Annie Kuo: Hi, everyone, and welcome back to Discovery, a 红桃视频 podcast where we interview our distinguished faculty and experts from around the world. I'm your host, Annie Kuo. And today we have the great pleasure of introducing you to one of our recent visitors to campus Professor Michael Gerhardt from the Carolina Law faculty where he's been teaching since 2005. Professor Gerhardt鈥檚 teaching and research focuses on constitutional conflicts between presidents and Congress. He's testified more than 20 times before Congress, notably giving the history of impeachment to the entire House of Representatives in 1998, behind closed doors, also serving as one of only two legal scholars testifying in four different presidential impeachment proceedings. He's also been an impeachment expert for CNN during the Clinton and first Trump impeachment proceedings and served as an expert commentator for CNN, Fox and MSNBC and the second impeachment trial of President Trump. Welcome Professor Gerhart to the podcast.
Michael Gerhardt: Thank you for having me.
AK: So, some scholars call our politically fraught time the quote age of impeachment. For our listeners, the practice of impeachment originated in England and was later used by many of the American colonial and state governments. The president, vice president and all civil officers of the United States are subject to impeachment, but not legislators. I learned they're not qualified to be impeached because they're not civil officers.
Let's look at the first president to be impeached, Andrew Johnson. Can you tell us about what precedents that set for American history? In your talk here on campus, you mentioned that President Johnson had some very good lawyers who argued that only indictable crimes should be impeachable?
MG: Well, Andrew Johnson, as everybody knows, was not everybody's choice to be president of the United States. He had run as Abraham Lincoln's second vice president. And having shown up drunk on Inauguration Day, Lincoln basically asked that he, Johnson, never be allowed in his presence again. And that was pretty much their interaction until unfortunately Lincoln was killed.
Johnson, who was also the only Southerner in Congress, at the time, then became president. So, he was not terribly popular from the very beginning. And it just got worse from there because he was angry, he opposed reconstruction. He also cursed out Congress, he tried to veto reconstruction legislation, oftentimes having his veto overridden. So, there was a battle going on between Johnson and the radical republicans who controlled Congress. And they were determined, either to ensure he had no power or to toss him out.
So, they had considered his impeachment more than once. But finally, he gave them exactly what they wanted when he made a decision to suspend his secretary of War, Edwin Stanton, in the hope that that wouldn't be a violation of the Tenure in Office Act, which had gotten passed over his veto. And also with the hope that Stanton would effectively no longer be in the cabinet. Stanton鈥檚 voice was not one that Johnson wanted to hear because Stanton鈥檚 voice was really a Lincolnian, who supported Reconstruction. And Johnson was determined to do what he could to gut Reconstruction. But having fired Stanton that just gave Congress what it wanted and the House very quickly impeached him, then he became the subject of the first presidential impeachment trial.
AK: Wow. So, that was in 1868.
MG: Yes.
AK: Yes. And then we didn't see impeachment again before Congress until President Nixon. Correct?
MG: Correct. As you noted, Johnson did have the benefit of some very good lawyers. Nixon also had some good personal lawyer. And in a sense, those lawyers both for Johnson and Nixon had clients who were in very tough situation. And they were developing arguments, both during the time of Johnson's trial and later with Nixon, that were designed to try and insulate those presidents from some kind of retaliation by Congress. It didn't really help either of them. Even though Johnson was acquitted by a single vote in the Senate. He got the message and he was very quiet and docile the rest of his time in office. Nixon, it turned out, was elected by a landslide in his second election, or reelection, and then evidence began to emerge that he had a role in authorizing or supporting people from his administration breaking into the democratic headquarters at the Watergate Hotel before his reelection occurred. And so the more evidence that came forward, the more uncomfortable Nixon appeared to be. And he was on the brink of being not just impeached by the House, but almost certainly convicted in the Senate before he resigned.
AK: So, in the case of President Nixon, what did we learn about the unquestionably appropriate grounds for impeachment?
MG: I think Nixon's likely impeachment is about as close as we ever are likely to come to what I'll call a paradigm case, a really terrific illustration of how the system should work. Nixon had been charged with various kinds of misconduct, all of which I think qualified as impeachable misconduct, most especially charges that he had obstructed justice and another charge that he had ordered the heads of various federal agencies to go after his political enemies. There's, I think, no question, no reputable scholar鈥檚 ever question that those two charges clearly set forth grounds for impeachment. And Nixon was eventually named as an unindicted coconspirator in the criminal trial of the people who broke into the Watergate Hotel.
