Why Is This Happening? Understanding the meaning of impeachment with Kate Shaw: podcast and transcript

Chris Hayes speaks with constitutional law scholar (and love of his life) Kate Shaw on the history of impeachment and what it means today.
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By Why Is This Happening?

Now might be a good time to get acquainted with impeachment. In fact, we here at #WITHpod believe everyone should listen to an hour-long conversation with a person who is not only familiar with the history of impeachment but who also has granular expertise in that area of law. Heck, how great would it be if that constitutional law scholar once clerked on the Supreme Court and has firsthand experience working in a White House!

Well luckily for us, Chris Hayes knows such a person. Because he lives with her. And is married to her. That’s right y’all, Kate Shaw is back and we have no chill about it. Listen to Professor Shaw weigh in on where we are in this moment, the history, the law, the legal theory, the practice, and much more.

KATE SHAW: The places that I thought that the testimony in the last couple of weeks was the most powerful: Fiona Hill, Bill Taylor. Places where everyone seems to agree that this scheme of trying to induce these political investigations, and using this White House meeting and military aid as leverage for doing that, were corrupt and self-interested, and placed the president's self-interest above the national interest. But there are also places where the testimony seems to suggest that they materially hurt America's national interests. And that feels like it gets very close to the core of what the impeachment procedure was designed to target.

CHRIS HAYES: Hello and welcome to “Why Is This Happening?” with me, your host, Chris Hayes. So we've got some big news for you WITHpod listeners. You've got this podcast blasting in your ear holes, you're thinking to yourself, I want to go and see the last live WITHpod of the fall tour, December 8th at the town hall in New York City, 7:00 p.m., with the great Tony Kushner and Jeremy Harris talking about spectacle and politics and drama and the drama that we all live in as our sort of national psychodrama that we're all trapped in, which is like one long Eugene O'Neill play that we can't get out of. I want to go see that, but great news. We have a special deal for you. We've got discounted tickets. You go to ticketmaster.com. Search for Chris Hayes, for the event. There are blue dots that have a lock on them and if you enter the offer code, which is “podcast,” which is what this is, ironically enough, if you enter the offer code podcast you get 30 percent off the listed price. So go to ticketmaster.com search for Chris Hayes, go to the event, find those little blue dots with the little insignia on them. They have a lock, click on them, enter podcast as the offer code and you can get 30 percent off listed price. It's going to be super awesome. I'm really looking forward to it, a great way to bring in holiday season here in New York City.

Today's guest is the most special guest, the most special guest. She's not technically our first return guest. So we've had Nicole Hannah Jones was on the podcast right when we started it and then she was one of the live WITHpod discussants when we were in Chicago. And we've also had Dale Ho, who's an ACLU lawyer, on twice just to sort of do a kind of factual follow-up because he was on to talk about a case that was moving through the court so we had him to come back to talk about it. But Kate is our first sort of normal, repeat, in-studio guest. And you could probably already know because you've read the description, that the Kate I'm talking to is the love of my life, my spouse, my life partner, the mother of my children, the dopest, the greatest, the most brilliant Kate Shaw.

Tiffany's shaking her head as a proxy for Kate, who would shake her head, were she doing the same and you'll hear her disclaim all my effusive praise of her. But I will say this, we are constantly in the situation and trying to book people to talk about impeachment. And impeachment is a thing that doesn't happen that often. There's only been two formal impeachment votes in the history of the country. Of course there was Nixon too where there was an inquiry and never got to a formal vote. So this is the fourth time that we've been sort of this far along in the process and because it hasn't happened often and there's not a lot of people with real sort of granular expertise in the various areas of law that are necessary, it’s actually I find kind of hard to book impeachment guests. Like we have a sort of small group of people that I feel like really know this stuff and Neil Katyal just wrote a book on it. And Elizabeth Holtzman has this really unique perspective because she was on the judiciary committee that, you know, brought up the articles of impeachment for Richard Nixon. And there's other folks we talk to who are all great legal minds.

But I keep having the thought that I would like to talk to Kate about it. And I'm not the only one who feels this way. She's a contributor on the network ABC. She has been on Good Morning America, and This Week, and she's been doing their live network coverage when they do the actual impeachment hearings on ABC's network coverage. So you know Kate's just got this really incredible mix of experience where she clerked on the Supreme Court for Justice John Paul Stevens. She served as a White House associate, White House counsel in the Obama administration. She was working in some ways with stuff they were doing with congress in terms of judicial nominations, that was one of the areas that she worked on.

She then became a constitutional law scholar. She has written about presidential speech, presidential intent. She's got a new article that she's just finishing up that's about impeachment, presidential impeachment, and presidential speech. Can you basically impeach a president for things he says? Are there things a president can say that rise to the level of high crimes and misdemeanors? So because she has this sort of incredible 360 degree view of the history of the law, the legal theory, the practice, the different disputes between the branches; she's just a perfect person to talk to about this. So I got her back in the studio and we basically talk about where we are right now with the impeachment inquiry, the various kind of legal questions it arises, the unsettled legal questions, the kind of fascinating constitutional practice that's embodied in these standoffs between the branches and what those mean. What it means for our constitutional structure and self-governance. We go through all of that. And she's also got a great voice among her, many, many, many, many talents.

So and I should note that if you like this conversation, Kate actually hosts a podcast. It's called “Strict Scrutiny,” which you can find wherever you get your podcasts. She hosts it along with three other women who are lawyers and legal experts and they talk about the courts, particularly the Supreme Court. Comes out every week. It's great. I listen to it because I learned a lot from it. It's sort of perfectly pitched at my level of understanding, which is sophisticated but not intimidatingly technical. So check out the “Strict Scrutiny.” And without further ado, me and my wife chopping it up.

All right, so this is big. The first actual repeat guest in the studio, the one and only Kate Shaw, who I have just done an intro about which you told me you're not going to disclaim like you did the last time.

KATE SHAW: And you told me you're going to be reasonable.

CHRIS HAYES: I would be reasonable. But the actual reality of the situation is that you're doing all this commentary for ABC, you've been doing the live hearings on network television. You've been at the table discussing it. You have this great podcast called “Strict Scrutiny,” which is about the law and the courts. And we talk a lot about this stuff. So even if we weren't married, if I didn't love you madly as I do, and you weren't the mother of my children, and life partner, in an objective sense, I've been wanting to talk to you on the pod about all this stuff. So maybe let's just start at the most basic thing, which is you have a law review article actually that you've been working on for a while about impeachment. And it has led you to do a lot of reading about the trajectory of the Constitution, its interpretation of what it means. And maybe we could just start with like how the Founders thought about impeachment. Why is it in the constitution to begin with?

KATE SHAW: Sure. At the Constitutional Convention, there is definitely an argument made that is echoed in an argument that gets made today, which is we are providing for a presidency with a four-year term, elections are the way to deal with presidential misconduct. And that's not an argument that carries the day, right. The opposing camp says there will be times when elections are simply not enough, to respond to certain kinds of presidential wrongdoing. And so we should put some mechanism into the Constitution that permits the removal of a president prior to the termination of, or the completion of the president's term.

