As ongoing investigations into United States’ President Donald Trump threaten his administration, Maria Armoudian sat down with three scholars to consider corruption, money laundering, collusion with the Russian government, and whether – or if – Donald Trump could ever be impeached.
Louis Michael Seidman is a Professor of Constitutional Law at Georgetown University Law School. He is an expert in constitutional law and is the author of Silence and Freedom and On Constitutional Disobedience.
Sanford Levinson is a Professor of Political Science and Law at the University of Texas at Austin. He is an expert in constitutional law and is the author of Our Undemocratic Constitution: Where the Constitution Goes Wrong (And How We the People Can Correct It) and Framed: America’s 51 Constitutions and the Crisis of Governance.
Mark Peterson is a Professor of Public Policy and Political Science Law at UCLA. He is an expert in American politics and is the author of Legislating Together: The White House and Capitol Hill from Eisenhower to Reagan.
Maria Armoudian: We have seen some movement in [Special Counsel Robert] Mueller’s investigation. [Former White House chief strategist] Steve Bannon has been subpoenaed, he has agreed to cooperate, and [I think it] doesn’t get much closer… to President Trump. So we haven’t [yet seen] what the result of that is, and I know what we would say now would be pure speculation, but perhaps the first thing to ask is: what do you see as the possible scenarios? Sandy Levinson?
Sandy Levinson: The only answer I could give is, I don’t know. To put it mildly, Donald Trump’s mind is hard to read. First of all, he might actually believe what he says… that there is no evidence of collusion with Russia, and that of course is the focus of the Mueller investigation. One really has no idea to what extent Mueller and his team have access to Trump’s tax returns and might try to get him on money laundering or other sorts of financial dealings. But Trump – they genuinely believe that he has nothing to worry about. He may also believe that when push comes to shove he can certainly pardon everybody including himself. And the pardoning power is the constitutional wild card, that is, the Constitution clearly assigns the power to pardon, it places no limits within the text itself. So could Trump pardon Jared [Kushner]? I think the answer is clearly yes. Could that count as an impeachable offense? My inclination would be to answer yes, but there are many, many lawyers who would say no. Alan Dershowitz I think would say, “If the President is exercising a legal power then it simply couldn’t become the basis for impeachment”. There are a number of ways in which the Constitution turns on itself and the pardoning power is in many ways one of the most interesting, if you read the debates from 1787-88 about ratification of the Constitution you find more discussion of the pardoning power than you do of Congress’s power under the commerce clause which is what we’re obsessed about today, and some of the opponents of the Constitution said the President will ally with anti-constitutionalist agents who will try to tyrannise us and then he will pardon them, this cabal. When I read these for the first time probably twenty, thirty years ago I thought this was sheer paranoia. Today it doesn’t seem quite so paranoid. It’s a genuine problem posed within the Constitution itself and what are the limits? I mean we are going to have the same discussion in a way about the President’s power as commander in chief, are we willing to accept tyrannical or indeed crazy decisions on the part of the President because “good lawyers” would say that’s just what the Constitution authorises.
MA: Mark Peterson, do you want to respond?
Mark Peterson: Yes, well I want to agree profoundly with my colleagues here that this is an extraordinarily unique period and situation, so no one is going to be able to offer any serious prediction in a knowing way about what will transpire and I think we all share the fear that given some of the unique circumstances right now that we’re looking at a window of opportunity or a window of fear about pathways that we would not have imagined we’d be talking about a couple of decades ago. I do think however that one of the things about the American political system, if President Trump was to fire Mueller, that would in a sense be the end of normal political business, normal congressional deliberation. It would have a kind of impact, maybe even a broader impact than when President Nixon ordered the firing of [Special Prosecutor] Archibald Cox [in October 1973 during the Watergate scandal]. That became then the entire experience of the country for a period of time. And the other thing to note is the context, and this is where maybe I have a naïve level of faith, but one of the things that I think is important to underscore [is that] just as I am shocked at the level of support someone like President Trump can still manage to have among the public given his behaviour and how he talks and describes things, at the same time we have to remember this President has the lowest presidential approval in the first year of any President in the history of recording public support or opposition to the President. We have to remember the day after this man was inaugurated somewhere between three hundred and fifty and four hundred cities across the United States, three to four million people marched in opposition. Just imagine that is the day after the inauguration before we even can be absolutely certain what this person will be like coming into office, imagine what would happen in the streets and in civil society and in general discourse in our country if the President were to engage in activities that would lead many for people to really be concerned that we are on the brink. And I think there would be a capacity on the part of the Democrats to be in opposition, [and] I think there would be some Republicans at that point who would start being more concerned about the institutional integrity of the government than moving a particular conservative agenda.