So, there's a lot of stuff that's beginning to emerge, questionable payments, a lot of other sort of mischief in the Nixon White House. And then Nixon, of course, ends up becoming his own worst enemy because it turns out Nixon had taped conversations in the White House, conversations which actually revealed his culpability.
AK: And he resigned before impeachment. Otherwise, we'd have four presidents that have been impeached. Instead, we have three throughout history that have been impeached, although none were convicted. So, we talked about Andrew Johnson in 1868. Then we've got Bill Clinton, which we'll turn to in 1998 and then Donald Trump twice in 2019 and 2021, which brings us into this age of impeachment of more regularity.
Also, just to point out these two prominent examples in more recent history of impeachment of Secretary of Homeland Security, Alejandro Mayorkas, which we'll also discuss shortly and while not an impeachment per se the ouster of representative McCarthy as speaker of the house.
So, in his defense, President Bill Clinton's lawyers argued that impeachment should not always be about a moral indiscretion. So, was the problem there about lying to the public?
MG: That was part of the problem. So, one thing that's running throughout all these different presidential impeachment proceedings is an effort to try and define the scope of impeachable offenses. The Constitution provides that treason, bribery, and other high crimes and misdemeanors are impeachable offenses. While treason is defined in the Constitution, bribery is defined both in the common law as misusing one's office for personal gain, it's also defined as a felony, and the other phrase, other high crimes and misdemeanors, though they seem opaque to the public, are generally understood to be what the framers understood as political crimes, serious offenses against the republic. They didn't have to be indictable. So, that's one response to Johnson's lawyers. Clinton鈥檚 lawyers are also arguing in part, well, not all indictable crimes are impeachable either.
So, what we discover among other things, is presidential lawyers are always trying to define the scope of impeachable offenses in such a way as to exclude the misconduct for which their client has been impeached. And in Clinton's case, as you point out, he had lied under oath, otherwise known as perjury. He had also obstructed justice. But Clinton, and particularly his lawyers, tried to argue that whatever cleanse misconduct was, it was petty. The late William Van Alstyne, a great constitutional law scholar from Duke had described Clinton's misdeeds as low crimes, which is about as I think accurate description is as I could find. What Van Alstyne meant was, they're sordid, but they're not that serious. They had to do with his own personal deficiencies and indiscretions, but it's not clear that Clinton actually abused office or abused his powers, which is usually the focus of impeachment. And therefore, Clinton's lawyers were trying to argue he shouldn't be impeached in the house and certainly should not be convicted and removed in the Senate because whatever Clinton did wrong it didn't rise to the level of an impeachable offense.
AK: And in narrowing the field of misconduct, for which there's an impeachable defense, during your talk here, you made a point there that there's actually a principled, nonpartisan stance among members of Congress, including a small number of Republicans today that impeachment should not be about policy, which came up in discussing what happened with Secretary Mayorkas. Could you tell us about this in the current context?
MG: Well, the concern about whether impeachment could be based on policy differences really traces back to the impeachment of Andrew Johnson. At the core of the impeachment of Andrew Johnson was a fight over Reconstruction policy. The radical republicans wanted to go one way, Johnson basically didn't want it at all. They certainly didn't want to punish the south. And so, the core disagreement between Congress and Johnson was over policy, and Johnson's acquittal is oftentimes understood as affirming the precedent that policy differences should not become the basis for impeachment.
There's also original meaning that supports that conclusion because the framers were offered different options as grounds for impeachment, and they rejected the term maladministration which had been proposed. Well, maladministration basically means poor performance or, sort of, bad policy. And it's important to understand the framers rejected that in favor of the language 鈥渢reason, bribery, and other high crimes and misdemeanors,鈥 thereby suggesting that whatever language was adopted, did not include maladministration. Nevertheless, the House of Representatives proceeded not too long ago to impeach the current Secretary of Homeland Security based entirely on policy differences. Even republicans in the Senate said so. Even the republicans own witnesses in the House said so. So, this isn't really a matter of much dispute at all. And then the Senate, I think, legitimately concluded that once they got the articles of impeachment against Secretary Mayorkas, they were going to dispose of them very quickly because they didn't rise to the level, or they make a charge that rose to the level of impeachable offense. They were just about policy differences.
