*Published on 2/15/2021

Elie Honig:

From CAFE. This is Third Degree.

I’m Elie Honig.

Welcome back everybody. Before we get into it, first, I just want to thank everybody. We’ve had support for this podcast really beyond belief. And now that impeachment is done. Don’t worry. Good news. We are sure as heck not done. We’re going to keep this thing going. We will have much more to discuss beyond impeachment. So stay with us and thanks to everybody for the great response so far.

For one moment, just a moment, it looked like we were going to have a trial, a real live trial, and we had this stunning plot twist. One of those moments, almost from the movies or maybe West Wing, where somebody was going to take a stand. Political convenience, be damned conventional wisdom, be damned. This was the right thing to do. And we’re willing to fight for it. Until they weren’t. Here’s how it went down.

So heading into Saturday, it looked like it was all but over it looked like we’d have this quick vote, no witnesses. Then they’d have closing arguments. Then they’d go to the final vote. It would be not guilty. And then we’d all go home. But then all heck broke loose. First Jamie Gangel, colleague of mine at CNN, fantastic reporter, breaks this news confirming that, yes, Representative Kevin McCarthy spoke to Donald Trump and begged him to call off the mob on January 6th and Trump basically didn’t care. Contradicting a key part of Donald Trump’s defense. And then this is the shocker. Despite all expectations, house manager, Jamie Raskin got on the mic and announced contrary to everybody’s expectations that based on this new information, yes, we do want witnesses.

Rep. Jamie Raskin:

We’d like the opportunity to subpoena Congresswoman Herrera regarding her communications with house minority leader, Kevin McCarthy, and to subpoena her contemporaneous notes that she made regarding what President Trump told Kevin McCarthy in the middle of the insurrection.

Elie Honig:

And then the Senate voted. Yes, we will call witnesses. Though there was a little bit of confusion on the Senate floor.

Sen. Dan Sullivan:

Mr. President, there is a point of inquiry on what we’re just voting on.

Sen. Patrick Leahy:

That is, I’m advised that is not allowed during the vote.

Elie Honig:

There was confusion on the floor of the Senate. Suddenly we were looking at, could it be a real trial with witnesses, more than one for both sides, senators huddled on the floor, frantically trying to work out deals, side deals. How many witnesses? Who are we going to call? The house managers were talking about, perhaps McCarthy, perhaps Representative Jamie Herrera Butler, who McCarthy told about his conversation with the President. Maybe others in the White House. Basically they were considering anyone who could talk about what Donald Trump knew and did during those crucial hours. And the Republicans said, “well then, we want a hundred witnesses. No, make it 300 witnesses.” I’m not making that up. That’s where they came out. “We want Vice President, Kamala Harris. We want Speaker Pelosi.”” They basically said, if you go down this road, we’re just going to have a tantrum.”

While everyone’s scrambled, what are we doing? How’s this going to work? How long is this going to take?,” Weeks, months? What about recess? And a whole candor? I’m not always right about everything, but I was on set at CNN and I turned to my colleagues and I said, “they’re going to find a cop-out watch.” Well, it took about an hour before the announcement came. We have a stipulation and just like that, it was all, but over. Now, what does that mea? A stipulation. Well, stipulations happen all the time; in real trials, criminal trials, it’s basically just a document saying both parties agreed to these facts. It’s a way to save time and quickly establish facts that are agreed on that are not controversial. Usually it’s technical things like maybe what the weather was on a certain day. So you don’t have to go back and prove the weather.

Here the stipulation was, Jamie Gangel the CNN reporter, Jamie Gangel’s reporting happened. That’s it. Representative Herrera Butler said publicly that she spoke with McCarthy who told her about his conversation with Donald Trump. So Jamie’s article, I guess a printout or something, would become part of the record of the trial. And that’s it.

Okay. Nice little point for the house managers. But by settling up here, by agreeing no more witnesses in exchange for this stipulation, this piece of paper, the Democrats let Donald Trump and his attorneys off the hook. Look, I’m under no illusion. Even if the Senate went down the road of witnesses; it would have been messy, it would have been complicated, it would have been potentially long because we would have had court fights. It could have drawn out the trial for weeks or more. But as Matt Miller, a former DOJ spokesperson tweeted aptly, “the arc of Senate procedure is long, but it bends towards recess.” And yes, Donald Trump was going to get acquainted almost no matter what witnesses or no. But this deal spared him. This deal spared him from the spectacle of powerful Republican officials, maybe White House staff, testifying about how Donald Trump saw what was happening and he barely cared or worse. And the stipulation is so dry. It’s two-dimensional. It’s as flat as the paper it’s written on. But testimony is live. Testimony is human. It’s visceral. It has a voice. History remembers John Dean from the Richard Nixon hearings.

John Dean: 

We have a cancer, within, close to the Presidency, it’s growing.

Elie Honig:

But nobody will remember a stipulation. And once that deal was struck, it was just fast forward to the end. We went straight to closing arguments about three hours, right to the final vote and done. Acquittal number two for Donald Trump.