So once they kind of agreed that impeachment should be in the constitution, there are all of these questions. First, about who should even have the power of impeachment. So there's some thought that maybe the Supreme Court should hold the power of impeachment or that a majority of state legislatures should be able to impeach the president. So it's not even clear initially that it's going to be divided between the two houses of Congress. But that's basically the structural arrangement that they get to. The House will hold the power of impeachment, and then the Senate will hold the power to try impeachments. So they kind of get to an agreement that there will be impeachment in the constitution. And that that's kind of the process. And I think they also kind of early on decide that the punishment for impeachment will go no further than removal from office and disqualification from future office holding.

CHRIS HAYES: So you're not going to get put in the stocks and spat upon and tarred and feathered?

KATE SHAW: I mean, there were executions-

CHRIS HAYES: Right.

KATE SHAW: After impeachments in England. And the Framers-

CHRIS HAYES: Yeah, that's usually the way it goes down. Like-

KATE SHAW: Yeah.

CHRIS HAYES: Like you get rid of the tyrant and the tyrant ends up in the town square with a-

KATE SHAW: It's often pretty bloody. And that I think that they thought they were kind of civilizing and domesticating this procedure, and so it is a very tame and gentle procedure compared to the kinds of impeachment that preceded it. So all of those things get decided. And then the big question is, okay so how are we going to define the kind of conduct that would warrant impeachment? So initially there's a draft that proposes impeachment for malpractice or neglective duty. So that's a really low bar.

CHRIS HAYES: Yeah.

KATE SHAW: Neglect of duty.

CHRIS HAYES: You're bad at your job.

KATE SHAW: Like you're bad at your job, you're not working very hard, you take too much vacation, you go to your properties in Florida all the time. So you can imagine, that's not... But of course they reject that. So that I think is pretty broadly understood not to set a high enough bar. And so there's a proposal that it’ll be treason, bribery or corruption. Interestingly, corruption would be in there as a standalone basis. Things might be cleaner if that had been retained -

CHRIS HAYES: Yes.

KATE SHAW: But-

CHRIS HAYES: Although corruption, again, like -

KATE SHAW: It's broad and malleable.

CHRIS HAYES: It's broad and malleable and it's all these definitional questions, which you told me this great line about, and I've used it on the podcast before and I don't even know if it's an actual Yogi Berra quote, but like if they moved the first base closer to home, there wouldn't be so many close calls at first. Like whatever the words would be, we would be having huge fights about the interpretive category that that signifies.

KATE SHAW: Absolutely. Although before they get to high crimes and misdemeanors, they have a couple of other formulations that they consider and one of them is treason, bribery and maladministration, which is sort of similar to this neglect of duty, just for being bad at your job. I think it's Madison who says, that would basically mean that the Senate can eject a president whom it dislikes or with whom it disagrees. Sort of giving the Senate a veto over who occupies the presidency. So then George Mason, who's kind of doing the drafting at this point takes out maladministration. He puts in high crimes and misdemeanors. And actually initially it's high crimes and misdemeanors against the United States, and that I think gets pulled out when it's in the committee on style. So that's not supposed to be a substantive change. So maybe that's interesting and important that against the United States is the original conception, right.

President Donald Trump at the White House on Nov. 25, 2019.Andrew Harrer / Bloomberg via Getty Images file

CHRIS HAYES: That's interesting.

KATE SHAW: That it's not these kinds of crimes and misdemeanors and we can talk about what kind of relationship they should bear to ordinary kinds of criminal offenses, but that the victim in some deep sense is supposed to be the polity, the United States, the government. As opposed to ordinary crimes have, a lot of the time, individual victims. So treason, bribery, other high crimes and misdemeanors is the final language. They don't invent this language out of whole cloth, right. It has these English antecedents and it turns out it's kind of a term of art that had been used from the 14th century on in the English context, often to eject government officials. So high crimes and misdemeanors was often the term that was used to describe the conduct for-

CHRIS HAYES: Right, like if you're getting rid of an official there's examples where that's the term of art and it means essentially abuse of power, right?

KATE SHAW: Yeah, I think that's right. Abuse of power, abuse of authority, self-dealing, corruption, offenses against the state. All of that is, I think, kind of encompassed within the phrase high crimes and misdemeanors.

CHRIS HAYES: This is a thing that I've talked about a lot on the show, you've talked about in other contexts, not on my show because you won't come on my show but... Partly-

KATE SHAW: I'm coming on your show right now.

CHRIS HAYES: Partly contractually and partly just you don't want to come on my show?

KATE SHAW: Because it would be weird.

CHRIS HAYES: Tiffany, she told me that she was like getting stalked by a CNN booker and I was like absolutely not. No, absolutely... Are you kidding me? You can't go to a... I mean it's one thing to be like, well I can't go on another network. Anyway, this is a point that we made on the show, but I think it's worth reaffirming. There are things that would be violations of the U.S. criminal code, like if we found out that Donald Trump was in a gift shop and he just stole $50 worth of stuff in his suit, which like wouldn't be the least plausible thing that's anyone's ever told me happened. I wouldn't be like, no way. I'd be like, well maybe I could see that. Violating the law, stealing $50 worth of stuff, shoplifting, that's clearly a criminal infraction. It happens to people all the time. Winona Ryder famously, all those thousands of dollars. That would not be an impeachable offense, probably. That's not a high crime and misdemeanor-

KATE SHAW: No.

CHRIS HAYES: Because even if it's a violation of law and it's criminal, it's not an abuse of office. And then the flip side is that there's things you can do as president that don't, in a technical sense, violate the criminal code of the U.S. government that would be high crimes and misdemeanors.

KATE SHAW: Right. And I think that almost everyone agrees with that basic proposition that impeachable offenses need not be criminal and that not all crimes are impeachable. So right, there's just lots of things that violate laws. Including federal laws that I don't think people believe warrant impeachment and obviously theft, traffic offenses. These are obviously local kinds of offenses typically, but even things like you know certain kinds of tax fraud are probably not grounds for impeachment.

CHRIS HAYES: I would say-

KATE SHAW: And those are serious offense.

CHRIS HAYES: Yeah. I would say in my conception of this, and this is based on nothing but me opining, which is what my whole life is-

KATE SHAW: What you do, yeah.

CHRIS HAYES: Nothing new there. Let's say that we found out that Donald Trump had committed tax fraud in 2014 and 2015. I don't think you should impeach him for that honestly. Like I think-

KATE SHAW: And depending on the kind of fraud, I think that's also true about post-presidential fraud, honestly. Like I think it would depend on the kind of fraud. Of course having not seen the tax returns, we-

CHRIS HAYES: We don't know.

KATE SHAW: We have no idea. But I think that there could be-

CHRIS HAYES: There's like a nexus with the office is the point that I'm trying to make. And even though I think our instinct is to constantly refer back to the criminal code or crimes other people do, even in this case of bribery, extortion. That to me, what's sort of singularly important here is in some ways it's crimes that no one else could do. Only the president could try to extort Ukraine to manufacturing dirt on his political opponent. I can't do that as a normal citizen.

KATE SHAW: Right. So there's this classic little treatise on impeachment from 1974 that offers a couple of examples of things that are obviously not crimes, but that most people would agree, should at least potentially warrant impeachment. And things like making a public commitment not to appoint anybody of a particular religion or a particular race to public office.

