Noah Feldman on the Impeachment Inquiry and Abuse of Power

CHRISTIANE AMANPOUR: Our next guest is Harvard law professor, Noah Feldman, and he says the impeachment inquiry tests the very limits of the U.S. constitution, telling our Walter Isaacson that it is ultimately up to the American people to uphold American values.

WALTER ISAACSON: You wrote recently that this constitution of ours can pass a stress test. You said it was — is going to be able to make it. Are you starting to worry?

NOAH FELDMAN, PROFESSOR, HARVARD LAW SCHOOL: It’s definitely the moment in the stress test, and I think that stress test began the night that Donald Trump was elected, where you think to yourself, how’s the patient doing right around now? You know, do we need to call any EMTs? And the reason for that is that so far, the formal constitutional protections have done pretty well. You know, when the president has taken action that clearly violates the constitution, the lower courts have mostly said so. The president had to retrench a little bit. The informal norms that are also an important part of our constitutional tradition but aren’t written down in the constitution have not done well at all.

ISAACSON: Give me an example.

FELDMAN: A good example would be the norm that prosecution and investigation by the Department of Justice and the FBI should be non-partisan. It took us a long time to get to that norm. We didn’t always have that in American history. And after Nixon, we really had to rehabilitate DOJ and the FBI, but we did. Now I don’t think almost anybody believes that the prosecutions the DOJ is doing or the investigations they’re involved in are free of partisan influence. Donald Trump self-consciously set out to break that norm, and he broke it.

ISAACSON: So, this call to the Ukraine in which he’s trying to do things for his political benefit that involve an investigation, is that a violation of the constitution?

FELDMAN: Yes. To me, the abuse of power is the thing that the constitution says that the president should be impeached for. And you define abuse of power by the idea that the president’s doing something that’s within his constitutional authority, within his power, like putting pressure on a foreign government. But he’s doing it not to serve the interests of the United States but to serve his personal interest and the interest of getting re-elected, and that’s to my mind, very clearly what’s going on in the call, regardless of whether you think there’s a quid pro quo or not. To me, that’s almost a side show. What matters is that the president is overtly saying to Ukraine, do these investigations. And the only party who can benefit from those investigations is Donald Trump.

ISAACSON: So, on its face you think it’s an impeachable offense?

FELDMAN: On its face, for sure. And the fact that the president then went out and said, and you know what, China should also do this, that’s also impeachable. That’s also openly calling on a foreign state to help the president get re-elected, not to serve the interests of the United States as a Republican. That’s the textbook definition of abuse of power.

ISAACSON: And his ability to just say these things in broad daylight, like, OK, China, you investigate for my behalf, while he’s negotiating tariffs, how does that somehow make it seem more just he can get away with it?

FELDMAN: I mean, this is a fascinating instance, because of course, Trump didn’t originally do this in public. The call with Zelensky was a private call. And we know from the whistleblower’s complaint that, actually, after the call happened, the White House made a point of putting that recording of that call not in the usual computer server where it would have gone, but in a special, more highly restricted, more secret server, because they didn’t want anybody to know about it. Once word got out via the whistleblower, then Trump makes his move of saying, well, you know what, you caught me doing it privately, so now I’m going to do it publicly. It’s kind of like an enormous manifestation of nerve or chutzpah to sort of get out there and say, well, it can’t be wrong because I’m doing it right in front of you. And I think that’s very clever, but it’s up to us as citizens to take a look at it and say, it doesn’t make it OK that you did this in front of all of us.

ISAACSON: What are the unwritten norms that worry you the most that are being broken?

FELDMAN: The one that I worry about the most is the criminal vilification of your political opponents. And Donald Trump started doing this already when he was running for office with the “Lock her up” chants directed at Hillary Clinton. The very core of a democracy is that the political parties know that they’re going to trade turns in office. You know, we think that voting is the most important thing in a democracy, but a lot of professional political scientists would tell you, it doesn’t even matter if you vote, you can almost flip a coin. What makes it a democracy is that the parties change places. And because they know they’re going to change places, they respect each other’s rights when they’re out of office. So, if you’re in a system where the president says, my opponents are criminals, I’m going to investigate them criminally, I’m going to seek to put them in prison, then when the other side gets into office, they’re going to do the same thing, and then you lose the capacity of both sides to protect rights and participate in a peaceful change of government. And that’s the scariest thing to my mind that can happen in democracy. And we’re heading in that general direction, you know? I mean, the current scandal facing the president is that he was seeking a criminal investigation of the person who was at the time leading the polls to run against him.

ISAACSON: So, is there any law or any constitutional provision that says the president can’t use the justice department for his own political purposes?

FELDMAN: Nope. So, there’s nothing written into the constitution that says explicitly that the president can’t go after his political enemies. Where that comes from, where that norm comes from is our recognition that that would distort the nature of politics. And our hope that if the president did that, Congress would impeach him and remove him from office because the public would be so outraged by this behavior. And the moment that the public outrage begins to die down, or the minute that partisanship enables this kind of conduct to go unpunished, the whole system begins to teeter on its foundations.

