The Impeachment Episode

and many other issues. I'm thrilled to have with me Seth Burman, a former state and federal prosecutor and my spirit guide to all things criminal, no offense, Seth, and indeed to all things connected to inquiries, impeachments, and everything else we've had to deal with from the beginning of this administration on. Seth, thank you so much for being here. Thank you for having me. Now, so let's just start in the middle of it, Seth. The impeachment inquiry. What

do you think the whistle blower complained? How do we get here? The whistle blower complaint is absolutely fascinating, because, first of all, the reality is the whistleblower didn't really tell us all that much. That if you weren't paying attention you didn't already know. It was well known that Giuliani was running around. He was advertising that he was running around in Ukraine and trying to get the Ukrainian

government to dig up dirt on Biden. It was reasonably clear that the President was involved in that, because Giuliani

had said things like that over the time. But what the whistleblower complaints seems to have done is number one brought tremendous attention to it, and number two was point out a way in which the veil of Giuliani doing it as the president's lawyer or the president's individual lawyer, as opposed to doing it as part of his official duties, which he has none, because Rudy Giuliani has no official duties in the US government. Correct. And that created just enough of a cover that I think it was hard

for anyone to know what to do about it. But then once the call or the fact of the call was revealed in the whistleblower complaint and the phone call between President Trump and President the Lodimir Zelenski of Ukraine,

that's exactly right. And once that call was was revealed, and then the call itself or at least what we think is a transcript of the call, semi quasi kind of transcript exactly that semi quasi transcript seemed to show Trump doing exactly the core of what he's not supposed to be doing, the core abuse of power, which is essentially using the power of the US government for his

own personal goals. To me, one of the takeaways from this is, if you want to be in the president and you want to get away with being the president and doing the stuff you want to do, it might be fine to be investigated by the former head of the FBI, Bob Mueller, but you really don't want to be investigated by some CIA desk officer who knows how to write a five page memo. It certainly seems that way. I mean, the five page memo did so much more

damage to the president than Mueller's report. And it's more happened in five pages of the whistle blower complaint than in five hundred of Muller reports. Right, And it's not clear to me how much of that is because of the sort of boiling of the frog thing that the problem with Mueller is that it took so long that by the time the report was done. We'd all gotten

used to all the facts in it. We were the frog in the water and it got warmer and warmer, and we didn't notice we were boiling, right, And now this all came at once. So now it's like you suddenly we're thrown into the boiling water. And there's no avoiding the fact that this was outrageous. This is the core outrageous, not the kind of what Republicans started calling

the process crimes. So I want to talk about the phone call and the outrage because there are at least two elements of the phone call, and I'm really interested in maybe it's possible to untangle them a little bit. Because we're sitting here, we have a little time, we can analyze it. So, on the one hand, Trump is asking Zelenski to spur an investigation of Joe Biden and

his son, and that's really clear to me. It's really clear that that's an abuse of the president's power in office for personal gain, because there's no national security interest or national interest of any kind, even plausibly in the investigation of Joe and Hunter Biden. And that's also the part that Rudy Giuliani seems to have been most directly involved in correct On the other hand, Trump is also

asking on that call. In fact, he asks first for Zelenski's help in investigating what's basically a crazy right wing conspiracy theory involving the company that first, the security company that first looked at the Democratic National Committees hacks right, CrowdStrike, CrowdStrike, What the hell is he doing and what does it have to do with Ukraine, at least in Trump's mind.

So it is always very hard to untangle what people are thinking about these crazy right wing conspiracy theories, right, do Trump and Giuliani actually think it's true or are they just trying to? But what's even the thing that they're supposed that we're supposed to think, or so they want us to think. As I understand it, what we're supposed to think is that CrowdStrike was started by someone who was born in Russia but is an American citizen.

That person is connected to a foundation, someone donated to the foundation, or a wealthy Ukrainian donated to that foundation, and based on that string of evidence, the conspiracy theory is that CrowdStrike made up the idea that Russians hacked into the DNC servers, and that in fact, it was the Ukrainians who are doing it essentially as a false flag operation to help Hillary in some way, though it's not totally clear how or maybe hurt the Russians, and

certainly to hurt the Russians, right, and that this is a kind of made in Moscow conspiracy theory. It would seem that way. Yeah, Okay, So that if it were true, and that's an enormous if that we have to like put up there in huge bold letters because obviously it's not true. But if it were true, would the United

States have a genuine, legitimate interest in investigating that? As part of the overall question that Trump says he's asked Attorney General William bar to investigate, namely, if he never colluded with the Russians, if there's no evidence that eclid with the Russians, I did the world think? So, which Trump thinks deserves to be investigated? Does that question deserve

to be investigated? I think the answer to that is no. But it's a lot it's a lot closer, not so much as to whether or not it should be investigated, because of course it's absurd. So he's asking the Ukrainians to investigate something, and I think we should be not quick to use the president's word. It's not clear to me that he really means investigate. When he says investigate, he means find dirt on. Investigate implies that some proper thing is going to happen, some search for the truth.

I don't actually think the President was asking them to search for the truth of this. He was saying, find me evidence that suggests the thing I want to find, because that's a really important and fascinating things. If that's right, then they are really at least two things wrong with

the phone call with Zelenski. One the request to find dirt on Biden, and two just the request at all and the pressure to find evidence to support this conspiracy theory or to make up evidence to support this conspiracy theory.

