Legal Scholar Cass Sunstein on the History of Impeachment

TREASON, BRIBERY, HIGH CRIMES AND MISDEMEANORS, FOUR THINGS WHICH ARE INTEGRAL TO AN IMPEACHMENT PROCESS AND WHICH OUR NEXT GUEST WILL EXPLAIN.

CASS SUNSTEIN IS A HARVARD LAW PROFESSOR WHO ALSO SERVED AS A WHITE HOUSE'S ADMINISTRATION UNDER PRESIDENT BARACK OBAMA ALONGSIDE HIS WIFE AND FORMER U.S. AMBASSADOR TO THE U.N.

SAMANTHA POUR.

OUR WALTER ISAACSON SAT DOWN WITH HIM TO FIND OUT HIS TAKE ON THE IMPEACHMENT HEARINGS AND THEY EVEN DISCUSSED HOW 'STAR WARS' CAN PLAY A ROLE IN TODAY EATS POLITICS.

CASS, THANK YOU FOR JOINING US.

PLEASURE TO BE HERE.

SO TELL ME HOW DID IMPEACHMENT BECOME PART OF THE CONSTITUTION?

ACTUALLY IT STARTED BEFORE THE AMERICAN REVOLUTION.

IT WAS AN INNOVATION IN THE COLONIES WHERE JOHN ADAMS AND OTHERS STARTED IMPEACHING AGENTS OF THE KING USING AN OLD BRITISH IDEA, THAT IS IMPEACHMENT, THAT'S BASICALLY FALLEN INTO DISUSE AS A WAY OF CALLING PUBLIC OFFICIALS TO ACCOUNT, SO WHAT HAPPENED WAS THIS OLD IDEA WAS GIVEN A DEMOCRATIC SMALL 'D' TWIST MEANING THAT THE AGENTS OF AUTHORITY WERE BASICALLY SERVING A PUBLIC TRUST AND IF THEY VIOLATED THAT PUBLIC TRUST THEY COULD BE IMPEACHED.

THAT WAS THE DISTINCT AMERICAN IDEAS IN THE COLONIES AND THEN WHEN THE DECLARATION OF INDEPENDENCE WAS WRITTEN IT WAS BASICALLY AGAINST THE BACKDROP SET AGAINST WHAT HAPPENED IN THE COLONIES AND READ LIKE ARTICLES OF IMPEACHMENT AND THAT'S NO COINCIDENCE AND AFTER WE WON THE WAR FOR INDEPENDENCE, THE STATES STARTED PUTTING IMPEACHMENT, BASICALLY THEY ALL DID, NO THEIR OWN LITTLE CONS TUGSDS AS A WAY OF RECALLING THE IDEA THAT PUBLIC SERVANTS ARE BASICALLY SERVING PUBLIC TRUST AND THEY CAN BE CALLED TO ACCOUNT INDEPENDENT OF THE ELECTION, AND THEN WHEN A BIG POWERFUL PRESIDENCY WAS CREED AFTER THE ARTICLES OF CONFEDERATION, THAT WAS REALLY CONFRONTATIONAL AND ALMOST A DEAL-BREAK AND KIND OF THE QUID PRO QUO FOR THE POWERFUL PRESIDENT WAS TO PUT INTO THE FEDERAL CONSTITUTION WHAT HAD ALREADY BEEN AMERICANIZED, A TOOL BY WHICH WE THE PEOPLE WOULD ULTIMATELY BE SOVEREIGN AND BE ABLE TO SAY YOU'VE ABUSED YOUR AUTHORITY.

YOU HAVE TO GO.

AND IN YOUR BOOK ON IMPEACHMENT YOU DESCRIBE THE WORDS THAT THEY TRY TO USE.

YOU KNOW, BRIBERY, HIGH CRIMES AND MISDEMEANORS, HOW DO THEY GET TO THOSE SET OF WORDS, AND WHAT DO THEY MEAN?

THERE'S A BIG DRAMA AT THE CONSTITUTIONAL CONVENTION, AND IT COULD EASILY BE A MOVIE WHERE GIANTS WERE FIGHTING OVER THE DEEPEST QUESTIONS OF WHAT IT MEANT TO BE A SELF-GOVERNING REPUBLIC AND THE LOCATION WHERE DRAMA I THINK WAS MOST HEIGHTENED WAS ON IMPEACHMENT, SO SOME PEOPLE SAID IT SHOULDN'T BE IMPEACHMENT.

