The Impeachment Era

forces that could fracture it. Takeover How a Conservative Student Club Captured the Supreme Court includes additional interviews and a new preface and afterward. The book will be published on February twenty third, but until then Deep Background listeners can purchase Takeover only at Pushkin dot fm slash Takeover. Take advantage of this exclusive sale for Deep Background listeners and download Takeover now at Pushkin dot fm, slash Takeover from

Pushkin Industries. This is Deep Background, the show where we explore the stories behind the stories in the news. I'm Noah Feldman. An impeachment trial in the Senate is supposed to be one of the most rare revelatory events in American politics, but we've had two in the last year alone. What are the takeaways of this second Senate impeachment trial, and indeed of the whole phenomenon of impeachment, one that

is speeding up with remarkable velocity. Here to discuss impeachment with me the details of this trial, the comparison to the first one, and the long historical trajectory of impeachment from the founding into the future is Jacob Weisberg. Listeners will know Jacob as the CEO and co founder of

Pushkin Industries, the company that produces this show. What you might not know is that the way I ended up having a podcast of any kind at all, not to mention one on Pushkin, goes back to conversations that Jacob and I began to have in the early days of

the Trump presidency. Back as early as the fall of twenty seventeen, Jacob and I co authored an article in The New York Review of Books which laid out the case for impeachment against Trump based on the conduct that he had already committed at that point, and based on the underlying constitutional principles of what count as high crimes and misdemeanors under the Constitution. That article was the beginning for me of delving very deeply into the question of

the constitutional status of impeachment. That and subsequent research and writing were the reasons that I ended up getting called to testify before the House in the first impeachment process against Donald Trump. Jacob, Welcome back to Deep Background, Jacob. Let me ask you some specific concrete questions about what you expected in this second impeachment trial and what happened.

First of all, did you have any different expectations the second time from the first time, or did you figure the fix was in the second time just as it had been the first time. I think people overestimate the inevitability. If you told me at the beginning there will be seven Senate Republicans who will make an independent decision and vote for impeachment, I would have been surprised that there would be that many. But I don't think that was

completely inevitable. I think a slightly different dynamic, including possibly more evidence about Trump's knowledge on January six, could have provoked a different outcome. I don't know what do you think. Do you think this was one hundred percent foreground conclusion. I sort of think that it was. I mean, for me, the alternative scenario is more like what if a congressman had been killed or congresswoman had been killed on January six,

You know, would that have changed the result? Had it been a Democratic congressman or congresswoman, would that have brought to a different result? If it had been a Republican would have been a different result. What if Mike Pence had been badly beaten by the crowd but managed somehow

to escape. Would that have produced a different result? Based on the fact that we saw going in, I didn't see a way that McConnell could take a different stance than he did, mostly because you know, as we all, lest we be confused about the fact that McConnell despises Trump, which is clear from his speech about Trump, McConnell is also a facilitated Trump in a serious way for the

last four years. So you know that the accommodationism, to me, indicated that there was no real way for McConnell to realign where he would where he would choose to to realign. So I was not surprised by the outcome. I do think it could have been different if the violence had come out in some different way. By the way, similarly, if the Capitol Police or the Washington DC Police or some combination had defended the capital in such a way that no one had breached the perimeter of the capital

even if they had tried. I don't think Trump would have been impeached. Even if the crowd had made the state he had made the identical speech, and the crowd had made the same efforts but hadn't been held off, I don't think we would have seen an impeachment. I think the impeachment happened because of the penetration of the Capitol. And that actually leads me to ask you a question, Jacob, which is do you think the case was stronger in

the second impeachment than in the first impeachment. I mean, they got more Republicans in both in the House and the Senate than the first time. Do you think that's because the case was stronger or do you think it was because Trump was less powerful because he was out of office and had lost the election. It's funny I think that both impeachments it could have been one impeachment because both of them were about the same thing. They

were about trying to steal an election. The first one was about trying to cheat before the election, and the second one was about trying to reverse the results. Of the election. They reflected Trump's democratic dishonesty and his politically corrupt ambitions, and in that sense they were utterly valid. I mean, if there is anything that impeachment is about, it's trying to deal in an election. I mean, it's hard to imagine something that a crime that it's more

political in nature. Something to me that more explicitly meets the constitutional understanding of a high crime. Look, I totally agree with what you said. I think they were about the same thing. I have to say, I don't think that that was made clear by the managers in the

second impeachment at all. I think the first impeachment focused on something that Trump had done but had failed to do, and the weakness of the case there was that the allegation was that he tried to do something, namely, get the president of Ukraine to investigate Joe Biden and Hunter Biden, and he had failed. So his strongest defense in the real world was something like, oh, come on, nothing happened.

