*Published on 2/8/2021

Elie Honig:

From CAFE, this is Third Degree.

I’m Elie Honig. Welcome to the premier episode of my new podcast with CAFE Studios, Third Degree. I’m really glad you’re checking this out. Some of you may know me already from my work for CAFE, where I write a weekly column and do a podcast called CAFE Brief. I’ve really enjoyed bringing those to you over the past year or so. Or you might know me from CNN, where I do legal analysis on air and in print. Now, before all of that, I was actually a lawyer. I spent 14 years as a federal and state prosecutor. Most of that time was with the Southern District of New York, the SDNY.

So, here we are. It’s another February and yet another impeachment of Donald John Trump. And, if anything, this one promises to be even wilder and more unpredictable, more did-that-just-happen than even last year, for a whole bunch of reasons which we’ll talk about. But, of course, who’s actually got the time to sit there and watch what happens all day long on the senate floor? Actually, I do. I know we all have jobs, kids, pets, and chores. Luckily for you, over the next few weeks, I’ll be ignoring all of mine and watching how this goes, and I’ll be filling you in every day on what you missed yesterday and what to look for today.

For all you younger listeners out there, I want to make sure we understand this. No, this is not actually an annual winter event like the Super Bowl or something. My daughter, who’s 13 years old, said to me this morning … We had the news on and there was something about the new impeachment. She said, “Wait, is this another one?” Yes. I know there was one just last year. But no, normally, ideally, in our world, in our system, we’d only have impeachments or near-impeachments every, I don’t know, generation or so. At least that’s how things used to work, until Donald John Trump came along. Historically, let’s take a quick look back.

The first impeachment was Andrew Johnson. In the 1860s, he was impeached, he was acquitted, just barely, over a sort of archaic dispute about the inner workings of government that we will talk about in a bit. Then we had over 100 years of no impeachments, or nothing really close to an impeachment until Richard Nixon, of course, in the 1970s, with Watergate.

Richard Nixon:

But I welcome this kind of examination, because people have got to know whether or not their president’s a crook. Well, I’m not a crook.

Elie Honig:

Now, he was never technically impeached. They drafted up Articles of Impeachment in the House, but Nixon resigned, of course, before anything could become official, so we’ll call that one a quasi-impeachment. Then it was another generation or so until Bill Clinton in the late 1990s for perjury over the Monica Lewinsky affair.

Bill Clinton:

I did not have sexual relations with that woman.

Elie Honig:

So, that’s a grand total of two actual presidential impeachments in the first 230 or so years of the United States. And then along came Donald Trump, who single handedly doubled that number in 2020 and again in 2021. In about 12 to 14 months or so, we’ve doubled our number of all-time presidential impeachments from two to four. He is a prodigious impeachee.

Now, I was thinking about this. How do we rank these five … I’m going to include Nixon here. How do we rank these five historic events, in terms of just pure impeachability, for lack of a better word? What was the least and most impeachable, based on the conduct? So we can disagree on this. I’ll give you my countdown.

Number five, least impeachable, Andrew Johnson. It’s hard to even explain or understand. It had something to do with appointing an official relating to a violation of something called the Tenure of Office Act. Bland, pretty low, pretty weak on the impeachment scale.

Number four, I’m going to go Bill Clinton. It’s so piddly, in retrospect, if you’re old enough to remember this, as I am, when you think back, that we actually impeached a president over lying about an affair. I mean, was it impeachable? I don’t know. You could argue that either way. But compared to what we’ve seen since, it seems like nothing. And by the way, you can argue that Clinton should be five and Andrew Johnson should be number four. I’m interested to hear if anyone wants to make that case. I think it’s close.

Number three and number two are also close, but I’m going to go Donald Trump’s Ukraine impeachment, the one last year is number three. I mean, this one was pretty close to the heartland of what impeachment was about. He tried to prospectively interfere with our election by reaching out to Ukraine to try to get them to dig up dirt.

Donald Trump:

My call was perfect. The president, yesterday, of Ukraine, said there was no pressure put on him whatsoever.

Elie Honig:

I’m putting Richard Nixon a bit, I guess, above, or more impeachable than Donald Trump on Ukraine. Again, I think that one is debatable. Nixon overtly committed crimes that he could well have been prosecuted for, on tape. I still think Donald Trump committed potential crimes related to Ukraine, bribery and extortion, but that’s a little bit more arguable.

But I don’t think you can really argue against the fact that this impeachment, Donald Trump part two, is number one. It is the most impeachable conduct we’ve ever seen from a president, really by far. I mean, gosh, this is what the framers had to have been most afraid of, most terrified about, that a president would try to disrupt the orderly transfer of power, would try to overthrow an election, would literally send people in to storm Congress, to storm another branch of US government. So you can quibble with some of these. That’s my top five. Let me know what you think.