Because that part actually involves the attorney general. And although the Attorney General denies he knew anything, I don't know it's plausible or not, but he denies he knew anything about the Biden investigation, he can't deny that he knows about this other investigation because he says he's performing it. And this is relevant to an issue that I'm kind of fascinated by, which I sort of think is going

to become significant in these impeachment inquiry proceedings eventually. And that is just how careful, legal and rational as the Attorney General of the United States has he as he's done so far, been very careful to act in a way that a reasonable lawyer could always defend in court, or under Trump's sort of consistent pressure that he cross over into wacko land by asking various countries to investigate

this conspiracy theory. I'm actually going to expand that idea even further because I think that the same question could essentially be asked in a slightly different way of the Secretary of State, right, who essentially also got involved in this.

I suspect what's going on is that as the presidency now revolves around Trump's crazy whim of the moment, right, every senior official is out there trying to tamp down whatever that is, and they make certain compromises necessary to do so, which is every so often they just give into the whim. They go investigate the latest crazy idea, whatever it is. Probably they convince themselves that that's just

a side thing they're doing. But you do wonder whether or not does bar actually believe this crazy conspiracy theory also, or is he making a big show of investigating it so as to keep the President happy on the theory that there's nothing illegal or unconstitutional about the Department of Justice engaging in a pointless investigation. The President says, investigate. It's perfectly permissible to investigate as long as you don't

harm anybody. And if it's a crazy thing, like the presidents would like to us to investigate whether the UFOs landed in Roswell, so you investigate whe the UFOs landed and Roswell, no harm, no foul. That would be the kind of if we had bar here and truly off the record, maybe that's what he would say about the investigation. I assume that's what Baro two you're saying, correct. I

think that's probably what Barr would say. It is also possible that Barr actually believes this, and I think that's where it becomes a little bit hard to untangle what's going on. Have some of the folks in the administration reached the point of imbibing so much right wing news that they've come around to believing theories that, on their

face are just absurd. So let's turn out to the actual phone call, and I want to begin with this question of whether there was just pressure, which is obvious on the face of the phone call, or whether there was some kind of a quid pro quo associated with the fact that just a few days before the call, the President had suspended three hundred ninety one million dollars of military aid to Ukraine. He did it without telling anyone the reason within we know from the whistleblower complaint

within the National Security Council. At the meetings where it was announced, people wondered why the President was doing this, and there was no answer. They just were told the President wants to do that. So that's the setup. Then the President comes into the call and he asks Zelenski for quote a favor, and then Zelenski brings up Giuliani immediately before the President brings up Juliani, and then the President says, oh, and another thing and talks about the

Biden matter. So, first of all, do you think there was a quid pro quo here? Put on your prosecutor's hat, Was there, in fact some exchange between Trump and Zelenski being proposed? I think the answer is clearly yes, for anyone who's looking at the call fairly. I'll come back to why I think people have the other interpretation. But the quid pro quo is I think there may actually

be two quid pro quos in the call. The first one is about the money, or at least the supply of military aid, the fact that Trump had suspended the aid. We don't yet know whether or not the Ukrainians knew that. They certainly knew that they hadn't yet gotten it, and they knew that it was held up. But whether or not they understood that this call was a way to break that through, we don't know because it's not on the call. So let's put that aside for the moment.

Although and I just adds MS maybe it's just a footnote. We know from the whistleplower complaint that after the call, the Ukrainian President website actually said something along the lines of we had a good call with the president. Investigations will get started that will remove the obstacles to our good relationship. So we do know that within a few moments after the call they were interpreting it this way. But go back to your point, Well, we know they

were interpreting about the good relationship. And I think that's where the other interpretation will get to in a minute comes from. The Ukrainian president didn't say and we're expecting to get our money soon, right, He said something that no doubt was code for that, but he didn't actually say that. He said that there had been something that was obstructing the relationship, and that was obviously the freezing of the money. Anyway, go on. So I think that

is the broader context. But focus just for a moment on the call itself and forget the broader context, which isn't the right thing to do, but at least it's a place to start on the call itself. The comment about I need you to do me a favor, and look at Joe Biden and his son comes immediately after, literally like the sentence after Zelenski asks for anti tank weapons and Trump says, okay, I need you to do me a favor. So in that sense, there was a literal ask the response to which is I need you

to do me a favor. So it is definitely true that nobody used the words unless you do me this favor, I will not give you what I asked for. But in the real world. Literally, nobody talks that way. You don't have to start espousing that this is a moblike conversation to understand that people often do exchanges without actually spelling out the if versus. You know, if then part of the conversation. Right, I point my gun at you. I don't have to say your money or your life.

