Marisa Wojcik:

Welcome to Noon Wednesday. I’m Marisa Wojcik, a multimedia journalist with Here & Now on Wisconsin Public Television. So within the last few days, U.S House Democrats have been calling for an impeachment inquiry into President Donald Trump. Yesterday, House Speaker Nancy Pelosi met with fellow Democrats and didn’t seem like she could be persuaded into impeachment proceedings and then just this morning she met with Donald Trump and has been calling him involved in a cover-up. So there’s lots to unpack here and joining us is Howard Scheweber, a Political Science professor and, uh, expert in Constitutional Law from UW Madison, thanks so much for being here.

Howard Scheweber:

Oh, thanks for having me.

Marisa Wojcik:

I want to start with our own representative in Wisconsin. U.S. Representative Mark Pocan recently changed his course on his interest in pursuing impeachment. He said, “Regrettably the President’s most recent actions and continued disrespect for the Constitution are forcing us down the road to impeachment.” So, is there a violation of the Constitution happening right now by the President?

Howard Scheweber:

Well, that’s a tricky question. Whenever I’m teaching any of these subjects, I’m always emphasizing it’s much more complicated even than we think, uh, which I know is not helpful. So, let me back up a minute. First of all, the standard for impeachment isn’t really a violation of the Constitution. Impeachment is something provided for by the Constitution. The question of what’s an adequate grounds to trigger an impeachment proceedings is, is a classic debate. The standard Political Science answer as well, it’s political, not legal, which is kind of, uh, a cop out to just try and say it’s whatever the members of Congress think it is, that’s not quite right though. Because the phrase, as we all know, in the Constitution is “high crimes and misdemeanors”. And if nothing else, that language calls on the member of Congress to to exercise some kind of legal judgment, I mean terms like “crime” and “misdemeanor” are intrinsically legal terms, they’re not moral terms, for example. In the case of Donald Trump, uh, you have to break it down into stages. There’s the set of issues that were raised by the Mueller Report and everything that led up to the Mueller Report, and those have to do with Obstruction of Justice, and the question of whether they’re grounds for determining if the President engaged in Obstruction of Justice. What I think is moving Representative Pocan and perhaps Nancy Pelosi and others, is much more recent. Which is the President’s refusal to allow anyone associated with his office, notably Don McGahn for example, to testify to Congress in response to a subpoena. And defying a subpoena is, whether or not it’s a violation of the Constitution, is kind of an insult to Congress, and at least some members of Congress take insults to themselves and their institution, shall we say, at least as seriously as they take issues of legality, and rightly so. It’s not just a matter of peak, it’s a matter of Separation of Powers.

Marisa Wojcik:

And a lot of times throughout Trump’s presidency so far, people have just reasonably asked, “Can he do that?”, “Is that legal?” And in this case, can he do that? Is that legal?

Howard Scheweber:

So this is where it gets truly messy. There’s a phrase we’ve been hearing a lot, which is “Constitutional Crisis”. It’s not a technical term, it’s more a term people like to use to identify a certain kind of very important moment. But how would we know we were at a true Constitutional Crisis? The best short answer I can give is if a court were to rule that the White House is required to respond to a subpoena, and the White House nonetheless refused, that would be a Constitutional Crisis. And this is the question that arose with the Nixon administration, the U.S. Supreme Court case called Nixon versus The United States. The White House is certain it was not obliged to turn evidence over to Congress. It went through the courts, it went all the way to the U.S. Supreme Court. The U.S. Supreme Court said, “Yes you are.” And at that moment, if, I mean there were people hysterically talking about what happens if Nixon refuses, you know, do tanks roll out into the streets? Or other horrible outcomes. That was truly a moment of Constitutional Crisis. The moment I’d say where we have are the two primary branches of government butting heads, and it’s now time for the courts to become involved.

Marisa Wojcik:

So, the White House said apparently that it was in the Constitution that they were allowed to tell Don McGahn, former White House Council, not to appear because he is supposed to be testifying on official business. Is there a legitimate basis in that argument?