CAN YOU GET RID OF THE PERSON AFTER FOUR YEARS.

THERE'S NO REASON TO CONFOUND THE SEPARATION OF POWERS AND OTHERS SAID BASICALLY THE EQUIVALENT OF YOU'VE GOT TO BE KIDDING.

WHAT IF THERE'S SOMETHING HORRIBLE THAT THIS PERSON DOES AND PEOPLE WHO SAID THINGS LIKE THAT WERE ALSO SAYING YOU'RE CREATING THE CREATING THE FETUS OF MONARCHY OR THE ELISKT KING AND IN THE CONTEXT THOSE REALLY WENT FOR JUGULAR AND THERE'S A NOTION THAT THERE HAD TO BE SOCK MECHANISM FOR IMPEACHMENT WAS CLEARLY NECESSARY.

LET'S GO OVER THE WORDS THAT ARE ARE IMPEACHABLE.

ONE IS BRIBERY.

WHY DID THEY PUT THAT IN?

SO THE PARTICULAR REASON FOR BRIBERY WAS IN THE KEY MOMENT IN THE CONVENTION WHEN IMPEACHMENT WAS MAYBE NOT GOING TO BE THERE.

IT WAS URGED WHAT IF THERE'S BRIBERY OF MEMBERS OF THE ELECTORAL COLLEGE?

WHAT IF THE PRESIDENT ATTAINS OFFICE BY BRIBERY.

THAT WAS SAID, TO YOU KNOW, EMT TEAMLY SELF-EVIDENT.

YOU'VE GOT TO GET RID RAST PERSON IF THERE'S BRIBERY THAT HAVE KIND.

DO YOU THINK THE NUMBER OF THAT WORD BRIBERY EXTENDS TO WHAT TRUMP IS ACCUSED OF DOING WHICH IS TRYING TO PUSH A FOREIGN GOVERNMENT TO SERVE OF HIS OWN POLITICAL PURPOSES WITH MONEY?

FOR PURPOSES OF THINKING ABOUT OUR CONSTITUTION IS PROBABLY GOOD TO USE THE WORDS OF THE PRESIDENT RATHER THAN TRUMP THAT PRODUCES THE KIND OF NEUTRALITY, SO IF A PRESIDENT BASICALLY SAYS TO A FOREIGN COUNTRY LET'S CALL IT FRANCE OR ITALY, IF YOU ENGAGE IN CRIMINAL PROSECUTION OF MY POLITICAL OPPONENT I'LL GIVE YOU MONEY, NOW WE'RE TALKING WHETHER OR NOT IT'S TECHNICALLY BRIBERY WITHIN THE MEANING OF THE CONSTITUTION AND THAT TERM ISN'T DEFINED IN THE CONSTITUTION.

BETWEENON IS, BRIBERY ISN'T.

IT IS A HIGH CRIME OR MISDEMEANOR AND THE REASON TO THINK ABOUT A HIGH CRIME OR MISDEMEANOR OR IN THE STAGE OF THE CONSTITUTION TREASON AND BRIBERY WERE THE ONLY WORDS.

DELEGATES ROSE UP TO SAY THAT THIS IS TOO NARROW.

WE'LL NEED SOMETHING TO REACH GREAT AND DANGEROUS OFFENSES SO THAT IS THE -- THE DECISIVE CONCERN THAT THAT SHOULD BE MAL ADMINISTRATION AND THAT THAT'S JAMES MADISON AND THAT'S TOO BROAD AND THE SOLUTION IS TO USE A TERM THAT'S WELL UNDERSTOOD WHICH IS HIGH CRIMES AND MISDEMEANORS.

IF YOU USE YOUR PRESIDENTIAL AUTHORITY TO TRY TO GET A FOREIGN GOVERNMENT TO DO SOMETHING SOMETHING THAT COMPROMISES HOUR ELECTORAL PROCESSES MEANING TAXPAYER MONEY OR WHETHER THE LAST NAME IS OBAMA OR ROOSEVELT OR LINCOLN OR TRUMP, NOW THEY ARE TALKING ABOUT SOMETHING VERY VERY GRAVE

YOU SAY HIGH CRIMES AND MISDEMEANORS HAD A VERY SPECIFIC MEETING AND SOMETIMES PEOPLE MISTAKENLY THINK THAT'S A BROAD INFLEXIBLE PHRASE.

