sitting president in some. that's always true. right? always extraordinarily difficult to remove a sitting president as

opposed to thinking about, for example, a district judge who is the officials. we've been most successful at impeaching and removing over time. and so the the political difficulties are always going to be extraordinarily high when it comes to removing a sitting president. but don't think we should necessarily assume as well that the existing party structure that we have at the moment will always be structured in the way it's structured right now. and one thing that was very different, even at the time the nixon presidency, which was not that long ago in the scope of a country's history, is that parties were organized very differently. right. and so in including not only some of the things you mentioned, but think significantly that the electoral fate of presidents and members, congress were not as closely tied together as they are now. right. and i think thing that makes it very difficult for sitting of congress to go after or even

even if they're not aggressively going after it, even the vote against a member of their own is the fact that their electoral fate is so closely tied with the president that that all the electoral are to rally around the president rather than stand apart from the president. and you can imagine that might not be true in the future, but it certainly is true right now. so keith's point, as i take it, is that impeachment hasn't worked as as well as it anticipated. but maybe there are all sorts of other tools could be used to accomplish some of its purposes. i think we should reverse the lens a little bit on that because keith, in one of the recent impeachment inquiries, wrote a really good essay in the new york times on this theme impeachment is actually part of a larger, separate of powers design. so we sometimes think of

separation of powers as representing three co-equal branches that have equal power. what's misleading about that is that the branches maybe constitutionally co-equal in some sense, but they have different kinds of power at different times. so that the president is intended be more powerful in some respects than the other institutions. for example, at in crisis times and so forth. so what would it mean to be equal and coordinate if, for example, the president is more powerful at outset of political dispute or political controversy? one answer to that would be that the congress has to be more powerful, retrospective really, after the fact. the ultimate retrospect of power is the impeachment and conviction power. now, the reason that that is important is in the ultimate power and. its day to day powers are a whole of things that congress

can and has done in the past and some of which keith was alluding to. it could do more of now it can pass legislation and it can have inquiries, oversight inquiries. it can compel testimony. it it can do all sorts of things, many of which are outlined. and in a recent great book by a georgetown law professor, josh chaffetz, called congress's constitution. but those things that it can do, for example, compelling information from the executive branch when it want to give that information are made powerful by the possibility of the ultimate tool of impeachment and conviction which doesn't mean that it has to actually be used. it has to be possible to be used so fortifying and making possible and conviction is actually my view essential to

the functioning of all the other sorts of things that keith was alluding to and the the failure, the impeachment in the second and the first and second trump trials is serious warning about a pathology in our constitutional order today that needs to be repaired and that pathology is the need to reconnect the the holders with the duties of the offices they hold as. was discussed so articulately before by senator cornyn, tim naftali, just a brief follow up. i very much agree what jeff just said and and when you think about those other tools at their disposal legislation. well, the has a veto to override the veto you need the same two thirds to get past that which almost unthinkable in the sort

of high salience showdown. and as things stand today of course things can reconfigure but how central loyalty to the president has become to what it means to be a partizan it is it is troublesome and power of the purse. well, you know we saw an interesting example of in the trump administration when trump said, i want more money for the border, congress didn't give it to him. he said, okay, i'll declare an emergency, reroute money, because there's all kinds of ways that we've written the power to do that into the powers of the executive branch. so it showed that even withholding funds was not sufficient to to to check the president who really got a lot of what he wanted out of using those kinds of tools. so, yeah, i'm sort of worried that. yes, theoretically, congress has a lot of other options. but where are the teeth coming ultimately, if the executive branch just decides to say,

well, we don't much care what you think we're going to go about our business they impeachment is the ultimate act that need to be able to swing and i don't what they have if they can't okay we have about we have 9 minutes left so we'll start taking questions. the audience. but wait for the mic please. i was young, 50 years ago, but it's if you identify here, oh, what i want go ahead. for what i want to know is to talk about the partizanship 50 years ago we didn't we had like major networks for television news and so forth. and we seem to have had a split up in where people getting their news from their favorite media source. it's fox news or cnn, which their prejudices and i want to know what role the that the

splitting up of the process had in changing the people's perceptions on say impeachment for examples of the view, listen to fox news to be against impeaching trump. and if you listen msnbc, whatever may be all the only hear one side of the story and talk radio has the same effect. i hope that makes sense. so the question is about the changing nature of communication and the bubbling communication and its on these issues. anyone want to. well, i think it was suggested earlier right mean it makes it much tougher to crack these partizan commitments and because people people not only are receiving information from relatively partizan sources that but it's also reinforcing their own beliefs about about the nature of what they're hearing and how they're assessing that

information in general. and that's going to make it much harder to build any kind of larger consensus or, piers, that partizan, to a defense of their of of your own side this front. and so i don't think it's impossible with a with that of fragmented more partizan media environment. but it is going to make it much more difficult difficult. vote yes, sir. the one word we haven't heard today is gerrymandering in terms of why you have, i guess this i shouldn't use diversity today, but there's less diversity philosophically. so when ronald he preached the big tent it was room for very moderates and even liberals in that and we didn't the kind of