Mike Seidman: I agree with a lot of what you said, Mark, and so the answer to the initial question, I think the reason why Trump has not fired Mueller is because he does realise that it would have those consequences and so he wants to avoid it. But it may be that we get to a point where he can’t avoid it, where it is a choice of undergoing those consequences or having his presidency destroyed and then I don’t really have much doubt as to what he would do. I also agree that the big hope here is in popular mobilisation and political opposition, and I agree it might well be quite powerful. But the Nixon analogy actually makes me somewhat uneasy because there are important differences between the situation in 1974 and the situation now, and so let me just list three of them. One is that in 1974 the Democrats were in control of both houses of Congress and could utilize that control to oppose Nixon, and the Supreme Court was less obviously politically aligned than it is now. The second difference is that even the Republicans in Congress were not as ideologically unified and not as willing to cow-tow to Richard Nixon as almost all the Republicans in Congress are ready to cow-tow to Donald Trump. And so that is why I do think a lot is going to turn on whether the Republicans change their mind about that. And then a third thing is that, and I think Sandy pointed this out last time, for all of his faults, Richard Nixon was actually something of a constitutionalist. So when the Supreme Court told him that he had to turn over the [Watergate] tapes – he turned them over. I don’t think there is any reason to expect Donald Trump to behave in the same way. So those are things that give me pause and keep me up at night.
SL: I think that what Trump and his minions have decided to do, and it’s quite a smart strategy, is to attack the integrity of Mueller and to try and paint him as a partisan, which he isn’t. But I think they have the Fox television network totally and utterly behind them, they have the editorial pages of the Wall Street Journal basically behind them. And so the proper analogy is actually [independent counsel] Ken Starr because although I increasingly believe that Bill Clinton perhaps should have been impeached, that we lost something important in his escaping impeachment. One of the reasons he did escape is because Ken Starr was successfully, and I think accurately, portrayed as a right-wing Republican who also frankly was kind of driven crazy by the whole sexual overlay of what Clinton had done. So when Starr wrote his report everybody focused on the salacious stuff and simply took this as further evidence that he had gone crazy and was part of what Hillary Clinton correctly called the “vast right-wing conspiracy”. And I think Trump is taking his plays from that playbook. What we won’t know until it happens is whether a solid majority of the country, including a significant number of Republicans would say, “No Robert Mueller really is above politics, he really is behaving like an honourable man and we have to take him fully seriously”, or whether he would in affect be turned into a Ken Starr figure that would legitimate Republicans rallying around their guy.
MP: I think those points are very well taken and with a little bit of nuance around the edges: one nuance is to recognise that Bill Clinton was indeed impeached, he just wasn’t convicted in the Senate. But the point is also well-taken – that that only happened because of the nature of the partisan division of government at the time. If the Democrats had been a majority [he probably] would not have been impeached in the House. Ken Starr, of course, was a Republican and he had Republican roots, and going after a Democratic president on things that got the country’s attention in the most salacious way. The difference with Mueller is [that] Mueller is not a Democrat going after a Republican president, he is a Republican former FBI director going after a Republican president which does give him a different kind of credibility. And other than one particular strand of the [Christopher Steele dossier], the charges here are not salacious, the charges here really go to the heart of national security and the integrity of the American democratic system, and I’m sure there will be every effort to try to play the same playbook but it will be a harder play to make for Republicans writ-large in this situation compared to the Ken Starr situation.
