>>> THE PRESIDENT OF THE UNITED STATES HAS THE ABSOLUTE POWER TO
PARDON PEOPLE.
PARDON PEOPLE. >> IT WAS GRANTED BY THE
CONSTITUTION, JUST LIKE HE HAS
THE ABSOLUTE POWER TO, SAY,
RECALL AN AMBASSADOR.
THE TRUMP HAS GOOD TEST CASES
FOR CASES OF AUTHORITY.
BECAUSE IF THE PURPOSE IS
CORRUPT ENOUGH, WHAT THEN IS TO
STOP HIM?
STOP HIM? WOULD IT BE CONSTITUTIONAL FOR A
PRESIDENT TO OFFER A PARDON IN
EXCHANGE FOR HALF A MILLION
DOLLARS?
DOLLARS? OR RECALL AN AMBASSADOR BECAUSE
SHE WOULDN’T HAVE A ROMANTIC
RELATIONSHIP WITH HIM?
NEITHER OF THOSE PERTAIN HERE,
OBVIOUSLY.
OBVIOUSLY. BUT THE POINT IS THAT THERE MUST
BE SOME LIMITS TO THESE BROAD
POWERS IF ABUSED.
AND THE ONLY CONSTITUTIONAL
REMEDY THAT WAS PROVIDED FOR
THEM WAS IMPEACHMENT, WHICH IS
WHY WE ARE WHERE WE ARE.
TO TALK MORE ABOUT THAT, I AM
JOINED BY HARVARD LAW PROFESSOR,
HE WAS PRESIDENT BARACK OBAMA’S
ADMINISTRATOR FOR THE WHITE
HOUSE OFFICE OF INFORMATION AND
REGULATORY AFFAIRS.
REGULATORY AFFAIRS. HE ALSO HAS A BOOK OUT.
IT’S GOOD TO HAVE YOU HERE.
>> GOOD TO BE HERE.
>> I THOUGHT OF YOU HERE BECAUSE
THERE’S MENTION OF PARDON POWER
IN THE IMPEACHMENT BOOK.
AND WE SAW THE PARDONS ON FRIDAY
NIGHT.
NIGHT. OBVIOUSLY I DON’T THINK THOSE
ARE IMPEACHABLE NECESSARILY.
BUT IT IS A KIND OF LOADED GUN
INSIDE THE CONSTITUTION THAT
EVEN AT THE TIME THEY WERE
WORRIED ABOUT.
WORRIED ABOUT. >> COMPLETELY.
>> COMPLETELY. SO IN VIRGINIA WHERE THE
CONSTITUTION MAYBE WASN’T GOING
TO BE RATIFIED, THERE WAS A
DEBATE EXACTLY ABOUT THE LOADED
GUN AND PROM MEANT PEOPLE SAID
YOU CAN’T RATIFY THE
CONSTITUTION BECAUSE IT IT’S NOT
WHAT WE FOUGHT THE REVOLUTION
FOR.
FOR. AND JAMES MATTIS VERY QUIETLY
SAYS THE GENTLEMEN SEEM TO HAVE
FORGOTTEN SOMETHING.
FORGOTTEN SOMETHING. AND THEN HE SAYS IF THE
PRESIDENT SHELTERS SOMEONE WHO’S
COMMITTED CRIMES THAT THE
PRESIDENT HIMSELF SAW OR
PARTICIPATED IN, THE PRESIDENT
WILL BE IMPEACHED.
>> SO, I MEAN, MATSON AT THAT
MOMENT UNDERSTANDS THE KIND OF
CHECK TO AN UNCHECKED POWER.
COMPLETELY.
COMPLETELY. SO THE PARDON POWER WAS ONE OF A
NUMBER OF AUTHORITIES THAT
PEOPLE WERE WORRIED ABOUT AND
MADISON AND HAMILTON AND MANY
OTHERS, FRANKLIN CERTAINLY,
THOUGHT THE REASON FOR THE
IMPEACHMENT CLAUSE IS TO SAY
THAT ABUSE OF POWER IS AN
IMPEACHABLE OFFENSE.
IMPEACHABLE OFFENSE. AND THAT GOES BACK TO THE
PREREVOLUTIONARY PERIOD WHEN THE
AMERICAN COLNISTS HAD STARTED
IMPEACHING AGENTS OF THE KING.