So now that the trial is over, I have three big picture takeaways. First of all, the verdict. So the verdict came out 57 senators voted guilty and 43 voted not guilty. The 57 guiltys were all 50 Democrats plus seven Republicans. So technically Donald Trump “wins” and I’m putting wins in heavy scare quotes there. Eric Trump, the President’s son tweeted out two and O, what an idiotic response. It’s like celebrating two D minus grades in school. I passed twice. Good for me. Settle down. It’s no great accomplishment getting impeached twice with bi-partisan votes to convict both times. And this time the vote was actually historic.

Now what? We focus on the verdict, of course, and it matters a lot. There’s no way I’m going to tell you the verdict doesn’t matter. But it’s not the only thing that matters. This is a constitutional exercise and this is being done for the historic record. And that record is crystal clear. Nobody, not even Mitch McConnell, meaningfully contests what Donald Trump said before and on January 6, what happened inside the Capitol or even that Donald Trump knew what was happening, and he did not act at best or was pleased at worst. That record is established. It’s now part of our history, people will be studying this in a hundred years.

Second, this idea of the Senate as a jury, sorry, we just need a new word. Because jurors is not hacking it for what these senators are at impeachment. And by the way, that word, juror or jury, that’s not in the constitution in relation to impeachment. It talks about a trial, but it doesn’t say jury. That’s just something we’ve done as a matter of course, over the years. I get it. Look, this is the Senate, we’ve said before on the show, it’s politics, bottom line. We’ve been clear-eyed about that from the start. But for the love of God, can we at least put on a show? And I don’t mean just pretend. Can we at least try a little bit? How about the Senate pay some credence to the oath? They all took that oath. They all swore to do impartial justice. Let’s not treat that like a complete joke, but they did.

They did. Not all of them, but many of them. I know senators are always going to have an express predispositions. It’s not great, but it’s unavoidable. But now we have senators openly planning, strategizing with the defense attorneys. Ted Cruz, Lindsey Graham, Mike Lee, going in to meet with the defense attorneys during the trial. David Schoen, the defense attorney said they are “very friendly guys, making sure we’re familiar with the procedure.” I’m sure that’s all that was going on back there. And even if it was, it’s still not acceptable. We have senators, not even at their desks, watching, not even watching, the trial. You might want to do that much. Now can the Senate fix this? Yeah, they can address this by the way. The easiest way is just to have better senators who care more about their duty.

Also you could vote in an extreme circumstance to exclude those who have crossed the line. They won’t, but they could. Or they could pass internal rules for the future. You know, crazy things like you can’t communicate with counsel for one of the parties, or you must be physically present to watch the trial. Crazy stuff like that.

And third, this is a question that I’ve seen is on a lot of people’s minds. Is impeachment broken? Was it ever even workable to begin with? Let me take a minute and criticize our constitution, or really more note a feature of our constitution. The constitution gives us impeachment. And then it tells us basically nothing about how it’s supposed to work. If you think about it, all that’s in the constitution is, well, high crimes and misdemeanors. The House has to impeach by a majority. The Senate has to try and then two thirds for conviction. And if so you have removal and disqualification. And if the President’s on trial, the Chief Justice presides. But the rest of it, you all have to figure that out. And as we saw here, maybe even make it up as you go along. And that’s what the constitution is.

It’s not a recipe book. It gives us the big principles, but it usually leaves things to us to figure out as we go. But this trial leaves a lot of people thinking, if this is not impeachable, if what Donald Trump did is not impeachable, what is whatever will be? Now remember, technically Trump was acquitted only on this constitutional procedural basis. This idea that you cannot try a President once he’s out of office or at least that’s what a bunch of Republicans said to justify their not guilty votes. If this or something similarly egregious were to happen again but be tried while the President was in office, would we ever get a conviction then? I suspect not. I suspect either party would probably come up with some other way out. So is there anything we can do to change impeachment, to fix impeachment? I think the reality is no.

As a practical matter, the bottom line, this is the Senate’s show and almost anything the Senate wants goes. The constitution tells us the Senate shall have the power to try all impeachments. That’s really about all you need to know. There is really no way to pass a law, regulating the way impeachment happen.

First of all, likely won’t happen. Why would the Senate give up some of its power? And it may not even be constitutional for there to be a law modifying the Senate’s power. The Senate also does set up its own rules each time. They have adapted them over the years from Clinton to Trump One to Trump Two. Are those rules effective? Perhaps. Big picture. Is impeachment effective? It doesn’t seem particularly effective at this moment in time. But I think when you take the longer view, the answer is, perhaps.

I mean, look, the bar is high. Maybe it’s higher than we even thought. But one thing impeachment is definitely good at is like I said, setting the historical record. So that’s a wrap on impeachment 2021, or at least I think, I guess it’s still only February, but no way is that a wrap on Third Degree. We are going to keep this going. And the plan is, we’re going to have shows on Monday and Wednesdays and Fridays for you. We have so many more interesting stories to cover and we’ve got a cool format wrinkle coming up soon as well that I think you’re going to like. And if you have any questions, comments, or thoughts, please send them into us at letters@cafe.com. So thank you for listening. Thanks for subscribing. We’ll talk to you soon. This is Third Degree and I’m Elie Honig.

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 Wiener. And the CAFE team is Matthew Billy, David Kurlander, Sam Ozer-Staton, Noa Azulai, Jake Kaplan, Geoff Isenman, Chris Boylan, Sean Walsh and Margot Maley.