CHRIS HAYES: Right.

KATE SHAW: He has the power to do that and there's nothing criminal about it, and yet it is antithetical to core constitutional values of things like equality.

CHRIS HAYES: Yeah, “no Jews in my cabinet.”

KATE SHAW: Yeah.

CHRIS HAYES: Like, yeah you could do that in the Constitution, but you cannot be president.

KATE SHAW: Neil Katyal actually has a great example in this new book that he just published on impeachment that says if the president had his sibling murder his political opponent, brother does it totally of his own accord.

CHRIS HAYES: On his own.

KATE SHAW: And then the president just pardons him. Now the president has pardon power, so he has the constitutional authority to do that. But I think that almost everyone would agree that that would warrant impeachment. And again, so he has these powers that he enjoys by virtue of the office and the abuse of those powers, in some ways they don't violate the criminal code, because we don't write laws that only that target conduct that only the president can engage in.

CHRIS HAYES: Exactly.

KATE SHAW: So that's one of the many reasons I think that focusing too closely on the specific provisions of the criminal law is a mistake when we're asking about impeachment.

CHRIS HAYES: It's funny you say that because I feel like these thought experiments, on some level they're hypotheticals, but they're also kind of the conceptual region that we now inhabit all the time. Which is, during the hearing they were talking about Ambassador Yavonovitch, who was a career foreign service official who had been dispatched to be the Ukrainian ambassador. And everyone was saying correctly, the president can hire and fire ambassadors. The president can recall the ambassador, absolutely. But then my response was right, but if it was because she refused to sleep with him, then I mean, yes, constitutionally could. But that would be an abuse of power. Like you have to have a romantic relationship with me or I'm recalling you? We would all be like, okay I guess constitutionally he has a power to do that, but like that's not cool.

KATE SHAW: Absolutely.

CHRIS HAYES: And in some ways it's like everything that fits in this category of a thing that's unthinkable or a thing that you constitutionally have the power to do, but shouldn't. Or it violates something deep about the trust of the office, is the category that we end up having impeachment deal with.

KATE SHAW: Right. Well that's true about presidents. Right, so the impeachment language in the constitution applies to the president, vice president and all civil officers of the United States. So we have this very small set of presidential impeachments in our history and a pretty small set of impeachments overall. But the overall set is of course larger. So we've impeached a Supreme Court justice, and a cabinet secretary, and actually a senator. Although it's now very much the position that you have to expel a Senator if you want to eject a senator-

CHRIS HAYES: Wait, a senator got impeached?

KATE SHAW: Yeah. In the House, not removed in the Senate, then expelled him. But-

CHRIS HAYES: I didn't know that.

KATE SHAW: Yeah, so when the president started talking about how Adam Schiff should be impeached and everyone's like a duh, you can't impeach a member of Congress. It was one of the few moments when I was like, well he has a tiny bit of a point, which is at least the founding generation made the same mistake. They thought, well like yeah, that's how you get rid of an office. Anyway. So no, he's wrong.

CHRIS HAYES: By the way. This is an amazing little snapshot of the division of labor in our household, where like I have opinions and Kate has knowledge. But that's wild. So that actually did? There was a Senator impeached early on?

KATE SHAW: In the House. Yeah. And a cabinet secretary and a bunch of federal judges. And so I think there'd been something like 19 impeachments overall. So you know 14 or 15 of them have been federal judges. A lot of them have engaged in bribery type crimes, but they typically get charged as high crimes and misdemeanors. But back to your point about why we go so often to the criminal code. So the president can't be criminally charged, right, at least that's the sort of largely settled understanding. But judges can, and so some of these judges get charged criminally and then impeached. And so the way you described their misconduct tracks the criminal offenses because they've already been either charged, convicted, investigated for engaging in this bribery type conduct. And so it makes sense that the impeachment language would look like the criminal context language. But of course that's not the case with presidents.

CHRIS HAYES: So the set of impeachments is a small one?

KATE SHAW: Right.

CHRIS HAYES: We've had four impeachment inquiries of presidents, and we've only got two actual impeachments that have happened. The first one we did a whole podcast about it with Brenda Wineapple who wrote that great book, which you and I have both read. And there's a bunch of stuff that's interesting about Andrew Johnson. One is that they have to figure out the procedure, they're doing all of it for the first time. There's very little for them to work off of for precedent, even though there's been other impeachments, there hasn't been a president. But there's one article of impeachment that is the most interesting to me that gets the least historical attention I think, which is what you've been sort of writing about.

President Clinton receives applause from Rep. Richard Gephardt, D-Mo., Vice President Gore and first lady Hillary Rodham Clinton as he makes remarks to Democratic lawmakers after the House of Representatives voted to impeach the president on Dec. 19, 1998.Doug Mills / AP file

KATE SHAW: I really don't feel like I want to hijack this podcast as like a little advertisement for my law review article.

CHRIS HAYES: No, yeah. That's what you're here for.

KATE SHAW: So right. So I'm writing this article-

CHRIS HAYES: It's a real division in self promotion too.

KATE SHAW: Oh my God, I'm blushing so hard. So I'm writing this article about the role of speech in previous impeachment efforts. And so I started just kind of reading about impeachment history over the summer, which was obviously fortuitous because I'm now pretty steeped in at least the secondary literature and I'm not a historian, so I've read some but not all of the primary sources. But I was just curious how the congresses that have considered and then actually taken steps to impeach previous presidents, have thought about the president's speech and the role of presidential speech in those impeachment efforts. So the Andrew Johnson impeachment effort was, on its surface, largely about in the articles focused on Johnson's violation of the statute called the tenure of office act, which required him to obtain Senate consent before firing cabinet secretaries. So he, in violation of the statute, fired his war secretary, who he had inherited from Lincoln, he had been Lincoln's war secretary, Edwin Stanton. And so 10 of the 12 articles against Andrew Johnson really focus on that violation. But then two of them, and in particular the 10th article, are totally different. And the 10th article is really about Johnson's public speeches, and in particular his attacks in public on Congress.

He's accused of these intemperate harangues that are peculiarly indecent and unbecoming of the chief magistrate of the United States. That's in article 10.

CHRIS HAYES: Intemperate harangues, they impeached him for intemperate harangues, literally!

KATE SHAW: They did. Among other things. So one of the, I think, kind of deep points that Brenda Wineapple makes in this book, The Impeachers, is the conduct described in article 10 and article 11. And so 10 is about his public speech, and 11 is really kind of more broadly about his forwarding of reconstruction, right?

Kind of more broadly about his thwarting of reconstruction, right? That's a little bit more explicit than article 11, but that those are the things he was really impeached for, that the Tenure of Office Act was an excuse and it was an error and a misstep on the part of the Republican Congress to try to sort of execute this sort of narrow and sort of formalistic and legalistic impeachment rather than sort of forthrightly tell the country why they believed Johnson was unfit to remain in office, but there are glimpses of maybe the true motivations that you can find in articles 10 and 11. So, 10 is really the thing I focus on in that part of-

CHRIS HAYES: Some of the speech, just to be clear, he was, by all accounts, a drunk. He was a demagogue. He would get up in front of crowds and his staff would try to stop him from getting up in crowds because he would get worked up and say anything, including when he did this disastrous tour around the country for the midterms, which was famously called the swing around the circle. He would get up in front of crowds and they would yell at him about the massacres that had happened in the South against Union Loyalists and African Americans and they would say, you know, "Hang Jefferson Davis." He would yell back at them, "Why don't you hang Thaddeus Stevens?" Thaddeus Stevens is a sitting member of Congress and the president of the United States yelling at a mob, "Why don't you hang Thaddeus Stevens" is, I would say, even by the Donald Trump standards, probably more extreme than anything Donald Trump has said at this point.

