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Peter Robinson: Welcome to "Uncommon Knowledge." I'm Peter Robinson. Today, two constitutional scholars on the constitutional crisis. The trial of President Trump. Richard Epstein is a Professor of Law at NYU, a Professor of Law Emeritus at the University of Chicago and a Senior Fellow here at the Hoover Institution. His newest book, coming out next month, that is in February, "The Dubious Morality of the Administrative State." John Yoo is a Professor at the University of California at Berkeley School of Law. He served during the administration of President George W. Bush as Deputy Assistant Attorney General in the Office of Legal Counsel in the Department of Justice. John Yoo has a book coming out in June about President Trump and the Constitution that will be titled, "Defender-in-Chief." Welcome to "Uncommon Knowledge" Richard and John.
John Yoo and Richard Epstein: Good to be here.
Peter Robinson: Two quotations. By the way, as we record this, at this very hour, the House of Representatives is voting to transmit the articles of impeachment, that were voted upon a month ago, to transmit the articles of impeachment to the Senate beginning a trial of President Trump. Two quotations. Speaker Pelosi: "The American people deserve "to learn the truth, and the Constitution requires a trial." Donald Trump: "I did nothing wrong." For now, very briefly, one sentence, two, who's right? John?
John Yoo: Trump's not right, but neither is Pelosi.
Richard Epstein: Trump is, shall we say, guilty of his customary hyperbole. If he said, "I did nothing that counts "as an impeachable offense," he would be right. If he says, "I did nothing which provoked things "against me," then that's always wrong. Because he's also not only Defender-in-Chief, but Provocateur-in-Chief. But Miss Pelosi is always wrong, all the time, on everything.
Peter Robinson: Yes?
John Yoo: I actually disagree with Richard on whether he did something that could be impeachable.
Peter Robinson: All right, we'll--
John Yoo: I don't think he should be removed from office.
Peter Robinson: Ah, okay, we'll come to that. So, the charges. There are two articles of impeachment that they're going to be transmitting to the Senate tomorrow or the day after. Article One: Abuse of Power. I'll have to take a deep breath, but it's worth getting this language out on the table for the two of you to comment on. Quote: "Using the powers of his high office, "President Trump solicited the interference "of a foreign government, Ukraine, "in the 2020 United States Presidential election. "He did so through a scheme or course of conduct "that included soliciting the Government of Ukraine "to publicly announce investigations that would "benefit his reelection, harm the election prospects "of a political opponent." They're talking about Joe Biden there. "And influence the 2020 United States Presidential "election to his advantage. "President Trump sought to pressure the Government "of Ukraine to take these steps by conditioning "official United States Government acts "of significant value to Ukraine on its "public announcement of the investigations." As we all know, he threatened to withhold aid to Ukraine. Is President Trump guilty as charged in that article, Article One which is titled Abuse of Power? And if so, does the charge rise to an impeachable offense? Richard.
Richard Epstein: Well the first thing is they're not alleging any violation of criminal law. The basic statement on the impeachment is you talk about treason, bribery, or other--
Peter Robinson: High crimes.
Richard Epstein: High crimes and... But the other is important.
Peter Robinson: Wait, wait, so repeat the phrase from the Constitution.
Richard Epstein: It's treason, bribery, or other high crimes and misdemeanors, and the other means that presumably you have to get something in there by way of a criminal offense, and the charge of generalized abuse of power does not meet that particular standard. They don't cite a statute, for example, which they . So that's the first difficulty they have. The second difficulty they have, is they do not confront the very serious issue, which is the extent of the President's power to investigate and to deal with all sorts of things having to do with foreign affairs. He is a chief foreign affairs officer of the United States. The role of Congress is not nonexistent, but it's generally subordinate. If you were to ask yourself, in a different fashion, you are now going into this mess inside Ukraine. And what you're trying to do is to figure out what happened, and you know that Mr. Biden's son has been involved in a series of transactions which, to put it mildly, look highly irregular under these circumstances.
Peter Robinson: Right.
Richard Epstein: That the Vice President Biden himself boasted about the way in which he forced the prosecutors to back off on various things, because otherwise he was going to withhold money.
Peter Robinson: That's on the record. That's not in dispute.
Richard Epstein: Yeah, so all of these things essentially would then ask the question is, can you do it? The exact words in the famous July conversation was, "I'd like you to look into." The allegations that there was pressure on him are based only on the hearsay report. They're not based upon that telephone conversation.
Peter Robinson: The hearsay by State Department and other officials.
Richard Epstein: Who actually did not get the information himself. It's double hearsay, we don't even know whom he got it from. And so as you start to look at that kind of evidence, what you have to do is to figure out whether or not the move from, I'd like you to look into, to I pressured you into it, is difficult to make. You have to then recognize that the discussion of the 2020 election was nowhere in evidence at that particular point in time. So you have to infer that. And the way in which this was all done, is to say a very particular request at a rather modest level is now treated, please dig up dirt on this particular man. The word dirt was never used. There was never a request that there be some sort of a thing. So put it to you in another way. Suppose what Trump had done, I'm just going to stop with this remark.
Peter Robinson: Right, sure.
Richard Epstein: Is he goes and he tells his own Attorney General, we have this very explosive, combative situation in the Ukraine. President Obama refused to give lethal weapons to them even though authorized by Congress to do so. I would like you to investigate the relationship of Hunter Biden to his father under these things so I could formulate policy. Would that count as an impeachable offense?
Peter Robinson: Not a chance.
Richard Epstein: Not a chance, well--
Peter Robinson: Is that correct?
Richard Epstein: I would hope so, but you know, we're dealing with Democrats as well as Republicans, and the definitions are elastic. But I think if you have to put this thing into context, what is thoroughly missing from the charge is any element of Presidential power, and any element of Presidential justification.
Peter Robinson: John?
John Yoo: So I disagree with Richard on the definition of highs crimes and misdemeanors.
Peter Robinson: Oh you do?
John Yoo: I have a more capacious understanding of the phrase. It comes from the founding debates. And I probably disagree with him the sense that I tend to think the House Democrats found the facts that were out there, and they show inappropriate conduct by President Trump. But we come out the same way in that this is not worth removing a President. It's not worth convicting under the Impeachment Clause. So first, I think the phrase high crimes and misdemeanors does not limit impeachment only to violations of criminal law, like bribery, treason or some other statute. The reason I say that is when the phrase was debated at the constitutional conventions and the state ratifying conventions, critics of the Constitution said, what does that phrase mean? If it only means you can remove a President for criminal law violations, a President could still do lots of bad things.
Peter Robinson: Right.
John Yoo: So give us an example of something you could impeach a bad President for that wouldn't be a crime. So the defenders of the Constitution, the Federalists, the one example they repeated over and over again was suppose the King of France, Louis the 14th, the Sun King, gave money to the King of England, which was not a crime at that time, just to influence our foreign policy, the British foreign policy. That would easily be an impeachable offense. They also gave examples--
Peter Robinson: Impeach whom? You don't impeach the--
John Yoo: But they were saying, what if an American President had done the same thing.
Peter Robinson: Oh I see, I see, I see, I see.
Richard Epstein: That counts as bribery.