WHAT THE WAS THE SPECIFIC MEANING.

YES.

HAD A HISTORY BOTH IN ENGLAND AND MORE IMPORTANTLY IN OUR OWN COUNTRY BEFORE WE WERE A COUNTRY AND WHAT WAS UNDERSTOOD TO ENTAIL WAS THAT THINGS THAT WERE NOT NECESSARILY VIOLATIONS OF THE CRIMINAL LAW, THE GROSS ABUSES OF THE AUTHORITY OF EVERYTHING BY VIRTUE OF BEING A PUBLIC OFFICIAL SO IF SOMEONE ENGAGED IN DISORDERLY CONDUCT WHO WAS LET'S SAY PRESIDENT, THAT'S NOT THE IMPEACHABLE.

THAT WOULD JUST BE AWFUL, AND EVERYONE BE HIGH AND IT WOULDN'T BE AN ABUSE OF PUBLIC AUTHORITY SO HAMILTON AND THE FEDERALIST PAPERS SAID THESE ARE OF A DID I NOMINATION THAT WOULD WITH PROPRIETARY BE DEEMED POLITICAL.

THAT ARE THINGS DEEMED POLITICAL, BY VIRTUE OF THE OFFICE THAT YOU OCCUPY AND THAT WAS UNDERSTOOD TO ENTAIL SUCH THINGS AS CORRUPTION WHICH MIGHT NOT BE BRIBERY BUT CORRUPTION, ABUSE OF CIVIL LIBERTIES.

THAT WAS CALLED OUT IN MASSACHUSETTS DURING THE RATIFICATION DEBATE SO IF YOU'RE BETWEENICALLY GOING AFTER PEOPLE BECAUSE OF THEIR POLITICAL VIEWS THAT WOULD BE A HIGH CRIME AND MISDEMEANOR, WHERE MISDEMEANOR MEANS BAD ACT RATHER THAN MISDEMEANOR AS WE MEAN IT AND A HIGH MEANS EITHER GRAVE ON ONE VIEW OR DONE BY SOMEONE WHO HAS A HIGH OFFICE ON ANOTHER VIEW, BUT THE CREE IDEA IS ABUSE OF THE AUTHORITY BY VIRTUE OF THE OFFICE THAT YOU OCCUPY.

ABUSE IS THE PARDON POWER.

JAMES MADISON SAID THAT WOULD BE A HIGH CRIME AND MISDEMEANOR AND, THEREFORE, IMPEACHABLE.

IN OTHER WORDS, IF ANY PRESIDENT WOULD SAY, OKAY, I'M GOING TO START PARDONING PEOPLE TO BE INVOLVED IN THE CRIMES OR WHATEVER THAT I'VE BEEN SUSPECT SUSPECTED OF, THAT BY MADISON'S DEFINITION FITS SQUARELY INTO A HIGH CRIME AND MISDEMEANOR.

YES.

AND THERE ARE TWO REASONS TO TRUST MADISON ON THIS.

FIRST, HE WAS MADISON AND PROBABLY MORE IMPORTANT THAN ANYONE WITH RESPECT TO THE MEANING OF THE CONSTITUTION, AND SECOND HE SAID THAT AT THE CRITICAL VIRGINIA RATIFYING CONVENTION WHERE THE CONSTITUTION'S FATE WAS HANGING IN THE BALANCE.

MADISON SPECIFICALLY SAID ABUSE OF THE PARDON POWER TO SHELTER PEOPLE WHOSE CRIMES THE PRESIDENT HAD COUNSEL ASKED OR PARTICIPATED IN IN SOME WAY.

THAT WOULD BE AN IMPEACHABLE OFFENSE SO THAT'S AN EASY ONE.

SOME PEOPLE TALKED ABOUT VIOLATING THE OATH OF OFFICE AS BEING BE A REASON TO IMPEACH THEM.

DO YOU AGREE WITH THAT.

ABSOLUTELY NOT.

REGRETTABLY SOME PEOPLE ON BOTH SIDES OF THE AISLE WITHIN THE LAST 'X' YEARS HAVE SAID VIOLATING THE OATH OF OFFICE IS IMPEACHABLE.