MS: I think what Mark says is right, I would just add a little nuance to that… the situation we are in now is that there are Republicans, and there are Republicans. Mueller is the kind of Republican who Trump supporters don’t think of as a real Republican, he is part of the establishment.
MA: The deep state as they call it, as if there is a left-wing conspiracy there. Mark Peterson, those of us who have studied the governmental process [know] there is a lot of work about what you would call the bureaucratic power. There is power in the bureaucracy, but that has been now turned into something sinister in terms of the framing of it. So as a political scientist I think about bureaucracies having sometimes more power than they should but this is the extreme framing of that.
MP: Here again we have what is so usual about this is the bureaucracy today, President Trump more than any previous President that I’m aware of has been able to eviscerate a lot of the solidity of the bureaucracy and its capacity to in some sense stand as an appropriate check in the constitutional system. One, he has done that by simply making it hard for a lot of bureaucrats to do their job which ultimately is to implement and fulfil the obligations of statutes as enacted by Congress. The other is to deny many bureaucratic agencies any form of real leadership by not filling the important more senior political-appointed positions [that] require Senate confirmation. The bureaucracy is a big thing, most of the controversy is about specific areas like the Environmental Protection Agency and some parts of the Agriculture Department and maybe a little bit of the FDA and then throw in the State Department of course, but we are in an unusual time in which it’s hard to really know what role the bureaucracy is playing other than kind of keeping the trains on the rail in most areas most of the time. There is certainly not a deep state element that is in any position to launch or maintain a conspiracy against the President. But interestingly, one way or another, through either stumbling in the dark reaches of his mind, or through advice, Donald Trump more than past presidents, has found a way to really stick it in the eye of the bureaucrats.
MA: I suspect that was part of the organising prowess and framing prowess of people like Steve Bannon and the likes of him that are throughout the media now. I want to change directions just a little bit because one of the things Mark Peterson talked about [was] how divided we are as a country now and these political science scholars all say this is the most polarised we’ve been since you know Civil War, and Sandy you said that as well. I wonder now in the context of popular opposition which a lot of us have talked about here, well, maybe there needs to be a really strong popular opposition? But when you stop and you think about the polarisation and that one side tends to be armed – that could also be a dangerous proposition, Mark Peterson?
MP: That is an interesting and provocative question. Although one side in a way tends to be armed I don’t think that a large percentage of them imagine themselves marching in the streets with their AR-15s and imitating the Minutemen of 1776. Here I think is what is really in some ways to me most profoundly frightening because it is front and centre in that it requires us to play out scenarios that we can’t possibly predict, and that is President Trump has managed to activate a much more significant portion of the public than I thought existed to relish his sense of revolutionary disruption of American civic society and to bring to the fore and to normalise a way of thinking about other people, a way of thinking about one’s opponents, a way of articulating political positions that would have been beyond the pale in not too recent memory. And that I worry about, that coarsening in a most underscored way of American politics and then putting that in the context of the deep divisions in the society. We know from the Pew Research Center, for instance, that upwards of thirty-five to forty percent of Republicans think the Democrats are a danger to the future of the country and a similar percentage of Democrats think Republicans are a danger to the future of the republic. That cannot be good, and as you say, if it turns into direct confrontation of some kind and it may be just only at the margins but certainly in a way that would be frighteningly violent and overt, that could really change the complexion of American politics in ways that Mike has been talking about.
MA: And what made me think of this as well is what happened in Charlottesville, Virginia.
MP: Yes of course. But again, part of what happened in Virginia and then part of the President’s response to what happened in Virginia is part of what has continued to activate a resistance movement, an effort to mobilise… Emily’s List [are] getting twenty thousand requests for information about running for office. In a previous election cycle I think it was about two thousand requests. There is a that may be a springboard for a much more flourishing civic engagement than we’ve had in a very long time.