John Yoo: But then they said what if an American President signed a treaty that only benefited his political party, or signed a treaty that only benefited his state at the expense of the national interest? The Federalists would say that's an impeachable offense. So, to me, if you look at the evidence from the beginning, they did have this notion of abuse of power. But I think, this is where I agree with Richard, the key word is other. They didn't think any abuse of the power was grounds to remove a President. They said it had to be something similarly grievous, damaging to the country as treason or bribery.
Peter Robinson: Can I just--
John Yoo: I just don't think that's been met here.
Peter Robinson: May I just summarize what I understand. Correct me if I make a mistake here, but I think we've all read the articles, so many of them over the past months, that we... The fact set is, the President had a conversation with the President of Ukraine. He mouthed off.
Richard Epstein: As he often does.
Peter Robinson: As he often does. And at that point he was considering withholding funds, although he didn't mentioned withholding funds to the President of Ukraine. He said what about, could you investigate, my Attorney General will be in touch. My counsel Rudy Giuliani will be in touch. And nothing happened. The President of Ukraine is on record as saying he never felt any pressure. The funds were released and did flow through to Ukraine. Rudy Giuliani never got in touch with the President of Ukraine. And the Attorney General of the United States never got in touch with the President of Ukraine. So one perfectly legitimate, I think, but I'm asking you, construction of those facts is that Trump is thinking aloud in a conversation which is, by all accounts, genial with a colleague, in the sense that he's another Head of State, and he's sort of poking and asking, but this is not a serious... It's Donald Trump talking. It's mouthing off.
John Yoo: This is why you have a trial, because you have--
Peter Robinson: Because there are different constructions.
John Yoo: Two different interpretations depending on Trump's mental state and intentions. So you could say, Richard's right, you could say on one hand, what he was really doing is this is kind of his weird shorthand. He just thinks about Biden, but what he really wanted was investigate corruption in Ukraine. I'm hearing lots of stories, and I'm not gonna release funds to a corrupt government.
Peter Robinson: Right.
John Yoo: And he just says Biden because that's just the way--
Peter Robinson: That's what in his mind, right.
John Yoo: But suppose the alternate explanation is I really wanna nail the guy who might beat me in 2020. And so I'm gonna withhold funds. Funds are delayed until September, in between July and September. That's what a lot of the investigations in the House did bring forward. He does seem to be issuing orders through the bureaucracy, not to disburse the funds. And in Trump's mind, he like, maybe I can get away with harming Biden and using Ukraine to do it. That's why I don't think this is something the Senate will in the end convict and remove for because it really depends on Presidential state of mind.
Peter Robinson: And you are talking about intention and state of mind, when the subject is Donald J. Trump.
John Yoo: So you're saying you're gonna have multiple--
Peter Robinson: Who is so mercurial, how, I don't--
Richard Epstein: Well first of all, John did not mention the burden of proof. I mean you're dealing with kind of criminal cases as this surely has to be treated. Generally it's kind of proof beyond a reasonable doubt. What you're now doing is you're drawing the most hostile set of inferences from a conversation as opposed to those of ordinary speech. But you've got to put this in context in a couple of ways. The one word that is often left out from that debate is after he mentions Biden he says the word terrible. Now why is that important? Because with Trump, as actually a man of high moral sensibilities, right? He does have his own. He said he couldn't believe that anybody would do this kind of thing. And remember, he's been in all sorts of trouble because of the Emoluments Clauses and other situations, and this looks like pretty blatant self-dealing, particularly since the problem existed with the appointment of Hunter, and Hunter quits--
Peter Robinson: Hunter is Biden's son.
Richard Epstein: Son, and he quits the week before Biden announces. This thing really does sound rather rotten and that's the way in which he looks at it. The other point that one has to do--
Peter Robinson: Which is legitimate, correct?
Richard Epstein: Yes, of course it's legitimate. The issue of coercion is you don't want the narrative to be Donald Trump doesn't care about corruption. He has this hearing, then he does the investigation. There was a long account in the "New York Times" which it gives you the exact opposite impression. This question of do we give lethal weapons to the Ukraine was something that was on everybody's mind inside the government for weeks and months before this decision was made. Just as it had been on the minds of everybody inside the Obama Administration. And so--
Peter Robinson: Because it's a hard decision.
Richard Epstein: Of course, and indeed it was a hard decision. And it was only when he got pressured by key Senators, I think it was Rob Portman, that he decided to make the release on this stuff. You can't do a narrative which starts with the unsupported hearsay and ignore everything that goes before. So the Democrats, I think, are in a hopeless spot. And I think they deserve to be there. One, is you cannot convict on the transcript. And two, it is just an enormous task which they did not investigate to see the entire six month history before the funds were released.
John Yoo: I completely agree with that, that if the House had done its job in a more deliberate, careful fashion, in doing the investigation, doing the indictment, which is what an impeachment is, is a sort of prosecutor's statement, and had left more time for witnesses. Called John Bolton, called Vice President Pence, Mike Mulvaney, wait 'til the courts resolved executive privilege claims, then you might have a fuller picture, and then you could have a real trial. But because they cut it off and shortened it for political reasons, and then they changed their mind, and then held onto it, but they accelerate an investigation. Didn't hear from the prime witnesses at all. I think Richard's right. You don't have enough evidence there to meet any burden of proof. But my point is that, even if it's all true, all the facts are true, suppose all the worst things they say about Trump are true--
Peter Robinson: As Richard said, they place the most negative possible construction on that thin set of facts. So stipulate that they're right.
John Yoo: The least favorable to the plaintiff. Suppose the prosecutors are right. I just don't think it meets the legal standard of what you want a President to be removed for. Because Presidents abuse power all the time. I would say President Obama abused power when he said I'm not gonna enforce the immigration laws. As in many ways, much more serious abuse of power than anything Trump does. Trump is being accused of here.
Peter Robinson: Part of his oath is to see that the laws are faithfully executed.
John Yoo: So I think impeachment, which says treason, bribery, and then Richard's right, other high crimes and misdemeanors, you're not gonna remove Presidents except for things as serious as treason and bribery. Things that are real abuses. I don't think these facts, even if they're true, they meet that standard.
Peter Robinson: Article Two, Obstruction of Congress. Again, I have to take a deep breath, but it's important to get the language out.
Richard Epstein: This one's a joke.
John Yoo: So maybe you shouldn't read the whole thing.
Richard Epstein: Go right ahead.
Peter Robinson: Article Two, Obstruction of Congress. Quote: "In response to subpoenas from the "House of Representatives, President Trump "directed Executive Branch agencies, offices, "and officials not to comply with those subpoenas. "President Trump thus interposed the powers "of the Presidency against the lawful subpoenas "of the House of Representatives." Listen to that, Epstein. He interposed Presidential powers, "and assumed to himself the functions "and judgments necessary to the exercise "of the 'sole Power of Impeachment' vested by "the Constitution in the House of Representatives." Again, John, is the President guilty? And if so, does the charge rise to the level of an impeachable offense?
John Yoo: I think Richard and I are of one mind on this. I think most serious constitutional scholars--
Richard Epstein: Joke.
John Yoo: Think that this is wrong. Joke may be too strong, because it's not funny. But it is, actually is kind of funny, but it's just wrong. Because what the House is doing is saying we are impeaching you, President Trump, for invoking your constitutionally-recognized privileges, executive privilege, the right to protect your communications with your aides, from another Branch's effort to find them out.
