Law in policy institute, we try to uphold value of democracy and stactd for equal justice and rule of law and we work to craft and advance reform ares that will make america work for all of us. Tonight were proud to welcome the catch all a guy who spend almost as much time at Supreme Court as justices themselves. Two year ago when he was arguing his 35th case, he broke a record set by the late marshal for most Supreme Court argument by a United States history. Next week, neil will argue his 40th case a at the Supreme Court. Also at the yiet under president obama hes the pall and patricia founder of National Security law of a georgetown hes a partner of a hogan levels hes played himself in an episode of house of cards. [laughter] and this is little more known fact he can hamilton lyrics on demand now written a remarkable case for the imoach m of donald trump join bid michael president of the center. Mike sell a constitutional lawyer and writer, who is an expert on presidency and a american democracy. Michael seived in Clinton White house from 93 to 9 working for the last american president to face impeach m. Well be making time for your questions tonight you should have found cards and pencils on your seats and pass them down aisle to make time for as many question as we can and with that gentlemen [applause] good evening everybody, and welcome to this important conversation on a critical issue a critical moment in our countrys history. A critical [inaudible conversations] a critical were being listened to thats good. [laughter] trust me theyve got the wrong room if you know. Hello to everybody who is watching on cspan. It is aing big moment for the country and big moment for the constitution whoop it is not. Cant think of everything. Hello again. Nothing is changed. [laughter] it is a big moment. Did i mention that . There have only been three other attempts to have president ial impeachment it is a core way our system over two plus centuries has invasion checking and blangsing and curbing the potential power of an impeach m chief executive. It is a moment when were all learning a lotting together at the same time. And were really fortunate and privileged here tonight to be hearing if from an talk p taught by as youve heard one of the country top scholar who written a new important new book called impeach. The case against donald trump. And were all ready to learn and be students is tonight. Neil, the most basic of questions, i suppose is why did you write this book and how did you write this book . [laughter] okay. Well first of all i want to thank you michael and the Brennan Center because what the Brennan Center does is so near and dear to my heart when i had privilege of arguing voteing rights act case in defending the constitutionality your work as center was so important in how i thought about about it and even just last week i was looking at the incredible piengdz and fees report that you put out another thing that i spent a lot of time litigating and thinking about, and you were at the forefront of really trying to make this country a better place. And its such a privilege to be here. Tonight with you so the book, though, it began because you know it was night of october fourth the book didnt exist as an idea until the night of october fourth and so i guess thats two monthing ago basically. I was at dinner with a bunch of my friends and i just written a piece on september 20th hour after ukraine l allegations broke saying that i thought it was very significant and would lead to impeachment and many cowas notorious guy named George Conway and when we wrote the piece in the post, a bunch of people including someone who claim to be nation impeachment expert were like thats ridiculous and neil you dont know anything about politics nothing is going to happen. Well, as, you know, events unfolded by october fourth it was clear that something was happening. That this was a very serious thing, and so i asked my friends around the table what should i do . I mean, i have call for doing a tv show, podcast this, that the other and i didnt know i wanted to ask them what would work because i thought this was simple. And incredit serious and what i was so worried about to have the same thing of what happened in the Mueller Investigation which see spin up the and nobody getting so confused that the truth kind of falls by the wayside and i naively thought you heard me like a Supreme Court leader im not a person on tv. This is not what i dod but i need naively thought a year ago well maybe if i did that if i talked about it on tv and talked it to big audiences that people would understand the stakes and the truth is that chaff and everything overwhelmed it. So thats what i was asking them what is there to do . And one of my friend howard said well crown, youre going hate this but i really think you need to write a book. I said i cant write a book i have like five Supreme Court case this year, and Everything Else going on. And hes like no you need to do it and i said i cant do if t. He said you can do it in two week ib thats impossible. He said yes you have a great collaborator great coauthor and taught impeach element 20 times at georgetown you can do it. Fibs no way i have four more glasses of wine and wept home went to sleep. At 2 a. M. I woke up and im like i can do it. [laughter] and so i got up at 2 a. M. Set up proposal a proposal a draft was done, and i made one phone call when it was a decent hour probably 9 a. M. And i made it to sammy somewhere around here. There so sam is the most brilliant wrung writer i know. And i knew this because i was invited i had the speech that freaked me out mine asked me to give commence m speech so i was totally freaked out back in may i did 48 drafts or something and i showed it to my friend brian who said you to do is have my son sam read it hes the best writer i know and he made the thing beautiful, and so on that night on that morning october 5th i called sam, and i said