I expect that you're going to give me your wallet. Would you, as a prosecutor, have gone into court to prosecute a public corruption case with a phone call tape of a phone call with about as much connection to the quidd pro quo as this phone call has. I think that there's no question. Yes, everyone, every prosecutor I know would do that. The connection between the ask and the other ask, right, they ask for the for the weapons,

and the quote yes are right there. Usually these cases fall apart because there's much less connection between the quid and the quo then there is on this call. Correct, right, This is one you you'd go in as a prosecutor. You wouldn't just go into the court. You think you'd be like, I'm going to win this one knowing that I think you would walk into court and say this tape has a very clear quid pro quo on it. Wow, he asked for one thing, and his response is you

need to do this instead, and is that why? So, just to give a word of background to listeners. When the complaint arose and we heard about it, I immediately grabbed my phone and I texted you immediately, and I said, what's the crime? And you immediately texted me back public corruption. In fact, you just use a number you wrote back section eight seventy two. So I'm embarrassed to say I had to look that up to that was public corruption? And is that why you thought it was a public

corruption right away? Because it resembled those kinds of cases. Absolutely, it's the Normally these kinds of cases come up where Congressman says, oh, we'd like to help you. I'd love to be able to help you. I also need to get reelected. It's much vaguer. Usually you don't say I need your vote on this bill, all right, I need you to do me a favor. Okay, So now talk about the other interpretation, which is presentally the interpretation. Before I get to that, there's one other quid pro quo.

I think that's in the call that's gotten a lot less attention, which is at the very end of the call again they're talking about the favor, and Zelenski says, I'd really like to come visit the White House, which is its own kind of favor that the president could grant. It is extremely important to the Ukraine president to be seen as being a close ally of the president, and they had been trying to get a meeting with the

president in the White House for a while. And Trump's response is something like, all right, you know, We'll look at that. And it's clear that he's dangling yet another favor in front of him, not just the money and not just the weapon, but also this other favor of the White House visit. Now, if that were all that was there, I think it's a touch mushier because the White House visit is arguably not an official act of

the president, although I think I think it is. Yeah, yeah, but that's also in there and really hasn't gotten I think the attention it probably deserves. And you know, it's important to note in this context before we turn to the alternative viewpoint, that this kind of dangling and pressure is completely normal for a president if he's not seeking personal gain for his own political reelection, right. I mean,

this is what governments due to each other all the time. Presumably, if we had a hundred tapes of one hundred phone calls by American presidents to foreign officials, maybe it's more polite and more subtle. But we're always trading and making demands and pressuring them to do stuff. It's just supposed to be stuff in the national interest, not for the

personal gain of the president. Correct. And that's almost certainly what Joe Biden had actually done here, which is that Biden also told the Ukrainians that they couldn't get American money unless they dealt with corruption. It appears, by all accounts of what happened back then, that Biden and virtually every other Western government was pressuring for the firing of a prosecutor who was famously corrupt and who was not in fact investigating Hunter Biden or anyone else. And we're

going to come to him later. This is the prosecutor Lutzenko, who is going to be a non trivial player. He's not yet a household name, but the guy's on the edge of becoming a household name. Is this inquiry proceeds, But we're going to come to him in a little while. So, okay, with all that build up, let's imagine now you know you were a prosecutor. Now you defend people for a living, alleged criminals. President calls you and says, take the case and leave it aside. Whether you would take the case,

imagine you've taken the case. What's the defense that you would raise for the president? What's the interpretation you would offer to get him off the hook here? Well, I'm going to answer that a slightly different way. The interpretation that Republicans have been offering. I'm not sure it's the one I would offer, but that they have been offering is that, well, there's no literal quid pro quo when

you look in this conversation. Never once does someone say if then that's a bad defense because in court those defenses fail. I think that's a bad defense because it will fail. Yes, But what is clever about it, I guess, is that ultimately this is a political not a legal argument, and it sort of has the veneer of believability to it. What's I think plausible deniability? Sort of, Yeah, it's somewhat plausible.

It sounds legalistic, right, And they're going down the road of well, if this isn't a crime, then you can't impeach, which is also not true. Also not true, but but something that is probably their best argument here. What would you do if it were up to you, if you could design the defense from scratch, I think you'd want to start going down the path of this was a

misunderstanding and that's not what he meant. The problem here is that the President has made a whole bunch of other statements that support the idea that this is in fact what he meant, and Giuliani is running around making a whole bunch of statements that also make it clear this is what he meant. So they're a little far down that road to try to reframe what this conversation

was about. I had thought that one thing they could try to say about this misunderstanding, and maybe this is a little bit too inside the weeds of the phone call is that all Trump intended to do in the call was to bring up the investigation of CrowdStrike, and he never intended to bring up the Hunter Biden investigation. And he only did because when he brought up the CrowdStrike, which is the thing that he brings up right after

the javelin missiles are mentioned. Zelenski then misunderstood and immediately brought up Juliani, who was primarily working on the Biden thing, and then Trump kind of went with it. I mean, that may not be a great defense that I wasn't going to commit a crime, but then he offered me the opportunity, because if you think about it, in the call with the Australian Leader which has come up subsequently, it seems like they only talked about investigation of the

twenty sixteen collusion investigation. They didn't talk about Biden, which I guess is partly because Biden did everything to do with US Rail. So the problem I have with that defense is that whether or not he intended to bring up the Giuliani thing, the core problem with having brought up the Giuliani thing is that it blew apart the plausible deniability that they sort of had about what Giuliani

was doing, which is that Giuliani was freelancing. Hearing suddenly that the President one hundred percent knows what Giuliani is doing and is telling Zelenski to follow it is actually the worst possible thing he could say, whether it was on purpose or not, because It essentially brings Giuliani's activities and numerous statements into the picture and makes it almost impossible to deny that he was doing it at the

direction of the president. It's a fantastically good point, and it reminds me of something that I wanted to ask you about about Giuliani. So I had the intuition somewhere over the last few months that Rudy Giuliani had become Donald Trump's new Michael Cohen. Like when he was just a the Trump organization, not the president, Donald Trump used

