President Trump, Congress, Senate discussed on All In with Chris Hayes

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Knew how to get it for this microphone. My podcast is about what it takes to get the nomination. Six episodes six timeless themes that separate the few winners from the losers. The hope still lives and the dream shall never is so you want to be president with Chris Matthews and MSNBC podcast search. I now wherever you're listening and subscribe I two episodes available now. There's some fundamental existential sense in which members of Congress many people country too. The Guy is like just fundamentally of the office. And then there's an attempt to kind of find the correct procedural legalistic pretext or predicate. I guess for impeaching him and I think there's a little bit of that with trump happening even though I think what he did with Ukraine is one hundred percent impeachable. The context here is. It's like a deeper sense of the guys on fitness. There's also the sort of question about language there's also though and I think this is another place to go in this sort of history that like impeachment always has been pretty partisan like this idea that were in these polarized times and no one is persuadable like it was quite partisan in Johnson's case and it was obviously quite partisan in Clinton's case in the one exception to the rule is the one guy who it worked on exact equation yes and Nixon is is sort of hard to figure you know when we have the set this tiny little set a presidential impeachment and we've never removed the president and of course we didn't remove Nixon although it's almost certain that he would have been removed in the Senate because he decided to leave before even being impeach by the full House so it distorts the overall numbers I think. But yes that is an example of a moment in which history seems to suggest that the country in the congress transcended partisanship and it kind of uniformly condemned Nixon's conduct although the fascinating counterfactual. Think about which you see people at the margins of Republican conservative thinking talk about Nixon. In retrospect which is like yes should have stuck it out dude like call the bluff man you know make them count the votes make them whip against you. Tell them that they're going to destroy the party. And they're gonNA destroy their chances is the next election and like you know again to me what the theme here with impeachment is it. You're sort of at the edge of what the law is saying. You're in some zone of norms shame democratic legitimacy like all this sort of coming together. There's no like clear directive. No blueprint for any of this right like it does come down to politics and it does come down to the sort of like bunch of factors all operating in tandem. And I think it's true that that has always been the case right so it's one of the things I think that scholars of constitutional history tend to say about the framers as they get a lot right and they get some things quite wrong and one of the things they get wrong as feeling to anticipate the kind of rise I of partisanship right sort of importance of parties. There's this idea that if you separate power between the branches of government they're gonNA sort of by institutional role compete for power power and authority as opposed to align with their co partisans even across branches. And that's I think when you look at founding era writing but with impeachment they they seem actually always to have had a sense that it was going to be quite partisan and I think that's why they create the Super Majority requirement in the Senate for because they make the choice to include impeachment and. Yeah I think included for reason and they don't include it so that it will never be used right. I think they fully anticipate that. Under extreme circumstances it will be warranted but that actual removal should you'd be limited to conduct that is able to attract a very significant supermajority members of the Senate. I think there's a lot of things that are there are some serious flaws in American constitutional design. I think the arguments from political scientist one Lynn's about presidentialism and how dangerous that can be. I think we're seeing play out so all of that said. I do think they're right about that. You know it's a significant dramatic matic staff. I mean I had I had a republican congressman. Show a few weeks ago it was talking about how dramatic step was and it's like yeah it is it is it is it is dramatic but what you just said also sort of connects to another another sort of interesting theme to me. Institutionally which is about the relative balance of power between the two branches in the case of Johnson. You've got this very strange situation in which because The the south is not been admitted back into Congress there. These massive supermajority is for the Republican Party in both houses in their overriding veto after veto after veto. It's probably probably the absolute apex of congressional power in the history of the country right. I think that's right. We now live in this Erin which we have had the extreme growth the imperial presidency. Like how do you see this. In the context of sort of balance of power between the brand go back to Johnson for just a second. So yes I think it's right apex of congressional power and Obviously you have the Republican party dominating both houses of Congress congressional power domination and yet they still can't hint remove him a lot but I think there are a couple of important butts right so one is the constitutional design at that. Time is a little bit different. And there's there's kind of this odd gap when it comes to filling a vacancy in the office of Vice President Right. So Johnson becomes president when Lincoln's assassinated but until the twenty fifth amendment there's no mechanism for filling a vacancy in the office vice president until the next election so he does president so so the Congress Senate that is considering voting to remove him is Basically looking at him and looking under the succession laws at the time. The speaker of the House. I'm Ben I think his first name Wade Benjamin Wade who's a pretty radical article Republicans in the summer Stevens Phillips School and the Republican Party the time it's dominant but it is very right so there's a real spectrum there's a radical local wing of the party but they're not all at Stevens by any stretch and so some members of the Senate are sort of looking