hey, you know, i got this kind of crazy idea. You want to do it with me . And hes leak yeah. [laughter] so so thats how in two weeks basically and we went to the publish publishers and said you know who can print this the fastest and this is not the first book i ever did im not a book person, and you know it is so crazy like, you know, the the tree theres a tree shortage. And like the paper had some of the publishers use paper from china and trover trump was screwing around with that and half of the folk here tonight they said look if you can give us a final on october 25 ath we guarantee it will be in store on shelves november 26 so we did. So we could go today the book came out. How fast do you type . I typed a 130 words a minute i learned on mechanical. Second bock you can take a month. [laughter] solet take us become to philadelphia in the summer the sweltering summer of 1787. When the founders were drafting the constitution and we, of course, know a lot about it because of madison notes which were not released at the time. They didnt give that much thought overall to the presidency and it power. But they gave a lot of thought to this. Why did they put impeachment in the constitution and where did they get it from . Yeah so one of the reasons i wrote this book was to tell this story and some other stories because the neat thing about this and i know were all like now and post hamilton so American History can be interest. This see really interesting, and simple and fun. And so the story about philadelphia is that you know a lot of founders didnt actually think we needed impeachment in the constitution. Like gary said you know, look we have reelections, the president ising going to run for reelection and this is before the constitution amendment that limbed president institute materials. So gary said look why dont we just basically use that to police airing executive or really evil executive vote them out of office, and others said madison and hamilton in particular said well wait a minute, what if you have a president who has beholden to former power what if you have a president who shes on the reelection. And that leads even gary to say oh, no we need impeachment clause in the constitution. So those remark public things about this is that if you were to if hamilton and madison err gary and others were here and you asked whats the case per impeachment, this is literally it. [laughter] and there was a big debate in philadelphia about what should be the standard for impeachment offense and ultimately they seelingsed on phrase treason, bribery or other high crime and misdemeanors. There was an initial proposal that Mall Administration would be encompassed and that was rejengted because it would weaken the executive too much. Thats something i believe and a i get so much hate mail about this from the left every day like why isnt child separation in there, for example as an all of impeachment . And so on like theres no one who, you know, im as torn up about child separation as anyone, and i think it is evil and grotesque. But i dont think that is what our founders thought of as a high crime and misdemeanor i dont think they meant it for policy difference what is they really meant it for when you go back and study philadelphia, is one simple thing is the president putting his personal interests over those of the American People . And thats why that word high is in there. So high when in terms of high crime a and misdemeanors it doesnt actually mean a crime. It really means an offense against the state. And thats what had the word high is single kind of king and things like that. Youre doing something that is a portrayal of your oath. You know as lawyers one of the term we use is pa fiduciary responsible you have a responsible you have to put your interest behind those subordinate and you have a president or Something Like that. You have to do that. Thats rile what i think the word high means here is that, and thats why the president thats why the founder settled i think on that formation it is a tight standard it is not something thats going to encompass policy differences but it doesnt always mean there has to be a crime and we know that a crime is neither necessary nor sufficient we learn this very early on in our history when we have a guy named burr who shot and killed hamilton. And burr was, of course, the sitting Vice President at the time. And book tells a story and hope away and basically you know, there wasnt a call for burr impeachment he committed a crime. No doubt but it wasnt a high crime it wasnt a crime against the state. Theyre against people the public trust and therefore this was not Impeachable Offense. He didnt the shoot someone on fifth avenue. No in new jersey. [laughter] they were very choired about tyranny and they were worried about abuse of power and they talked a lot about what we knew jog washington wases going to be president and reassured themselveses while we dont have a crime well caesar but well that the president would be head of state and that removal of the head of state was something that had not really been done before and ben franklin said well the orem did i is assassination. Why design with house vote for impeachment and senate engage no trial . So i think maybe take one step become and understand a little bit the constitution design. So our constitution and you know this is my view its the view of i think many scholar but not all scholars but that our founders really did establish a strong presidency what i believe is a true unitary executive not the way that chainny and others have perverted it to mean basically president can do whatever he wants. But it is a strong presidency. Hamilton says in federal 6 a president that can act with secrecy and dis. And has awesome power you want that because often times i know this is a shock to everyone congress cant get stuff done and so you need a president sometimes to come in and do an about when had theres a swift need