Impeachment

HUGH HEWITT: Welcome back, America. It's Hue Hewitt. That music means it's the Hillsdale Dialogue. We're doing it early today for the very specific reason that it's always four segments, but the last two segments of the show I have Senator Lindsey Graham joining me to talk about judicial nominations, and it's the only time he was available before I go off on vacation. So, I asked Matt Spalding, the director of the Kirby Center of Hillsdale College, the lantern of the north—but it has this lighthouse of reason in the shadow of the capital—to join me. Good morning, Matt. How are you?  

MATTHEW SPALDING: Good morning, Hugh. How are you?  

HEWITT: I'm terrific. I've got a buddy, Bob Frantz, who's the Cleveland host—the morning host in Cleveland—and he is driving to Hillsdale as we speak to go to the Scholars Weekend. What is that deal?  

SPALDING: Yeah. That's good.  

HEWITT: What is the Scholars Weekend at Hillsdale?  

SPALDING: We have several weekends including—we also have one here I'm getting ready for in a few weekends, where we bring in students that are high-performing students that are thinking about going to other colleges, and we size them up, and give them some additional scholarship, and compete for them to come to Hillsdale College.  

HEWITT: Well, you know, I don't—I think it's going to be harder and harder for students to get into Hillsdale College. It's become the last safe place. Did you see a conservative got punched in the face at Berkeley yesterday?  

SPALDING: I saw that. I saw that. And they were upset because of this fake event out in Chicago. No, it's just getting worse and worse. Hillsdale is getting safer and safer. And it's getting harder, but we're getting better. And it's the best place in the world to go.  

HEWITT: Now, I am older than you, Matt. It actually happens to be my birthday. And I note with this—  

SPALDING: I heard that. Happy birthday.  

HEWITT: Dismaying that Hillsdale didn't send me a card. Larry Arnn just completely ignored me. It's really very dismaying. But, on my birthday, I'm reminded, when I was in college in the 70's, it was a pretty political time. It was after Vietnam, but it was at the beginning of the boycott movement of South Africa, which eventually succeeded.  

Now we're dealing with BDS, which is a horrible, horrific, anti-Semitic, anti-Israel, anti-American program. At Hillsdale College, is there a left? And, if so, is it treated respectfully?  

SPALDING: There is in the sense that there's a left-right, Republican-Democrat debate. It's treated respectfully. I have students right now with me that are with the Democratic club on campus. We teach them the same thing. We talk about the same things, because what we're trying to do is get to those underlying factors behind politics.  

But we have a healthy political debate. What we don't have is those kinds of intense disagreements which become impassioned, which is really a violation of the whole approach of what it means to be a university and to educate. It undermines the whole process.  

It's not that there shouldn't be a healthy left-right debate. That's good for the educational system. It's good to debate ideas, especially the most important ideas. What's troubling is that so much of this has gotten to the point where those positions are associated with intense passions. And it's become, really, an irrational conversation.  

HEWITT: You know, when Bob was talking to me about where his daughter wanted to go, and we talked about Hillsdale, I said, it is the best education left in the country. And, if my kids were younger and not older, I would steer them all there. But there was no water polo program. Would you please build a water polo program so my boys would have been there?  

SPALDING: It's on our list. It's on our list.  

HEWITT: It's on your list. We gotta get someone to give $50 million.  

SPALDING: But the problem is it's freezing. It freezes in the winter, and, you know, we got a problem.  

HEWITT: We need a $50 million donor to build an Aquatic Center at Hillsdale so that they can build the greatest swimming program in the land, because Grand Valley has got a great water polo program, but we—but, I mean—put that aside. It's the place to go. And I'm not shining you on. If you want your child to fully understand life, if you want them to actually learn how to learn and to fully enjoy life—there was a great line in T. S. White's [sic: T. H. White’s] The Once and Future King: “When you are unhappy, the only antidote is to learn something.” He's right.  

SPALDING: Well, the most important thing about learning is—you see, at Hillsdale, you realize that it's not that we teach them. They learn. It's something about them, and it's becoming a full and flourishing human being when they learn to think, because, of course, thinking itself is the highest activity of what it means to be human. And by thinking you get to know the higher and more beautiful and greater goods about truly being happy. So, you're absolutely right. So, it's a lifelong activity. And at Hillsdale we know how to get it started.  