ISAACSON: And the main way to save the system is through the impeachment process right now, right?

FELDMAN: Well, that’s what’s written into the constitution. The other main way to save it is through an election. Even if the president were impeached and not removed or if he were not impeached, if he were voted out of office, that would do something. It wouldn’t do everything but it would do something to re-establish the idea that you can’t get away with that kind of stuff when you’re the president of the United States. So impeachment is supposed to be a last-ditch, you know, solution. Elections are supposed to be the first defense that the republic has for political virtue.

ISAACSON: The president says he’s not going to cooperate with the impeachment thing. He’s not going to give over documents. They’re not going to testify, some of the people. So, what happens?

FELDMAN: You’re asking a great question. And the fact that we don’t have a clear answer to that is part of why we have a kind of mini constitutional crisis going on right now, and it might become bigger than a mini crisis. The reason it’s only a mini crisis right now is that even though the president said he wouldn’t cooperate, lots of people who work for the president are still cooperating. They’re still showing up and testifying. In fact, some of them are quitting and then going and testifying, but others have just shown up. So, for that reason, we’ve staved off the worst part of the crisis. But you know, there’s nothing in the constitution that says what you do if the president says, I won’t cooperate, I’m going to take my ball and I’m going to go home. The only thing Congress could really do then would be to impeach the president for refusing to cooperate with the impeachment investigation, which they can do, but it sounds a little weak, you know? You’d rather hear Congress impeaching somebody for facts that they know have actually occurred.

ISAACSON: Do you think that the Democrats in the House and those in favor of an impeachment inquiry would be better off if they actually voted formally for an impeachment inquiry?

FELDMAN: I think they should do that. I think that the Democrats have a good amount to gain and relatively little to lose by just passing a resolution that says, OK, this is now a formal impeachment inquiry. There’s nothing in the constitution that demands that they do that, but they’re giving Donald Trump a kind of fake news, to use his phrase, justification for refusing to cooperate. I mean, it has no constitutional basis, no legal basis, but it gives him something to say. And I think, you know, they should stand up and take responsibility for the fact that this is an impeachment inquiry. In any case, if they bring an impeachment, they are going to have to stand up and be counted, and they are going to have to vote. So, the idea that they shouldn’t vote on the inquiry too soon seems to me like, you know, too much self-protection.

ISAACSON: And should they be doing more of this in public?

FELDMAN: Yes. And I have great hopes that the inquiry will move to a more public-facing stage. And if it doesn’t, that’s a bad thing. You know, so far it was justifiable for the Democrats to say, we’re doing a criminal investigation, effectively, and that always starts in private. You know, the police don’t interview you in public. The prosecutor doesn’t interview you in public. They’re talking to witnesses, finding out what those witnesses have to say. Once they get that information, then they should have public hearings. And I think a lot of the witnesses they’ve already had in should be called back to testify publicly this time so that we don’t have to rely on leaks or secondhand reports. In the end, this is a public political process, and political not in the partisan sense, ideally, but political in the sense that it is done by the political branch of government, by Congress. And you know, that’s a branch that’s responsible to the public, so it should be acting in public.

ISAACSON: As a constitutional scholar, do you think Syria and those issues, which are really causing some uproar, should be part of an impeachment inquiry, or is that totally off limits for an impeachment?

FELDMAN: I would strongly recommend against the president’s policies on Syria, which I disagree with, being part of an impeachment inquiry. You know, at the constitutional convention, there was some talk about how easy it should be to impeach the president, and there was actually a proposal put on the table to say, the president should be impeachable for maladministration, you know, doing a bad job of the administration. And I think there’s a plausible case to be made that what is going on in Syria is maladministration. And James Madison got up and said that’s too loose a standard. Then you’d basically have a president who serves at the pleasure of the House and the Senate. So doing a bad job is not grounds for impeachment. Committing a high crime or misdemeanor is grounds for impeachment and the classic high crime or misdemeanor is the abuse of power.

ISAACSON: What do you think they actually meant by high crimes and misdemeanors?

FELDMAN: Well, the word high meant political. It meant connected to the office that you are in. So you know, if the president committed a private crime, that might not have actually been considered to be a high crime. A high crime was something connected to the office itself. Now, almost certainly, that was not restricted to crimes that are written on the statute books as known crimes, because there was tradition of impeaching people for something that was not written down explicitly as a legal crime. It certainly includes things that are real crimes, but it’s not restricted to that. So, what they meant was something where the president or another, you know, government official genuinely abuses power for self-gain. That’s the most significant exemplar in their thinking. And you could think of Richard Nixon in this context of having done exactly that when he probably directed and certainly covered up the break-in of the Democratic National Committee headquarters at the Watergate Hotel.