Think about it this way. If there had been a trial in the Senate for Secretary Mayorkas, it would have been a trial about President Biden's immigration policy, but you can't impeach a policy. And in fact, that's what elections are for. People could ratify that policy, support the president or perhaps not support the president based on his policy. That's appropriate. But impeachment, and particularly a trial, they're not supposed to be about policy. And I think the very quick disposition of the matter in the Senate reaffirmed that whatever impeachment is about, it's not about policy differences.
AK: You mentioned that impeachment was threatened against President John Taylor at least three times and then the word was thrown around quite a bit, I remember during Obama's time in office because of things he did that people did or didn't like. So, in a sense, we've, quote, overwhelmed impeachment. It seems like the increased use of impeachment and removal proceedings signals an erosion in institutional norms. How are we going to protect against their overuse in these hyper partisan times?
MG: Well, there are two things that have been going on. I mean one is, I think, the word impeachment and the threat of impeachment are about as old as the country. When John Marshall was Chief Justice of the Supreme Court, his political enemy, Thomas Jefferson, basically made a threat that if Marshall proceeded to decide cases against Jefferson, he would be impeached. So, those threats, in a sense, are like an American tradition. They come up a lot when people particularly in the opposition don't like what the president's doing. But the current times are somewhat different in that we don't just have the threats. I think there has been a concerted effort to dilute impeachment of any significance. And so almost as soon as, really, even before Joe Biden became president, there were threats to impeach him, largely because Donald Trump asked republican leaders to impeach Biden. And what reason to Trump give? Because they impeached me.
And so a lot of Republican leaders, for example, the Speaker of the House, Mike Johnson, obey Trump. And therefore, they've tried to impeach Biden. Recently, another impeachment article was introduced in the House against Biden. And there's the Mayorkas situation. And I think the apparent inclination of some Republican leaders to keep trying to push for impeachment, I believe, is an attempt to rob it of any serious meaning and really make a joke out of it, perhaps ensuring that if Donald Trump returns the presidency, the American people will be sick of it and they won鈥檛 take it very seriously.
Well, that's not a good thing. Impeachment is supposed to be serious. And I think the quick disposition of the Mayorkas trial, and the fact that the Biden impeachment hasn't gotten any traction, suggests that the Constitution, at least for many members of Congress, still has meaning.
AK: Right. And you mentioned that people who care about the rule of law care about the Constitution and using the practice of impeachment properly, then it's good to address these severe abuses of power and big crimes.
MG: Impeachment is supposed to be about the serious abuse of power, and we can have a debate about that. But policy differences are not a serious abuse of power. Different presidents have different policy preferences. That's just the way the American political system works. And impeachment is also, and this is critical, impeachment is supposed to be directed at misconduct for which there may not be any legal remedy.
So, many of the charges that come up in what we'll call legitimate impeachment proceedings are oftentimes designed or crafted in a way to get at misconduct for which the president could not be liable civilly or criminally. Take, for example, the charge against Richard Nixon that he had ordered the heads of the IRS, FBI, among other agencies, to go after his political enemies. That sounds bad, and it is bad, but it's not criminal. There's no crime. There's no felony that could be charged against Nixon for doing that. So, the question becomes, what's the sanction? Impeachment.
Impeachment is exactly the kind of thing that is supposed to address misconduct that can't really be adequately addressed in any other forum.
AK: You're actually touching on a question that I had about how impeachment is a process that is quite different from a criminal trial. Is there anything that you'd want to add on to that?
MG: Well, impeachment and criminal trials are not the same thing. They were not designed to be the same thing. Oftentimes, I think for at least some members of the public, there's a thought that well, impeachment must be criminal proceeding because the word crimes is used in the phrase that refers to the grounds for impeachment.
First, the word 鈥渃rimes鈥 appears in that phrase as part of a technical term of art. And the word 鈥渃rimes鈥 was used in that phrase 鈥渉igh crimes鈥 borrowed from the British to refer to offenses against the republic. 鈥淗igh meant the state, 鈥渃rime鈥 obviously offense against the state. That's what the language refers to. It doesn't actually refer to indictable crimes. But at the same time, what we've also learned about impeachment is that it's not in any way structured or operated like a criminal proceeding. For example, in a criminal proceeding, we have a rigid burden of proof beyond a reasonable doubt. There is no required burden of proof in an impeachment proceeding. It's up to the individual member.