HEWITT: Now, last question on this before we turn to Article II, Section 4, and we're back in the Constitution. We are riveted by two stories today, Jussie Smollett faked his assault and threw the city of Chicago and the national news media into a tizzy, and there was a white supremacist arrested in Annapolis who had an arsenal and a list of people—who was basically the right wing's answer to the Bernie Sanders supporter who tried to kill everyone in Congress. Both of those represent dysfunctions on the highest order. Right? The Smollett case and the nutter in Annapolis represent nutters of the highest order. Do you think a good education is a guardrail against nuttery? I do. But I'm curious what you think.  

SPALDING: Oh, no. Absolutely. And I would broaden it for the sake of our conversation here. A good education, at the base of it—but also a well-formed understanding of what it means to be a citizen, which, of course, is grounded in a good education, would shape this as well. We have always had vast disagreements and differences of opinion, but they've become so distinct and sharp now. But, behind that, we have an additional problem connecting those political opinions with bad behavior.  

I mean, this is also a character formation problem. You need to learn at what point your disagreements don't cross over into the area where you do something, in many cases, illegal or violent, as a result of that. So, the education and the formation of one's character and the moderation of one's passions is all one package. So, you're absolutely right. It's based on this deeper notion of education and just knowing yourself, moderating your own passions so you can moderate your political activities as well and point them towards the more important national good—the common good—but also your own good and how you act in life.  

HEWITT: You know, there was a study this week that was very disheartening to Guy Benson and others about how illiterate Americans have become about basic civics. And by civics we mean just how it works. The old video—the film strip—how a bill becomes law—Americans are really become ignorant. And I think back to the 1750—the 1850s, the pre-war period, when every American knew every issue about nullification, about enslavement of people, about Lincoln. We've just fallen off the ledge of learning.  

SPALDING: No. Absolutely. This is one of the reasons why, as you know, in the last couple of iterations of immigration debate, I was intimately involved with rewriting the test for immigrants coming into the country on the grounds that that would actually be a great opening to have a broader conversation about what Americans should know, because Americans, as a body, tend to actually know less than immigrants who take and pass the civics test. This is a very distinct problem, which goes directly into what we want to talk about. How can we have a civil conversation about extremely important questions—whether we should impeach the president, whether he's abused his powers—unless we actually know the structure by which we have that conversation—  

HEWITT: And let's go to that structure— 

SPALDING: —which is the Constitution?  

HEWITT: Yeah. This process that I've been in with Dr. Arnn and Dr. Spalding for the last many months is we're actually reading the Constitution. What a concept. It was intended to be read by farmers. It was written in large part by farmers—big plantation owners—but they were farmers. Some of them held slaves. But they were all literate. And they were debated in state ratification conventions. And we have in Article II—which is about the presidency—Section 4, which reads in its entirety, “The President, Vice President and all civil Officers of the United States shall be removed from office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” What does that mean, Dr. Spalding?  

SPALDING: Well—so, the first thing I would point out, Hugh, which I always like to tell my students, is where is it? Recall that the power of impeachment is talked about in Article I, right? The House has the power to impeach. The Senate has the power to convict. And here in Article II, which is about the presidency, is where they actually put the clause about what the crimes are. And that does something, and the placement there is important.  

The other thing the Founders knew was their history. And they knew the recent history, which meant English history. And, about 100 years prior to this, there was a problem in England. In English history, which they always—well, oftentimes pointed themselves towards—there was this notion the House of Commons could accuse someone of a crime, and they could impeach people in office.  

In the American Constitution we did two things: First of all, we got rid of bills of attainder. Congress can't accuse people—individuals—of crimes. But the impeachment problem they handled separately, because in England you couldn't impeach the King. The head of state could not be impeached. And, when Charles I was impeached by the broad Parliament—he was eventually beheaded—he raised this problem: You can't impeach me. I'm your king.  

The Americans wanted to make sure this was put in Article II. We can impeach our president. No one is above the law. So, its placement there, I think, is extremely important and significant, which puts this on the table. One of the reasons we—one of the ways we solve these rule of problem—questions in America, we get rid of the monarchy. We constitutionalize the executive, an energetic executive, but you can still impeach the president.  