Howard Scheweber:

There’s a legitimate basis for an argument, not for that one. That is, what the White House is doing is taking a legitimate argument and stretching it beyond all bounds of recognition. So you go all the way back to Article Two, which says the executive powers are vested in the President. That leads to a theory that was developed during the Jacksonian Era, called the Unitary Executive. We heard a lot about this in the Bush administration. We heard a little bit about it already in the Trump administration. It’s the idea that all executive agencies, all executive agents, work for the President. Within that, there’s a core executive function of the President, his cabinet, and his advisors. And there’s a very long standing tradition of Executive Privilege that says the President is not required to reveal to Congress, this goes back to a fight between Thomas Jefferson and the Congress, is not required to reveal to the Congress all the details of everything that goes on, particularly when he’s getting confidential advice. That’s not exactly in the Constitution, but for a very long time it’s been recognized as implied by the Constitution. What Trump is doing, and Trump’s lawyers are doing, is stretching that claim to cover anything done by anyone who works for the President. So it’s kind of a melding of Executive Privilege and this Unitary Executive idea, to make them both expand all space. That’s unprecedented and I think highly unlikely to survive in a court, but of course, the current Supreme Court is an interesting, has an interesting lineup of people, including two appointed by Trump, and that’s one of the reasons I say until this goes to a court, we won’t really have a good sense of how much this is a crisis as opposed to just the two branches butting heads and competing with each other.

Marisa Wojcik:

Now, you’ve mentioned going to court a few times, and the Democrats that are calling for impeachment say that they want to centralize all of these small investigations and bring it all together into one larger argument and then Nancy Pelosi is saying “Well, why don’t we just have this battle in court?” She did win, or the Democrats did win something on Monday saying that a subpoena does have to be held up for some of Trump’s financial records. Is there any way to know if something is impeachable or for for the courts, or is the answer both? It seems like that’s where Democrats are waffling.

Howard Scheweber:

Sure, I think you really have to distinguish the two possible, the two possible broad claims. One is Obstruction of Justice having to do with the investigation into Russian influence in the 2016 election. That one doesn’t, I’ll explain in a minute, but that one doesn’t really require any core participation. If the members of Congress feel that the Mueller Report, for example, presents sufficient grounds to determine that the President has engaged in Obstruction of Justice, that’s an impeachable offense. And we know that, it was one of the impeachment counts against President Clinton, it was one of the impeachment counts against President Nixon, and one thing in all of this is very, very clear is that attempts to obstruct justice are impeachable offenses. The part where courts need to be involved before we can get a clear sense of where we are is the whole business of resisting subpoenas. So you just mentioned, for example, that a lower federal court has just ruled that the President must comply, well some of the President’s records are susceptible to a production by subpoena. That’s going to go to appeal, at a court chaired by Merrick Garland for those of us who like irony, and presumably from there it will go to the U.S. Supreme Court no matter what happens, and until the U.S. Supreme Court rules on this question, you can’t really say that the president is flouting the law. He’s going to court to resist a subpoena which is a legal process. So the whole subpoena side of things, and refusal to let people testify side of things, is in a very different posture from the Obstruction of Justice side. On the Obstruction of Justice side, there are a couple of points that need to be made, about which I think people are somewhat confused. First of all, there’s a line of argument that I’ve heard recently several times, that says, well, Mueller didn’t find that there was conspiracy with the Russians. So there isn’t an underlying crime, so there can’t be Obstruction of Justice. That’s nonsense. And I’ll give you a perfectly good example. If I’m charged with a crime and I bribe the jurors at my trial, the fact that I ultimately might have been found innocent anyway does nothing to change the fact that bribing jurors is a crime. And if bribing jurors is a crime, trying to bribe jurors is a crime. And this isn’t some sort of legal mumbo jumbo, it’s written in the statute. Any attempt to influence the outcome of an investigation. So it’s simply wrong as a legal matter. The political merits are different, but as a legal matter, it’s simply wrong for people like, for example Tom Cotton said this on television yesterday, because there was no finding of criminal conspiracy with Russian agents, therefore there cannot be a finding legally of Obstruction of Justice. Leaving that aside, as a matter of criminality, then we get into complicated questions of whether the President can be charged with and indicted for a crime, and for technical questions like that. This is where we get to the political judgment, because in a legal case, in a criminal prosecution, a jury would decide if someone is guilty, or perhaps a judge. In an impeachment case, that’s the job of the House of Representatives. That, oh, I’m sorry, I beg your pardon. It’s the job of the Senate. The job of the House of Representatives is to bring charges. The equivalent to an indictment, exactly.