And the second time it was something that Trump had done in the sense that he gave the speech and then the capital was breached, but the problem was that he didn't do it, and so therefore he had to be accused of incitement, which is by its just structural nature. Incitement is the idea that I suggested that you do something,

and then you did it. So there's always some intervening cause, namely what you've done in an incitement trial, and that enabled Trump to back away and say hey, or through his lawyers, I didn't actually do this, So in each case he had some defense available to him. So I agree they were about the same thing, but I don't think they played out that way in the mind of the public. I mean, I'm thinking with this impeachment, particularly about the context of his call to the Georgia Secretary

of State and saying find me eleven thousand votes. I mean, there is a context beginning on election night of Trump rejecting the results and trying to find a way to reverse them, and in that context, the January sixth speech sounds totally different. I agree with you. If there hadn't been violence the capital, you know, if they had enbreached the Capitol, it would have just read like another incendiary

Trump speech and it would have been dismissable. But it was in context the last effort that began on election

day to find a way to reverse the result. I actually really wish that the articles of impeachment had not been for incitement to violence, but had been articles of impeachment specifically saying, you know, Donald J. Trump tried to subvert democracy itself, first by denying the legitimacy of the election in the run up, then by falsely claiming after the fact that the election results were rigged when that was not true and it was clearly false, and then

ultimately by you know, call it a second or a

third article of impeachment, by inciting the violence. My guess about why the Democrats didn't do that, and it's just a guess, is that they were worried that if they made the denial of the legitimacy of the elections into an impeachable offense, they wouldn't get any Republican votes, because so many Republicans were publicly on the record as saying that the election results were rigged, and on the contrary, no one in Congress was willing to say openly that

it was a good thing to invade the capital. And so I think they guess, this is just you know, reconstructing that they would do better in terms of the votes if they just restricted the charge to incitement and then added that other stuff in the course of the background section. And you know, they were probably right about that. I'm not disputing their political judge their politicians. They do

there for a living. I just really wish that the impeachment hadn't been only about incitement in some formal sense, but had formerly been about the idea that it is impeachable offense to lose the election and then walk around saying that there was massive fraud and you didn't lose the election when there is no evidence for that and you're lying. Yeah. I mean, they went with the visceral charge, they went with the he sent a mob here to

kill us. You would think looking around the Senate chamber that the people who escaped that attempt escaped that riot with their lives, but many cases were you know, really threatened and really in jeopardy. Would say, yeah, we do have to draw the line somewhere, and I'm going to draw the line at the head of the executive branch trying to have members of the legislative branch and his own vice president murdered or han and that doesn't do it.

Nothing really is going to I mean, if that doesn't if that's not a convincing enough charge even if legally, I mean, I take your point, and I agree, and I would have certainly had a charge related to his overall effort to subvert democracy, subvert the election. But honestly, if trying to kill us isn't going to do it,

nothing else is. So I think it could be argued that actually the impeachments weren't feutal, even though the fix was in, and neither was going to result in either removing the president or banning him from office in the future, because impeachment remains the strongest tool that Congress has to take a stand and to condemn the president, and it goes in the history book insofar as it hasn't been

used all that frequently. That might change if it gets to be used all the time, which may people talk about later, but for now it remains an outlying thing. And so if the point of impeachment was not ultimately in practice to remove Trump, it was probably then to send a message to the world that we the House Democrats are drawing a red line in the basic practice of democratic government, and we're saying in our constitutional government,

there's certain things you cannot do without consequence. I fully agree with that. No, I mean I think it still was a semi successful exercise and accountability. For that reason, Trump's offenses were aired, the public learned more about them, some views of the Trump changed at the margin among