Second, in a criminal proceeding, we have also protections that might exist, particularly with regard to evidence because we don't want the jury, for example, to rely on hearsay or other things. But there are no rules of evidence in Congress. And next and perhaps most importantly, in a criminal proceeding, the sanction is typically imprisonment, or death. But in impeachment, the only sanctions are removal and disqualification. So, there's no criminal sanction that's available at the end of an impeachment trial. And thus, I think it's very clear that the framers had no interest at all in trying to make impeachment like a criminal trial. They are different proceedings, different burdens of proof, different kinds of protections in them. Also, different evidentiary rules, different sanctions. Impeachment is unique. The best way to understand impeachment is not to keep trying to fit it into, let's say, the civil or criminal square, but into a circle, a unique circle that actually fits impeachment.
AK: Do you think that there is the prospect of future amendments to the Constitution based on what we're learning along the way that there will be some course correcting? Nope. He鈥檚 shaking his head.
MG: It's not because it's not important, but I just think it's hard to imagine the country could collectively come together to agree on any kind of amendment to the process. Today, for example, if you've got one party that seems to think impeachment is just there to use against your political enemies, and the other party may have a more complex view. There doesn't seems to be a lot of middle ground. Having the kind of support for constitutional ratification, or ratification of the Constitution amendment, is not yet there among the American people.
AK: Do you think there's a danger because the rule of law is partisan?
MG: I think there's always a danger. And I think we are currently having to confront that. The rule of law will matter less than partisan loyalty or political objectives. And I think that is a very dangerous, and ultimately hurtful to our Constitution and the kind of democratic republic we have. The fact is that the rule of law is central to the functioning of our system. Thomas Paine once wrote that, 鈥淚n this country, the law is king.鈥 And that was a great way to encapsulate the difference between this new country, the United States, from the old country of England, where the king was king, and the king was above the law. But in this country, as we've heard many times, no one is supposed to be above the law. And that's because the law is king.
AK: Yeah. Amen. There was a glimmer of bipartisanship with what we saw with President Nixon as well as President Trump. Could you tell us about that?
MG: Sure. And I think that glimmer ought to provide hope for most Americans. So, with Nixon, it was clear that although members of Congress belong to different parties, and they each had loyalty to the different parties 鈥攄emocrats and republicans 鈥 the more members of Congress learned about Nixon, the more republicans began to consider the likelihood that Nixon had done something that justified his removal.
And it got to the point where the House Judiciary Committee approved three articles of impeachment against Nixon. And not long thereafter, Nixon met with republican leaders in the Senate, particularly this sort of the grand republican Senator Barry Goldwater, an idol, for example, of President Reagan and Goldwater told Nixon, you don't have the votes, you don't have the votes to avoid conviction.
Today, that might seem like impossible to think that a republican would tell a republican president that, but it was a sign that I think does great credit to Goldwater, and other members of Congress, that something mattered more to them than just winning a partisan contest. The Constitution mattered more. The republic mattered more. And that's encouraging.
In Donald Trump's first impeachment proceeding, the vote in the House and later the vote in the Senate were almost all entirely according to party lines. In the second trial of Donald Trump, however, there were a record number of senators from the Republican Party who voted to convict one of their own. And I think their defection, so to speak, was a significant sign that the affair, or situation, was not entirely governed by partisanship. Instead, you had seven senators, that's not an insignificant number, crossing the aisle to join democrats to vote to convict Donald Trump in the second trial.
Now, of course, what happened is Trump still fell short of the two thirds requirement for conviction and removal. But he also got more votes in favor of conviction cast against him than any other president in American history.
And to add on top of that, many of the republicans who actually had voted to acquit him, ended up condemning him in the harshest terms possible after his acquittal. So, you had more than two thirds of the Senate after the second trial condemning Trump for what he had done leading up to and on January 6.
AK: So, is the impeachment of a president to 鈥 and I do want to talk about January 6 because you were there. Professor Gerhardt saw what was happening at the US Capitol building in his rear view mirror as he was driving away. Actually, let's talk about that. Tell us about where you were on January 5, and what you saw in your rearview mirror.
MG: Well, on January 5, what I saw on my rear reviewer rearview mirror was Washington, because I was driving south from Washington back to North Carolina, where I live. I had been in Washington on January 5, because there were some members of Congress that were concerned with President Trump's continued efforts to try and interfere with the final peaceful certification of the 2020 presidential election. Every expert we've got, any evidence we've got all points the fact that Joe Biden won the presidential election in 2020, fair and square. And it's hard for some people to accept. But that's the fact. And after conversing with some members of Congress on the fifth of January, I drove home. But then like everybody else, I happen to see television the next day of the assault on Congress. And so I drove back. And I had meetings on January 7 with members of Congress, particularly in the Senate, where several senators showed me all the damage done to the Senate chamber, and to the Senate offices.