>> THERE IS A BROADER THEME HERE
WITH THE PRESIDENT IS THAT THERE
ARE ALL KINDS OF WAYS IN WHICH
HIS POWER IS WIELDED THAT ARE
LAWLESS, IF NOT ILLEGAL.
AND PLACES WHERE THE CORRUPT
INTENT OR THE BAD FAITH ABOUT
THE ACTIONS OF GOVERNMENT ARE
TAKING END UP MAKING IT HARD TO
CREDIT WHAT HE’S DOING AS
ORDERLY OR A PROPER USE OF THE
POWER TO TAKE CARE OF THE LAWS
THAT ARE FAITHFULLY EXECUTED.
>> COMPLETELY.
>> COMPLETELY. THAT’S ACTUALLY HOW THE CENSUS
CASE GOT RESOLVED WHEN CHIEF
JUSTICE ROBERTS WHO’S NOT KNOWN
AS A LEFTEST PERSON ENDED UP
CONCLUDING THAT BECAUSE THE
REASON FOR ADDING THE QUESTION
TO THE CENSUS ABOUT CITIZENSHIP
WASN’T WHAT WAS ARTICULATED TO
GET AN ACCURATE COUNT, THAT WE
REALLY HAD TO RETHINK IT AND
MAKE SURE THAT LEGITIMATE GOALS
WERE PURSUED.
WERE PURSUED. AND FOR IMPEACHMENT AND
PRESIDENTIAL POWER THAT’S LIKE A
LARGE THEME THAT IF YOU HAVE AN
AUTHORITY BUT THE REASON YOU ARE
DOING IT HAS TO DO WITH YOUR OWN
SELF-INTEREST OR ABOUT
CORRUPTING OUR SYSTEM OR ABOUT
ABUSING CIVIL LIBERTY, THEN ALL
BETS ARE OFF IN THE SENSE THAT
WE THE PEOPLE ARE ALLOWED TO
RISE UP AND SAY YOU CAN’T BE
PRESIDENT ANYMORE.
PRESIDENT ANYMORE. >> THE CORRUPTION OF THAT INTENT
PERTAINS EXPLICITLY TO THE
ARGUMENTS THAT WE MADE -- THAT
WE SEE MADE ON THE PRESIDENT’S
BEHALF BY HIS DEFENDERS WHICH IS
ESSENTIALLY -- LOOK, WE
CONDITION FOREIGN AID ALL THE
TIME, THIS IS ALL PART OF POLICY
ESSENTIALLY, FUNDAMENTALLY.
ESSENTIALLY, FUNDAMENTALLY. >> AND THAT’S A COMPLETELY FAIR
POINT.
POINT. SO TO CONDITION A FOREIGN AID ON
COMBATING CORRUPTION IS
LEGITIMATE AND IN MANY WAYS
HONORABLE.
HONORABLE. AND IF THAT’S ALL THAT HAPPENED
HERE I THINK NO ONE WOULD HAVE A
COMPLAINT WHICH IS ACTUALLY A
PRODUCTIVE CLARIFICATION THAT
SUGGESTS THE ONLY QUESTION
REPUBLICANS AND DEMOCRATS
ACTUALLY AGREE IS WAS THIS A
NEUTRAL EFFORT TO FERRET OUT
CORRUPTION OR WAS THIS TO TARGET
A POLITICAL OPPONENT?
SUGGESTS THE LATTER WOULD BE THE
LEGITIMATE THING TO DO.
>> WHAT DO YOU THINK THAT
ATTEMPTED BRIBERY ISN’T IN THE
CONSTITUTION.
CONSTITUTION. AND AN ARGUMENT I’VE SEEN
GROWING IN THE RIGHT IN THE
"WALL STREET JOURNAL" EDITORIAL
PAGE WHICH IS ESSENTIALLY, WELL,
LOOK, HE DIDN’T GET AWAY WITH
IT.
IT. IN THE END THEY RELEASED THE AID
AND THE ANNOUNCEMENT BY
PRESIDENT ZELENSKY OF
INVESTIGATIONS THE BIDENS DIDN’T
HAPPEN.
HAPPEN. SO REALLY LET’S ALL MOVE ON.
>> WELL, THE FIRST POINT IS THAT
ATTEMPTED TREASON WOULD BE AN
IMPEACHABLE OFFENSE IF YOU TRIED
TO COMMIT TREASON BUT YOU FAILED
BECAUSE YOU WEREN’T GOOD AT IT,
IT WOULDN’T BE EASY TO SAY
THAT’S NOT AN IMPEACHABLE
OFFENSE.