KATE SHAW: Right. More explicit. I think that's right. It does feel like incitement in formal, legal terms. Right? Sort of the kind of encouragement of --

CHRIS HAYES: Yeah, go murder a member of Congress.

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KATE SHAW: Lawless action. So, he does this at a couple of stops on this swing around the circle. Interestingly, and I've never been able to figure this out, those sentences, like those particular statements are actually not specifically enumerated in article 10. It's the more general anti-Congress rhetoric, that he's brought Congress, this co-equal branch of government, into disrepute and the sort of unpresidential tenure of his rhetoric is very much what is being described in article 10. And so, those speeches are very much encompassed within it.

CHRIS HAYES: I want to talk about the parallels between the first presidential impeachment of Andrew Johnson and what we're seeing now with Trump right after we take this break.

There’s some fundamental, existential sense in which members of Congress and many people in the country think the guy is just fundamentally unfit for the office and then there's an attempt to kind of find the sort of correct, procedural, legalistic pretext or predicate, I guess, for impeaching him. And I think there's a little bit of that with Trump happening. Even though I think what he did with Ukraine is 100 percent impeachable, the context here is a deeper sense of the guy's unfitness. There's also the sort of question about language. There's also, though, and I think this is another place to go in the history of this is that impeachment always has been pretty partisan. This idea that we're in these polarized times and no one is persuadable, like it was quite partisan in Johnson's case and it was obviously quite partisan in Clinton's case. And the one exception to the rule is the one guy who it worked on.

KATE SHAW: It works, in a sense.

CHRIS HAYES: Right, exactly.

KATE SHAW: Right, so with Nixon-

Yeah, so Nixon is sort of hard to figure ... When we have this set, this tiny little set of presidential impeachments, but we've never removed a president. And of course, we didn't remove Nixon, although it's almost certain that he would have been removed in the Senate because he decided to leave before even being impeached by the full House. So, it distorts the overall numbers, I think, but yes, that is an example of a moment in which history seems to suggest that the country and the Congress transcended partisanship and uniformly condemned Nixon's conduct.

CHRIS HAYES: Although the fascinating counter factual, I think about, which you see people at the margins of Republican conservative thinking talk about Nixon in retrospect, which is like, "Yeah, should have stuck it out, dude. Call the bluff, man. Make them count the votes. Make them whip against you. Tell them that they're going to destroy the party and they're going to destroy their chances in the next election." And like again, to me, what the theme here with impeachment is that you're sort of at the edge of what the law is saying. You're in some zone of norms, shame, Democratic legitimacy, like all this stuff is sort of coming together. There's no clear directive, no blueprint for any of this, right? It does come down to politics and it does come down to the bunch of factors all operating in tandem.

President Richard Nixon gestures toward transcripts of White House tapes after announcing he would turn them over to House impeachment investigators and make them public in April of 1974.AP file

KATE SHAW: Yeah, and I think it's true that that has always been the case, right?

CHRIS HAYES: Right.

KATE SHAW: So, one of the things, I think, that scholars of constitutional history tend to say about the framers is they get a lot right and they get some things quite wrong. And one of the things they get wrong is failing to anticipate the rise of partisanship, the sort of importance of parties. There's this idea that if you separate power between the branches of government, they are going to sort of, by institutional role, compete for power and authority as opposed to align with their co-partisans, even across branches. And that's, I think, right when you look at founding error writing, but with impeachment, they seem actually always to have had a sense that it was going to be quite partisan and I think that's why they created this supermajority requirement in the Senate for removal because they make the choice to include impeachment and they, I think, include it for a reason. And they don't include it so that it will never be used. I think they fully anticipate that, under extreme circumstances, it will be warranted but that actual removal should be limited to conduct that is able to attract a very significant supermajority of members of the Senate.

CHRIS HAYES: I think there's a lot of things that are ... There are some serious flaws in American constitutional design. I think the arguments from political scientist Juan Linz about presidentialism and how dangerous that can be, I think we're seeing play out. So, all of that said, I do think they're right about that. It's a significant, dramatic step. I had a Republican congressman on my show a few weeks ago. He was talking about how dramatic a step it was. It's like, "Yeah, it is. It is. It is dramatic," but what you just said also sort of connects to another sort of interesting theme to me, institutionally, which is about the relative balance of power between the two branches. In the case of Johnson, you've got this very strange situation in which, because the South has not been admitted back into congress, there are these massive super majorities for the Republican party in both houses and they're overriding veto after veto after veto. It's probably the absolute apex of congressional power in the history of the country, right?

KATE SHAW: I think that's right.

CHRIS HAYES: We now live in this era in which we have had the extreme growth of the imperial presidency. Like, how do you see this in the context of balance of power between the branches?

KATE SHAW: Well, to go back to Johnson for just a second. So, yes, I think it's right, the apex of Congressional power and obviously you have the Republican party dominating both House of Congress and yet-

CHRIS HAYES: Yes, it's both. It's congressional power and partisan domination.

KATE SHAW: And partisan domination, and yet they still can't remove him.

CHRIS HAYES: That's a great point. Yeah.

KATE SHAW: But, I think there are a couple of important buts, right? So, one is, the constitutional design at that time is a little bit different. And there's this odd gap when it comes to filling a vacancy in the office of vice president, right?

CHRIS HAYES: That's a great point.

KATE SHAW: So Johnson becomes president when Lincoln is assassinated, but until the 25th amendment, there's no mechanism for filling a vacancy in the office of vice president until the next election.

CHRIS HAYES: So he doesn't have one.

KATE SHAW: So he doesn't have a vice president, so the Congress, the Senate that is considering voting to remove him is basically looking at him and looking under the succession laws of the time, the speaker of the House, a guy named Ben, I think is his first name, Wade.

CHRIS HAYES: Benjamin Wade, yeah.

KATE SHAW: Benjamin Wade, who's a pretty radical Republican, right?

CHRIS HAYES: Yes.

KATE SHAW: In the kind of Sumner, Stevens, Phillips school. And for the Republican party at the time, it's dominant, but it is varied, right? So there's a real spectrum. There's the radical wing of that party, but they're not all Thaddeus Stevens by any stretch. And so, some members of the Senate are looking to that choice and it's such a dramatic choice that they decide they're not going to totally upend the organization of power in government by installing this entirely different figure. We have a really different system today, right?

CHRIS HAYES: Yeah, that's a great point.

KATE SHAW: I think that's something that gets a little bit lost. So, in the original constitution, before the 12th amendment, the electoral college casts two ballots and the person who gets the most votes becomes the president and the second most becomes the vice president and the-

CHRIS HAYES: It's the dumbest shit ever.

KATE SHAW: Well, they get rid of it very quickly --

CHRIS HAYES: Yes, because it was so dumb.