AK: You mentioned that Congress didn't need any education around what happened on January 6 because they were there. What did you see when you were there shortly after, the day after?
MG: Well, one of the criticisms of the House at that time is it moved awfully fast to impeach President Trump. Took maybe a day or so for it to happen. And I thought, then, as I think now, that shouldn't be too surprising because all those members of the House, and for that matter the Senate, were in the Capitol while it was being stormed by more than a thousand people who were it didn't seem to be on a tour. But they were defacing art and statues, breaking windows and doors and artifacts, ripping up Senate desks and yelling that they wanted to kill the Speaker of the House, Nancy Pelosi, and they wanted to kill the Vice President of United States, Mike Pence. And so that's serious business. And I think that's one reason why the House was able to move so quickly is none of the members of the House needed to be educated about what happened on January 6. They were there. They also were aware of Trump's revving up the crowd, and in effect Trump had been revving up the crowd since he lost on the day of the election. And so a lot of people took out their anger at Trump's urging on Congress.
So, as I mentioned, I saw a lot of the damage done as a result of the storming of the Capitol. But then during the trial, I also was able to see, along with the senators, video of what was happening with the senators on January 6, and that was quite disturbing. I must remember, quite graphically, because I was sitting behind the presiding officer. I was working with special counsel to the presiding officer and I'm sitting behind him, seeing the members of the Senate watch a video in which you could see then-majority Leader Chuck Schumer and some other senators running down the hall one way being led by those brave security people at the Capitol. And then you wait about five to 10 seconds, and then you see them running the other way. And then about 10 seconds later, you see a mass of people coming after them.
I don't think it's an exaggeration to say that had those senators been captured by those people. Some of them might not be here today. Or if you don't think anybody would have been killed, there's a good chance they would have been hurt badly. That is not how a democratic republic is supposed to operate. That is not how the rule of law is supposed to operate. In this country, there's an election. All evidence suggests it led to an honest result. And then we've had only really one president in American history, who's refused to accept the peaceful transfer of power. And that was Donald Trump.
AK: Let's talk about this unprecedented situation, the impeachment proceedings against a president who is no longer in office but is up for reelection this year. Is this principle about accountability before reelection? Or is it about a stain on their legacy because impeachment does irritate presidents, right? Like, no matter what good they do, it's going to be in the first couple lines of a bio.
MG: That's right. Well, I assume that 鈥 in fact, it's not really an assumption 鈥 I know that the impeachments of Donald Trump really irritated him. And I know that because Trump wanted Biden impeached. He didn't say, oh, Biden had done XYZ wrong. He said, 鈥淚mpeach him because they impeached me.鈥 And I assume he wanted to inflict on Biden, the pain that he himself has felt from that stain on his legacy. But I think it's too soon for us to know how the story ends.
We might have thought on January 7, or at the end of the trial, well, maybe this ends with Trump no longer being a part of American public life. That is obviously not true. It didn't end with his having been indicted for more than 90 felonies. So, we don't know how it might end. Some polls suggest that Trump could well be reelected as president. If that happens. I think it is a reminder that the ultimate safeguard for the rule of law in this country is the American people. And if the American people don't want the rule of law to be followed, or they don't think it's something to take seriously, then guess what, it won't be taken seriously.
AK: And that would be a travesty.
MG: Well, for all of us, who studied to become lawyers, and thought that the law was a very important part of our democracy, it would be very disappointing.
AK: Thank you so much. I actually could talk to you forever. I was telling Greg, our producer, that I like to collect visits to presidential museums like national parks, and I really appreciate your spending time with us on the podcast and your primmer on presidential impeachment history. It's a very timely topic for this election year. So, thank you so much for being with us.
MG: Well, thank you for having me. I enjoyed being able to visit the law school and enjoyed the opportunity to do the podcasts. Thank you.
AK: Professor Michael Gerhardt taught for more than a decade at William and Mary Law School before joining the Carolina Law faculty in 2005 where he is the Burton Craig Distinguished Professor of Jurisprudence. This January the NYU Press published his new book The Law of Presidential Impeachment.