Michael Cohen as his quote unquote lawyer. We now know that a lot of what they did wasn't exactly legal, but used Michael Cohen to be his fixer, to go around doing the stuff that he didn't want to have his hands on himself. And then he lost Michael Cohen after Cohen was convicted of a crime, and he needed someone to play this role, and it's like Giuliani stepped into the role. So first, I want to know, do

you think that analogy makes some sense here? And second, is it different insofar as by owning all what Giuliani has done, Trump has broken the benefit of using your lawyer to go around and do your dirty work for you. I think there's a lot to that analogy. So I like that. I think that yes, he has broken it, and he's actually broken it in two ways. One has nothing to do with Giuliani being a lawyer. Right, Every politician has someone whose job is to some extend or

another smooth things over. Most politicians, I think, are smart enough to know that they and that person should have a certain distance between them so that they can not just plausibly deny, but actually be able to that they know what that person did. Trump doesn't operate that way, right. He doesn't have that level of subtlety even to be able to say the sort of you know, who will rid me of this troublesome priest and then let someone

do it without actually ordering someone to do it. I feel confident that Trump would probably just order someone to get rid of the troublesome priest, right He's instead of saying, who will rid me the troublesome priests, He's like, yeah, that Beckett guy, someone shoot him because that's the kind of thing. So, okay, let's turn now to what's about

to happen, to the full dress impeachment inquiry. Followed by it seems very likely to me a full dress impeachment vote in the House, and then something will turn to the question in a moment of what in the Senate? So what are your bookmaker's odds that Donald Trump will be impeached by the House of Representatives, that a majority of members of the House of Representatives will vote to impeach him and send the case to the Senate. I think we're on a glide path where that is all

but certain at this point. Okay, And what quirks or surprises do you expect along the way to that vote? I mean, could they vote on that, you know, in a matter of weeks? Does it necessarily have to take months where they work through lots of details. Will the Republicans in the House try to push back at all since they don't have the votes? How do you imagine that playing itself out? Well? I think Republicans in the House have very little power because the majority in the

House has all the power. So aside from making outrageous statements or asking a bunch of questions that are self serving in some way, there's not a whole lot Republicans can do in the House. So I don't think that they will throw in a bunch of roadblocks. I think the Trump administration at some point will realize that releasing the tape and being as open as they've ever been was a terrible mistake, and that they will attempt to close the door and stop cooperating. We're already starting to

see this happening. So then, on this theory, on your theory, the Trump administration can start being obstructionists. They can, and that runs the clock, right, That runs the clock as we get closer and closer and closer to November twenty twenty. Why does that benefit them? Isn't it better for them to get this all over with quickly? I think that

there are two ways to look at that. So one is get it over with quickly and then they can move on right, and that is an advantage, But I think it also becomes harder and harder for this process to be maintained the closer it gets to the election, because it begins to seem absurd that you're trying to throw out a president who's about to be voted on

and may be reelected. Correct. So that's one answer. I think the second answer is, look, their concern is not ultimately that they're going to get impeached by the House. The concern is that ultimately some senators, enough senators turn on them that he either gets thrown out of office or it becomes impossible to maintain that this is entirely

a democratic thing. So even if he doesn't get thrown out of office, if ten senators, ten Republican senators vote with the Democrats, it's a lot harder to paint this as only a Democrat could think he did anything wrong? Right, so how do you prevent that? And it could be that the answer to how you prevent that is you

make sure where stuff doesn't come out. But it also might be that if you look like you're blocking everything, that gives some reason for Republicans in the Senate to say, well, gee, we think he did obstruct justice or obstruct the inquiries of Congress, and that's a reason to vote against him too. But to me, it feels like that ship sailed long ago. The President's been obstructing Congress for the last year, and

not a single Republican has complained about it. Right, Is there anything you said, We're on a glide path to almost certain impeachment. Can you imagine anything that would cause the Democrats to say, you know what, you know, maybe we shouldn't do this. Let's imagine that polls come in that tell the Democrats that a lot of their base thinks impeachment is a mistake, because you know, in the end it's going to distract the country from the twenty

twenty election. I don't anticipate that happening. I think there's a different set of polls that might create a problem. My guess is the Democrat take voters in polls will kind of come around on impeachment if they haven't already. Right. In fact, I think that voters are going to vote against Trump anyway, impeachment or no impeachment, correct, So it

almost doesn't matter what they think. I think a bigger problem is they do rely on certain moderate or Democrats from moderate districts, and if those Democrats get cold feet about whether or not this is a good idea, then I think the impeachment process could run into some rocky waters. Can Nancy Pelosi effectively stop the whole thing herself or does she need a vote? I mean, is she in a situation where Donald Trump says she is no longer the Speaker of the House by which she doesn't literally

means she's not the Speaker of the House. He means she doesn't really have the center of power in the House anymore. Of the power has shifted to the part of the party that's been demanding impeachment, like a lot of the presidential candidates have been doing. That is to say, to Pelosi's left, is it realistic for her to stop it at some point? Could she do it? I think it will at this moment. Probably not, But is it possible that some set of circumstances or polls could come

