Deep Background with Noah Feldman



I want you to hear another show from Pushkin that I think you'll like it's called deep background and it's hosted by Harvard Law. Professor Noah Feldman Minute Noah's been interviewing top. Scientists thinkers and authors to understand the stories behind the news. The episode. You're about to hear is a special one. Because because Noah himself was the newsmaker in the hot seat testifying before Congress. I'll let him pick up the story on deep background. This is a show about understanding the news. And if you like you're about to hear I hope you'll subscribe from Pushkin Industries. This is deep background. The show where we explore the stories behind the stories in the news. I'm Noah Feldman joining us for the first time. Welcome if you've missed any of our earlier episodes which used it'd be behind a paywall. You can now get them for free exactly where you found this one a bit about me. I teach constitutional law at Harvard. I love oh well tailored suit and I had a pretty eventful winter break swear or affirm under penalty perjury and the testimony. You're about to give. It is true and correct to the best of your knowledge information and belief to help you got this past December. I was an expert witness called by the Democrats to testify at the impeachment inquiry and the House of Representatives into president. Donald Trump. To be honest with you it was extremely nerve wracking. My job is to study and to teach the constitution solution from its origins until the present. I'm here today to describe three things. Why the framers of our Constitution included a provision for the impeachment agent of the president? What that provision providing for impeachment for high crimes and misdemeanors means and last how it applies to the question before for you and for the American people whether president trump has committed impeachable offenses under the constitution? The other expert witnesses called by the Democrats were Pamela Carlin. A law professor at Stanford when President Trump invited indeed demanded foreign involvement in our upcoming election. He struck at the very heart of what makes makes this a republic to which we pledge allegiance and Michael Gerhardt a law professor at the University of North Carolina Chapel. If what we're talking about is not impeachable the nothing impeachable. I recently got the chance to talk to Michael Gerhardt about that day and all that has happened since I was was unfortunately recovering from a slight cold Michael. Thank you so much for joining me. We've spoken on the phone but we actually haven't seen each other. Since December December four th when we both had the opportunity and maybe dubious honor of testifying at the House. Judiciary Committee's hearing on impeachment impeachment. How you been doing since then it's It's been busy Teaching classes and also trying to be part of the national conversation on a very important subject what I would love for us to do in. This conversation is open up for listeners. Some of the the back story in the back scenes of what we experienced that day. How we prepare for it and also sort of bigger picture consequences Of what's been going on. So maybe the way to start is. I had never done this before before so it was a surprise to me but you had done this before. Twenty years previously When they were a group of professors I think twenty one in total? Who testified about Bill Clinton's impeachment to the House Judiciary Committee and not only were you one of them but you are also the only one who is jointly put forward by the Republicans and the Democrats so take us back if you will twenty years and tell us how that happened you know? Nowadays it's almost inconceivable to imagine there being somebody who is acceptable to both sides on twenty years seems longtime ago. It's GonNa the seem even longer when we Put together what was happening back then. It'll seem completely alien to us. So I had spent a fair bit of my academic career studying and writing about impeachment also testifying and consulting with members of Congress that was all known by the time we got to nineteen ninety eight and there was a special moment for me in one thousand nine hundred eight when Jim Leach Republican David Skaggs Democrat called me up on the phone said. Would you come talk to us in Washington generally if members of Congress want to talk to me about something I think. That's a great honor and I went and they said to me. Well what would like you to do after you talk to us right now. Go speak to the entire House of Representatives. The I didn't know that coming into that moment while And they had ring like they want you to speak to the house right. Then yes right then So I thought well wow this is going to be a good test with another another subject matter And so then we walked over to the House and I had to get special permission to walk onto the floor of the house and then behind closed doors with no staff. No press or anything. I then talked to the entire House of Representatives about impeachment spent about two hours doing it at no no cameras fresno nothing knows nothing just nothing is all. Is there a written record of your. Don't think there's a written record. I think it was also amazing. You had a confidential conversation with four hundred and thirty five people hard to say the biggest lecture of my life or one of the big lectures but it was a tried to designed more conversation and it was a very congenial collegial conversation at the end of a Charles candidate Republican. Bobby Scott a democrat. Who happened to be my representative came up to me and said well? If you ever have a hearing on this would you come and I said well sure I'd be honored honored and then that hearing to which you just alluded Happened a few weeks later where I was then. Brought in by both Republicans and Democrats to testify is one of the experts One of the many experts including Alan Dershowitz On the question of Whether or not President Clinton's alleged misconduct rose to the level of being an impeachable offense. And what did you say When I talked about was basically The law of impeachment. I try to kind of lay out the things we knew that that I thought were clear and then kind of talked about some things that were maybe unsettled and said here's what we know about them here. The arguments on both sides and and kind of walked everybody through that and then got questions but there was no personal attack was always very much. You know in this footnote. You said this but now today you're saying that Fair I can try to answer that. Do they actually give you a chance to to answer it. I'd say that has light of our experience. They asked a question and then they actually let you answer it. It's like you know as you said it. Sounds like the Middle Ages. That's right yeah so when we had our hearing there was is no chance to answer it or at least we were giving maybe a second and then that was about it but yes they would then give me a chance to answer it and they they appear to be listening and it was really more of a conversation Than Twenty years later it would be. It's sort of fascinating on many levels but one of the reasons it's so fascinating is that most people at the time identified the impeachment of Bill Clinton that moment as a high point in partisanship the most partisan moment that people can remember the in the United States in more than a century and I think that was actually a fair assessment in historical terms and now twenty years later. It sounds almost like a model of bipartisan and cordiality and collegiality even if they voted along along party lines let me ask you a question Michael so the reason you yourself in that extraordinary position in the Clinton impeachment is it you were and remain the leading expert law professor on the subject of impeachment your guide to the impeachment and processed book you know has come out and I think three additions now why in the world as a young law professor did you get interested in the impeachment as the topic. It was not a hot topic. You know in the late eighties when you must have started diving into it or the middle ladies and you start diving into it. Why did you choose the subject? Well it's a good question I grew up Jewish Alabama in the nineteen sixties. That that that comes with that. That's a big sentence. We're we're in Alabama a mobile on. Okay got it and so I was my entire childhood. aalto was sort of shaped and defined by the Civil Rights Movement at the tail end of that civil rights movement was of course Watergate so like many people of my generation I I watched Watergate. I was kind of thought it was incredible moment to see Congress sort of investigating the president and eventually the President resigned and that that that stuck with me. That was something that I felt. The civil rights movement and Watergate had in common a respect for the rules law. They had in common the idea that law could bring order to chaos and so that was very appealing to me. I had an interest in the law as a

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