THIS HAS BEEN SAID ABOUT PRESIDENT TRUMP AND SAID ABOUT PRESIDENT CLINTON, ALSO BY REPUBLICANS WHO THOUGHT HE SHOULD BE IMPEACHED.

THE CONSTITUTION DOES NOT MAKE VIOLATION OF THE OATH OF OFFICE AN IMPEACHABLE OFFENSE SO THE OATH OF OFFICE CALLS FOR DID I FELT AMONG OTHER THINGS TO THE CONSTITUTION.

MANY PRESIDENTS HAVE TAKEN DECISIONS THAT TURNED OUT ON REFLECTION TO BE VIOLATIVE OF THE CONSTITUTION.

TRUMAN DID THAT.

HE SEIZED THE STEEL MILLS.

ALMOST EVERY PRESIDENT HAS BEEN HELD AT ONE POINT BY A COURT TO HAVE VIOLATED THE CONSTITUTION.

THAT'S NOT AN IMPEACHABLE OFFENSE BY ITSELF.

IT'S NOT A GOOD THING.

IT MIGHT BE A HORRIBLE THING, BUT WHAT YOU NEED IS A HIGH CRIME AND MISDEMEANOR OR TREASON OR BRIBERY.

WHAT LED YOU DOWN THE PATH TOCK MORE OPEN TO THE FACT THAT THERE SHOULD BE AT LEAST AN IMPEACHMENT INQUIRY NOW?

I GOT THERE SLOWLY, PARTLY BECAUSE I WORK FOR PRESIDENT OBAMA AND I THINK IT'S A GOOD THING FOR PEOPLE WHO WORK FOR ONE PRESIDENT TO BE CAUTIOUS ABOUT THE SUCCESSOR, A LITTLE QUIET.

LET OTHER PEOPLE EXPRESS CRITICISMS, BUT WE HAVE HAD IN SOME DOMAINS LET'S SAY THE POSSIBLE OBSTRUCTION OF JUSTICE IN CONNECTION WITH THE RUSSIA INVESTIGATION AND THE PHONE CALL AND ASSOCIATED EVENTS IN UKRAINE.

WE'VE SEEN THINGS THAT AT THE VERY LEAST LEGITIMATE A SERIOUS INQUIRY ARE.

LET'S FOCUS ON UKRAINE.

WHATEVER EXACTLY IS THE RIGHT UNDERSTANDING OF WHAT HAVE HAPPENED, AND THIS IS VERY MUCH A FLUID PICTURE, THE PICTURE DOES SEEM TOLL HAVE IN IT THE HOPE THAT THE UKRAINIAN GOVERNMENT WOULD INVESTIGATE CRIMINALLY AN AMERICAN CITIZEN WHO WAS AND REMAINS A PROMINENT CONTENDER FOR THE DEMOCRATIC NOMINATION FOR THE PRESIDENCY, AND THAT'S NOT SOMETHING WE'VE SEEN BEFORE, AT LEAST NOT IN -- IT'S NEVER COME OUT.

I HOPE IT'S NEVER COME OUT BECAUSE IT NEVER HAPPENED.

ONE PRESIDENT ASKING A FOREIGN GOVERNMENT TO ENGAGE IN A CRIMINAL INVESTIGATION OF A POTENTIAL POLITICAL OPPONENT, AND THAT GOES RIGHT BACK TO THE CORE CONCERNS THAT GOT THE IMPEACHMENT CLAUSE STARTED IN THE FIRST INSTANCE.

SO I THINK ANYONE REGARDLESS OF WHETHER PRESIDENT TRUMP IS A TREMENDOUS PRESIDENT OR NOT A TREMENDOUS PRESIDENT WOULD HAVE TO AGREE THAT THIS IS A LEGITIMATE IMPEACHMENT INQUIRY.

IF WE GET TO A POINT WHERE THERE'S AN IMPEACHMENT VOTE IN THE HOUSE AND THEN A CONVICTION VOTE IN THE SENATE AND BOTH OF THEM ARE ALMOST DIRECTLY ON PARTY LINES, HOW BAD IS THAT FOR THE REPUBLIC?

VERY, VERY BAD.

SO THE -- THE WHOLE POINT ABOUT IMPEOPLE IS THAT WE HAVE A STANDARD THERE WHICH IS SUPPOSED TO BID PURELY POLITICAL IMPIECE.