SL: I think all of us agree that it is hard to make predictions, especially about the future. And so much could happen based on contingent events. We’ve not really talked about the possibility of an international crisis which traditionally has been used by Presidents to enhance their authority and authoritarianism. One can speak in the context of Lincoln, of Woodrow Wilson, of Roosevelt, of Kennedy, of Johnson, all of the Presidents who have gotten into war – successful or unsuccessful – and that is what scares me most. Mike has referred to Republicans being of a kind of different breed today… We await somebody from within the Republican Party who is really willing actively to go against Trump, it might be John Kasich in 2020. But let me say another thing I really don’t like about the Constitution and we’re stuck with it, that if Donald Trump isn’t impeached or thrown out because of the Twenty-fifth Amendment or doesn’t die he will be president until 2020 because we don’t have within the American system a possibility of a vote of no confidence or what California has – and I would be interested to hear what Mark has to say, because for me it’s a feature of the California Constitution, for a lot of Californians it’s a bug – that is the possibility of a recall election, that the Constitution entrenches a president for four years and we feel stuck. So Mike talks legitimately about how the 2018 elections could be of historic importance. But let’s take the best-case scenario. Democrats get both the House and the Senate, well maybe they’ll try impeachment him. But as all of us agree, impeachment wouldn’t work even if you get technical impeachment through the House you’re not going to get a conviction in the Senate unless you have a decent number of Republicans deciding to impeach their guy and almost certainly give up any hope of winning the White House in 2020. So you would have this egomaniacal loser in the White House for two more years and that would not be a good thing. A better political system would give us a way of firing the President, but we don’t have it, and what most frustrates me and I think it was Mark before that detected the constant sound of frustration in my voice, is that we’re simply not willing to have a serious national conversation about the degree to which the constitution itself contributes to our current situation about the degree to which the Constitution itself contributes to our malaise, and we don’t feel able to work around it. We had a conversation a few minutes ago about extra constitutional activity and the importance of staying within the Constitution – well, from my perspective one of the worst features of the constitution is the one that gives Wyoming and California equal voting power in the Senate. It’s absolutely entrenched, there is basically no way of getting rid of it within the existing Constitutional system. One response is, “Well you know it’s indefensible but it’s not so bad at the end of the day, it means that California really gets screwed in the tax bill because California’s representation in the Senate is zilch and so the tax bill is very much anti-large states, but we’ll put up with it”. And so at what point will we ever have a serious discussion of the way that the Constitution in a number of ways contributes to frustration, gridlock, ungovernability, the possibility of reckless military action independently of the more political considerations that we more easily talk about like the present status of the Republican Party?
MS: I share a lot of [Sandy’s] views about the deficiencies in the constitution, and some of it like Wyoming and California is indeed so entrenched that it’s almost impossible to change, but I actually don’t think that the possibility of firing the President is one of the things is that deeply entrenched. We do have a mechanism for doing that and that is impeachment. And the language of the Constitution regarding impeachment is notoriously ambiguous and open-ended. It’s true that we have a tradition of requiring a relatively high standard for that, but traditions change and this one could change. And in that regard, just to be optimistic for a moment, I do really take the force of Mark’s point about mobilisation of anti-Trump forces, it’s really been extraordinary what has happened in the last six months and exactly for that reason again I think we don’t know for sure what the landscape is going to look like in twenty-nineteen. With a substantial enough electoral victory by the anti-Trump people, one could I think imagine Republicans in the Senate being sufficiently cowed to actually vote to remove the President. Just one other point about our political divisions: it seems to me one of the things that makes those divisions especially dangerous and intractable, the divisions today I think are not primarily about issues of policy. If you have a policy question, politicians are very good at finding the middle and compromising… The divisions that affect people the most viscerally are primarily cultural. They’re not about what you think or what you favour, they are about who you are. And divisions like that are not things that politicians are especially good at covering over and that makes the situation especially volatile I think.
