Brettschneider also argues that now that Trump has been impeached, his ability to pardon anyone involved in conduct related to the impeachable offense is restricted, even before his Senate trial. That issue has not yet been tested in our federal courts, but Brettschneider believes that the Framers would support this view and would adamantly oppose the idea that Trump, or any other president, can effectively pardon himself.
Watch my Salon Talks episode with Brettschneider here, or read a transcript of our conversation below to learn more about what may become of our 45th president in the weeks ahead — and even beyond — and why his actions, and their consequences, will be studied by constitutional law scholars for years to come.
The following interview has been lightly edited for clarity and length.
Corey, you have been very outspoken in saying the second Trump impeachment is necessary, regardless of what plays out in the Senate and regardless of the fact that he's about to leave office. Tell us why it's so important for you, as a constitutional scholar.
I was for the first impeachment. I thought that Trump had not just violated the Constitution but a fundamental idea of the rule of law when it came to using his foreign policy power in order to gain political favor and seeking to get dirt on Joe Biden by offering a carrot to the president of Ukraine — and a stick too, in withholding aid. In that instance it was clearly about removal, about protecting us from basically what had just happened — a president so opposed to the rule of law that he could threaten the whole system.
What we're doing now is different because in the immediate future, Joe Biden will take over. We're not really focused on removal. It's unlikely the Senate trial would be complete before the end of his term. [Indeed, that now appears impossible.] There's one real focus, I think, and that's the issue of what the Constitution calls disqualification — to disqualify him specifically from ever holding a federal office again.
The way that this works is the House majority will vote to impeach [as happened Wednesday] and will then send the article or articles of impeachment over to the Senate. There it's two-thirds to convict — usually to convict and remove, which won't be relevant. But it'll be two-thirds to convict followed by a majority vote to disqualify. That's really where it's crucial. What's really at stake here, Dean, is the defense of democracy itself. We don't want to allow this guy to come back from the dead, to come back to life as a political candidate. He could do enormous damage even running for office. That's why I'm focused on seeing this Senate trial happen.
In your book, "The Oath and the Office," you detail the debate at the Constitutional Convention about impeachment. If the framers could have seen what Donald Trump had done in two months of assaulting our democracy, building to that crescendo with his speech on Jan. 6, inciting this insurrection against our Capitol, how do you think they would have understood this?
I think they were really worried about a demagogue like this. Of course they didn't have a concept of fascism but they did have the idea of a demagogue, somebody who would use the worst instincts, the worst passions, of the people to benefit him or herself. That's what Trump is. One fundamental protection they gave us was exactly what you just said, impeachment and removal.
When they talked about high crimes and misdemeanors, that phrase the way the Framers meant it, is often misunderstood. It sounds like crime, something that you and I would have studied in our first year of law school in criminal law but that's not what it means. There is no category of criminal law called a high crime. Instead, what it refers to is an abuse of power. The thought was, look, you've got to call a president out who shows that he or she doesn't take the oath of office seriously. They took oaths seriously. The first seconds in office the new president has to promise to preserve, protect and defend the Constitution. The thought is, if they don't take that seriously and you don't remove them, the whole system might collapse. That's what we've seen. We failed to remove him in the last impeachment and what did he do? He really lived up to our worst fears, by threatening the collapse of the entire system with a literal insurrection.
What's your view on the article of impeachment the Democrats have released, which is titled "Incitement of Insurrection"? It's focused on the events of Jan. 6, but it does reference the phone call a few days before that to Georgia Secretary of State Brad Raffensperger, when Trump said "Can you find me votes?" He appeared to threaten, at least implicitly, criminal prosecution if Raffensperger didn't do his bidding. Did you want to see more articles or is this fine?
I was very happy with the way this one article was drafted. I'll say something about a second article that I would still like to see or statements to the effect of a second article. I'll say why I think it's so expertly drafted, precisely as you say: It talks about the criminality in both the phone call and also in the incitement itself. The Constitution does offer protection of free speech but it doesn't include the incitement to violence, the willing or knowing incitement to violence or speech directed at inciting violence. That's what Trump did. If you look at that article, it's very carefully crafted.
Congressman [James] Clyburn has said that he thinks there's a second reason for impeachment, obviously aside from disqualification, and to my mind it's worth a second article of impeachment. That is to stop the illicit use of the pardon power by Trump on people involved in this incitement, like Donald Trump Jr., like Rudy Giuliani, possibly including himself. What that article would say, I think, is that the pardon power is revoked. There's a serious debate going on among scholars about whether or not the phrase "except in cases of impeachment" when it comes to the pardon power allows Congress to revoke the pardon power of the president related to this case of incitement. I think Congress, as Clyburn said, should clarify that, yes, they do think he should lose this pardon power as a way to protect himself.
The pardon power is extremely broad for a president, but it does have that one thing about "except in the case of impeachment." Can you explain what that really means?