OFFENSE. A SECOND THING TO SAY IS THAT
BRIBERY IS ACTUALLY DEFINED TO
INCLUDE SOLICITATION OF BRIBERY.
THAT IS BRIBERY.
THE THIRD THING TO SAY --
>> I SEE.
>> I SEE. IF YOU ASK SOMEONE FOR A BRIBE,
YOU ARE COMMITTING THE CRIME OF
BRIBERY WHETHER THEY FORK IT
OVER OR NOT?
>> THAT’S THE TECHNICAL
DEFINITION.
DEFINITION. IT IS PART OF THE OFFENSE.
AND THE THIRD THING TO SAY IS
EVEN IF IT WAS ATTEMPTED
BRIBERY, AN ATTEMPTED CRIME IS A
VERY BAD THING TO DO.
IT’S PART OF SOMETHING THAT
LANDS A LOT OF PEOPLE IN JAIL.
AND SO THE FACT THAT IT DIDN’T
WORK, IF THAT’S THE DEFENSE
WOULDN’T BE A VERY GOOD DEFENSE.
AND THE LAST THING TO SAY IS
EVEN IF IT WEREN’T BRIBERY, AND
NOTE THE DEFINITION OF BRIBERY
INCLUDES SOLICITATION, THERE IS
A CONSTITUTIONAL TERM THAT I
THINK PEOPLE FAMILIAR WITH HIGH
CRIMES AND MISDEMEANORS WHICH
REFERS TO ABUSE OF AUTHORITY AND
THE WHOLE POINT WAS TO SAY EVEN
IF IT’S NOT TREASON, EVEN IF
IT’S NOT BRIBERY, IT’S
IMPEACHABLE.
IMPEACHABLE. >> MY FINAL QUESTION IS ABOUT
THE WAYS IN WHICH IMPEACHMENT
SHAPES OUR VIEWS OF THE
EXECUTIVE AND THE RELATIONSHIP
PARTICULARLY BETWEEN CONGRESS
THE PEOPLE AND THE PRESIDENCY.
WHEN YOU LOOK BACK AT OTHER
MOMENTS OF IMPEACHMENT, HAD
THERE BEEN SORT OF LASTING
EFFECTS OF THIS ASSERTION OF A
KIND OF CONGRESSIONAL POWER
AGAINST THE SORT OF EVER
EXPANDING IMPERIAL PRESIDENCY?
OR IS IT JUST A SORT OF BLIP AND
THEN WE GO BACK TO THIS --
>> I THINK IT HAS HAD LASTING
EFFECTS SO THE NIXON IMPEACHMENT
EFFORT WHICH LED TO HIS
RESIGNATION ACTUALLY WAS A
MOMENT OF ACCOUNTING FOR THE
COUNTRY WHICH LED TO A VARIETY
OF RESTRICTIONS WHICH WERE
DESIGNED TO ENSURE THAT THIS
KIND OF THING WOULDN’T HAPPEN
AGAIN.
AGAIN. AND THOSE THINGS GENERALLY,
THOSE RESTRICTIONS WOULD HAVE TO
DO WITH CORRUPTION AND CIVIL
LIBERTIES AND FOREIGN POLICY AND
CONSTRAINTS ON USING THE
PRESIDENCY AS A POLITICAL
WEAPON.
WEAPON. THOSE THINGS ARE IN EFFECT.
AND GENERALLY THEY’RE WORKING
AND THEY ARE SUPPORTED BY BOTH
SIDES.
SIDES. WITH CLINTON IT’S LESS CLEAR
BECAUSE WE DIDN’T HAVE AN ABUSE
OF DISTINCTLY PRESIDENTIAL
AUTHORITY.
AUTHORITY. WE HAD A DIFFERENT TYPE OF FISH.
BUT EVEN SO THE CLINTON
IMPEACHMENT I THINK DID HELP
CONTRIBUTE FOR A WHILE TO A
CULTURE WHERE INTEGRITY WAS A
PRIZED VALUE.
PRIZED VALUE. ONE REASON PRESIDENT BUSH
ACTUALLY BECAME PRESIDENT BUSH
IS THAT HE RAN A CAMPAIGN OF I’M
GOING TO BE HONEST, I’M GOING TO