persuadable Republicans and the electorate. You know, the answer to the question should Trump run for office again, the number of Republicans who say yes to that actually did minished in a statistically meaningful way pre and post impeachment, So in all those ways it was valuable. And also the fear that it would be a distraction for the new president and would get him off his game in relation

to his agenda, I don't think that's born out. So I don't see negative consequences, except to the extent that impeachment is becoming common. I think the fact that we have had three in the past twenty five years, we had one in the nineteenth century, and we've had four in my lifetime, the likely scenario is we have more.

It's a more available political tool, and because it's been carried through without ultimate consequence, I think this very strong temptation for Republicans is going to be if they regain power in the House to figure out somebody to impeach kind of because they can. I don't think it's too soon to start asking ourselves. One of the big aftermath questions, which was all that talk about impeachment in which you

and I were implicated, was it a good idea? I mean, did we cheapen the idea of impeachment in such a way that it made it harder to get these impeachments through. Did we acclimate people to the idea, or was there, in fact something good about starting to talk about impeachment as soon as we did. Well. It is a good question in a way. Both impeachments, the combined impeachments were kind of study and futility, So you know, it's hard to say it's hard to feel good about how they

came out. The other thing I just reread, sort of briefly today in preparation for talking to you, was Federal sixty five, which is the key federalist piece by Hamilton on impeachment and what's amazing about that and I really kind of urge people to read it. I feel like it anticipates exactly what went wrong with impeachment. In it,

Hamilton basically says, here's the problem the tendency. Politicians are going to have to take ideological positions, side with parties, exercise their relative power, and not use their individual judgment as people about whether an offense is impeachable. And it's like, if you read that right now, it's a precise description of what happened in the Senate. I mean, I think of what the all but seven Republican senators did, But in a way you could argue what Democrats did too.

I mean, I think the Democrats were right, of course in voting to convict, but I don't know that there was a lot of independent individual judgment there as opposed to following party discipline. Hamilton does right there about how the senators ought to exercise independent judgment, and he's pretty optimistic about how they will do so, And obviously, in part that reflects the framer's naivete about what political parties would actually do in real life. Hamilton himself went on

to found a political party, the Federalists. His collaborator on the Federalist Papers, Madison, went on to found the other political party on the other side, the Republicans, the Democratic Republicans. So they went from being close collaborators and friends in producing the Federalist Papers to being brutal political enemies. And because they didn't anticipate the rise of political parties, they

underestimated how partisan the impeachment process would be. That said Hamilton himself, you know, in the Federalist Papers was trying to be a propagandist. He was trying to get people to make the Constitution be ratified, and so he depicted the probabilities that people would act selflessly in ways that

seemed to me knowingly on his part overstated. Given how deeply Hamilton was worried about the danger of demagogues, a danger he speaks about in the Federalist Papers, he must have known that there was a real, real possibility of politicians demagoguing an impeachment. So when he makes those arguments and acknowledges the counter arguments, it may be this is

reading him against the grain. It may be that he's actually aware that impeachment may not be that effective a tool in the long run, but for the purposes of his polemical purpose is saying, oh, this is going to work. Great, that's very interesting. No, I mean, I think the place where i'd be a little skeptical of that defense of Hamilton's full foresight of the problem is around political parties.

The founders, including Hamilton Madison. I mean, I feel funny talking to the biographer of Madison about this, because you know, you've forgot more about this today than I'll ever know. But you know, they're always talking about faction, by which they mean political parties, which they think are this kind of corrupting factor in democratic government, and they were just wrong.

