It's only natural for Americans wrapping their heads around the idea that Donald Trump might actually get impeached to think back to Richard Nixon. This was the premise of the first season of the wildly popular podcast Slow Burn, the animating thread of so many late-night prognostications—on Twitter, at bars, at dinner with your parents—at the height of Robert Mueller's investigation of Russian interference in the 2016 election. After all, Bill Clinton's impeachment, fresh in our collective imagination though it may be, failed to remove him from office. Nixon, on the other hand, was a party to crimes eerily similar to some of the charges leveled against Trump since before his inauguration: distorting an election to protect his own power. In fact, Nixon resigned before he was even impeached, so clearly was he doomed.
Then again, for all the historical analogies and dramatic congressional testimony, the Mueller investigation didn’t even come close to removing Trump from office. What makes these latest allegations—Trump leaning on the president of Ukraine to go after Democratic rival Joe Biden and his son for possible corruption in what might have been a quid pro quo for financial aid, as described by a whistleblower—any different?
Well, for one thing, House Speaker Nancy Pelosi has formally launched an impeachment inquiry, a step Democrats never formally took amid Mueller Mania. And as Noah Feldman, a Harvard legal historian who has closely tracked the various investigations into Trump, explained over the course of two conversations this week, Pelosi’s reasoning was transparent: People can understand the idea of Trump bullying someone over the phone to go after a personal rival more easily than they can shadowy political consultants or dimwitted adult sons requesting the aid of hackers backed by Moscow.
Or as Feldman—who said we are in "uncharted ground" at this point—put it, "The report produced by the [whistleblower] does in like four pages what Mueller couldn't in 400," adding, "So instead of the Slow Burn, we just had one big download… of the case to impeach."
Below, Feldman lays out in more detail how the current situation does—and does not—compare to the last time Americans successfully forced a president from power by means other than an election. This interview has been edited for length and clarity.
VICE: What is the hunger in Congress—and in particular the House—like for impeachment, compared to 1974?
Noah Feldman: It's really different. What you had in the 70s is not what people thinks—namely, that everyone had such faith in government, then their faith was shattered. People were perfectly cynical in that period, too. The difference is that in the 70s, Democrats and Republicans believed that such scandals as there were, such dirty tricks as existed, should and could be kept under wraps—and shouldn't be performed in such a way that they could explode into the public. And the outrage about the Watergate break-in was the brazenness of it. Even many Democrats couldn't believe that Nixon, whom they didn't like and didn't trust, had been so brazen and outrageous as to run the cover-up out of the White House.
In this case, I think the Democrats—almost every Democrat in the House—think that Trump was completely capable of this, [and] no one was surprised in the least by it. And although they're outraged by it, their main takeaway is what differentiates this from his prior wrongdoing is just that it's simple. This is one the American public can understand. That's a point about the sellability of impeachment, not a point about the subjective outrage.
What about the Senate? Even if the House goes there, it's an article of faith that Republicans would block conviction and removal from office, at least if the only allegation is the whistleblower complaint. There have also been newer revelations, like that Trump reportedly leaned on Australia's leaders to help his attorney general investigate the Mueller investigation. Majority Leader Mitch McConnell has said he'd hold a trial if the House impeached, but presumably because he's confident in acquittal, right? Yes. But you know, the question is, like, how much more will come out? How many more countries will come forward? Will there be tapes? It won't take much for someone in the Australian government to leak these tapes. I mean, these phone calls are not only taped on the U.S. side, they're also taped on the other side—there are two sides to the conversation.
If there are a dozen more of these, then some country is going to leak the tapes, and maybe there'll be something more quid pro quo like, and maybe over time the Republicans find themselves in a position where they're stuck. Is that probable? No, but it's definitely a possibility. It's probably only a one in five possibility now, but I don't think it's less than one in five that there's some evidence that will come out that puts the Republicans in a very, very difficult position where they actually might have to remove.
How badly does the allegation by the whistleblower of a cover-up—burying the transcript on an internal server—further expose the president to Republicans turning on him as they did Nixon, among other things?
The allegation of a cover-up is the sketchiest part of the complaint: The whistleblower doesn't know who did it and doesn't know why they did it.
But there's no question that that opens the door to a cover-up inquiry, because if that was done with the goal of keeping the secret from Congress or—much worse—keeping the secret from potential law enforcement, that would potentially constitute an impeachable offense and even a federal crime.
Bottom line, it looks bad. And it's part of the whistleblower's brilliance to allege a cover-up.
Is the main question procedurally—in terms of what comes out—just whether subpoenas are honored? How do you expect that to play out?
I think, eventually, the subpoenas will be honored. I think the Trump administration at the highest levels will realize that a battle over subpoenas in the long run will be a defeat for them—that they can't win by doing that. To my mind, the only thing that would lead Republicans to remove would be some basically direct evidence [of] quid pro quo. I think a lot of Republicans are locking themselves in that position that if there was a quid pro quo, they would impeach, and short of a quid pro quo, they won't.
What precedent was set during Watergate for this whistleblower figure, whose identity hasn't been fully revealed, at least so far? Deep Throat, who famously provided details of the Watergate break-in to the Washington Post , is the obvious one, I guess?
Deep Throat is certainly the obvious one, although Deep Throat was slightly less specific than this. If and when the whistleblower testifies—and look, you know, I'm no prophet, to me, the odds that we don't find out the name of the whistleblower are very low—it seems very probable to me that we're going to find out the name of the whistleblower. And given that, if the whistleblower testifies, it will be like when [former White House Counsel John] Dean testified and that was really the end for the president.
The difference is, and this is actually fascinating to me: Deep Throat knew perfectly well that if you go through [official] channels, you'll be found out. Like the government won't actually be able to protect you. And he was the deputy director of the FBI. So he went to the press, who would go to the grave—or wait till you went to the grave—to hold your name back, right? This person trusted the system.
It sounds like you think that might have been a mistake.
Obviously, this person did not want to get prosecuted [and] was worried about being prosecuted, which is a rational worry. But beyond that, this guy is a CIA officer, which means he's a systems guy. He likes the system. He trusts the system, and he's going through the system. And so now the question is, like, will the system protect him the way the law requires? I'm very skeptical that the system is capable of protecting him in the end.
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