AND IT'S GENERALLY SUCCEEDED IN ACHIEVING, THAT AND ALSO SUPPOSED TO FORBID PURELY POLITICAL LET'S SAY ABSENTION ON THE PART OF THE HOUSE AND SENATE FROM PROCEEDING, SO IF WE HAD A CASE OF TREASON AND THE DEMOCRATS JUST LET'S SUPPOSE SAY HE COMMITTED TROISON BUT HE'S A GUY WE REALLY LIKE, WE'LL LET IT PASS.

THAT THE WOULD BE A BETRAYAL FOR A SYSTEM FOR WHICH A LOT OF PEOPLE HAVE LOST THEIRS LIVES, NOT JUST IN THE FOUNDING GENERATION AND GENERATIONS SINCE AND THAT WOULD BE MOST UNFORTUNATE FOR THE REPUBLIC.

DO YOU THINK OBSTRUCTION OF JUSTICE JUST LIKE USING THE PARDON POUR TO TRY I TO TOE PECT PEOPLE WHO MIGHT HAVE BEEN INVOLVED WITH YOU, IS THAT RIGHT AT CORE OF WHAT THEY MEANT IN THE IMPEACHMENT CLAUSE AND HIGH CRIMES AND MISDEMEANORS AND BRIBERY?

I DO NOT THINK SO.

OKAY.

SO I CAN SAY A LITTLE BIT ABOUT IT'S IN THE PERIPHERY.

LET ME EXPLAIN THAT.

SO THE CORE IS BRIDGING CIVIL RIGHTS AND CIVIL LIBERTIES.

LYING TO THE SENATE TO GET A TREATY.

THAT WAS CALLED OUT IN PARTICULAR.

PARDONING PEOPLE WHOSE CRIMES YOU COUNSELED, DOING THINGS THAT LOOK LIKE OF WHAT LED TO THE DECLARATION OF INDEPENDENCE.

IF YOU OBSTRUCTION JUSTICE NO YOUR OWN IMPEACHABLE OFFENSES AS SOME PEOPLE WORRY THEY MIGHT BE, THEN WE ARE CLOSE TO THE CORE.

THE REASON WE'RE NOT IN THE CORE IT'S KIND OF SECOND ORDER, OBSTRUCTION OF JUSTICE.

MEANING IT'S NOT THE THING.

I REALIZE I'M BEING TOO MUCH OF A LAW PROFESSOR HERE AND TRY EXPLAIN WHY.

PRESIDENT CLINTON PROBABLY OBSTRUCT JUSTICE WITH RESPECT TO THE SEXUAL HARASSMENT SUIT BROUGHT BY PAULA JONES.

THAT WAS NOT A GOD THING TO DO.

FUL IT HAPPENED IT'S A CRIME AND QUITE SERIOUS CRIME.

IT'S NOT IMPEACHABLE BECAUSE IT'S NOT ABUSE OF AUTHORITY OF THE KIND THAT LED TO THE DECLARATION OF INDEPENDENCE OR THAT LED TO HAM TOP'S EXPLANATION IN THE FEDERALIST.

THAT'S AN OBSTRUCTION OF JUSTICE WITH RESPECT TO A SUIT AGAINST THE PRESIDENT WHO DID SOMETHING NO THE IN HIS COMPASS DID I AS PRESIDENT.

FACT.

HE WASN'T OWN PRESIDENT AT THE TIME.

SO THIS IS AS LONG WAY OF SAYING IF THE PRESIDENT BE A TRUKTS JUSTICE, THAT'S NOT GOOD.

WHERE WE'RE NOT IF THERE'S OBSTRUCTION OF JUSTICE, WHETHER WE'RE IN THE UKRAINIAN CORE OR RUSSIA INVESTIGATION, BUT WE'RE IN THE CLOSE ENOUGH PROXIMITY WHERE IT'S SAD TO SAY WE'RE TALKING ABOUT AGE IMPEACHABLE OFFENSE.

BESIDE BEING A EXPERT IN THE LAW YOU'RE A WORLD REFOUND AND PUBLISHED EXPERT ALONG WITH YOUR SON DECLAN ON 'STAR WARS.'

WHAT DOES 'STAR WARS' TELL US BOSTON OUR CURRENT SITUATION?