Peter Robinson: So can I, there was not this, when Trump refused to comply with the subpoenas, this was not an act of crude defiance or simple stonewalling. He had the White House counsel explain their thinking in detail in memos to Adam Schiff, who is Chairman of the House Intelligence Committee, and all of this passes constitutional muster. Every claim Pat Cipollone made--
John Yoo: Actually, the White House counsel's letter was actually really strange, as was Trump himself sent the letter.
Peter Robinson: Speaker Pelosi.
John Yoo: Really both of those engaged in non-legal, very political exaggeration and rhetoric.
Peter Robinson: There was a lot of name-calling.
John Yoo: Yeah, yeah, but if you actually were to write a memo, or write a serious legal opinion--
Peter Robinson: If they had asked either of you to write a memo--
John Yoo: Well Richard would have done in about five minutes. It would have taken me about a week. But you know, if we were writing this memo.
Richard Epstein: I've give you the 250-word version.
John Yoo: What it would have said was--
Peter Robinson: In a second.
John Yoo: Under Supreme Court precedent, and long historical practice, and the Constitution, the President has the right of confidentiality to discuss matters with his aides. That right is at its highest when the matters are national security, foreign affairs, diplomacy. Which are the matters here, involving Ukraine.
Peter Robinson: Right, right.
John Yoo: We don't actually know, because no court has ever decided, what happens when there's a conflict between the President's power, and the right of the House to investigate an impeachment. But we know when the House conducts normal investigations, the President is allowed to withhold that kind of information. So how can you impeach a President for invoking his constitutionally-authorized rights? If you want to flip it around, suppose some day we have President Butta-- I don't know how to, Buttigig, Butagig, whatever.
Peter Robinson: Close enough.
John Yoo: Suppose there's a President--
Peter Robinson: Mayor Pete, Mayor Pete.
John Yoo: All you need to do from now on, to learn everything he says to his aides and assistants, is just for some hostile House to start impeachment proceedings. Say we win automatically, no executive privilege anymore. And we know from history that if you don't have that privilege, Presidents will not get the best advice, advisors will not have candid discussions, and the nation's welfare will suffer.
Richard Epstein: This is one of the most scandalous charges ever imaginable. The simple answer to this is, there is a process. You can issue a subpoena, you can announce that the refusal's without lawful justice or excuse, but there has to be an adjudication against you by a court before it becomes a duty upon you in order to comply. So what essentially the House of Representatives is doing is saying that it has the role not only of a prosecutor in this case, but also the role of the judge in this particular case to decide on the merits of the case.
Peter Robinson: And that is truly outrageous.
Richard Epstein: It is just an absolute scandal. The fact that every single Democrat voted for that article of impeachment, as far as I'm concerned, imputes everything they did with respect to the first article, where you could at least have a discussion. This is just an outrage, because in the end of the world, anybody can now impeach anybody for refusing to answer a subpoena, but only if you refuse to hand the subpoena to the House, unless the Senate happens to be in the same hands and the same party. Executive privilege is a big, complicated stuff, and even if you go back to Watergate, when the House wanted to get some information very late in the hearings, it turns out that the courts said we don't think under these circumstances you're entitled to get this kind of information.
Peter Robinson: But the House went to the courts.
Richard Epstein: Yes, and they lost.
Peter Robinson: Which the House, in this case, did not do.
Richard Epstein: And not only that, they lost.
John Yoo: They did, but they wouldn't wait for the courts to decide before they rushed through the impeachment.
Richard Epstein: This is beyond belief. It just simply tars the entire proceeding. They should drop this Article if they have any chance of winning on the first.
Peter Robinson: On to the trial, I want to ask a few questions about what's going to happen in the Senate, because whatever you may think of the two articles, and it's clear neither of you thinks highly of them, a trial is going to take place. By the way, so the threshold question was, would the Senate simply dismiss these articles out of hand, which it sounds as though the two of you would have recommended the Senate to do. Here's a quotation from Mitch McConnell just a day or two ago. Mitch McConnell, Senator from Kentucky, Majority Leader, the man in charge in the Senate. Quote: "There's little to no sentiment "in the Republican conference for a motion to dismiss. "Our members feel they have an obligation "to listen to the arguments." Close quote. So the trial will take place. Question number one is, witnesses and new documents admitted as evidence. Mitch McConnell has announced that he is going to begin the trial, and defer until some unknown date votes on whether to call new witnesses and admit new documents as evidence. So for example, the Democrats are calling for John Bolton, your friend.
John Yoo: My friend and former co-author.
Peter Robinson: And National Security advisor, the acting Chief of Staff, Mike Mulvaney. These did not testify before the House. The Democrats are saying they must testify before the Senate, and McConnell's saying, we'll get to that. Is that the correct way to handle the question? In other words, the argument is, you should open up the fact-finding function as against, no, no, no, that was the job of the House. It's up to the Senate simply to decide on the articles as they have been transmitted to us. John.
John Yoo: So first, the Constitution says the Senate has the sole power to try impeachments. There's no outside legal standard authority that forces the Senate to run the trial any which way. It's totally up to the Senate.
Peter Robinson: Including the statements of Speaker Pelosi.
John Yoo: Yeah, doesn't matter what the House thinks. They only have the power to issue the impeachment. Only the Senate has the power to try. They are not bound by standards of due process. They're not bound by the standards of how federal courts run trials. They're not bound by the Supreme Court, because one thing the Supreme Court has said is, we will not review impeachment. So how the procedure goes is totally up to the Senators. Ultimately, based on the way the Senate rules, it's ultimately up to a majority of Senators, issue by issue, so all those questions you asked. Can we dismiss without even having a fact trial? They could do that if 51 Senators want to. Do we need to call witnesses? They could do that if 51 Senators want to. It's all going to be decided piece by piece. I think that was actually smart of the Majority Leader to do it that way. Because it's easier for the Senators, before they even know what the case is about, to just say, oh let's just have all the witnesses. Yeah, open it up to all the evidence. Why not throw it all in? Which, by the way, does not comport with our notions of due process in a normal trial. We never allow people to just sort of surprise and produce things in the middle of a trial, that neither side got to carefully examine before. But I think Mitch McConnell, what he did, is he looked back at the Clinton impeachment trial, which used the same system, and he saw that once the things got started, once you saw the opening arguments, you saw the evidence, the Senators are going to be reluctant to make it a long, drawn-out process where they say let's have 10 witnesses. Now the other thing is, the other reason I think the Senators are not going to want to do it, is look at where the political responsibility lies in this game. If Senators don't have to make arguments themselves, if they don't have to cross-examine witnesses, what's their role? They're just the jury. They sit silently. They don't have to explain their votes. They don't have to issue opinions. They don't have the political responsibility. The way it works now, I think, the blame--
Peter Robinson: Under current Senate rules.
John Yoo: The blame is all going to go on the House, and the Democratic party, and the House managers. The Republican Senators can just vote to acquit. They take no active role. It works out perfectly.
Peter Robinson: By the way, we should explain, we should explain that the House chooses managers to act in effect, they're the prosecutors.
John Yoo: They're the prosecutors.
Richard Epstein: They're the prosecutors.