So, as we sit here on the eve of Trump impeachment number two, here are the three big things that I’m going to be looking for. Number one. Will Donald Trump really end up testifying? The House Impeachment Managers sent a letter, an informal invitation to Donald Trump, saying, “Hey, we’d like you to come down and testify, back up all this stuff you’re saying.” Trump’s lawyers very quickly said, “No thank you.” Right move. No lawyer in his right mind would ever allow Donald Trump, or, really, probably any client, to get in front of the Senate and take an oath and testify.

Now, what does that leave the House Impeachment Managers with as their possible options? They can seek to subpoena Donald Trump. If the Senate did agree, if they did issue a subpoena, that would leave Donald Trump in a really tight spot where he would really have three options, and all of them bad. First of all, he could testify. That would be a disaster for him. No lawyer would ever allow him to do that. Second, he could challenge the subpoena in court. Now, look, that would delay this whole thing. That would be a mess for everybody involved. Also, I’m fairly certain he would lose in court. And then last, Donald Trump could take the Fifth. People do take the Fifth in front of Congress. I mean, if you think back through history, Oliver North famously took the Fifth. More recently, Mark McGuire, the baseball player. He didn’t quite say, “I take the Fifth.” But that was essentially what he was doing.

Number two thing I’m looking for this week. How will the House Managers, who are essentially prosecuting this case, shape and present their case to not just the Senate jury but, more importantly, really, the American public. So, back at the SDNY when I was a prosecutor, we had sort of two schools of thought on how to prosecute a case. There was the kitchen sink school, which meant throw everything you got, throw it all out there, and hope that the sheer volume sort of carries the day. And then there was the thin to win school. Now, I was definitely an adherent to the thin to win school. Just take your best stuff, put it right up front, get it in, get it done quickly, and get the heck out of there. So my advice to the House Impeachment Managers is this: spare us the winding floor speeches. We don’t need that. Sorry. It doesn’t matter how eloquent and passionate an member of Congress is from the lectern. That’s just not going to change minds. Instead, keep it focused, keep it intense, keep it visceral on just how bad it was in the Capitol on January 6th.

Donald Trump:

We fight like hell, and if you don’t fight like hell, you’re not going to have a country anymore.

Elie Honig:

And the coordinated effort by Donald Trump and others leading up to that. It’s still actually crazy to think that that just happened, that an angry mob, violent mob, stormed the Capitol Building. But get right to the heart of it. January 6th. You’ve got plenty of ammo, devastating evidence. The bloodshed, the murder, the destruction, the threat to democracy. Keep the focus squarely on that.

And finally, the third thing that I’m looking for during this trial. How many Republican Senators will show real signs of being at least persuadable, at least potentially in play here? So, let’s do the math. Of course, there’s 100 Senators. It’s 50-50, right now. You need 67 votes, 2/3 of the Senate, to convict. So, let’s assume that all 50 Democrats will be on board. That means you need 17 Republicans in order to convict.

Now, Senator Rand Paul made this motion last week that I think is being widely misunderstood and misconstrued. Rand Paul said, “Let’s have the debate about whether this is constitutional to try a former official. Let’s have that debate now.” And 45 Senators, all Republicans, said yes. And 55, the 50 Democrats plus 5 Republicans said no. Now, people are distorting this. Donald Trump’s own team, whatever’s left of his team, issued a statement saying, “In fact, 45 Senators have already voted that it is unconstitutional.” That is wrong. That’s simply wrong. And there are Senators out there, among those 45, Rob Portman, John Thune, and others, who have said, “No, we were only voting to have the debate. We are still keeping our powder dry, so to speak, when it comes to the ultimate vote.”

And obviously, the most important person here is Mitch McConnell, and he has given mixed signals. But, boy, if Mitch McConnell flips over to guilty, which is potentially in play, that will make it really interesting and really close.

So this thing is not over. Certainly more than last year, or even in the Bill Clinton impeachment, this one could result in conviction. I’m not saying it’s likely. I think it’s unlikely, but it’s absolutely in play. So this should be a really fun ride, a crazy few weeks. I’ll be here with you every day, breaking it down and really looking forward to it. I’m Elie Honig. Again, thank you for joining me on Third Degree. Talk to you tomorrow.

Third Degree is presented by CAFE Studios. Your host is Elie Honig. The executive producer is Tamara Sepper. The Senior Producer is Adam Waller. The Technical Director is David Tatasciore. The Audio and Music Producer is Nat Weiner. And the CAFE team is Matthew Billy, David Kurlander, Sam Ozer-Staton, Noa Azulai, Jake Kaplan, Geoff Eisenman, Chris Boylan, Sean Walsh, and Margot Maley.