KATE SHAW: It was a bad design choice. But-

CHRIS HAYES: You may want to debug that programming before you install that.

KATE SHAW: Right, but of course what it meant was the person who is the number two could be your political rival, could be a member of a different political party. And so, when they put impeachment in the constitution, I think they did this knowing full well that the person to whom the power of the presidency would pass, if impeachment was successfully invoked and removal occurred, was somebody who was picked totally separately, was not the president's handpicked number two the way the office functions today. And then, pre-25th amendment, in a circumstance like the Johnson case, it would have been literally as though, today, if the president were removed from office, Nancy Pelosi became the president. That's not at all the world we live in. We live in a world in which the remedy is so much less dramatic because all that happens if the Senate votes to remove is power passes to the president's handpicked second-in-command.

CHRIS HAYES: Who has been handpicked precisely for the purpose of serving out his or her term if he or she cannot serve out the term.

KATE SHAW: Exactly.

CHRIS HAYES: Yeah, that's such a good point.

KATE SHAW: So, in some ways it's a far gentler remedy today than it was under the original constitution.

CHRIS HAYES: In this case, it seems to me that there is a really interesting fight happening. So, there's obviously a partisan fight. I think there's an ideological fight. There's a political fight. I think there's a ... I'm biased here, I think, but I think there's a fight over the actual substance and rule of law and whether the president can do whatever the hell he wants, like rig the next election so he wins, but there's also an interesting article 1 branch, article 2 branch, Congress versus the White House angle here. And as someone who sort of both studies this as a scholar and also worked in the White House as a lawyer, where ... As a White House lawyer, you tend to be pretty ... like, a jealous guardian of the president's power. How do you see what's playing out right now in that context?

KATE SHAW: I think you're right that when anybody who has spent some time inside the executive branch and maybe in particular in the White House, it sort of gets into your DNA a little bit, this kind of reflexive defense of presidential power. And I think that ... I've been gone from government for a bunch of years now, but I do still believe that it's important for all kinds of reasons to have a powerful president, but that doesn't mean an unchecked president. And I think the only reason we haven't seen more unilateral presidentialism in the last three years is because there's been just such chaos and disorder in that administration and in the White House in particular, but they have gotten their act together to do enough big things. I think that Congress has, through sort of inaction and paralysis, relinquished a lot of its less formal authorities in recent decades. So, Congress passes laws. That's at the core of its article 1 powers, but it does many, many other things, right? Conducting oversight of the executive branches, one of them, but obviously it appropriates and it holds hearings. The Senate confirms nominees. It does many, many things. I think that an important narrative of the last couple of decades has been, you've obviously seen in these kind of inverse trajectories of kind of an ascent of presidential power and a decline in congressional power. I actually think that whatever the next couple of months bring with respect to this impeachment, and it does seem like, unless something very dramatic shifts, the most likely course is impeachment in the House and acquittal in the Senate, it has still been an important reassertion of congressional authority, that the House has initiated and the way it has conducted these impeachment hearings so far. I think that it has enormous symbolic consequence to impeach a president and I think Donald Trump appreciates that, right? So you saw this tweet a couple weeks ago. What was it? "I never thought my name would be associated with that ugly word, impeachment."

CHRIS HAYES: “They impeach me like a dog.”

KATE SHAW: But he doesn't want to be impeached, right? So people argue about whether this will help or hurt the president politically. I don't know the answer to that, but even if in some universe it helps him politically, he does not want to be impeached. He absolutely doesn't want to be because this is going to be an asterisk next to his name forever as the fourth president to have these serious impeachment proceedings begun and the third president in American history to have been impeached. I also think that there was this unified position of noncompliance with Congressional subpoenas and oversight requests during the early days of post 2018, right when the Democrats took control of the House. It starts to normalize this idea that you can simply ignore requests from Congress if the White House and other executive branch agencies just refuse to respond to Congressional inquiries and even Congressional subpoenas. I think just the last few weeks, all of these officials, acting on their conviction that law requires them to show up in response to a Congressional subpoena sort of hardens the lawness of Congressional subpoena. Like the-

CHRIS HAYES: Right, right, like the proof of the pudding is in the eating in that the practice, the concrete example and the practice of people showing up even when they are political appointees of the president, which is, in the case of Gordon Sondland, somewhat remarkable-

KATE SHAW: I agree.

CHRIS HAYES: That practice has a kind of legal effect where it has the kind of effect about what Congress' authority is in a sort of precedent or norm setting way.

KATE SHAW: I think that's right. So the way law develops, I think this is true actually broadly, but it is certainly true when it comes to disputes between the political branches, between the executive branch and Congress, is that it's very rarely courts that announce what the law is. There are disputes that occasionally make their way to the lower courts, even more rarely that make their way up to the courts of appeals, or very rarely to the Supreme Court, but most of the time, these disputes get resolved through accommodation and negotiation and practice. Those practices kind of harden into law, at least players in these systems believe themselves to be bound to a degree. I mean sometimes they will say, "We want a definitive judicial ruling," but it's pretty rare that that happens. And much of the time, people conduct themselves under the legal regime that is developed outside of courts. So, I do think that there's important precedent-setting function that just the last couple of weeks of witness testimony has created.

CHRIS HAYES: Well, this is what's so interesting about the showdown right now between the White House and Congress on a variety of fronts, in terms of subpoenaing of witnesses and of documents. So, like this may be a funny metaphor for me to say in this context, but the thing about marriage is ... the thing about marriage is what makes a marriage amazing and also sometimes difficult is that like there's no third branch to go to. It's just the two of you. You work it all out. You don't get to go for a ruling. And if there's conflict or there's beef, you got to just work it out. There's not like in a workplaces where it's like, maybe there's a boss or something. In some ways it's like they're in a marriage in a weird way, the presidency and the Congress. They have to kind of work it out between each other. As it's breaking down, they're running to this sort of third entity more and more because they can't work it out, partly, I think, because of how sort of implacable the obstruction has been from the White House, but now it is before the courts and there's not actually a huge body of law on this precisely for that reason.

KATE SHAW: Right, so when I said that Congress has sort of relinquished a lot of its less formal authorities, one example of that is that it used to exercise what's referred to as its inherent contempt power. So, if a witness, say, refused to show up to testify or produce documents, it would directly hold that witness or individual in contempt, impose fines, actually imprison in a cell underneath the capitol-

CHRIS HAYES: Isn't there also ... The last time was like in the 1931-

KATE SHAW: 1935.

CHRIS HAYES: In '35 and they had some dude in a hotel room. I think that's what it is.

KATE SHAW: That might be right.

CHRIS HAYES: I'm just making that up. We'll fact check it later or we'll leave it in or we'll take it out. Either way.

KATE SHAW: It is '35. I actually don't know if it's-

CHRIS HAYES: I think that's too good to check. We'll put it down as too good to check.

KATE SHAW: They don't do that anymore. I don't think anybody really thinks they should revive the practice of sending the sergeant at arms to actually seize witnesses, but-

CHRIS HAYES: Oh my God, John Bolton with a handcuff to the radiator. It's such an amazing image.