Peter Robinson: And then the Senate will invite the White House to name defense attorneys. The White House, as we record this, the White House has not yet done so. But everybody is expecting Pat Cipollone--
John Yoo: It's gonna be the White House Counsel and Jay Sekulow, the outside counsel.
Peter Robinson: Jay Sekulow's the President's personal counsel.
John Yoo: But I've got this piece in "L.A. Times" where I--
Peter Robinson: No, we're coming to that, John.
Richard Epstein: Okay, can I comment?
John Yoo: Blockbuster idea.
Richard Epstein: Can I comment, though?
Peter Robinson: Of course you may.
Richard Epstein: Let me sort of say the following observations. First of all, I mean, this is a double-edged sword. There's no question that the Democrats have no excuse for not calling these people earlier since they controlled the hearings in a rather illicit fashion by refusing to have indictments and allow the Republicans equal say in this. So if there's anybody who has a right to call witnesses at this particular point if they should so choose, it would be the Republicans more than the Democrats because they did not have a chance earlier on in order to take this particular situation, So whom are you going to call? Well, I think you might want to call Joe Biden and you might want to call Hunter Biden for starters. And the argument would be, we would like to understand exactly what this particular relationship turns out to be, to see whether or not there was reasonableness in the question of trying to look into something. I do not think it would be a wise political thing to do so, at least I would guess it's not. But you never know how this trial's going to go at the first stage, to see what is going to happen at the second stage. So that's the first thing. The second thing--
Peter Robinson: By the way, let me just, both of you are talking about once this thing starts--
Richard Epstein: It's gonna snowball.
Peter Robinson: In other words, both of you, you haven't commented on this explicitly, but the sheer open-endedness of this trial, we are now--
John Yoo: Be chaotic.
Peter Robinson: Being a ride and we don't know where it's going to go.
Richard Epstein: Where it's gonna end. Let me put it this way. If you open up the witnesses, it is clearly the President has a much stronger case for having his witnesses in there than the Democrats have for theirs.
Peter Robinson: By the way, I should note you both said that on rules changes, what you need is 51 votes. Republicans now hold 53 of the 100 votes in the Senate.
Richard Epstein: But shaky perhaps?
Peter Robinson: Democrats, 47 votes. Yes, well we'll come to that as well.
John Yoo: As on many questions, the founders anticipated that there would be someone like a Richard Epstein some day--
Richard Epstein: To make your life miserable.
Peter Robinson: Nobody could have anticipated Richard.
John Yoo: And would raise these problems. And they actually addressed this issue in the Federalist Papers, because Alexander Hamilton says, it is gonna be a chaotic political process. Impeachment will draw out the worst passions of the people, partisanship will be ugly, and so he said, the way we cure that is we can't make the Senate trial or the House impeachment process fair and neutral and legal, because of these political passions. So the main check on all of this is the two-thirds conviction requirement. Because it's so high, Hamilton thought it will tamp down or at least make all that partisanship useless. And I think that's exactly what's gonna happen here.
Richard Epstein: Well he said 24 7, but the problem is--
Peter Robinson: Let me just repeat that. To change Senate rules, that is to say the change procedure of the trial, requires a simple majority of 51.
John Yoo: Actually, the way it works is you make an appeal to the chief justice. The chief justice rules initially, and then the majority of the Senate
Richard Epstein: The Senate can override.
John Yoo: Can overrule.
Peter Robinson: Okay, to convict the President and remove him from office requires 67 votes. That's a large difference. You just raised the matter I want to come to next. Constitution of the United States, Article One, Section Three. Quote: "When the president of the United States "is tried, the chief justice shall preside." So let me give you a quotation from an article the other day in the "New York Times." "The chief justice's responsibilities at the trial are fluid and ill-defined." Like everything else, more or less. "And it will probably turn out to be largely ceremonial." Oh?
John Yoo: That's not true.
Richard Epstein: That's gotta be wrong.
Peter Robinson: "What is certain is that they will be full of peril "for the chief justice's reputation and that of his court."
Richard Epstein: This sounds like it's coming from the "New York Times."
Peter Robinson: It is coming from the "New York Times."
Richard Epstein: As opposed to somebody else would say here.
Peter Robinson: So what does the chief justice actually do during this trial?
Richard Epstein: He basically is, first he's the traffic cop. So that anything that has--
Peter Robinson: He's gonna sit.
Richard Epstein: Right in the middle of these characters.
Peter Robinson: In the well in the Senate.
Richard Epstein: He's gonna basically, if anything come by way of a motion comes up, he will basically first direct what kind of arguments will be made on this thing, then he will issue a preliminary decision. At that particular point, they're then going to be the question of how it goes out. One of the things we don't know about this particular process is, after he issues his motion, whether there's going to be any public debate amongst the various Senators as to what will be said. There's a real difficulty here. The Senate is supposed to be a jury. But the Senate is supposed to be a quasi-inquisitor. Separation of powers, definition of roles, are not at all clear in this particular case. And all it will take is one daring maneuver by somebody to set the whole thing on fire.
Peter Robinson: So let me ask, just what is this going to look like with regard to the chief justice? Let's say, by comparison with what we watch on television, "Perry Mason," "Boston Legal." Is it going to be Pat Cipollone, the White House counsel, and the House managers, may it please your Honor. They're going to be referring to. He's going to be right in the middle of every moment of the trial.
John Yoo: I can tell you what John Roberts would want it to look like.
Richard Epstein: As boring as possible.
John Yoo: He would want to look like Chief Justice Rehnquist during the Clinton trial. Which is we don't remember anything about what Rehnquist did or said--
Richard Epstein: We do remember one thing about Rehnquist. We remember the robes.
John Yoo: He had little chevrons on his robes.
Richard Epstein: Fancy robes. He would like to be--
John Yoo: But if you remember what he did, is he basically deferred every question put to him to the Senate, and he really didn't put a lot of restrictions on things. So for example, there was this question, actually, one really interesting question in the Clinton trial was, do Senators have to only consider the evidence presented in the trial? Or can they consider anything else outside the trial in making their decision? And Rehnquist said, basically I'm not gonna restrict Senators on what they wanna do. So if you're Roberts, and you want to--
Peter Robinson: And if we know anything about John Roberts, we know that he is an institutionalist. He is concerned with holding the Republic together. He will want the Supreme Court to come out of this with its reputation untarnished and, if possible, the Senate and the House as well. Correct?
John Yoo: So if you're Roberts, I agree with you. So if you're Roberts, you want to be as low profile as possible, and you want to kick everything over to having the Senate majority decide. But let me--
Richard Epstein: I don't believe he can do that.
John Yoo: Can I just?
Peter Robinson: You don't.
Richard Epstein: No, because I think he has to make, I mean, sooner or later--
Peter Robinson: Give me an example of the kind of question that he'll have to answer.
John Yoo: What if Ted Cruz gets up on the first day and says--
Peter Robinson: Senator Cruz of Texas.
John Yoo: I make a motion to dismiss the whole impeachment trial because facts, even if they're true, do not meet the definition of a high crime and misdemeanor.
Richard Epstein: He then has to decide what kind of arguments are going to be heard on that motion.