ISAACSON: You wrote a wonderful book on Madison, James Madison.

FELDMAN: Thank you.

ISAACSON: And part of it is his conflict with Hamilton. And Hamilton bereaves in the very strong executive. He doesn’t want easy impeachment. He almost believes in a monarchy. Now, we’re in a moment where we need some Madisonians in a way. What would he be thinking now?

FELDMAN: I think he would be thinking two things. First, I gave you a structure to try to fix this, so try to fix it. Try to exercise impeachment. Try to make it work. The second thing that I think that Madison would be thinking is that, if we fail in that regard, you can’t completely blame the system, because he believed that the success of the republic depended on what he called unashamedly, the virtue of the people. And you know, when he was fighting with Hamilton, and people said well, the publics against you, he thought about that seriously and he said, look, I have a lot of respect for what the people think. You know, over time, he actually was willing to change some of his views because he realized that the public didn’t completely agree with him. But he always said that if the public loses that virtue, there’s nothing you can do to save the republic. And I think we’re in some danger — we’re not there yet and I hope we never get there, but we’re in some danger of being in a place where some part of the public might actually think that it’s OK for the president to abuse his power, and it’s very hard to sustain a republic where large parts of the public think that way.

ISAACSON: Do you think there’s part of a global trend that’s almost a backlash to liberal democracy?

FELDMAN: I definitely think that we’re in a historical moment now where lots of countries are saying that liberal democracy is substantially overrated. And I would say a major part of that has been the enormous success of China, which showed over the course of 30-odd years that you could grow economically and maintain government legitimacy without constitutional democracy being anywhere on your agenda. You know, it’s not like China is on its way to constitutional democracy. If anything, it’s pulled back in recent years, even from power-sharing structures, and it’s drawn back from even the degree of limited freedom of expression that it briefly had. That’s mostly gone now. And I think that made everybody think all over the world. You know, at the end of the Cold War, a lot of us in the west imagined that capitalism and liberal democracy had won because communism had lost. In retrospect, it looks like maybe capitalism won because China’s, after all, pretty capitalist, but it doesn’t look like liberal democracy was actually the reason for western success in the Cold War. I mean, that’s a devastating thought, but I think many people around the world sort of sat up and noticed that in recent years. And so I think the rise of populist and some cases autocratic leaders in lots of places in the world who were doing fine as they march slowly in the direction of less democracy and less freedom is evidence for a real trend. And I think it’s a real challenge to constitutional democracy. To my mind, the answer is that we can no longer say that constitutional democracy is good because it will put a chicken in every pot or because it’s the best for facilitating property rights or for driving economic growth, because it’s not. I mean, we know it’s not the only way to do that. We have to defend the constitutional democracy on its own terms as being good. We have to take the view in freedom of expression actually makes us better off as human beings, not that it just makes the system work better, but that it actually enables a basic human capacity to think to believe, to worship, to express ourselves. It’s essential to being human and which is missing in an autocratic government. And similarly, we have to say that constitutional democracy is good because it enables people actually to participate in self-government. And you know, that’s not because participating in self-government always makes you richer. It might not, you know? Some very smart businessman might run your country and you might get richer than if you were self-governing. Self-governance has to be available in its own right, and that is definitely how our founding fathers thought about it.

ISAACSON: Why is free speech important?

FELDMAN: To me, freedom of speech is really important for three closely linked reasons. The first is, essentially, that if you want to have self- government, you want to have real democracy, you have to talk about politics. Democracy is based on the idea that we discuss, we reason, and we make collective judgments. And if certain viewpoints are ruled out at that stage, you don’t have a real democracy. You’re not having a real conversation. The second is that we need to have a discussion that involves something like a free marketplace of ideas, because we’re not really always sure what is true. I mean, deep in our hearts, we might think we know better than everybody else, but we change our minds over the course of our lives and we think different things that our parents thought and that our grandparents thought, even sometimes different things than they fought and died for. And that kind of self-questioning is healthy. And it enables us to consider lots of views to run our country and our lives as what they really are in real life, namely, an experiment. We really are experimenting every day, as Justice Oliver Wendell Holmes said, in every aspect of our lives, and without the opportunity to express competing viewpoints, including false ones, you can’t really run that experiment. And then the last also closely linked reason, I think, has to do with what it is to be human. To me, part of what makes our lives worth living is that we can express our thoughts, our beliefs, our feelings, our angers, our loves. That all requires the expression of what is inside us and our relationship to other people is created via those kinds of expressions from us to them and from them to us. And to me, freedom of speech is the guarantor that we can shape our life relationships in that way. When you take it away, you can’t. There are certain things that then cannot be said, cannot be argued about, cannot be said that are positive. And that to me fundamentally reduces our capacity to live well as humans.

ISAACSON: Noah, thank you so much for being here.

FELDMAN: Thank you. Thank you so much for having me.