gerrymandering to the point where all you have to do is prove and you're running for office, you're more extreme than your republican candidate on right or more liberal than candidate on the left. and that's what's happened to this country. we are now in the camps where the other party is seen as enemy as such the really like the the talk about the impeachment process because that's why i mentioned about goliath. so it is no longer goliath sort and it's we're using it i don't want to use the word trivializing, but we're trivializing the process. we can get congress can get information. we had the iran-contra investigation in terms so did the reagan administration engage in an act that was contrary to the best interests of the country. there was no talk of impeachment. the time no one suggested it, but it was a real fundamental issue that was involved. does the white house constructed

through colonel all north and others and off shelf self-sustaining covert capability that is antithetical to what we believe in in terms of the appropriate process. so we had hearing president reagan said, you know, i didn't intend for this. yes. i transferred arms to the iranians, but i thought, i would get the hostages out, etc. i had no idea that this was created for a separate and we believed and we accepted the and so there was a joint bipartisan investigation that was giving great coverage. and we never even talked about impeaching him. but we thought this is something that need to be exposed. you cannot have a covert capability funded the sale of weapons at an increased price. so there are many tools and i think it's it's really bad the country that we keep using impeachment process. it doesn't deal with the gravity of the the people are elected

their congressmen got two years if they find out you engage in an inappropriate conduct you'll be removed or you used to be removed today if diminish the significance of what that violation might be. and that's the reason i, i raised the issue of five. i have the power to order and a navy seal to shoot a political opponent is that not horrifying for us to. and yet it has become part the colloquial conversation today. so the first question you would ask a navy, if the president asks you to shoot someone, would you do it. well, is it taliban or is it a democrat so? i mean, we we have become accustomed to looking at language in a way that we minimize the significance of what people are. so we want to get back to standards. i think the impeachment has to

be up here is very, very last resort and not as a investigative tool. sorry, i've got to do that. but the question question the questions, there's a hand up. were there in the round the corner. i want to be very soft. start by thanking you all for being. it has been very. my name is kendall. i'm an intern at the cohen group. this summer. and you all spoke being bipartisan in impeachment efforts with today's highly hyper partizan political state. how does one be bipartisan? when impeachment and then bring it back to their constituents who are probably hyper partizan and argue it in a way where they will understand the crimes and the tragedy that the president committed that time. in the case of the impeachment

inquiry, that happened after january six. well, i would say takes some courage on the part of. these representatives, we should appreciate ones who stuck their necks out. so like representative peter meyer of michigan of served one term lost his primary almost certainly because that vote that he cast as a matter conscience should appreciate that kind of gesture that kind of fidelity to what he took to be his his duty. and we should remember that they're not all gone. right. representative dan newhouse, not a household name, but there he is. he's he cast his vote and he's still there. so we we should try to i don't know if people think it's grasping for straws, but there is, in fact, a little bit of life there in the bipartisan

interplay the channels of communication between parties are very, very poor today. and that, frankly, suits congressional leaders pretty most of the time. they don't they don't mind it. the members themselves need do a better job understanding where their colleagues are at and how they can how they can make common cause cause. and would say one thing about the january 6th impeachment, in particular or in this regard is, i think it's hard it's hard to have anticipated quite how. january six was going to play out in in politics subsequent weeks. but things would have looked pretty different, i think, if if congress had organized itself right away on that day, for example, which i thought they have done, enacted immediately, there was a lot of bipartisan hostility to what had happened. you could have imagined forming more of a bipartisan consensus,

congress, to take action if you'd acted on the sixth and seventh to take steps toward and removing the president than waiting for weeks and. and we may have then thought that how you build consensus and, how that plays out, would look rather different if you take advantage of that little moment in time when there sort of bipartisan. outrage about what had occurred. likewise, i think, for the impeachment tool immediately over the ukraine, a situation, for example, might have turned out to be a mistake, maybe it would've been possible. build more bipartisan support for exposing that this was bad behavior on the part of the president if you'd done it through a non impeachment mechanism more like a bipartisan committee of the sort, the senator cohen referenced relative iran-contra, rather than having people digging in as a consequence, the stakes being so high about are you removing the president or not? so as a consequence, now we have

to rally around the president as opposed to can we just have a conversation about or not, this was a good or bad way of engaging in foreign policy. okay, i'm on keith's point. adding to it. if you had started early like that, you would have also avoided the whole issue of of him not being a sitting president anymore which is really. yeah, i think of what a shining example would be in the history books if we had had president mike pence for a week that would have been taught to schoolchildren for generations. the stakes were completely different that the once the trial was for the former president. and and i'll also say and i'll with this, if that counterfactual world had happened and trump had and the impeachment system had worked, how it was supposed to work in that situation, in view and trump had been barred from future office then probably wouldn't have seen the prosecution of trump. whatever you think about it for

january is deeply whether it's justified or not. i think it's a close question on the law has a deeply unfortunate long tail consequences for the country and that in turn led to a supreme court decision in trump the united states which would have been much better not having been decided. so it's an example of how failure of a council to panel structure and corner of the constitution can have very bad effects in other contexts. thank you all very.

we all hear arguments in th number 73, 1766. the united states, america against

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