John Yoo: A more daring chief justice... This is my historical example---
Peter Robinson: Oh this could be--
John Yoo: He could issue his... John Marshall sat over something very similar which was the Aaron Burr trial, which was even worse than impeachment. It was a treason trial, where Thomas Jefferson's involved, the Vice President Aaron Burr is the defendant. John Marshall issued a lot of controversial opinions about executive privilege, subpoenas, all these questions. You could see a different man in John Roberts, issuing an opinion, what does high crime and misdemeanor mean? Can we have the President come testify? I don't think he'll do that.
Peter Robinson: My understanding is that Chief Justice Chase, during the impeachment trial of Andrew Johnson--
Richard Epstein: Johnson.
Peter Robinson: Was kind of an activist jurist?
Richard Epstein: It's almost impossible to avoid all this. Look, you're dealing with a situation which, thank god, not every Senator of the United States is a lawyer. And then what you're doing is you're presenting to these people extremely complicated and difficult legal questions. And all we need to do to get Justice Roberts in there is Senator XY and Z, who happens to major in haberdashery says, I would like some instruction from the chief justice as to what he thinks to be the relevant precedents in this case. And it's gonna be very difficult for him to get out of it.
Peter Robinson: Wow, okay.
Richard Epstein: We don't which way we'll go. The key point to understand is a game theoretical matter. Is that a single member of the Senate, Ted Cruz, Chuck Schumer, anybody else, can force the issue by a declaration, so that you do not have to have a majority to make mischief. One person can do it. The whole thing has this, let me say, this following quality. The Democrats keep reminding the Republicans that they have to be neutral jurors and look at the evidence. I never heard them remind Charles Schumer of that particular fact.
Peter Robinson: Right, right, right.
Richard Epstein: And so we're gonna also get the questions of well, have the Democrats and their particular questions showed the appropriate judicial temperament given their sworn position under these things. Turnabout is fair play. For the first time, they're not gonna control the complete agenda, which means things are gonna be much more unpredictable, and probably much uglier, than you hope, unless McConnell gets it right. What he should do is, everybody makes their opening statement, and their opening statement, then you look around, and after the statements are done, you ask the Senators, are a majority of you ready to vote? If they say a majority are, vote, acquit, you avoid this. If in fact it turns out that--
Peter Robinson: You effectively want the thing dismissed. At the outset give everybody 20 minutes to yak.
Richard Epstein: Once you decide, once you decide that the witness is coming on one side, you can't keep them out on the other side.
John Yoo: That's essentially what happened in the Clinton trial. It was basically turned into just speeches.
Richard Epstein: And that was the right thing to do.
Peter Robinson: That's procedure. Let me go to the case. As we mentioned, the House managers will argue for the prosecution. The President's defense team will argue for the defense. John Yoo, I hereby name you the lead House manager.
John Yoo: Oh, thanks.
Peter Robinson: What is the strongest case that you can make against the President? And the aim here is not to do justice. The aim here is to get 67 votes, what is the aim? They know they can't get 67 votes to convict. The aim is to do Donald J. Trump the most political damage you can, right?
John Yoo: Right, I think that's what this is all about.
Peter Robinson: Okay, so what's the case? You're on television. The whole nation, the whole world is watching. What case do you make?
John Yoo: So first you say, please give money to my reelection campaign.
John Yoo: No, what you really do is you say, look, here are the facts as you've gone through them. President Trump made a call to the head of another country and asked that head of another country to provide him intelligence which had only the use, in President Trump's mind, of being turned into ammunition to influence the 2020 election. Did not have any value or use for any public interest of the United States. So the President abused his constitutional power, which I totally agree with, over foreign affairs purely for his own personal benefit. That, by definition, is an abuse of power. We can't have as the head of the Government someone who is so willing, seriatim, to use their constitutional authorities purely for their own personal benefit, so he must be removed from office. And Vice President Pence can take over.
Richard Epstein: I would not do it exactly that way.
Peter Robinson: What would you do?
Richard Epstein: This is a political trial, right?
Peter Robinson: Yeah.
Richard Epstein: The first thing you say is, we are doing an examination of a man who's charged with an abuse of trust. Let us talk about his temperament in office in order to make more credible this particular charge. We have here a person who is a loose cannon. He has tweeted 4,900 times about this case. This is a man who has said he's absolutely innocent. This is a man who has called for the impeachment of Miss Nancy Pelosi. This is a man for whom the word fake news is used at every opportunity. Why is it that we should give the slightest degree of credibility to someone who's such a miscreant on these kinds of issues when it comes to delicate questions? We know something about his temperament, and this is absolutely critical. Because there have been noted commentators on various kinds of shows, like "Uncommon Knowledge," who have said that the presumption belongs with the President on these issues. Knowing what his temperament is about, the presumption that we would give to any decent human being in that office has to be denied to this particular President, who's basic behavior is a scandal and a disgrace to the United States of America.
Peter Robinson: Richard.
John Yoo: None of which is--
Peter Robinson: Remind me never to cross you. Wow, you can argue both sides. All right.
John Yoo: But none of that's in the House indictment, by the way.
Richard Epstein: I didn't say it was!
Peter Robinson: No, no, no, that's why Richard began by saying this is a political question, right? Okay, John, you're now in charge of the defense team.
John Yoo: Ah, thanks again.
Peter Robinson: The best case in defense of this lunatic President... The best defense, what should they be arguing?
John Yoo: Oh so, in response to my gentle colleague, Richard, I'm sure that's the first time he's been called gentle colleague.
Richard Epstein: And last.
John Yoo: Is, we're not trying Donald Trump. We are talking about the institution of the presidency. We are talking about can the presidency successfully function in the future. And then talk about all the responsibilities a president has, to protect the welfare and security of the country. Would removing somebody for something that may seem inappropriate to some people, may not to others. If the facts are in doubt, mental states are in doubt, the House did not have a full investigation. Should the Senate remove a president from office for something involving a small, unimportant country over one phone call, where we're not sure what really happened? And then, as you said, where Ukraine eventually received the money? Where Joe Biden, Hunter Biden, never actually investigated? And actually the United States has now supported Ukraine with lethal aid far more robustly than anything the past Administration did.
Peter Robinson: Oh this is beautiful. So this is the way it'll shape up. The prosecution will go after--
Richard Epstein: You haven't heard my prosecution--
Peter Robinson: Hold on, no, no, but the prosecution, I'm coming to you, the prosecution will put the personality of Donald Trump at the center of its case. And the defense will put the institution of the presidency.
John Yoo: If they're smart.
Peter Robinson: If they're smart.
John Yoo: If they're smart they would make it about the presidency.
Richard Epstein: I don't think that's smart.
Peter Robinson: You don't think so, okay.
Richard Epstein: No, I think you have to--
Peter Robinson: So you defend him how?
John Yoo: You have to defend Trump the person.
Richard Epstein: Look, let me tell you. Many, many years ago, I got involved in various issues involving fraud litigation, okay?
John Yoo: As a lawyer, or defendant?
Richard Epstein: I don't wish to talk about that. It was all settled, thank god.
John Yoo: Defendant.
Richard Epstein: The following, no, I wasn't. Actually, interestingly--
Peter Robinson: Go ahead, go ahead, you're not on trial here. Quiet down.
Richard Epstein: No, no, no.
John Yoo: Very defensive. I don't know what's going on here.