to do so. And so step one of the founders thinking was we want to have a very robust presidency. E step two, is then the the constitution were having between michael and i right now okay if you have a strong presidency, what do you do when that president air and when that president doing something grave wrong is hold to a foreign power and as michael says well, you know James Ben Franklin said if we dont have impeachment in the constitution, then alternative is assassination, obviously, not a great result. And so impeachment is put in within a legal system to try and remove a president but again they wanted to do so only with a really serious bar, high crime misdemeanor, and then by process the in general the way our constitution work for ordinary legislation as well house and senate to pass it two to tango theres only four instances in constitution in which a single house can do Something Like the senate can vote to confirm nominee to judicial fellowship or ratty treaty but in general architecture is house and senate because they represent the distinct interest one more state interest one more popular. And so thats the way in which that compromised developed into the impeachment clauses i. T. The simple majority vote the in the house of representatives is enough to impeach. A twothirds vote in the senate is necessary to convict and a remove a president. And that twothirds vote is also required for example for treaties. Lets look at how that system has played out over the century since. Since weve never actually got ton point of having the twothirds vote to remove a president. One broad question looking at the Andrew Johnson impeachment, Richard Nixon impeachment, the bill clinton and time when congress chose not to impeach say it would be an example. There was the develop a notion that you needed perhaps abuse of public trust but needed to be actual crime involved also. Is that actually necessary or is that all political way or where do you see that argument . I dont see that argue at all i dont think either constitution scholar or president of these impeach ms is really about a standard that you need a crime. I do think and i hope we talk about that i do think crime were committedded here so if thats your standard trump, you know, easily meet it. But i dont think that is the lesson from those impeachments. And i just, you know, theres so many things that arent crimes and certainly werent crimes in 1787 that are undoubtedly Impeachable Offenses in the constitution as Impeachable Offense was not a crime in 1787 in the federal code. So i dont think it could that could be the standard but it would mean for example, the president undoubtedly has powers to, for example, just wake up and say i really hate Justin Trudeau im going to nuke him, and hopefully hypothetical. But [laughter] on macron so exactly. So you know, but you know now would be absolutely Impeachable Offense and hard to pin it to some crime. Theres nothing in the u. S. Code that would be violated by the president s action there. So i dont think thats the standard. But i do think that each of the impeachment does teach various listens you mentioned johnson imoach some Andrew Johnson was a really a terrible president. And you know kind of got there a little bit or quite a bit by accident. And was impeached but he was impeached not because of, you know, what he was really guilty of which is you know selling Racial Division and trying to destroy and redo result of the civil war and reconstruction. But hes impeached for violation of the tenure of office act. Which was a technical violation about when you could fire cabinet officials and indeed, you know, 735 year later Supreme Court said the president has the powered to what Andrew Johnson was doing. So you know, that didnt actually capture the grab the of the complaint against president johnson. So to me the the lesson that is taken from johnson is not there must be a crime. In fact, the ten or injury of office act i think was a criminal statute as well as a civil one. But rather you know, the articles really have to they cant be like articles that leak we found you on this or that and it is a slam dunk. Theyve got actually to be the heart of what the complaint subpoena against the president. And so here, you know, the heart to me is the president cheat or attempting to cheat on the 2020 election with the help of a Foreign Government. And yes theres other stuff that can come in. But thats had the the heart of the complaint. One of as a former e speech writer one of my favorite things about the Andrew Johnson impeach system one of the of articles was that he went on speaking tour and spoke in a, quote, loud voice. And abused congress in the speaking tour and this was considered a actually a breech of the norm of the time. The nixon impeach, of course, was and for those of you who dont remember after a year of congressional hearings and year of criminal investigation by special prosecutors, when it was voted out on a bipartisan basis by the House Judiciary Committee and summer of 1974. And i think most people regard that as thing having all of the ingredients of what really ought to be looked for and impeachment. What are you draw as lessons in analogy to trump situation from water gate and how that play out . I think one really important lesson is we think about nixon is note of the substantive underlie crime there was the breakin and watergate e here it is cheat on election. But whats the president s reaction to investigation . How, you know, i have the privilege of working for two president s i didnt work very closely with clinton i did work more closely in obama. And i have to sigh like obama instinct would be less about selfpreservation and more about the preservation of the institution of the presidency. Thats how he generally filtered stuff. I feel like nixon was our first president in a long, long time to really always do view through the lens of himself and so when the watergate of investig