I mean, I don't think you know, their democracies all seemed to develop political parties the fundamental feature, and they felt we could do without them, and not only could we do without them, that we wouldn't have a healthy democracy unless we did without them. As you say, they both immediately founded political parties themselves. It was just a

kind of fundamental misreading. But I think if you read something like The Federalist sixty five, it's shot through with this idea of individuals making decisions without fundamental reference to being part of political parties. You're totally right. And I guess what I'm saying, and I'm making this up as I go, so you know, take it for what it's worth. Madison,

I know, did believe those things. It was totally sincere on his part, and the failure to anticipate political parties was based on his intellectual I would even say hubrist at that moment, which is that he thought he'd designed a constitution that would fix the problem political parties. Hamilton, however, was not a naive person. Ever, there was nothing naive

about Hamilton. And although he's talking the Madisonian language and the Federalist papers, including in sixty five, what I'm spec thinking about is that maybe Hamilton didn't believe it as much as Madison definitely did believe it even when Hamilton was saying it. So I wonder if he wasn't already anticipating something like that and already thinking that there probably would be political parties, even as he joined these documents declaring that they designed a constitution that would fix the

problem with political parties. Yeah, that's interesting. Well, let me ask you about something else I've been thinking about, which is whether there was a fundamental failure on the part of the founders in thinking about transitions presidential leadership transitions, because two things that they did not include in the constitution were any kind of term limits for the head of government and I think in the impeachment trial, what

Jamie you're asking characterized so effectively as this January problem, which Mitch McConnell ended up taking advantage of by saying, no, we won't impeach him while he's still in office, and then it once he wakes he's out of office. He believes that there's this loophole, which I don't think is

supported by constitutional history. However, there is a lack of clear procedure and lack of anticipation about this really particular problem that seems to arise almost everywhere in the world all the time, which is leaders not wanting to leave office, including when they lose free and fair elections. You know, it may be that those things are related to each other. I mean, the Framers didn't have term limits because they didn't think that the president was going to step down

after only a few terms. Hamilton basically wanted an elected monarchy, and he wanted Washington to be the first elected monarch. And it was only when Washington did step down after two terms that this tradition emerged, only subsequently broke by FDR and then subsequently put into a constitutional amendment. So the fact that they didn't have trem limits. Wasn't a you know, it wasn't a bug for them. It was

a feature. They wanted a strong executive and those of them who, including Hamilton, who really wanted something that looked more like a monarchic presidency, appreciated that fact. And they weren't that worried about the transitions problem. I think insofar as they were had Washington in mind. They figured he'd always be reelected, and they figured that people who were not elected would step down, and that did happen right Adams,

right out of the box. You know, the second president loses an election to Jefferson, and he does step down. Another part of it, I think was that they had an image of what a gentleman of the late eighteenth century cared most about, and that was his reputation. And they knew that loss of reputation could be ruinous, and doing the kinds of things that Donald Trump did would have been reputation destroying. I mean, these were people who

fought and in Hamilton's case, died for their reputation. I mean, people who will fight a duel are people who really value reputation above everything else, including possibly you know, life and limb so I think that might be why they

were not as worried about people refusing to step down. Well, is it fair to say that while they were obsessed fully focused on the problem of demagogues and politics, they didn't anticipate the narrower problem of what do you do when you've got the demagogue in office and you're trying to transition away you trying to get the demagogue to yield. I mean, that is the problem we ran into with

Donald Trump. The fox was in the Henhouse. The demagogue was elected president in a flukish way, but legitimately and like a demagogue, tried as hard as he possibly could not to yield power. And I think historians may look back on this period and think we came a lot closer than we ever anticipated coming to not having a successful democratic transition. In the twenty twenty election, we'll be

right back. I think your point, Jacob about the Framers not really thinking about what to do if a demagogue did get elected is profound and I think pretty original, because they thought a lot about how to keep him out office, but not a lot about what to do once he was in office. I think there's a separate question of how close we were, and it's one worth exploring.

I think had the Defense Department had officials who were prepared to listen to Trump and deploy troops in his defense of his attempt to gain power, that would have been an actual coup deeta, not a rag tag mob invading the capitol, which was a kind of a fantasy of a coup deta rather than the reality of it.