IF I AM AN EXPERT ON 'STAR WARS' IT'S BECAUSE, AS YOU SCALER SAY, MY LITTLE BOY HAD AN EIGHT MUNLT OBSESSION WITH 'STAR WARS.'

IT'S ALL ABOUT FATHERS AND SONS, 'STAR WARS.'

IT'S ALL BALANCE THE EMOTIONAL AND GIVING IT TO YOUR KID.

THE HISTORY OF THE UNIVERSE, DARTH VADER, AND HE IS REDEEMED BECAUSE HE LOVES HIS KID AND HE CAN'T BEAR TO SEE HIS KID DIE AND HE IS REDEEMED.

LITERALLY IN -- IN THE MYTHIOS OF 'STAR WARS' AND ON THE SON SIDE, SON NEVER CEASES BELIEVING IN HIS FATHER, SUCH THAT AT EVERY MOMENT THE SUN BELIEVES, LUKE BELIEVES THAT HIS DAD DARTH VADER HAS GOOD IN HIM AGAINST ALL EVIDENCE THAT THERE'S GOOD IN YOU AS A FATHER BASICALLY SAYS WE'RE GOING DARK, AND THE SON SAYS THERE'S GOOD NEW, FATHER, AND HE'S RIGHT, AND I THINK IN A WAY EACH OF US CAN RELATE TO THAT, THAT NO SON AND NO DAUGHTER IS WITHOUT RAGE AT A PARENT EVEN IF THE PARENT IS FANTASTIC AND YET TO FEEL FORGIVENESS AND RECOGNITION IS A PEACE-INDUCING THING AND IT'S VEILED, AND IF YOU'RE A PARENT, WHATEVER CHALLENGES YOU MAY HAVE HAD AS A PARENT IN YOUR HEART OF HEARTS YOU PROBABLY KNOW IF IT'S YOUR LIFE OR YOUR KIDS.

YOU'RE GOING DOWN IN PROTECTING YOUR KIDS.

THAT'S WHAT 'STAR WARS' IS ABOUT.

AND 'STAR WARS' THOUGH IS ALSO, TOO, ABOUT POWER IN IT EMPIRE.

WHAT DOES IT TEACH US ABOUT POWER AND POLITICS TODAY?

OKAY.

SO THE -- THE KIND OF TERRIFIC LINE IN THE MUCH REVILED PREQUELS IS THIS IS HOW LIBERTY DIES TO THUNDEROUS APPLAUSE, AND THAT LINE CAPTURES BASICALLY WHAT THE GREAT GEORGE LUKE YAGS SAW IN HIS INVESTIGATION OF WORLD HISTORY.

WHEN, YOU KNOW, A DEMOCRATIC SYSTEM COLLAPSES OR BASICALLY A FREEDOM-PRESERVING SYSTEM STOPS BEING THAT, PEOPLE ARE CHEERING RAPTUROUSLY, ALMOST ESTATICALLY WHEN IT'S HAPPENING, AND THAT PART OF THE HUMAN MIND IS CHARGED UP BY SOME KIND OF ENRAGED FEELING OF TRIUMPH WHICH ASHORE TEARIAN LEADERS ARE ABLE TO TAP INTO, ALMOST THEY CAN FET IT LIKE A DRUG.

THEY CAN PUT TAT PEOPLE'S HEADS.

'STAR WARS' IS REALLY ACUTE ON THAT.

THE APPEAL OF THE DARK SIDE, BOTH IN INDIVIDUAL LIFE AND IN POLITICS IS SOMETHING.

'STAR WARS' IS ALL OVER, THAT EVEN THOUGH IT'S A FAIRY TALE AND WHATEVER YOU THINK OF ANY PARTICULAR COUNTRY, WE ARE IN AN ERA WHERE SOMETHING LIKE AN ANGRY, STRONG MAN, AND IT'S TYPICALLY A MAN, WHETHER IT'S IN, YOU KNOW, TURKEY OR RUSSIA OR -- OR YOUR LEAST FAVORITE CURRENT SYSTEM, THAT 'STAR WARS' TALE OF THUNDEROUS APPLAUSE, WE'RE SEEING IN REALTIME.

CHARACTERS THANK YOU VERY MUCH.

THANK YOU.

THANK YOU.