out later. Maybe. But the other option she has is she could bring it to a vote and he could lose, but that it would only lose if a significant number of Democrats voted against impeachment. And it seems to me that even a Democrat in a moderate district can't get away with voting against impeachment at this point. I mean, how can you get up in the House of Representatives as a Democrat and cast any vote that is perceived

as a vote for Donald Trump. You'll be primaried and it'll be all over for you, no matter where you're from. I think you're right, and thus it's a little hard to understand how So bottom line, impeachment is coming. Okay, So once impeachment comes, according to the Constitution, we're supposed to move to a trial in the Senate. And miss McConnell has said, don't worry, I will hold a trial in the Senate. But as for how long it's going

to last, he said, that's another matter altogether. What's the fastest and the most minimalistic proceeding that McConnell think can get away with in the Senate. And remember, Chief Justice John Roberts will be there presiding, but he's just one guy. The rest of the Supreme Court doesn't come with him. I remember actually watching the Clinton impeachments when I was

a law crook at the Supreme Court. That so I got a ticket, and you know, Chief Justice Ranquist was just sort of sitting there in his fancy robe and he was like an ornament to the room. But he didn't really get to say or do almost anything. So I think this is probably more in your area than mine. But my understanding is that they could just go ahead and have a vote on day one should we impeach the president. I don't think they could get away with that.

I mean to my mind, the Constitution clearly imagines a process in which the impeachment is recommended, like an indictment, and then there's some kind of proceeding or discussion or trial in front of the Senate. And you know, historically trials in Britain in parliament, trials for impeachment were a serious undertaking and they went on for years. You know.

The most famous and influential impeachment that the Framers knew about was the impeachment of Warren Hastings, who had been the governor in India effectively, and he was impeached in the seventeen seventies, and that trial went on for I want to say seven years, you know. I mean it was like you know, front page news for a lot of that time too, And the Framers knew all about

it because it was in the newspapers. They contemplated some kind of a trial like process, but couldn't they decide that they're going to let the the house managers of the impeachment come in, make their presentation, put the call into evidence, and then vote on whether or not that is sufficient grounds for impeachment. And a bunch of Republican senators come out and say, even if we assume this is all true, I don't think it's grounds for impeachment. They vote and it's over right, sort of like a

directed verdict process correct in a courtroom. Yeah, I think they might be able to get away with that. They won't want to go down in history. I think as the people who made the impeachment process look like a sham, they may not have to hear lots of witnesses. I get you there, I don't know. I think there's going to be tremendous pressure on them to hold something that looks a little bit like a trial for at least

a few days. I mean, you know, when we go after a Supreme Court nominee that already takes a week of hearings. I have a hard time imagining them spending less time on it than they would would on that maybe. I mean, I think formally, I guess they could do it, but I doubt if they would really think they could get away with it. But so what difference does that make?

So they have a sham trial of one to five days at the end of which they vote any of they acquitment and either a bunch of those senators from states that are purple, I guess, or blue decide to vote with the president or they vote against, and it doesn't matter because there still are enough enough numbers to get to an actual removal. So that's assuming that the tide doesn't break. Like there's also the possibility that the tide breaks and at some point Republicans say we'd be

better off with Pens. So let's talk about that. What does it take for the tide to break? And then we'll come to the question of what are the odds of the tide breaking? But what would it take. What are the kinds of facts that would have to enter into the mix in your view that would lead enough Republicans to say we're better off with pens. I'm actually of the view that the answer to that has nothing to do with the facts. I think the answer to

that probably has something to do with the polls. Well, what we'll move the polls? That is the question. And I don't know, say the President called a dozen countries and put pressure on them, and maybe doesn't this too much, but three or four other countries, and we as a gradual drip, drip drip, we find out that the President has been going around pressuring lots of countries, essentially to make up evidence to help him in his political campaign.

My general view of the moment we're in is that as people say, nothing matters, and what that seems to mean is that no matter what happens, the polls are basically steady. Somewhere between fifty to fifty three percent of Americans think the president is disapprove of his performance performance and something between, you know, around forty one to forty three percent approve. My guess is that no matter what

comes out, that will basically be true. Now, what happens if some of the people in that gap, right the five to whatever percent it is in that gap, you know what happens if they come around and say, you know what, I don't like this either. So I don't know what the answer to that is, but I'm not sure it would matter. So if you're right about that, I mean, I hear everything you're saying, and it seems

logically correct. If that's the case, there's almost no chance of the tide breaking and Republicans voting to remove It's close to a zero chance because as you say that, core, you know they could hear, I mean, may not be quite the Trump position that they could hear that he shot someone at Fifth Avenue, but it's pretty close to saying that they wouldn't, you know, they wouldn't abandon him.

And if that's the case, if you're a Republican, there's no way you're better off going into the election with Pence, because we know that that forty one percent base of Republicans like Trump, but we have no idea if they feel as strongly about Pence, and Pence certainly can't rally the base the way Trump can, especially if the Republicans have somehow admitted via removal that there's something wrong with Trump.

So in that scenario, you're actually saying this is a kind of for ordained conclusion, like Trump is going to be acquitted by the Senate full stop. Well I'm not quite saying that, because I think there's one exception I'll come to in a second. But I want to respond to your point about Pence first, which is I actually agree with you that if they Republicans vote to impeach Trump,

they are all but conceding the next election. The reason to do that might be that they're better off letting the next election happen and not as a landslide and then regrouping over the cot of the next four years, essentially fast forwarding the post Trump era. One interesting about this is it shows you that the timing really matters.