Richard Epstein: No, it wasn't that. I was as a plaintiff.
John Yoo: As a plaintiff?
Richard Epstein: Now, but let me explain to you--
Peter Robinson: Pipe down, you.
John Yoo: Wow.
Richard Epstein: The most important thing that one has to understand about cases involving integrity and so forth, is John has taken the pussyfoot strategy of denial. The tough strategy always goes in the other direction. So you look at them and say, the reason you are bringing this suit is that you are guilty of fraud yourself. That's the way you defend a fraud case. You make the plaintiff into a liar. So what are you gonna do in this particular case? You don't begin the way John does with his hopeless abstraction. You go in there, on the day of the election in 2018 the following Democrat Senators said it was either impeachment or bust in the way in which we are going for this case. These people salivated when the entire Mueller trial was going up, absolutely certain that they would be able to get impeachable information. And when Mueller turned out be a dud, what they did is they started to look for other things that they could attack. And the next thing on the agenda was Ukraine. What you have to understand is that malice of forethought in the one case becomes malice of forethought in the other case. And if you don't believe me, I suggest you look at the investigator's report. What you are seeing there is a complete repudiation of everything that Adam Schiff said. And who is leading this particular prosecution? The shameless Mr. Schiff who has been caught out on every single fraud imaginable.
Peter Robinson: Wow.
Richard Epstein: That's the way you begin this thing. You don't mess around trying to talk about burdens of proof. What you do is you taint the plaintiffs. And this is the question. If you look at many newspapers, they still think that Donald Trump is on the ropes with respect to the 2016 election. But the real story relies not in that. It relies on the Horowitz report and the Durham report which is gonna come out later on.
Peter Robinson: Richard, Richard, you realize that you are one of the most esteemed legal scholars in the country? That even liberal scholars say, oh no, no, Richard Epstein, his body of work is just one of the great monuments to the law of the last 50 years.
Richard Epstein: Thanks.
John Yoo: No, actually liberal scholars don't say that.
Peter Robinson: Well, some of them do.
Peter Robinson: And what you're saying right now is, oh, throw that stuff away. Let's get down and dirty.
Richard Epstein: No!
John Yoo: This is what Richard's, I'm very struck, surprised that you are making these arguments Richard, because--
Peter Robinson: You're not arguing the law.
Richard Epstein: You asked, you're not asking me what I would say.
John Yoo: You're turning impeachment into just another part of the destruction of our institutions.
Richard Epstein: No, John, is absolutely wrong.
John Yoo: You're politicizing yet another of our constitutional institutions.
Richard Epstein: They are going to basically begin the mud campaign on the other side.
Peter Robinson: You've gotta throw mud right back.
John Yoo: Yes, so you respond by ignoring them and sticking to
Richard Epstein: No you do not respond to it.
John Yoo: Institutions and principles.
Richard Epstein: What you have to do under these circumstances--
John Yoo: Oh no, you're falling for their trap.
Richard Epstein: No, you're not falling for their trap.
Peter Robinson: Okay, okay, hold on. John Yoo, writing last month in the "Los Angeles Times." "During the trial, the cause of the impeachment mess, "the president, will be tweeting happily, "even ferociously, from a distance. "But Trump could radically change the course "of the proceedings by appearing in person "in the Senate." Did you hear what he's recommending? "Which would be his right." Close quote.
Richard Epstein: I'm just trying to figure, how much of a fever are you running, John?
Peter Robinson: But to begin with, you say it would be the President's right to appear in the Senate in person? Explain that.
John Yoo: Well actually, the Senate actually issues a summons to the President to appear, and the President by tradition sends his lawyer. But I thought, what would generate the highest TV ratings in the history of mankind? Other than Richard appearing on "Uncommon Knowledge" as a fraud plaintiff?
Peter Robinson: Another fine legal question.
John Yoo: But also would settle the question once and for all. Because the question once and for all is, what was President Trump really up to? What was in his state of mind? So you could have Richard's trial where you present the plaintiff's arguments.
Richard Epstein: Malpractice!
John Yoo: And then you have the defense attorneys, right? And then why doesn't Trump appear, pro se, as his own lawyer at the end, and deliver his own closing statement to a sea of 100 Senators who are not allowed to speak--
Peter Robinson: Are you merely being impish?
John Yoo: It would be the most incredible political theater ever.
Peter Robinson: And provocative, which is your right.
John Yoo: Oh yeah, of course.
Peter Robinson: Or are you really arguing this? If you were in Pat Cipollone's place, you were the White House counsel--
John Yoo: You would tell Trump not to do it, of course.
Richard Epstein: Tell him not to do it.
Peter Robinson: Why not?
John Yoo: I think it might be irresistible for Trump to do it.
Richard Epstein: That's exactly why I'd tell him not to do it.
John Yoo: Trump might really want, because it's also politics, not just law.
Richard Epstein: Go back to Jones against Clinton, right?
Peter Robinson: Right.
Richard Epstein: The dumbest decision in many ways, by Justice Stevens, who had no idea how dangerous depositions are. When you have a witness in a serious case--
Peter Robinson: John Paul Stevens didn't understand depositions?
Richard Epstein: No, he did not.
Peter Robinson: All right, all right, I won't argue.
John Yoo: He's referring to the case of Paula Jones and Bill Clinton and whether a President can be sued while President for things that happened before he was President.
Richard Epstein: 1997 he writes the opinion that there's no harm.
Peter Robinson: Thank you.
Richard Epstein: In allowing the depositions to take place. Now I have been enough of a lawyer, and I've actually been forced to testify, sometimes on facts, sometimes as an expert on these things, and the first thing that you understand is the following phrase. I'll give it to you, from my great friend Gary Eldon, he said as follows. He said, "Richard," he said, "when your deposition "is being taken, you are not talking, you are writing. "You have to constantly look at the fingers "of the court stenographer because you realize "that everything you say is irrevocable. "And the moment you open your mouth, "a trap door will descend upon you and you will "never be able to escape." So the secret--
John Yoo: Wait, so your lawyer said don't say anything, Richard, and you ignored--
Peter Robinson: And not only--
Richard Epstein: And this worked, did this work? Triumphantly! Triumphantly! The reason is it worked, what he did is he got me into a little debate about, you know, sort of asking me questions, wanting me to be clever. And basically after 90 seconds of this thing, I realized I was heading straight to jail. And that what you have to do is, when your lawyer tells you, you answer only after you think, only in monosyllabicla. The single most dangerous thing for an academic like me, is somebody asked you a question and you say, well do you mean A or do you mean B? He only thought of A, he didn't think of B. But you know what his answer is? I'd like to hear both.
Peter Robinson: Right, right.
Richard Epstein: So what you do is you have to be absolutely tight-lipped. You can't be an expert witness unless you can survive depositions. I've known people whose--
Peter Robinson: Do you believe Donald Trump is capable of being tight-lipped?
Richard Epstein: No, he's not!
John Yoo: No, no, no, that's why I think he won't be able to resist the opportunity to be the bride at the wedding.
Richard Epstein: No, what happens is you tie him down--
Peter Robinson: We're cutting this segment of the show because we really don't want to encourage anybody.
Richard Epstein: No, essentially what you do is you manacle him. You don't let him get there.