What I call the traditional view is that it only meant a very minor thing, which is that a president can't stop an impeachment proceeding from happening or couldn't undo a penalty like disqualification. I call that the traditional view. I think many people in the legal establishment have thought that that's true. We think there's evidence [from the Constitutional Convention] that it really was about the ability to strip the power of the president to pardon not only himself but also co-conspirators involved in cases related to an impeachment.
If we're talking about the impeachment powers, about Congress' ability to defend the nation from a criminal president, they've got to be able to stop his use of the pardon to basically undermine what they're doing. It's a kind of structural argument about self-protection, a value-based argument that the pardon power is supposed to be for the public benefit or a "benign power prerogative," as Alexander Hamilton called it, not for basically getting away with crimes. It's a common sense argument of values. When we look at the history, we see nothing in the history that precludes it. When you look at the day that exception was put into the Constitution, it's unclear what was going on in the minds of the framers.
Is there a Supreme Court decision that decides this one way or another when it comes to that understanding of how the pardon powers are limited in the case of impeachment?
That's part of why it's a black box. There's definitely no final holding on this. There was a 19th-century case that mentions the traditional view in what lawyers call a "dicta," sort of an aside, but no, there's been no definitive Supreme Court case. One of the crazy things about the Trump administration is these are things that you and I in law school would have had a professor ask us about: "What if the president tried to use the pardon power to pardon a co-conspirator?" Now we're seeing this play out in real time. The Supreme Court will have to answer these questions.
America could sit for the bar exam after what Trump has put us through. We've learned about the emoluments clause. Who knew about that? Questions about self-pardoning. We all learned a little Latin.
It's a terrible, tragic moment. This president is very dangerous. I would never underplay the threat and the seriousness of the moment, but one good thing that could come out of it is exactly that. I'm seeing on Twitter, Americans asking, "What does it mean, 'except in cases of impeachment?'" Pundits would say, "Oh, it means the traditional view." I would say, no, these people have insight, they have common sense, they're reading it in the right way. That's not just true for that, it's also true for the emoluments clause. Why are courts not stopping Trump from using the office? It's a really important clause with a terrible brand name. It's about not using the office for profit. It's the not for profit clause. I think it's great that Americans are engaged in that way.
When we bring up the word "pardon," what can't be lost in the conversation right now is that in the recent past Trump has talked about his ability to self-pardon. I've got to get your reaction to the possibility of the president, in the last few days of his term, pardoning himself.
This is another argument on both sides. There are people who say that basically the president's power in regard to the pardon is absolute. It's a prerogative power. It's absolute, and if it's really absolute then he can do it. That's one side. I don't agree with that. I think that during the Nixon administration, even Nixon's lawyers, Nixon's Office of Legal Counsel said that the president can't pardon himself. The argument they gave is that you can't be a judge in your own case. That's what would be involved here.
Common sense says no way. But there are people who have this absolutist idea of the presidency. To my mind, it goes to the deeper issue, which is that we need reform. This presidency is a loaded gun, and we've seen that crazies can get ahold of it. We've got to be able, as a nation, to protect ourselves from a crazy in power.
Let's take it to the practical world. If Donald Trump wants to make sure he's not going to spend his twilight years in a federal penitentiary, the only way to be sure is not a self-pardon, correct? He's got to get it from somebody else.
Yeah.
If he self-pardons, he's going to leave wondering if it's effective. Doesn't he have to get Mike Pence as president, either by using the 25th Amendment or by resigning hours before noon on Jan. 20? Look, he doesn't want to go to jail for the rest of his life. The only way he can know that he's safe from federal prosecution is to get Pence to do it.
That would be a good strategy. Thankfully, Pence doesn't seem to be in the mood, given that he was in the Senate chamber when it was attacked by Trump's insurrectionists, who were yelling they wanted to kill him. You know, certainly Gerald Ford's pardon of Nixon was never successfully challenged. In fact, it was never challenged at all in court. So yes, if he was strategizing the best way to go he should have been nicer to Mike Pence.
But here's the wrinkle: In New York he's facing investigations by the Manhattan district attorney and by Letitia James, the state attorney general, and there's no way to pardon that. The governor of New York is not giving him a pardon and a federal pardon won't matter there. It might protect him from criminal charges in the District of Columbia. I've seen commentators say that because D.C. is federal, the pardon might cover that too. That's very worrying because in my mind he's got to be prosecuted for these crimes.
This goes back to another Nixon-era memo that says sitting presidents can't be indicted for crimes. I think that's ridiculous. Those memos were never tried in court. They betray common sense. Of course he should be indicted right now. In fact, I would like to see D.C. prosecutors challenge that policy by acting against a madman who tried to bring about an insurrection and incite a riot.
Do you think there's criminality in what you saw from Donald Trump during the speech on Jan. 6? To me, there was something that got lost a little in the media. The reason he had that rally on Jan. 6 is because the Electoral Count Act mandates that as the day for Congress to meet and count the electoral votes. He had it timed so they could finish that rally and go to the Capitol. It's not like he just held a normal weekend rally and people stuck around. He picked that day. In my mind, that was his backstop. If Pence wouldn't stop the certification of Biden's win, he hoped his people would prevent it. Do you think that adds to the potential argument of criminality?