Marisa Wojcik:

And the Senate is in charge of the conviction-

Howard Scheweber:

Is the trial, exactly, or acquittal. So if we want to think of an analogy, the House of Representatives is the Grand Jury, and the Senate is the Petit Jury, the jury which the trial is held. The House of Representatives’ job is to determine whether there is sufficient evidence to bring charges. It is the Senate’s job to determine whether those charges are true.

Marisa Wojcik:

Is that inherently troublesome if both of these houses of the Legislative Branch are all political figures? We are not talking about nonpartisan people, we are talking about partisan people making this determination, and so is that where some of this strategy of keeping it in the courts versus trying to hash it out in both of these houses, is that where the tension is coming from?

Howard Scheweber:

I don’t think, well, the tension is certainly political but I think it has much more to do with positioning for the 2020 election and calculations of what the effect of an impeachment proceeding would be in the public’s mind, rather than a figure about the institutions. But you raise a tremendously important question. Which is, the houses of Congress, both of them, are staffed by elected political officials. They’re partisan individuals, the nature of what they do. What’s to prevent Congress from impeaching every president when he or she is from the other party and making this just a casual tool of harassment? And that’s a great fear. In the past, the answer has always been, “Don’t be absurd, members of Congress wouldn’t do that.” It’s a norms issue, that would violate all sorts of norms. The impeachment of Bill Clinton, in many people’s minds, violated those norms. Many people, Democrats, viewed the impeachment of Bill Clinton as improper, as just a ginned-up way to get at a president the Republican’s didn’t like, rather than a serious exercise of the responsibly of Congress. Today, from a partisan perspective, the shoe is on the other foot, we now have Republicans making this claim and Democrats making the opposite claim. But at the end of the day, and this is what we mean when we say impeachment is fundamentally a political process. At the end of the day, the only thing that prevents impeachment from becoming just one more partisan tool, is the self-restraint of members of Congress and the seriousness with which they take their position.

Marisa Wojcik:

You talk about kind of respecting the process and violating norms, and it seems like in some ways President Trump is in his own way violating some of these norms by defying subpoenas, and some have called these actions as having historic implications.

Howard Scheweber:

Oh, you can go much further than that. President Trump has been, what’s the word I’m looking for, torching norms, blowing up norms, since he was a candidate and the Republicans in Congress have been blowing up norms. Mr.O’Connell with his treatment of Merrick Garland and the way they’re not treating judicial appointments. I mean, absolutely trashing norms. And it’s a matter of deep concern. In a way if there’s a meta-lesson or a deeper lesson about, that we should take from this impeachment discussion, it’s just how dysfunctional the system can become if people don’t take their responsibilities seriously, and instead just pursue partisan gain. In the case of this impeachment, we have arguably the opposite position. There’s a position that says Nancy Pelosi and other Democratic leaders have been too hesitant to pursue impeachment because it doesn’t serve their partisan interests to do so. So that would be a kind of a reverse argument that because of their political interests, they’re unwilling to do their duty. There are Republican clients, so this is not a real impeachment, it’s being purely for partisan purposes. And then there are most people in the middle, who whether they favor impeachment or not, conceive of this effort as a serious one, and therefore are having a good-faith debate over whether there are sufficient grounds.

Marisa Wojcik:

So all kind of hypothetical scenarios aside, what are Democrats hoping to get out of, right now they’re only talking about an impeachment. Inquiry, which isn’t even going towards the vote, towards impeachment, they’re just kind of dipping their toe in those waters, so is the end goal just to get more information that they were hoping to get from subpoenaing these people? Are they trying to kind of rustle up some kind of political dust and force the President to feel pressured? Is there a logical kind of end goal that people are working towards? Or, again, is it just getting wrapped up in political rhetoric?

Howard Scheweber:

I’m starting to think that this impeachment proceeding is our own little Brexit. Because you can ask all those questions, what exactly are the people negotiating trying to accomplish, and the answer is really not clear. This is, if you are someone who thinks of impeachment as warranted, and is frustrated that the Democratic leadership has been milk toast in their approach, then this resolution is absolutely beautiful. It’s a resolution to launch an inquiry into whether to conduct an investigation into whether to bring impeachment charters to refer to the Senate to be tried. It’s so many levels removed from actually proceeding on an impeachment agree, you know, that if your frustration is, “For heaven’s sake, why aren’t they moving on this?” you know, this is a “weak tea”, as the British would say. I think several things are going on. Certainly there’s an attempt to test the waters. I think people like Nancy Pelosi in particular are feeling pressure from within the Democratic party to take some action. I think she, in particular, is very concerned about the likelihood of mobilizing Trump’s base. In response, it could have a backlash effect on Republican voters, but there’s only so long she can resist the pressure from her own base, and from the party’s base. Partly, of course, it’s an internal negotiation among the Democrats in Congress. What’s sufficient to satisfy you for the next week or two? Partly it’s putting pressure on the President, although I think it’s clear to everyone that on the subpoena questions at least, any real pressure will come from the courts. Until there’s a declaration by, I have to think the U.S. Supreme Court. Until that happens, I don’t think the White House will feel any particular pressure. Because it’s only at that point there’s really a risk of being found in contempt not for them to appeal.

Marisa Wojcik:

Is it significant that Mark Pocan from Wisconsin has changed his mind on wanting to pursue an impeachment inquiry? Wisconsin heading into the 2020 elections is going to have the nation’s focus on it. Is there a political tactic from him? And does that mean anything about, kind of, Wisconsin and his politics? Or is this just Mark Pocan invoking, kind of his moral compass and as a politician he really thinks this is the best course of action. Or is it hard to speculate?

Howard Scheweber:

I think it’s a little of both, well it’s always hard to speculate about the internal psychological, you know, processes. Let me put it this way. There’s a plausible case that’s a bit of both. So one part of it, you know I would take this as a reflection of Mr. Pocan’s perception at least, that among democratic voters in Wisconsin, there’s appetite for action and frustration that there doesn’t appear to be a more strenuous effort to put pressure on this President. So that’s at least part of the calculation I’m sure. Part of it is, as I mentioned, the President’s tactics over past week or so, or two weeks of resisting all attempts to gather information, have pissed off members of Congress. And that’s both a matter of feeling personally pissed off, but also a genuine separation of powers concern. There’s something wrong when the Executive branch acts as though it is not answerable in any way to the Legislative branch. You’re hearing these peculiar theories from people at William Bar, there is no legitimate oversight rule for the Congress with respect to the Executive, which is clearly contradicted by the Constitution and more generally by the idea of checks and balances. There’s a difference between separate powers and checks and balances. Checks and balances precisely requires that each branch is answerable to the others. So there’s a growing frustration and a growing concern that the White House is taking a position that really does defy the basic structure of the Constitution. So for someone like Mark Pocan, both of those things can be working together. You may genuinely come to feel that the White House has crossed a line that it hadn’t crossed previously. And he may genuinely feel that politically, the calculations at least unclear, you know, it’s at least possible that not pursuing impeachment is as risky as pursuing impeachment, and at that point, the political calculus kind of moves aside.

Marisa Wojcik:

And in about an hour, that could totally change and-

Howard Scheweber:

The rate at which things are-

Marisa Wojcik:

And something could be very, very different this afternoon.

Howard Scheweber:

I hate to say this, it goes against everything I believe and everything I do professionally. I would ignore it, at least for now.

Marisa Wojcik:

So that whole conversation we just had-

Howard Scheweber:

Well no, because the way that you said it, some of us make a living out of talking about these things. I would ignore it for awhile, wait and see. Wait and see if an impeachment proceeding does go forward or if this is all a kabuki show. We can see if these subpoenas are carried out and if documents are produced, and if those documents reveal anything.

Marisa Wojcik:

But will voter opinion influence how our politicians are deciding to pursue one course versus another?

Howard Scheweber:

It will, and I suppose a good partisan to want whoever is on my side of things to be highly motivated and highly mobilized. The fact of the matter is, so much of this is small “p” politics, so much of this is internal caucus negotiation and maneuvering. There are very profound and important issues at stake. There are very, very profound questions, there are reasons to believe gray, squishy, unclear, but there are certainly reasons to believe that it’s possible the President has engaged in genuinely criminal activity and people around him have engaged in extensive criminal activity, and that should be a matter that’s deeply troubling to all of us. But the impeachment proceeding itself and the current, sort of, hour by hour change of scenery on CNN, if I had a choice I think that I’d give that a pause for three weeks and come back and see where it stands.

Marisa Wojcik:

Well, Howard, thank you very, very much for joining us.

Howard Scheweber:

Oh, thanks for having me, it’s a pleasure.