And I think it's an interesting question of how close we came to that, you know, the fact that it turns out that there was someone in the Department of Justice, a mid level official, but nevertheless an official Department of Justice who went to Trump said make me attorney general and I will order Georgia to retract its electoral College votes. It's pretty astonishing. And if something like that had happened in the Defense Department, that really could have led you

in a coup like direction. So in that sense, I think history will bear out your point that it could have gone worse. At the same time, it didn't happen in those ways, despite the fact that we had Donald Trump, and so that could be a potential potential argument on the other On the other side, yeah, I think it's it's sort of like talking about nuclear war, the minuscule chance becomes an intolerable chance. And you know, I don't know when I say how close we came. Was it

a five percent chance? Was it a one percent chance? A one percent chance of the collapse of constitutional democracy is way too high a chance, as you're saying, I mean, maybe what stood between Trump and trying a real coup data was that he wouldn't have had support from the markets, and he wouldn't have had support from the business community.

The markets don't seem to have thought at any point that there was a meaningful risk of a kudata or the breakdown of constitutional democracy, and to me, that has to reflect I mean, it's always hard to say what the markets you mean when they do something, But when the markets don't do anything out of the ordinary, you can at least say that they're not desperately panic that we're about to have a civil war or war in the streets. So I don't know, I mean, I think

it'd be really interesting to see in retrospect. I wanted to go back, Jacob to the point you raised about impeachments getting more common, and I'm wondering why you think that is. Is it that we have more partisanship. Is it that we have more transparency about what government does than we used to have. What's your view? Why do

you think these are more frequent now? I mean, I think you know, polarization is a bit of a tautology, right, In a more polarized political environment, you get more impeachments, and you get more impeachments because you have more polarization. One thing I might focus on is norms. Political norms starting to fall way earlier than we're focused on. We're very focused on Donald Trump's attack on all sorts of

political norms, which is very true. But I think in the nineties there were a lot of things that had been norms in politics, including around the justification for impeachment, that kind of melted away without a ton of notice. And if you want to figure out when things really started to break down in Congress, I think it was

the Gingrich election of nineteen ninety four. Republicans retook the House by a very big margin two years after Bill Clinton was elected, and new Gingrich was committed to leading the Republicans in a very different style than they'd been led for many many decades, and essentially he declared an end to any cooperation, an idea that politics really was war in the sense that anything that passed was going to be a political benefit to the Democrats because they

controlled the White House, and essentially that the goal of the party that wasn't in the White House was obstruction. That provoked a certain amount of Democratic retaliation. But I think impeaching Bill Clinton for you know, what might have been abhorrent personal behavior, but was I think still by any constitutional definition, not political crime, not high crimes and misdemeanors,

started to break down those norms. Can I ask a further follow up question about that Gingridge moment in nineteen ninety four. Do you think that partly what you're describing is the first time in modern American history that the Republican Party had people in its senior leadership positions who were overtly populist. I mean, there, you know, there was George Wallace, but he was an insurgent candidate who didn't

ultimately make it nationally. You know, there had been Pat Buchanan, but also had not made it to the very senior most ranks of Republican leadership. Nixon didn't have the personality to be a populist. I wonder if the Gingrich model of Republican populism contributed to the emergence of the breakdown of norms precisely because it was populist. And you know,

there have been democratic populist for many, many years. But you know, most political systems have one side that's the populist party, and the other side it's not necessarily the populist party. Here you suddenly had both sides importing some degree of populism. And populists like to break the rules, right. Populists always say the rules of normal politics are rules designed to serve the interests of the rich and the powerful. So let's, you know, burn it all down. Yeah, I

think that's I think that's very insightful. I mean, Republicans hadn't had a real populist moment since McCarthyism. I mean, I think McCarthyism was a form of rightland populism, but in the long period between the early fifties and the nineties, populism was more associated with southern segregationists. I do think what Gingrich was trying to do certainly had the tonality of populism, but it's sort of populism combined with obstruction

as an alternative to compromise and legislation. I mean, there's a fundamental question about whether the job of a member of Congress is to pass legislation. Gingrich came in and said, nope, our job is to stop all of it. There is no version of a healthcare bill that Republicans could ever support that would just be good for Democrats. It's more

government block everything. And that's what they did. And I think that that was the kind of change in the rules of the game that probably led to the Clinton impeachment. And I speak of someone who thinks both impeachments of Trump were justified. So I don't take the position that that was illegitimate democratic retaliation. But if Republicans hadn't impeached Bill Clinton, do I think that there would have been