HEWITT: And when we come back— 

SPALDING: Having said that— 

HEWITT: We're going to talk about not hanging him, not decapitating him. But it's interesting— 

SPALDING: That's exactly where I was going to go. There are only certain things you can do.  

HEWITT: Yeah. And, when we come back, we'll continue on this, because people need to understand what impeachment is about. In the Glorious Revolution of 1688, on which a lot of the American revolutionary moment was based, as well as on the Cromwellian revolution, one ended in a beheading and one ended in an exile.  

And I think the path of history, Matt Spalding, was towards exile, not towards beheading, because the Charles I’s beheading was truly a traumatic event for the English nation. And Cromwell was not a good man, even though he was a Puritan of the highest order. Would you agree with me? He was not a good man?  

SPALDING: I agree. And I think that things like this, and—having seen that history—and Americans knew that very intimately—this, again, shows you how we took all those experiences—all that knowledge—and we figure out how to do it better and more consistent with the rule of law. And that's what we have today. And that's why we need to know that, especially right now more than—almost, really—almost more than ever.  

HEWITT: Thus far, we've had four impeachments in the United States—actually three, but I think a fourth is pending. We'll talk about that with Dr. Matt Spalding, the president of the Kirby Center—the head of the Kirby Center—the lantern of reason in the shadow of the Capitol. All things Hillsdale at hillsdale.edu  

Welcome back, Americans. Hugh Hewitt and the ReliefFactor.com studio talking with Dr. Matt Spalding, director of the Kirby Center, Hillsdale's lighthouse of reason in the shadow of the Capitol. We are talking about Article II, Section 4: “The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, and other high Crimes and Misdemeanors.”  

Now, a lot of questions arise about this, because we're on the cusp of receiving the Mueller report. First of all, Matt Spalding, you live in the swamp. You know the swamp. What do all the signs tell you about the Mueller report?  

SPALDING: Well, I think it's anticipated any moment. But it sounds like there's not going to be a resolution having to do with collusion or any significant matters that were previously feared on the part of the administration. What we don't know is what will be in it. And, of course, we don't also know the additional question about how much of that will become public.  

But I think the—what I'm seeing right now is the extent to which the public discussion has been shifting—less emphasis right now on the details expected or not expected in the report itself, and more about how that could be used to set up broader debates going on in the House especially, setting up the circumstances by which this might move towards an impeachment charge, which gets into all sorts of other things that might be separate from—probably will be separate from—what's actually in the Mueller report. So, you're having other conversations, I think, building a broader case, of which they hope this will be merely a part but not the centerpiece.  

HEWITT: You see, I think it's kind of—if you've ever been to a circus, you'll see acrobats who stand and get propelled into the air. The Mueller report is going to propel some Democrats into the air. Whatever it says—  

SPALDING: Right.  

HEWITT: —it's their excuse to go forward and to begin—Elijah Cummings is like the master of this. He just mows down people with calumny and just absolute outrageous charges. And they're all going—no matter what the Mueller report says, no one's going to pack up their tent, are they?  

SPALDING: No, I think that's right. I think there will be—and I think the report will be written creatively in a way to precisely do this, to continue to give it life. Both sides will have plenty of things to point to. So, on the one hand there won't be things in there—I don't think—about collusion. There won't be additional things found that point in that direction. But they will probably find some other irregularities and things like that which will allow the left, the Democrats, to use it in their favor.  

Remember, a lot of what they're doing in terms of putting together hearings are things around the edges of the Mueller report, some of it pointing back to pre-presidential activities, which are not subject to impeachment. But they're putting together a case, I think—moving in that direction if they want to proceed. And I think they've gotten to the point where they realize the Mueller report probably will not give them something substantive to augment that, but we've got to use it to keep our narrative going.  

HEWITT: That is, in fact, what I took away. Last week, Elijah Cummings, who is the ranking member of the—he's the chairman of government operations subcommittee. He sent a very unfair letter about lawyers for President Trump, one of whom has got, like, almost tangential relation to this. And Congressman Jim Jordan and ranking members Mark Meadow yesterday blasted Cummings. And they also blasted the office of direct—Government Ethics director, Emery Rounds, for not telling—I mean, they will just slander people left and right. And they're doing so under the cover of the Mueller report no matter what the Mueller report says. It's just—it's a launching pad.  