KATE SHAW: There are people who are suggesting that Congress should really do it. I don't see it happening, but when they decided that they needed to go to court to enforce their subpoenas, that that was an admission that they lacked the inherent authority themselves to do it. They needed to get this referee, but that's part of the reason I think these last few weeks that have shown that Congress can actually do a lot without recourse to the courts have been important. And yet, as you say, there are these high-stakes judicial disputes that are playing out now, so we have this ruling that this legal argument that the Trump administration has made that certain high-level White House officials enjoy absolute testimonial immunity, that they don't even need to respond to Congressional subpoenas is without any real basis in law or logic, that everything in our constitutional tradition and constitutional history and the limited Supreme Court precedent on this question makes it clear, if the president is not above the law, then his advisors can't be. And so, that's the ruling out of a district court in this Don McGahn case and then there are a couple of rulings in these formally unrelated, conceptually related cases involving the president's taxes, in which the lower courts have also said pretty categorically that these arguments, that the rules don't apply at all, that what would ordinarily require document production of a third party, that they don't apply at all because the president is involved and that's essentially the argument that the White House has been making.

CHRIS HAYES: Right. So, let's talk about it. So there's three cases. One of them doesn't have to do with Congress. It has to do with the Manhattan District Attorney who's seeking the president's taxes as part of the pursuit of an investigation. The president's actual lawyer, William Consovoy, as opposed to his like fake drifter lawyer, Rudy Giuliani, but Consovoy actually gets ... to the extent the president pays anyone, I don't know, but he actually gets paid and he actually writes legal briefs and does legal work. He's the one who made this insane argument that if you shot someone on Fifth Avenue, you couldn't investigate him. Let's sort of take that aside for a second because it doesn't quite play to this direct, institutional question about the two branches. There's Judge Ketanji Brown Jackson’s decision in the district court, which basically was over the matter of whether Don McGahn could be lawfully subpoenaed by Congress. She writes this 120-page opinion that's like absolutely ... He definitely can't be and has to show up. And I think this is an interesting and conceptual point. She says, "This idea of absolute immunity is nowhere in the constitution. It's nowhere in our legal tradition, the idea you can block people."

Now, there are privileges that obtain and basically she clears the path for him to show up and say, "I'm not answering that question and invoke executive privilege" but one of the things, I think, that it's a technical point but an important one. The White House hasn't even done that. Like, there is executive privilege and the scope of the executive privilege is the subject of a lot of debate and it's unclear who adjudicates that in the end, but they haven't gotten to that point because even before you get to that privilege, they're just saying, like "No, you can't talk to these people."

KATE SHAW: Right. It's just inconsistent with there's ... There's limited case law on it, but none of these privileges are absolute. And there's no real authority for the proposition that you don't have to show up at all to negotiate over what are and are not permissible subjects of inquiry.

CHRIS HAYES: And that's basically the ruling there. Of course, that's going to be appealed. Then there's the Mazars, which has now gone through two levels of the federal courts. It went through the district court saying, "You have to hand over the documents to the accounting firm," right? So, Trump intervenes to stop the firm from handing it over. They say you have to hand it over and then a three-judge panel on the circuit board affirms that district court opinion. That's also going to now be petitioned to the Supreme Court, which they're going to hear in a few weeks, right?

KATE SHAW: Well, they're going to consider whether to take those cases in a couple weeks.

CHRIS HAYES: Whether or not to take it, right, yeah.

KATE SHAW: Yeah, there's a good chance they'll take at least the D.C. case and maybe even the New York case as well.

CHRIS HAYES: Let's talk about the law there, because it just seems to me like ... It just seems crazy to me, in terms of the constitution, that if Congress says we need to investigate the president's finances, that the president could be like, "No, you can't."

KATE SHAW: Yeah.

CHRIS HAYES: That just seems nuts to me. As just a basic question of, I would personally like to know if like the Saudi Kingdom pays him $50 million a year in bribes.

KATE SHAW: Yeah.

CHRIS HAYES: I don't think that's the case, but I would like to definitively rule that out.

KATE SHAW: Right.

CHRIS HAYES: Same with the Turks. There's all sorts of things that I think I would like to definitely establish about the president's finances and it just seems nuts to me to set a precedent that Congress cannot get those documents.

KATE SHAW: Well, so, it's tricky because they haven't really explained what they're doing in those terms. They haven't said, "We're investigating the president because we want to know if he's taking bribes," because this whole power of oversight or inquiry, that's the power that Congress is exercising when it is doing this sort of thing. It's not explicitly in the constitution and there is no oversight. The word oversight, it's just not there. And yet, the Supreme Court, from very early on, has said the power of inquiry is an important adjunct to Congress as enumerated is an important adjunct to Congress' enumerated powers, the heart of which is lawmaking. So typically when it engages in some kind of fact finding, it explains it is doing so in order to inform its consideration of passing laws, or of overseeing agencies. It links up what it is doing often again to specific to law making. So here, it said something like, "We're thinking about passing some ethics laws that apply to the president," and so we want to know what these tax returns shows up to inform our consideration of lawmaking. So Judge Rao in the D.C. Circuit dissents from that majority opinion. She is a Trump appointee who-

CHRIS HAYES: Filled Kavanaugh's seat.

KATE SHAW: Right.

CHRIS HAYES: Like all of these judges, a Federalist Society, conservative judge who went through with McConnell's stewardship.

KATE SHAW: Yeah. And I think is now almost surely on Supreme Court shortlist in that administration. She writes this long opinion that says basically what Congress is trying to do is, they're saying they're thinking about lawmaking, but really they're trying to investigate, and that's a law enforcement function. And Congress is not a law enforcement entity. Law enforcement is an executive branch function. Part of that proposition is true. Of course, Rao and other sort of conservatives of her stripe think that you can't have any kind of independent authority inside the executive branch that would investigate the president. So it's a little bit of sort of heads, the president wins, tails you lose if --

CHRIS HAYES: Well, especially fun if she makes the argument that Cy Vance can't have them either.

KATE SHAW: Right.

CHRIS HAYES: She's like-

KATE SHAW: Well, she doesn't have that case, but she probably would. What's weird about her dissent is she says, "It's improper. They're thinking about laws. That's not really what they're trying to do here." And there's a constitutional mechanism for investigating presidential misconduct, and that is impeachment. And so, it's this weird opinion because she writes it a couple weeks ago when we were already in this phase of the impeachment inquiry, but the request stems from some months ago. And so, the kind of facts on the ground when this congressional committee made its request were very different from the facts now, which is the one reason I think the Supreme Court might not take this case, because they would be arguing in the abstract about Congress's power absent in impeachment inquiry to request these kinds of documents.

CHRIS HAYES: Right.

KATE SHAW: So, maybe they refile a request that explicitly ties the interest to the impeachment inquiry, and that changes the calculus, but that's basically the universe of arguments in that.