Peter Robinson: Okay.
Richard Epstein: You can't do it, I mean, so--
John Yoo: It's his right. He's the President, he gets to decide.
Peter Robinson: Impeachment.
Richard Epstein: I mean has a right, and he will impeach himself.
Peter Robinson: We pull back from Donald Trump, to the country, to the institutions. We put the focus where John Yoo wants it. Quickly, briefly, let me go through. I'm sure you could give a kind of dissertation on each of these--
Richard Epstein: Thank you.
Peter Robinson: But I want to go through the previous impeachments. Impeachment of President Andrew Johnson in 1868. There are a number of accusations, but the central accusation is that he violated the Tenure of Office Act by firing a member of his cabinet, Secretary of War Edwin Stanton. Did that impeachment meet the founders' standard?
Richard Epstein: Well you have to answer the following to see the question. What is the right of the dismissal of the president, and it turns out it's a very complicated question under the Unitary Executive power.
John Yoo: I think it's easy.
Richard Epstein: My view about it is that the President can fire all of his chief officials and he does not need to show cause. So I would have basically dismissed that indictment on the grounds that it's--
Peter Robinson: So even the first impeachment, in your judgment--
Richard Epstein: Legally defective, it's legally defective.
John Yoo: I think Congress could have impeached him for, they were impeaching him for the wrong thing. Yeah, because what he was really doing and why he really impeached was because he was refusing to carry out Reconstruction. But they made up this fake crime--
Peter Robinson: So the very first, this is a kind of original sin. The very first impeachment--
John Yoo: It's actually very similar to what's going on today.
Peter Robinson: It was a political process, okay. Item number one. Item number two, the impeachment of Richard Nixon. Richard Nixon was never actually impeached, because the House doesn't bring the articles of impeachment to the floor for a vote--
John Yoo: But he would have been.
Richard Epstein: He wouldn't been.
Peter Robinson: Because he resigns beforehand. He would have been. But there is an impeachment process that takes place. And they take their good time about it. It starts in October '73 and continues until August '74 when he resigns. Did that process meet the founders' standard?
Richard Epstein: Admirably.
John Yoo: Yeah.
Peter Robinson: It did.
Richard Epstein: Admirably.
Peter Robinson: The matter was grave enough, and the procedure was well and--
John Yoo: Yeah, the House took it's time. As you said, it was bi-partisan.
Richard Epstein: It was bi-partisan, the whole thing.
John Yoo: Everybody had a chance to appear.
Peter Robinson: Okay, so we have one impeachment that does credit to those involved.
Richard Epstein: And not only that, the conviction would have been assured.
John Yoo: Well this is an interesting thing. If Donald Trump had been in Nixon's place and had carried it out even farther, suppose Nixon was like Trump said, I'm not resigning. You wanna impeach me, go all the way to trial. Remove me. Maybe he would have survived. That's probably the lesson people take now.
Richard Epstein: I don't believe that.
John Yoo: After Nixon, Clinton and Trump is take it all the way.
Peter Robinson: The impeachment of Bill Clinton in 1998. Did that meet the founders' standard?
Richard Epstein: I was against that impeachment. I thought that if--
Peter Robinson: You were against the impeachment, or in favor of impeachment and against conviction?
Richard Epstein: I was against the impeachment.
Peter Robinson: The whole thing?
Richard Epstein: I thought it was just, it did not rise to the level of the importance--
Peter Robinson: He lied under oath.
Richard Epstein: I understand he lied under oath, but I basically blame anybody who puts him under oath under circumstances where it's utterly related to the essentials of government. I would not have impeached.
John Yoo: So I actually, this is where my disagreement with Richard comes out, because I don't think you can be impeached only for a crime. So I don't think that matters. But I don't think it was important enough, a matter of state, to remove the president.
Peter Robinson: All right, we have two of the three impeachments that have taken place in the nation's history, were meretricious? Simply shouldn't--
John Yoo: Unworthy of the system.
Peter Robinson: Unworthy of the system. All right, so the question now is. If I understand the argument that you both made earlier, the founders raised the bar very high because they wanted to protect the separation of powers. They wanted the presidency to be genuinely independent. And the question now is, when you have a totally partisan impeachment, and that is objectively the case. Not a single Republican in the House voted for these articles of impeachment. How much damage, how much permanent institutional damage has been done, not to Donald Trump, but to the presidency? To what extent are we likely from now on to see presidents effectively subjected to votes of confidence in the House of Representatives? John?
Richard Epstein: I don't, oh.
Peter Robinson: John?
John Yoo: Well I think that actually is a ground a Senator might vote to acquit, even if the facts are true. Is they would say, if we vote to convict a president on these grounds we are essentially going to open the door to repeated, common uses of impeachment over differences of party control, or simple policy disputes. And what you'll have is us turn into a parliamentary government. And that why, as you said, that's why the founders used impeachment rather than some kind of a no confidence vote. They didn't provide for anything like a censure. No easy ways to remove a president. Because they didn't want Congress controlling the president through the impeachment power. And that's why it is two-thirds. Sometimes I think I--
Peter Robinson: How much damage has been done?
John Yoo: I think I worry that, after the precedent by the House today, that's inevitable now. And that when you have a Republican House and a President Buttigieg, you're gonna have somebody start an impeachment proceeding.
Richard Epstein: I don't think we know. Let me put it to you the following ways. Suppose what you do is you get, against my better judgment quote, unquote, a conviction on the first article. And then you get a large number of Democrats that refuse to convict on the second article, on the ground that it upsets executive privilege. This would answer the question of what's going to happen the next time round. Because we now know that obstruction of Congress can never be an impeachable offense, unless there is a judicial order to testify, which has been defied by a president or by some high official under a presidential order.
Peter Robinson: So even for those who believe Donald Trump is guilty of all kinds of things, there is a constitutionally honorable way out in the Senate, and that is to vote to convict on the abuse of power--
Richard Epstein: But not on the second.
Peter Robinson: But not on obstruction of Congress.
Richard Epstein: Because the obstruction of Congress is the one which essentially completely wrecks the total system and creates the chamber of horrors that John is talking about. You cannot allow that to happen. In fact, I regarded it as a disgrace that the Democrats all voted for the second one. Where there was not a single murmur of dissent under a case where it's a palpably weaker than the first one. At least one person should have been able to flip.
Peter Robinson: All right, final questions. Let me give you a few quotations. Just pepper you with a few quotations. This is from CNN. In a meeting of the House Democrats, this is earlier this week, Speaker Pelosi quote, "Laid into Senator Majority McConnell "saying that he's acting like a rogue Senate leader. "She mused that she sometimes wonders whether "McConnell has Russian connections." Close quote. George Conway, husband of White House advisor Kellyanne Conway, tweeted--
Richard Epstein: What a marriage.