So when Republicans signaled that they were going to abandon Richard Nixon and he therefore stepped down rather than been removed from office, it was still early enough for them to think that once Gerald Ford became president they would have a shot at the nineteen seventy six election. It

was still wasn't clear at that point. It was still really late seventy four by the time that happened, and we still didn't know who the Democratic nominee was going to be, and it was still conceivable that Ford could win. And Ford didn't beat Carter, but he put up a reasonable show considering that a Republican president had just been impeached. Now the timing is different because we're so much later

in the cycle. So it seems very, as you say, hard to imagine the Republicans thinking we removed Trump and then we go on to win the election. So what's the scenario where things could genuinely So this isn't probably a somewhat unsatisfying answer, but I do think that when these kinds of regimes, if I may say that, crumble,

they crumble instantly. They don't crumble bit by bit. So what I don't think we're going to see happen is Republican senators coming out in onesie twosies saying, you know, other than maybe Mitt Romney, you know, saying I disapprove of this. I think that there would have to be in one fell swoop, in one fell swoop, But what's the swoop? What do we need to hear? I mean, let's imagine that one of these calls, or maybe on this tape, we find out that the president literally said,

quid pro quo, you do this, I do this? Would that do it? I would like to think the answer to that is yes. But I honestly don't know what else could what else could could bring us to that point of collapse, just some out of the blue new factory that comes out. I mean, you know one thing that makes me think there could be something like this out there is looking at how Donald Trump is reacting in real time to this inquiry. He doesn't seem like

he's unrattled. Of course, he's escalating his rhetoric. You would have expected that under all circumstances. But he seems unhinges in a word we can really use because he's often rhetoric like this. But the way he's kind of lashing out in this non planned instinctive and it seems to me kind of threatened way, does make me wonder if he thinks that he's in trouble here. I agree, and maybe maybe that what causes the damn to break is

a sense that he's out of control. I mean, is there something that he could do, maybe not even an unknown fact, but a thing yet to happen, you know, he launches a war against Iran or something. He's not going to do that in what seems like a transparent effort to change the subject that horrifies people. I mean, we think of the Wag the Dog, Snarah. That's a

movie called Wag the Dog. And then Bill Clinton, in the middle of his impeachment, actually did commence the bombing of Serbia over a Cusso bombing of Serbia over a cussovo and that wasn't enough to get him removed from office. So I don't I don't think that a war would would do it. And I also don't think don Trump wants to go to war, and it's nothing. On Twitter. He could tweet literally anything and it will not suffice

to get him removed by Republicans. It does seem that way, Okay, So we think that we're hard pressed to come up with a scenario where Trump would appear to be so far over the edge that he would be removed. I just want to add a little footnote here before I turn to the grand question of what history is going to say about all of this, And that little footnote

is it's quirky, but it's kind of interesting. In principle, there is a scenario where Trump could be impeached and removed and still run for reelection and win and become president again. And the reason for that is a constitutional quirk. So in the clause of the Constitution that says what happens if you're impeached, it says there's two things that can happen to you. You can be removed and you can be disqualified from holding any office of trust under

the United States. Now, under traditional interpretation of impeachment, it's not enough to be removed for the disqualification principle to kick in. Rather, Congress has to do two things. That's to the Senate has to both vote to remove you and separately vote to disqualify you, and almost all cases of impeachment they only do the former. There actually are a few cases where they've done both, but if they don't, you can get back involved, and so, in fact there

is I was amazed to discover this. A sitting representative in Congress right now, a member of the House of Representatives who was a federal judge, was impeached and removed by the Senate, ran for Congress, got elected to Congress, and has been serving in Congress ever since. So Donald Trump could, in theory, be impeached and removed, run and win. I know that's a kind of far out scenario, but

it doesn't seem out of bounds to me. I have to think that if we reach the point where Republicans in the Senate are willing to vote to remove him from office, the last thing they'll want is the nightmare of him turning around and running again. So you think they would actually then put in the disqualification thing for their own sake, for their own sake, so he doesn't come back after them. Yeah, I guess, I guess that's right. Okay,

the view of history for a long time. In this presidency, there's been a debate why, a debate among Democrats saying, you know, should we impeach or should we not impeach? We've got enough evidence to impeach. It might be a political mistakes. Weighed on Muller, a lot of shilly shalling around this issue. Now things seem to have changed, and Nancy Pelosi's answer, at least when she's spoken about it publicly, is it's not that this is so much worse than

what Trump has done before. This is just clear and explainable. When historians look back on this period and ask why didn impeachment happen? Now, is that going to be a

sufficient answer for them. I suspect that the answer to that will depend a lot on what happens in the next year if Donald Trump is reelected, assuming he survives this impeachment scandal and he gets reelected, which, by the way, still the upshot of our conversation is that the most probable event is that he survives by far, and that

there's a reasonable chance. I think we both agree that he'll get reelected, correct, and if those things happen, I think that this will be seen as you know, one step in the process of the dismantling of the constitution, But all of that will end on what he does

in his second term. I assume that it will be even more outrageous things than he did in his first term, because they'll have even fewer constraints then if however, because he will have been impeached and it'll be like, I mean, we know that the day after the Moll investigation was over, he called Zelenski, So what's it going to be like if he's been impeached and not removed, he's really going