two impeachments against Donald Trump? Maybe not. I think emerging from what you're saying is maybe the beginnings of a collaborative hypothesis here about the rise of impeachments. And it might run something like this, if you have populist parties on both sides and they do the obstruction, which is one of the things that populists are prepared to do. Because the populace doesn't just want to pass legislation it's popular, but wants to block the other side from usurping the

people's will. Then you get a higher probability of impeachment because impeachment itself, in some way is the ultimate form of obstruction. Right. So, you know, Bill Clinton's supporters said when he was impeached, listen, the Republicans are just doing this to block him from being president, from doing what

he wants to. It's just an obstructionist technique. And similarly, Donald Trump supporters said that they said, you know, these impeachment efforts, especially the first one, we're just intended to interfere with his agenda as president. And I think what you're saying is maybe there is something to that, in the sense that obstruction is connected to polarization, and impeachment is a form of obstruction, sort of the ultimate form

of obstruction. And then also explains by the way, why Joe Biden seemed so eager to get the current the third impeachment over quickly because he doesn't want the idea of impeachment anywhere in this story. He just wants to get on with his legislative agenda. I mean, this is a very interesting hypothesis. It would explain why we have more impeachments, but also it would explain why that's not

the end of the world. You know. It would explain that politics evolves and in a moment where you have a lot of partisan populism, you need tools to express that, and maybe one of those tools is and maybe we get more impeachment efforts going forward as a consequence, and maybe that's fine. I think we probably will. And it does mean some extent that the currency is devalued. The more common it is, the less you know, historically aberrant

it is. I mean, I remember I was ten years old when Nixon was impeached, and I was really into it. I was riveted. But part of the excitement was, this is something that's never happened before in anybody's lifetime. It had been eighteen sixty eight. There was no living person who could tell you how impeachment worked. And they are all these books, you know that came out and all these scholars had to kind of figure out impeachment for

a new century. It's becoming a lot more familiar. People who in nineteen seventy four had no idea how an impeachment actually happened. Now know exactly how it goes because

we've been doing it a lot. I wonder if impeachments, though, could actually be less upsetting to all of us if we come to see them as base basically the strongest thing that Congress can do to condemn a president, rather than as a process of a quasi judicial nature with a verdict that might actually lead to an outcome, you know. I mean, we have a tendency and the media as a tendency too, to think about stories as legal dramas. And it's hard to have a legal drama if you

know already what the outcome is going to be. And so in some sense, these impeachments weren't that dramatic because we knew what was going to happen at the end of them. But if we get outside of that framework and say, okay, we are going to have more impeachments, but it's going to be reserved for situations where Congress what wants to express its highest form of sanction for

a president, that might be good enough. And it might even take us retrospectively back to the Clinton situation, when we both agree that what Clinton did wasn't a high crime or misdemeanor under the Constitution. But on the other hand, he did lie under oath having had an affair with the twenties thing year old secretary in the White House. You know, two very very bad things, and you know,

bad in different ways from one another. And I think in that sense, the idea that Congress felt it had to say something to say that this conduct is not okay, doesn't actually seem so outrageous in retrospect. Yeah, but fundamentally, in a democracy, you make decisions in an election and you have to live with those decisions until the next election.

And at the state level, many states have what I think was originally a kind of progressive or a reform of recall, and so as soon as the governors elected in some states, including often in California, people are trying to get petitioning to get recall on the ballot, and so you're in a constant state of argument basically about the legitimacy of an elected official and the question of whether it elected official is going to serve out his term.

I think that basically not productive most of the time. There are obviously situations where there are corrupt officials, officials who abuse power, officials who deserve to be recalled before their term is over. But you can't be having a version of the election all the time. And I think you've got to reserve these removal tools, impeachment being the ultimate one for the rare cases, because otherwise, you know, again it's it's politics as warfare all of the time.