Peter Robinson: Just yesterday, I believe, quote: "Donald Trump." This is a very nuanced. "Donald Trump is a lying idiot." All right, then we have the President of the United States apparently suggesting that the Speaker of the House wears dentures, tweeted that during a press conference quote, "Nancy's teeth were falling out of her mouth." Close quote. Okay, now two final quotations. David Brooks, writing in the "New York Times": "Donald Trump is impulse-driven, ignorant, "narcissistic and intellectually dishonest. "So you'd think that those of us in the "anti-Trump camp would go out of our way "to show we're not like him. "But the anti-Trump echo chamber is becoming "a mirror image of Trump himself. "Overwrought, uncalibrated, and incapable "of having an intelligent conversation." Close quote. Final quotation. This is a tweet by the Israeli writer, Yoram Hozany. Quote: "I used to tell my kids that one day "Israeli discourse would mature and be like America's. "No more. "U.S. public life is now a juvenile "mud-slinging contest." Close quote. Serious question. Can democracy function if public life involves very little more than mud-slinging? Can we continue to function like this? Richard.
Richard Epstein: The answer is on a long, sustained basis, no. But this is my prediction of what will happen. I think there will be an acquittal on both of us these particular charges. And I think afterwards I think both sides will start to reconnect and figure out what's going on. So here's the question.
Peter Robinson: Wait, wait, wait, both sides, you mean Republicans?
Richard Epstein: And the Democrats will start reeling in effect that not only have they damaged the institutions, they've damaged and sullied their own personal reputations. So there will be at least some pullback. The real question will come only after November of 2020, on the question if Donald Trump loses after being acquitted, there will be endless amounts of repercussions. If he wins after it turns out he's being acquitted, my view about that situation is in terms of long-term political situations. It will be less damaging to the nation, even though people will be dubiously aggrieved, because nobody will now be able to think that the impeachment strategy was able to bring about a toppling of a government through the legislative process.
Peter Robinson: John?
John Yoo: So I disagree with some of what Richard said, and I agree with the bottom line. As usual.
Richard Epstein: On the one hand.
John Yoo: First of all we're neither of us were Trump supporters at the beginning, famously Richard.
Peter Robinson: Richard is famous for the very day of the inauguration calling on Donald Trump to resign. Why waste time?
Richard Epstein: It was a week, it was a week, it was a week.
Peter Robinson: Oh, it was a week?
John Yoo: Save us all this impeachment, ho ho.
Richard Epstein: I do not want to be misunderstood on that.
John Yoo: So one thing about the politics. Yes, those are statements which show how debased our politics are becoming. American history goes in cycles. I don't think this is worse than what you saw during the Federalist Jeffersonian period, or during the Antebellum period.
Peter Robinson: The election of 1800? Adams versus Jefferson.
John Yoo: Or the gilded age. You see political arguments and statements which today's world actually reminds me very much of. So we're just in one of those cycles of extreme partisanship and polarization. But things change, American politics has changed too. The second thing though, I think, is, and this is where I agree with him, what this is all about is how do you remove a president? Impeachment, which is an extraordinary remedy? Or the simple system of every four years you have an election?
Peter Robinson: You can boot him out.
John Yoo: And the Federalist papers say that, and the founding debates say that. If a president abuses power, or if he makes bad decisions, or he's a terrible person, the way you remove him is through an election. Only if it's some extraordinary abuse of power do you take an off-ramp and use this remedy of impeachment. I think what we're both saying is, let the electoral process work. Let politics, however bad they are, work. And if you don't like Donald Trump, you think he's doing a bad job, he's a terrible person, just vote against him this November.
Richard Epstein: By the way, I wanted to make one comment. I thought he should resign in 2017. I made no bones about it and I still think that was the correct judgment. But I think under the current circumstances, to resign in the face of this kind of pressure, creates a very, very different kind of situation.
John Yoo: Now he's got to stay in. It's an attack on the presidency.
Richard Epstein: He has to stay in under these things. But the other point is, one of the reasons you could call for resignation in 2017 is you'd get Michael Pence. Now if it turns out that you have a situation which you vote against him in the election, you're gonna get Joe Biden or probably Bernie Sanders. And I have to say, if the choice is between those two, I will vote for Donald Trump for reelection against either of these two people.
John Yoo: Wow, that's big.
Richard Epstein: Not because I love him.
John Yoo: You'd vote for Trump this time.
Richard Epstein: But why is that, because the alternative is so much more horrible than even Hillary Clinton.
Peter Robinson: Politics is about making choices.
Richard Epstein: I did not vote for Trump in 2016.
John Yoo: I'm still writing in Richard Epstein in my ballot, just like last time.
Richard Epstein: Keep doing it.
Peter Robinson: Two last questions.
Richard Epstein: Frightening, isn't it?
Peter Robinson: Two last questions. Two last questions. Needed to convict, 67 votes in the Senate. Republicans hold 53 seats, Democrats 47. Name it. What will the final vote be on Article One and Article Two?
Richard Epstein: My guess is it will probably be about 51-49, I'm not sure which way. I think a couple of Republicans will defect. I think all the independent Democratic jurists will vote to convict. I don't think there'll be any defections on that side.
Peter Robinson: John?
John Yoo: I agree, no Democrats will vote to acquit, I assume, but I don't think any Republicans will vote to remove Trump from office either. I think it'll be--
Peter Robinson: Straight party line.
John Yoo: Yes, straight party line.
Peter Robinson: When it comes right down to it, even Susan Collins, who's under pressure and running for reelection in May, will vote to support--
John Yoo: They want to have witnesses, but--
Peter Robinson: I see.
John Yoo: I don't think they're gonna vote to remove.
Richard Epstein: Look, if you do get the witnesses, then the confidence in these judgments has to go down.
Peter Robinson: All right, final question. November 2020. Will Donald Trump be reelected?
Richard Epstein: At this point, I would have to say yes.
Peter Robinson: John?
John Yoo: If the Democrats nominate a socialist, he'll win.
Peter Robinson: Bernie Sanders or...
John Yoo: Warren?
Peter Robinson: Name a non socialist who's in the running.
John Yoo: So I think if the Democrats end up nominating Bloomberg, then I think then it's a really interesting race. And he's got this interesting strategy to get the win at the Convention.
Richard Epstein: He will basically lose, I think, 65-35.
Peter Robinson: Bloomberg?
Richard Epstein: Yeah, I think he's hopeless. The Democratic progressive wing will walk out en masse on this particular man.
Peter Robinson: Because Michael Bloomberg is too far to the right for the Democratic party.
Richard Epstein: And also, by the way, speaking about doing things by having popular support without independent wealth, he's gonna basically self-finance his campaign. He's willing to spend a billion dollars in order to do it, which is pocket change.
Peter Robinson: I'd be willing to spend a billion dollars. The difference is I don't have it.
Richard Epstein: I would be willing to spend it too.
John Yoo: If you care about the Constitution, you don't want a socialist to win--
Richard Epstein: I understand that.
John Yoo: Because they're the ones who want to change things. Like get rid of the Electoral College, pack the Supreme Court, get rid of the Senate, change our government.
Richard Epstein: I mean I might vote for Bloomberg.
John Yoo: So if you care about the Constitution, there's Trump and then a small universe of the Democratic candidates are also acceptable.
Peter Robinson: John Yoo, Richard Epstein, thank you very much.
John Yoo: Thanks.
Richard Epstein: Thank you. I'm tired.
Peter Robinson: Are you tired? That's the first time I've worn you out, Richard.
John Yoo: That's the Jewish way of saying thanks.
Richard Epstein: Thanks!
Peter Robinson: For "Uncommon Knowledge," the Hoover Institution, and Fox Nation, I'm Peter Robinson.