to feel like and one reelection and one relection. Maybe isn't hoping to serve another term after that, although who knows, right, I think that at that point all bets are off, and I think it will then become a step in the process of the dismantling of what had been our system of constitutional government. Maybe maybe on a path to some other system, but it's not gonna be the same system. So here's a big question in that story, that incredibly depressing story. Is it good or bad that the Democrats

tried via impeachments only put a hypothesis to you. The hypothesis would be this, you know, someday we're going to die and go to Valhalla and you know, meet James Madison and Alexander Hamilton, or at least in my fantasy world, that's where I go, and that's my first meeting I take when I get to Valhalla, and you know, they're going to say, we told you this could happen. You know, we told you that foreign powers would seek to be in the ascendant, and we told you that we created

the impeachment proceeding for this circumstance. What did you do? You know, what did you take action? And I have the hypothesis that even if the Democrats can't remove Trump, that they might be justified in going forward now, just so that they can say, in front of the judgment of history, we tried. We tried to save the republic. We had a present who openly abused power. We tried

to vote him out. Okay, the people weren't with us, and as the founding fathers should be the first to acknowledge, if the people lack political virtue, it is the end of the republic. But can't there's no fix to that one. The alternati view would be, no, you know, don't do something. It's going to make it worse for the Republic. We're better off not trying, because then we'll have a Trump who's empowered by the failure of impeachment. And we shouldn't

have even done that. We should think only about practical consequences, not about the judgment of history. Where do you come down on that debate. I think we reached the judgment of history point. But I also think that part of what informed Pelosi up till now was fear of the Clinton situation, which is that he gets impeached and gets more popular. At least that's how it's remembered. I don't think it's perfectly clear that's what actually happened, but that's

certainly how it's remembered. I think for a bunch of reasons that position became untenable, mostly because this was such a clear slap in the face, and it particularly what he's accused of doing is attempting to influence the next election. If you thought the only way to get him out of office is by voting him out of office, you can't then let him try to put his finger on the scales to prevent that very thing from happening. So it's really the perfect storm on that view. I mean,

that's a good answer. It says, it's not just that this is clearer, it's that everything else had happened in twenty sixteen, and that election was over because although the Democrats won, Hillary Clinton won the popular vote, Trump won the election. But if you're talking about twenty twenty, if the conduct that's alleged is trying to subvert the twenty election, the Democrats had to act because it's forward looking, and

what's the alternative if you don't act now. I don't know that it will make that much difference in terms of empowering Trump once it comes out that he's trying to influence the twenty twenty election, which it has come out of this correct for the Democrats to do nothing also says the field is yours, do whatever you want, Although the other thing it could be saying is we've told the public about this, The public knows about it,

and now we're going to vote it out. You know, now we're going to actually see who wins the election. And you could see that argument, you know, put that was the Polosi argument up until a few weeks ago. Put all the eggs in the twenty twenty basket. Say to the electorate, the president's trying to con you, The president's trying to play you. The president's trying to get help from Ukraine to influence you. You know, resist that influence. And I suppose you can do that va impeachment, But

you could also do that not via impeachment. Yes, but we don't know what we don't know, So what else is he doing? Right? What if he's also making a side deal with the Russians to actually hack the electoral equipment and change the votes. Not everything can be resisted. But now, I mean, you're right, but that to me

heads off in the direction of conspiracy. Not that the Russians might not try to do that, that's improbable, but not totally conspiratorial, but rather that the Trump emmustician would collude in that, because as we know, when it came to the last election, they came very close to the line of colluding with the Russians, but they didn't. No, no, we don't know that. What we know is that there

was never evidence that they actually colluded. What we have this time that's different is actual evidence of collusion, direct evidence of collusion. Right, we still don't know what we don't know, and I'm not saying we have now as evidence of attempted collusion, all right, but in a much clearer way than we had with the last election. Right. If a phone call like this had come up about

twenty sixteen with Putin, where would we be. I think that Muller's report would read very differently if there were the transcript of a phone call in which Trump laid out this same type of deal with Putin. So when we meet Madison in Hamilton, they're going to say what they're going to say. Okay, good that you tried. But in the end it's all about the people, you know, will the people be convinced? And in the end, I think that measurement will come less from the impeachment process

than from the twenty twenty election. I mean, in some sense, what I hear you saying, and I think maybe I agree with this, is that the twenty twenty election is one of the most important in the history of the Republic, not so much because of Republican versus Democrat, or because of the future of the country with respect any given policy, as because it will be the judgment of history on how much a president can subvert the Constitution openly and

still have a shot at getting reelected. I believe that's true. But let's assume for the moment that the Democrats win the next election. I think there's another way in which this fight may yet reverberate back that is worth at least pondering. Which is the moment that happens. Let's assume that two years later, as has become the pattern, Republicans regain control of the House or the Senate. If they don't already have control, do they immediately turn around and

impeach the Democratic president? And I think the answer to that may end up being yes, because this will be seen on the right as the coup that Trump says it is, and I worry that. I don't think there's a way around this problem. But I think that we have to be mindful of the fact that this is going to feel like we are now normalizing. To some we are normalizing the impeachment process to throw out a president we do not like that. Already Republicans flirted with

that with Obama but never actually got there. They talked about impeaching Obama, though they didn't have any grounds and were never able to produce any. I wonder whether or not they will be as restrained, if I could even use that word, as they were with Obama, with the

next Democratic president. So in that sense, we didn't dodge the bullet when after Bill Clinton's impeachment, when many people said the same thing, you know, next the Democrats are going to do it, and then the Republicans will do it.