to that choice and it's such a dramatic choice that they decide they're not going to sort of totally upend the kind of organization of power in government by installing this entirely different figure. We have a really different system right. And I think that's something that gets a little bit lost right so in the original constitution before the Twelfth Amendment you know. The Electoral College cast two ballots. And the person who gets the most votes becomes the president. In the second most becomes the vice president and the Dayton should ever we'll be because it was so dumb choice But he may want to. Debunk that programming. Before you right and so right but of course what it meant was the person who is the number two could be your political rival could be a member of a different political a party and And so when they put impeachment in the Constitution. I think they did this knowing full. Well that the person to whom the power of the presidency would would pass if impeachment was successfully invoked and removal occurred was somebody who was picked. Totally separately was not the president's hand picked by the way the office functions today and then pre twenty Fifth Amendment in a circumstance like the Johnson case it would have been literally as though today if the president were removed from office. Nancy Pelosi became the president. That's not at all the world we live in a world in which the remedy is so much less dramatic because all that happens if the Senate votes to remove is power passes to the presents hand picked second command who has been handpicked precisely for the purpose of serving his or her term if he or she cannot serve up early so Johnson the gentler remedy today than it was under the original constitution. In this case it seems to me that there is a really interesting fight happening the so so. There's obviously a partisan fight. I think there's an ideological there's a political fight. I think there's a you know. I'm biased. Here I think but I think there's a fight over the actual substance and rule of law whether the president can do whatever. The halley wants like rigged the next elections that he wins. But there's also like an interesting Article One branch article two-branch Congress I the White House angle here. Her and as someone who sort of both studies scholar and also worked in. The White House is a lawyer. Like we're as a White House lawyer. You tend to be pretty like a jealous guardian of the president's power. How do you see what's playing out right now in that context? I think you're right that when anybody who has spent some time I'm inside the executive branch and maybe in particular in the White House. It certainly gets into your DNA. A little bit. This kind of reflexive defense of presidential power. And I think that I've been gone from government for a bunch of years now but I do still believe that it's important for all kinds of reasons to have a powerful president but that doesn't mean unchecked president and I think the only reason we haven't seen more sort of unilateral presidentialism in the last three years is because there has been just such chaos and disorder in that administration and the White House in particular but they have gotten gotten their act together to do enough big things. I think that Congress has through sort of inaction and paralysis relinquished a lot of. It's this less formal authorities in recent decades so congress passes laws. That's the core of its article one powers but it has many many other things right conducting oversight of the the executive branches one of them but obviously it appropriates hold hearings at the Senate confirms nominees. I mean it does many many things. I think that an important narrative of the last couple of decades has has been you know you've obviously seen in these kind of inverse trajectories of kind of innocent of presidential power and a decline in congressional power. And I actually think that whatever the next couple of months bring with respect to this impeachment and it does seem like unless something very dramatic shifts the most likely courses impeachment in the House and acquittal in the Senate it has still been an important reassertion of Congressional Authority that House has initiated and the way it has conducted these impeachment hearings so far I think that it has enormous symbolic consequence to impeach a president. Donald trump appreciates that right. So you saw this tweet. A couple of weeks ago go was it. I never thought my name would be associated with that. Ugly word impeachment The impeach me like a dog but he doesn't WanNa be impeached right. So people argue about whether this will help or hurt the president politically. I don't know the answer to that. But even if in some universe it helps him and politically he does not want to be impeached. Absolutely doesn't want to because this is going to be an asterisk next to his name forever right as the fourth president to have these series impeachment Proceedings begun in the third President American history to have been impeached. I also think that there was this unified position of noncompliance with Congressional subpoenas is and oversight requests during the early days of post two thousand eighteen right when the Democrats took control of the House. And you know it starts to normalize this idea that you can simply simply ignore requests from Congress if the White House and other executive branch agencies refused to respond to congressional enquiries and even congressional subpoenas I think just the last few weeks all of these officials acting on their conviction that law requires them to show up in response to a congressional subpoena. You know sort of hardens the lawn. uh-huh of congressional proof of the pudding is in the eating and that the practice the concrete example and the practice of people showing up even when they are political appointees not president which is in the case of Gordon somewhat remarkable that practice has a kind of legal effect where it has kind of effect about what Congress's authority is in a sort of precedent were norm setting. I think that's right. So there's you know the way law develops. I think this is true. Actually broadly but it is certainly true when it comes to disputes between the political branches between the Executive Branch and Congress is that it's very rarely courts that announced what the law is. There are disputes. That occasionally make their way..

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