SL: I think that one of the worst consequences of the Clinton impeachment was that it was captured by lawyers. So we got into all of these arcane arguments about what counted as a high crime and in particular whether perjury before a federal grand jury counted as a sufficiently high crime. And my fear is that the Trumpistas, including the editorial page of the Wall Street Journal, which I think is very important in this context, would have a field day arguing that this is near politics. The worst single moment of the Clinton impeachment as far as I’m concerned was when Sean Wilentz testified under oath before Congress that the impeachment of Bill Clinton would have been just like the impeachment of Andrew Johnson, that is raw politics. Well, let me tell you, and this actually touches on what we’re talking about at the end of our conversation last week, I favour the impeachment of Andrew Johnson, I think that that was central to the achievement of any sort of significant change in the defeated South of which there wasn’t enough, and what Wilentz did, though he is a very talented historian, was to present [Congress] with ridiculous narrative that impeachment is a regal sort of activity and it has to meet the highest standards of the law. And that wasn’t available with Clinton, he argued it wasn’t available with Johnson and I assure you that Alan Dershowitz and others, unless Mueller finds the smoking gun on the tapes – there aren’t any tapes with Trump that we know of – I doubt there will be a smoking gun of the kind we had with Watergate, so that the Trumpista apologists will be able to say that it doesn’t meet the standards of law – it’s all political. And then you come back to the awful, awful United States Senate and the fact is that to convict, you have to get a two-thirds vote, and a third of the Senate comes from states with something like ten to fifteen percent of the American population that come from overwhelmingly white, predominantly Christian rural states that voted for Donald Trump and still constitute the basis of his support.
MA: One of the things which Mueller is charged with is finding out if there was this collusion with the Russian government, which many people would interpret as treason. Now I don’t know that you could get much higher crime?
SL: I think everything you say makes sense. But if there was collusion – and I don’t think it’s “If”, I’m inclined to believe there was – I think it’s Donald [Trump] Jr, I think it’s Jarred [Kushner]. I doubt that Donald Trump is so stupid as to have signed anything or even said anything where he thought he would be recorded that said, “Oh yeah, in return for you doing this I will lift the sanctions”. In fact one of the things that a number of people have pointed out is that he has not made any serious effort to lift the sanctions with Russia. Who will he be willing to throw under a bus? Will he throw his son-in-law under a bus if necessary to save his presidency? I suspect he would. This is not a man who is known for his loyalty. But if everything you say kind of comes true, that they get hard evidence of his doing all these things… but you know a Republican Congress has militantly worked to make sure that his tax returns at this moment have not been released. It takes time and genuine mobilisation to create the atmosphere that we’re talking about, maybe it will happen but I just don’t think it is likely.
MP: I will go back to what I think we all agree with, which is very hard to know what is going to transpire and it is a time to be seriously concerned about that because we’ve not really confronted anything like this. One last thing I will throw in with regard to the issue of impeachment and potential conviction in the Senate: it certainly will not happen now. I would not throw it out as impossible, depending on what happens in 2018. And the other thing is, interestingly, the Republicans who are really interested in a deeply conservative and socially conservative agenda, have their insurance policies sitting in the office of the Vice President [Mike Pence]. And if Donald Trump ultimately finally acts in a way that allows Republicans to feel released, they know by removing Donald Trump from office they would be getting as the next president someone who they know and they trust and would rely on and frankly would probably frighten people on the left even more than Donald Trump.
MS: This is a period of time where things have become completely unstuck and everything is up for grabs. Certainly in my lifetime there is no period that has been as volatile and as unsettled. I think that in the end what is going to matter the most as Mark says is popular mobilisation. We are in a very scary time. But the fact that it is so scary also introduces possibilities in terms of getting people to demonstrate, to go to the polls, to resist, and what is going to happen in the next year is going to turn on the extent to which that mobilisation actually occurs.
SL: Mark raises a really interesting point with Mike Pence. I think the great “What Ifs”, and I won’t elaborate it, is why haven’t more Republicans already figured out, especially once the tax bill was passed, that they would be better off with Pence than with Trump? Maybe that would happen if you really do build the full bill of particulars against Trump, but I would have expected the move towards Pence already to be acting more than it is. But we’ll see.
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