CHRIS HAYES: I mean, again, I'm playing sort of ignoramus blowhard here, but it just seems to me like we're considering a law to make the president disclose his taxes, which we don't have in the books, and good God, we should. It has been habit and practice. We should just do it. We should know what the president's income and accounts are. We should know who he owes money to, and who he gets payments from, or she. We're going to do that and here's our ... That's what we're doing is the fact finding for our legislative purpose to do that. It just seems like, how could that ... Again, all this stuff at a certain level, I'm really cynical about higher courts and vote counting and legal realism. And I think that ultimately, we'll see. I mean, I think it's like they think they can count to five on the Supreme Court for everything and that's why they're rushing to get up there. And that's also why they're making, frankly, pretty ludicrous arguments in a lot of these cases, and that's not coming from me. That's coming from the judge's first impression who keep getting the cases and being like ... They haven't been ruling like, "Well, you've got a point here." It's been like, "This is pretty ridiculous."

KATE SHAW: Yeah, and not just judges, but kind of like lawyers of all ideological stripes-

CHRIS HAYES: Exactly.

KATE SHAW: ... have thought that some of the arguments made by the administration, by White House counsel Pat Cipollone in some of his correspondence with Congress, in some of these briefs and in the New York case, they're just not particularly defensive illegal positions. And that's why I retain a little bit more idealism about the Supreme Court than you do. But it's hard for me to see Trump counting to five in either of these cases, but I could be eating these words.

CHRIS HAYES: Well, so that point about what the approach is here. I mean, Charlie Savage has a piece in the New York Times today that basically says, "They keep losing in the courts, but they're winning because they're delaying."

Speaker of the House Nancy Pelosi announces that the House will proceed with articles of impeachment against President Donald Trump at the Speaker's Balcony in the U.S. Capitol on Dec. 5, 2019.Chip Somodevilla / Getty Images

KATE SHAW: Right.

CHRIS HAYES: The key point is they keep getting the stays, and it's hard to explain all these mechanisms. Again, like my mastery of civil procedure is terrible.

KATE SHAW: Is excellent. No.

CHRIS HAYES: No, it's-

KATE SHAW: No, it's very good.

CHRIS HAYES: It's not. It's not good. Well, I mean, it's fine for a layman, but the point is that they keep losing, and they keep getting stays. It's just-

KATE SHAW: Well, and that's why –

CHRIS HAYES: No one's gotten the taxes yet!

KATE SHAW: ... to take this back to impeachment, that early on, I think that Schiff seems to have made the decision that he will work with the universe of information that he's able to obtain without any judicial assistance.

CHRIS HAYES: Yes.

KATE SHAW: And I'm not sure. It may be that Nadler holds a different view or maybe Nadler's on the same page about it, I'm not sure. But in addition to all these substantive calls they have to make about going broad or going narrow, to go back to our earlier conversation, they have to make this procedural call about whether it is worth trying to get some expedited judicial resolution of some subset of these legal questions in time to include some of this material potentially in articles of impeachment, or whether they just cut their losses in the courts and say it's too resource intensive to try, and too time consuming, and who knows what we get at the end of the day anyway. And maybe they are pessimistic like you about what the Supreme Court is likely to do, and so they just say, "We're going to work with what we have," and we have a lot, right? I don't know if we've said much about that, but I definitely do think that there's a lot that has already been produced in conjunction with a couple weeks of hearings.

CHRIS HAYES: There has been a tremendous amount of facts entered into evidence about Ukraine. I mean, the president knew about the whistleblower complaint when he answers the phone in a bad mood, according to the testimony of Gordon Sondland, and barks at him, like "I want nothing. I want nothing. I want no quid pro quo." I want nothing. I want nothing. Someone turned it into an emo song that we played on the show. It's very funny.

KATE SHAW: Oh, I missed it.

CHRIS HAYES: Yeah, and also a Ramones song.

KATE SHAW: Will you play me that clip later?

CHRIS HAYES: I will play you that clip later, yes. Special bespoke. Bespoke internet curation for my spouse. So, there's just a huge amount of facts. And again, I think I know the answer to this. I know I have my opinions and this is an area that ... This is less a question of law and more just following it, but he just seems dead to rights on the facts. They did what they did. It was an extortion, it was a quid pro quo. It was whatever you want to call it. And it was done at a fairly systematic level involving a whole bunch of people and they were kind of embarrassed and sketchy about it is my basic takeaway from the testimony.

KATE SHAW: Yeah, and to connect it back up to the discussion we were having at the beginning about the ways that the folks who drafted the Constitution thought and talked about the kinds of offenses that would warrant impeachment ... and I should say, I don't think that their views are fully controlling, right?

CHRIS HAYES: Absolutely, yeah.

KATE SHAW: -and answers to the question about what the Constitution means, but I think it's always interesting and helpful, and I don't think anything in the intervening couple hundred years undermines any of this. But that it was always about offenses that are in their nature, political, that is as we were talking about can only be committed by virtue of holding the Office of the President. There's also all of this conversation about undue foreign interference, the tenor of some of which feels really sketchy, actually. You don't want foreigners having anything to do with us, you know?

CHRIS HAYES: Yes.

KATE SHAW: And yet this idea that they were worried about foreign entanglements corrupting a president whose primary loyalty should be to the United States, to the national interest. And the places that I thought that the testimony in the last couple of weeks was the most powerful, Fiona Hill, Bill Taylor; places where everyone seems to agree that this scheme of trying to induce these political investigations and using this White House meeting and military aid as leverage for doing that were corrupt and self interested and placed the president's self-interest above the national interest. But there are also places where the testimony seems to suggest that they materially hurt America's national interests, and that, the idea of being willing to undermine American foreign policy interest, national security interests in furtherance of personal political objectives, feels like it gets very close to the core of what the impeachment procedure was designed to target.

CHRIS HAYES: There's also something really interesting about the testimony to me, which was ... This is like a nerdy interest of mine and it's a nerdy interest that I don't actually have much knowledge on, but that's par for the course. But basically between the Civil War and through Teddy Roosevelt, there's like a civil service revolution that happens in the United States federal government, and prior to that civil service revolution, it's wild how corrupt all of it is. Basically, the president is appointing individual postmasters which is like, the postal service is the big part of the federal bureaucracy, and the president just gives them out the way that a Chicago mayor boss would give them out to supporters --

KATE SHAW: Oh, yeah, it's pure cronyism. Absolutely.

CHRIS HAYES: And it's a great job and he would just get it to supporters and basically you come into office as the president with a huge satchel of jobs and then you take that satchel of jobs and you just give it to your loyalists, a la Boss Tweed. And that's essentially the way the entire federal government works until the middle of the latter half of the 19th century when there's a series of civil service reforms.

KATE SHAW: Yeah, I think the big Pendleton Act is in the 1890s, yeah.

CHRIS HAYES: Yeah.

KATE SHAW: Things really change.

CHRIS HAYES: And there's bunch of changes, but ultimately what you get is this distinction between politicals and civil servants, and a lot of those people that testified were civil servants, and part of what was fascinating to me was civil servants and civil service reform, all that stuff, is a little obscure and a little arid, but you're seeing the importance of it to the functioning of a modern state under the rule of law. Bureaucrats, civil servants, people that are not just essentially tribally loyal or in a monetary sense, loyal to the party bosses running the country, who are just there to serve the national interest across various administrations. That is a really important feature and it also feels like in an existential sense, that's a little bit what's on the table right now. Because the president's people are arguing like, "Screw these bureaucrats. The president sets the national interest." And if the president says that extorting dirt on his opponent is in the national interest, then it is by definition, and who the hell cares what George Kent has to say?