Oh, absolutely. On the high crimes and misdemeanors front it certainly is fundamental. This isn't just an incitement to violence. That would be bad enough, and he did that, of course, when he was running for president during the rallies, very similar incitements on a smaller scale. But he was trying to undermine democracy to stop the count. That's what these people thought they were doing. He knew that's what they thought they were doing. He encouraged it rather than stopped it.
What's a more serious crime? We could talk about the technicalities but it seems to me to certainly be insurrection or treason — an attempt to undermine the most basic fundamental thing that makes us a democracy, a peaceful transition of power. So absolutely it matters. I'd love to see much more attention to this.
Let's talk about the 14th Amendment. Some Democrats are talking about it in the context of disqualifying Trump from ever holding office again, and maybe even expelling some members of Congress, not allowing them to run for reelection. Reuters actually wrote an article saying that for Trump to be barred from running for office you only need a majority vote. That doesn't seem like a correct reading of the Constitution to me. If they want to disqualify Donald Trump from running again, do they need a majority vote in the Senate or they need first the two-thirds vote to convict?
I think the most certain path, which is backed in precedent — there have been two incidents where this disqualification was used in the case of judges. The first story is incredible, the parallels. It's a Tennessee judge who incited insurrection in the context of the Civil War and the Confederacy. Congress said, hey, you can't have people in federal office who are inciting insurrection. The way they did it was through a majority in Congress. Two-thirds did convict him in the Senate to remove him, followed by a majority vote. That's been the sequence in the past.
Now, I have seen law professors say — and I think this is what the Reuters story was picking up on — that if you read the text of the Constitution, it doesn't specify the order. So although we've done it that way, maybe if there weren't the votes [for conviction] the Senate could try severing that. I don't really have a view on that. I think it's very interesting, because when you look at the constitutional text, we've never been in this position. We're not voting on removal, that definitely requires two-thirds. We're voting on disqualification. Can you sever the votes — in other words, have disqualification without conviction, without the two-thirds vote? I'm just not sure about that. I'm not sure that courts would uphold it.
Maybe they would, since they tend to defer in matters of impeachment. There's a case called Nixon v. United States that really emphasizes that the House has the sole power to impeach and that the Senate has the independent and sole power to try the case. Because of the deference in that case, maybe the courts would defer on that matter.
I wonder if they would ask the parliamentarian of the Senate for a ruling in advance, or will make their own ruling when Democrats control the chamber and Kamala Harris is vice president. Let's say they make their own rule saying they're going to formalize this: We only need a majority vote. Does it go to the courts? If the Constitution says it's within the purview of the Senate exclusively, we're not getting involved, then we have a new rule.
I would add to that, Dean, you only need a majority to change those rules. So it's possible they could try that. The parliamentarian might weigh in and [as Senate majority leader] Chuck Schumer might say, this is a unique circumstance, this is a threat to democracy, we're doing it.
Certain members of Congress are citing a provision in the 14th Amendment that says any president or representative involved in insurrection or rebellion, or giving aid or comfort, will not be allowed to hold office. Do you think there's a good faith basis to make an argument under there? Would tat be a majority vote scenario?
Going back to my example of the judge in Tennessee who was disqualified for insurrection, they used the impeachment process rather than the 14th Amendment, to be sure. I would say if you really want to get rid of Donald Trump's ability to run again, go through the process that's got the precedent that we know and that would be a majority in the House and two-thirds in the Senate to convict, followed by the majority to disqualify.
But if they don't have the votes, I think the thought could be, look, the country is desperate to make sure this guy doesn't run again. Who knows? We've got this provision there. Maybe it's a hail Mary. Maybe courts would overturn it if he tried to run, but let's try it and let's argue it out. Certainly it is there, as you say, in the text. I do think that this president threatened democracy. I don't think it was some minor act of violence. It's not out of the question.
In your view, what reforms are needed by Congress to rein in a future Trump like president?
Look, it's so deep. I've written this book "The Oath and the Office," and the idea is not just that the president takes an oath to preserve and protect and defend the Constitution, but courts are very rarely going to be there to make sure that a president complies. They're not going to force the president to say the right things.
I would have hoped they would have struck down that Muslim ban, which was definitely based in hatred and animus, and the court in a crucial moment failed to act. That was one of the worst moments of the last four years. I was deeply involved in that case. I drafted an amicus brief with colleagues. We were cited by the dissent, but not by the majority. It was about as textbook a case of animus as you can get.
Given that, it's up to us. It's up to "we, the people" to demand that a president be held to account. But we can't do that if we don't know the Constitution. I think that's the failure here. We've got to do something to educate America about why somebody like Donald Trump has no business running for office, holding office or being listened to in the public sphere.