But it didn't happen right away. But the argument would be that an historical perspective, twenty years later we did have another impeachment, and since it had been since eighteen sixty eight when they came around to it in nineteen ninety eight, it's a long stretch of time, one hundred and thirty years. This time it only took twenty and then you can imagine that it'll take ten and five and then we could enter into a world of constant impeachments.

And that is not the world that the Framers anticipated. Well, we're gonna have to find all that out, and in this extremely fascinating and challenging period of time, all we can do is try to understand what the Constitution requires, try to live in some accordance with its dictates, and keep on watching our news feeds and find out what extraordinary revelations will come next set. Thank you for clarifying

all this and talking it through with me. I feel like I'm a little more pessimistic about the inevitability of certain events after talking to than I was when I started. But I feel like I'm enlightened with respect of what may happen. So thank you very much. And now our sound of the week, Why that was the sound of chaos in Hong Kong, a sound that heralds a genuine split screen for the government of the People's Republic of China.

On the one hand, as you just heard, Hong Kong is in the midst of the worst protests that it's seen in the modern historical era, direct challenges to the authority of mainland China on the island. And yet at the same exact time in Beijing, the government of China celebrated the seventieth anniversary of the People's Republic and in effect, the victory of the Communist Party in the long historical process of bringing China into the modern era and turning

it into a major global power. A centerpiece of that

celebration was a rather extraordinary military parade. Underwater vehicle after underwater vehicle innovative unmanned drone after unmanneddrone paraded through the streets of Beijing, signaling to the world that China was not merely one of the most significant economies in the world, not merely enmeshed in an increasing and extending set of relationships with economic partners, but increasingly is emerging as the world's second genuine superpower, not yet directly competing with the

United States globally, but increasingly capable of doing so, and certainly capable of competing with the United States in the region around China itself in Asia. So what are we to make of this extraordinary split screen that faces China. One way to think of it is that the Hong Kong protests are in fact, in historical terms, more of a blip in the rise of China than they are what most people in the West have taken them to be,

a reminder that China is fundamentally an autocracy. Seen from the perspective of the longer swath of history, China's rise is now an accomplished fact. There's no going back. Any goal by the United States to limit, cabin or contain China is going to have to take place against the backdrop of China's tremendous economic growth and China's tremendous military improvements.

That means that we're increasingly moving to a world that is not unipolar, in which there is a single superpower, as the French would sometimes put it hyperpower in the United States, but rather something a little bit closer to what we saw in the Cold War when there were two competing powers. Indeed, that's what made me, already almost a decade ago, think that we're entering a period not of Cold War but of cool war between the United

States and China. The Hong Kong protests, though they symbolize and remind us the China's government is autocratic, don't fundamentally undercut that geopolitical analysis. The island of Hong Kong may be full of unrest, but that is not sufficient to derail China. I think that when historians look back on

the seb anniversary, that's the take they're more likely to have. Yet, there is an important message associated with the realities of what's happening in Hong Kong, and it is the reminder to China's leaders, and particular to Shijinping, that just because you're a superpower doesn't mean every part of your increasing empire will do what you want. That's a lesson that you don't really have to think about when you're in the process of rising, but you do have to think

about when you're in the process of expanding. There will be global actors, including actors who are just a bunch of teenagers in a place like Hong Kong, the no geopolitical significance, who nevertheless are capable of interfering and blocking you from doing what you want, and who can enable you not to have the global feel good story that

you're trying to accomplish. That is a message that we need to remember because it's a reminder that China's rise is interwoven with the question of how China governs itself. Through much of the period of its rise, China was governed by a broad elite of Chinese communist power elders who shared power amongst themselves and indeed alternated power in ten year cycles. They do not have that structure anymore today.

Shijunping has emerged as the single dominant leader of China, more on the model of Mao than on the model of those who immediately preceded him. If you run the world that way, there's no guarantee that you can sustain and pass along the structures of authority over the long term.

Dictatorship is smoother in a ten or twenty or even thirty year way, but dictatorship is not smoother when it comes to moments of transition, because again, the unruly public may get in the way of the transitions that you want. The genuine challenge that faces China going forward is to consolidate and stabilize its form of government. Shijinping has actually moved China backwards with respect to transitions from one generation

of government to another. Sure, he's got the capacity to reduce corruption, which is a genuine systemic risk to the People's Republic, Yet in doing so, by consolidating power, he's opened himself to the possibility that the small voices at the periphery of his empire, and it is increasingly an empire, can interfere with the smooth operation that he actually wants. And to me, that's the takeaway of the split screen.

Deep Background is brought to you by Pushkin Industries. Our producer is Lydia Jane Coott, with engineering by Jason Gambrell. And Jason Rostkowski. Our showrunner is Sophie mckibbon. Our theme music is composed by Luis Gera special thanks to the Pushkin Brass, Malcolm Gladwell, Jacob Weisberg and Mia Lobel. I'm Noah Feldman. You can follow me on Twitter at Noah R. Feldman. This is deep background