KATE SHAW: Right, right. And I think maybe Kent in particular was doing this thing that I think is responsive to what you just said, which is that he says, and Yovanovitch very much says this, one of the things that we do is to promote rule of law values and the apolitical enforcement of the law in particular when we're talking about criminal investigations and prosecutions, but just in general that a lot of the functions of government should be done in an apolitical fashion is a value that we are trying to instantiate throughout the world. And when we are sending from the very highest level a message that runs directly contrary to that, we have absolutely no credibility. And in some ways, they're up here performing that value of impartial-

CHRIS HAYES: Exactly.

KATE SHAW: Now, they're not prosecutors, but they're performing this value of impartial enforcement of the law or at least impartial promotion of what they understand to be the national interests of the United States. And these are the official goals, right? To support these anti-corruption measures in Ukraine. That's not their personal hobby horse, right? That is the considered and articulated and public position of the United States government. But the president didn't come in and try to officially change that position, right?

CHRIS HAYES: Right. Right.

KATE SHAW: And if he had, I actually believe these civil servants would have carried out their directives in the same way that they ... They might have disagreed. But if there had been-

CHRIS HAYES: No, they would've.

KATE SHAW: ... an official policy change, I do think that they would have carried them out. And that, I think, is what they're demonstrating. But absent that, all this looked like was this whatever domestic political errand, I think is how Fiona Hill described it, that had nothing to do with the national interests of the United States. And you know what? The president didn't want to run this through the ordinary policy channels, right? Because he understood and the people closest to him understood that it was wrong.

CHRIS HAYES: Right. And I think actually, there's actual proof that they would. If he had reoriented American policy in a official sense, like ... North Korea policy turned hugely, 180 on a dime essentially, and there's a million civil servants who had to go and work and set up that summit. Now, some of them I think probably thought, "This is pretty nuts. I don't think we've done the groundwork for this." But they went there and they did the legwork for that summit, and there were translators and they were subject matter experts and there were regional experts, all of whom put their shoulders to the wheel to make sure that the summit with Kim Jong-un happened. Same thing with Northeastern Syria and the withdrawal there. There was a lot of yelping about it, particularly by folks who are retired and some people from the Armed Services on the record, but ultimately when the president has made these decisions, even when they've run anathema to what I think a lot of people like, people dodo the president's bidding.

KATE SHAW: Yeah, that's such a good point. Yeah, they carry that out. One thing I feel we haven't talked really about is just that the scheme was about, and the misconduct is about, and this ties back a bit to the founding our history, but it's about an election, right? It is about interference in some sense with an American election, and that also seems a really important factor when you're sort of evaluating how serious the misconduct is, how it tracks the purposes of impeachment. Right? So there's this great George Mason quote, so this is when they're early on in the convention, they're discussing whether even to have impeachment for the president at all. He says something like, "Shall the man who has practiced corruption and by that means procured his appointment be suffered to escape punishment?" Right? Because if all you have is-

CHRIS HAYES: Yup.

KATE SHAW: ... election four years later, what if somebody gets in there through corrupt means, right? Impeachment is the only out, and that seems like a critical fact about this, that the purpose here was to obtain some kind of advantage in this looming presidential election.

CHRIS HAYES: And I can state just descriptively as someone who talks to members of Congress a lot that that's what got them on board. The thing that made it possible for there to be the votes for this, which there weren't for a long time, was evidence that like, "Oh, he's trying to rig the next election." If you do not do everything you can to send the message that that's not okay, he will use his powers to try to rig the next election. And the president's very powerful and he's very powerful in foreign affairs, and he has a bunch of irregular channels already established with the Saudis and with the Turks and God knows who else. And like that was the thing that got them on board. They did not want to do it. Nancy Pelosi didn't want to do it. House leadership definitely didn't want to do it, and the frontline members in those 40 seats didn't want to do it, and the thing that converted them was precisely that. It was like, "This is break glass stuff," because if you let him get away with this, then like we can't have a free and a fair election.

KATE SHAW: And what's so deeply disturbing is the president's continued insistence that this was a perfect phone call suggest to me that he thinks the conduct was okay, that he has engaged in it previously, that he will engage in it again. "It was a perfect phone call. I did nothing wrong." And that, I don't know if it's affecting the thinking of members of Congress, but from the perspective of the imperative of doing everything possible to communicate the seriousness of the violation, that seems critical.

CHRIS HAYES: I think that's probably the most important lesson all here. So I would go another hour, but I think we'll take the second hour offline.

KATE SHAW: Perfect.

CHRIS HAYES: Take it back to Brooklyn. Kate Shaw is a professor at Cardozo Law School. She is a legal analyst and commentator for ABC News. She's the co-host of the fantastic podcast, “Strict Scrutiny,” which I love and listen to not out of any sense of spousal obligation, but because I learn a ton from it, so you should definitely check that out wherever you get your podcasts. She's the love of my life, the mother of my children, my favorite human being on earth.

KATE SHAW: You have to cut out one of those. We've now done it twice.

CHRIS HAYES: We've been together since we were 19 years old and it was so great to have you back. Come back anytime. You can also come on my show.

KATE SHAW: Maybe I will one day.

CHRIS HAYES: Okay.

KATE SHAW: Thanks, babe. I'll see you tonight.

CHRIS HAYES: Once again, a great thanks to my life partner, love of my life, Kate Shaw, Katherine Shaw. Kate said something very funny afterwards, which is that we recorded this on the Wednesday before Thanksgiving. We had to actually like make some childcare arrangements so she could come to the city, and then afterwards she's like, "I just realized I have a sneaking suspicion that it was very hard to book someone to do a podcast on the last day before Thanksgiving, and that's why." Which was not true, actually. In fact, it was the opposite. We were pressing to get her as soon as possible and I booked her once and she put me off by a week. She said she couldn't fit me in her schedule. So just for the record, but again, I said, you can listen to “Strict Scrutiny,” which a great podcast about the federal courts and particularly the Supreme Court. You can get that wherever you get your podcasts.

Also, if you like that conversation, you go back and listen to the first one that Kate and I did about a year ago, which is called the “Rule of Law in the Era of Trump with Kate.” So, you can search that in the archives of WITHpod. It's sort of interesting to listen to that just to see how many of those issues endure and how far we've come and how far we haven't come in certain ways. Also, a reminder that the final WITHpod show, December 8th, 7:00 p.m., Town Hall, New York City, Tony Kushner, the young phenom playwright Jeremy Harris, who's written "Slave Play," which you should Google and look up which is really controversial and mind-blowing and wild, a wild piece of art. The two of them in conversation in front of a thousand folks. It's going to be a lot of fun and you can get tickets at ticketmaster.com. Search Chris Hayes and go click on one of the blue dots that have a lock and enter podcast as your special discount code to get 30 percent off the listed price. We would love to see you there. Email us, withpod@gmail.com. Send us tweets with the hashtag WITHpod, let us know what you're thinking about the show; guests you want to hear from, things you liked, things you didn't like, any of that. We'd love to hear it.

“Why Is This Happening?” is presented by MSNBC and NBC News, produced by the "All In" team, and features music by Eddie Cooper. You can see more of our work, including links to things we mentioned here, by going to nbcnews.com/whyisthishappening.

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