But you're not saying that impeachment has to be reserved for situations where it will work. No, I'm saying it has to be reserved for situations in which it's justified, in which what we're talking about is a high crime in the political sense that it is something like what we've just been through with Donald Trump, and not like what we went through with Bill Clinton, where objection to politics and some personal misbehavior or scandal is kind of

cobbled together as an argument for removal from office. Just to close on a personal note, I think the first time I was ever on a podcast was when I was on your Trump cast talking about impeachment and related issues. And at the time you hadn't started Pushkin and I hadn't dreamt of being on the other side of the microphone for a podcast. So this show definitely would not exist or not for the question of the impeachment of

Donald Trump. I can't exactly thank Donald Trump for that, but I want to thank you for this conversation and for the previous conversations that we had. They have had a transformative effect on my life, very literally. Well, Noah, the one part of impeachment I can really endorse is talking to you about it. It was the part of impeachment I really enjoyed. So I'm sorry that conversation is going to end now, at least for a while, but I'm sure we'll find some other things to talk about.

Thanks Jacob, Thank you, Noah. It was a huge pleasure to talk to Jacob, as it always is for me. The key takeaways have to do with Jacob's central insight into the idea that impeachments are getting more and more frequent.

None until the middle of the nineteenth century, from the time of the founding than a possible impeachment of Richard Nixon so bad from Nixon's perspective that he resigned before he could actually be impeached, and then in rapid succession, Bill Clinton's impeachment at the end of his presidency and not one but two impeachments of Donald Trump. Jacob thinks this means we're going to have a lot more impeachment

going forward. And what's more, he sees this as intimately connected to the rise of partisanship and polarization in our politics. If Jacob's right, we're going to have more, not less impeachment. A second important takeaway is to ask ourselves, is that

necessarily a bad thing? My own view of impeachment trials after the experience of these two, is it We would be making a mistake if we conceptualize those trials primarily in terms of their success or failure in punishing the president by removing him from office or by banning him from running again. The process is simply too tied up in politics for that to be the necessary outcome to

justify the means. To me, impeachment today stands for the opportunity that Congress has to insist that it will state once and for the record that certain conduct by the president is entirely unacceptable, and that if he does so, Congress must take action of impeachment or else send the message to the ages that the president's conduct was normal or acceptable. To me, Donald Trump's conduct both the first time he was impeached and the second time clearly passed

that bar. As Jacob mentioned in our conversation, Trump's impeachments both followed from the same course of conduct he was trying to break the twenty twenty Democratic election. Will Donald Trump ultimately be criminally prosecuted for this or other conduct.

It remains possible, but relatively unlikely. Already, Georgia law enforcement is investigating Trump's call to the Secretary of State, where he asked him to find or directed him to find eleven thousand more votes, potentially threatening him with criminal prosecution if he did not. That might lead to a prosecution, but my guess is that the legal issues will be too close for the case to be brought to a jury. In a criminal trial, a prosecutor would have to prove

to a jury beyond a reasonable doubt two different things. First, that Donald Trump's words were directed to the incitement of violence, which probably means in practice that it would have to be shown that he intended to incite violence and or that his words literally were an incitement to violence. The second component would be to prove that Trump's words were

actually likely to incite political violence. The latter would be quite easy to prove, because, after all, after Donald Trump spoke, there was indeed a violent riot, But the former would be very difficult to prove because Donald Trump was characteristically canny. He did not use words that literally called for the use of violence, and it would not be simple to

prove that he intended for that violence to occur. Ultimately, then it seems most probable to me that the jury for determining Donald Trump's culpability for the events of January sixth will be that most evanescent and yet most significant of juries the jury of history. Until the next time I speak to you, be careful, be safe, and be well. Deep background is brought to you by Pushkin Industries. Our producer is Mo laboord our engineer is Martin Gonzales, and

our shorerunner is Sophie Crane mckibbon. Editorial support from noahm Osband. Theme music by Luis Gara. Thanks to Mia Lobell, Julia Barton, Lydia Jean Cott, Heather Faine, Carl mcniori, Maggie Taylor, Eric Sandler, and Jacob Weisberg. You can find me on Twitter at Noah R. Feldman. I also write a column for Bloomberg Opinion, which you can find at bloomberg dot com slash Feldman.

To discover Bloomberg's original slate of podcasts, go to bloomberg dot com slash podcasts, and if you liked what you heard today, please write a review or tell a friend. This is deep background