SPALDING: No. Absolutely. Which—and to some extent, this kind of points us back to a broader question here, looking back to our clauses. Recall, this impeachment is a constitutional duty or an activity coming from the House, going to the Senate. But it's ultimately a political question, which gets us back to this nebulous question about what is a high crime and misdemeanor. Well, generally speaking, the question is how far can you push it in the House? And how far can you go to get a majority to claim that it's a violation, setting up the context for an impeachment?  

HEWITT: And my view has always been an impeachable offense is whatever a majority of the House says it is. Do you agree with me?  

SPALDING: Yeah. I completely agree. That's the famous Gerald Ford question back when he was in Congress. It's whatever you can get a majority to agree on in the House. And then the tactical details don't really get determined till you go to the Senate. And they might decide not to convict. But the House can use it very broadly. Bribery and treason, OK. But high crimes and misdemeanors can be broadly—abuse, we do not really—it has to do with time during the presidency. You can't reach back to pre-presidential activities.  

You can't indict a sitting president for a crime. But the House has a lot of room there to make broad abuse charges. And I think that, if you look at all the particulars, they're looking at now—I think they've actually moved away from the tactical constitutional questions. I don't think the emoluments clause violation—or supposed violation is really going anywhere. But I do see them moving towards a broader abuse argument. That's what Jerry Nadler—a lot of his quotes suggested that.  

HEWITT: And when we come back, we're going to go through Andrew Johnson, Richard Nixon, Bill Clinton, the three impeachments of Presidents—Donald Trump's will be the fourth—proceedings. And we'll talk—the serious ones. And we'll talk about them with Dr. Matthew Spalding, director of the Kirby Center. All things Hillsdale are available at hillsdale.edu.  

You can, in fact, sign up for the absolutely free speech digest Imprimis there. The Victor Davis Hanson and Larry Arnn series on World War II, The Second World Wars, is there, all of their online courses. But if you want to binge listen to the best in radio, go to HughforHillsdale.com. All the Hillsdale dialogues dating back to 2013 are collected there for your easy listening pleasure. Stay tuned. Dr. Spalding is coming back.  

Morning glory, America. Bonjour, Hi, Canada. Greetings to the rest of the globe listening on HughHewett.com. And everyone watching on the Universe, good morning to you. Good morning to you. It is, everyone knows, the last radio hour of the week. That means the Hillsdale Dialogue.  

We began it early because, at the bottom of the hour, Senator Lindsey Graham is joining me to talk about judicial confirmations and Syria, so we had to make some time. And Dr. Matt Spalding, the director of the Kirby Center, generously agreed to start a half hour early so we could cover the ground. Dr. Spalding, we are talking about Article II, Section 4, the impeachment clause.  

Let's go back in history for people. Let's go over the three examples from our 200-plus years of American history where this clause was invoked and the facts and circumstances thereof. It begins with the little-known successor to Abraham Lincoln, a man who ended up on the ticket in 1864, replacing, I think, Hamlin from Maine, for political reasons, Andrew Johnson. What was that all about?  

SPALDING: Right. Well, so the three we're talking about are—you have Johnson. Before that, you had Chase on the Supreme Court. And then you have Clinton coming after. I actually think these three cases, historical and way in the past, teach us something extremely significant about what's going on right now.  

In the case of Johnson, there's a question about the removal of somebody in his cabinet under the Tenure of Office Act. He wants to get rid of Edwin Stanton, this great secretary of war who had served under Lincoln. There's a debate going on about Reconstruction. And the House doesn't like his policies, but they're using a piece of legislation, the Tenure Act, to go after him. And they impeach him based on that. And he narrowly, narrowly avoids being convicted in the Senate by one vote. So that one's actually pretty close.  

HEWITT: Now, that was a purely political dispute, though. There was no malfeasance accused of Andrew Johnson. It goes to the earlier point—  

SPALDING: The—my point is going to be—I'm going in the same direction, I think, which is that at least in this case there was some claim of a legislative violation. They had something to hang their hat on. When you go back to the Chase one, which is the earlier case of impeachment, where they went after a Supreme Court justice and impeached him, that one was completely political. There was no crime. There was no accusation of malfeasance. There was no underlying legislation. There was nothing. That one was completely political. And I think that's the one that's the model for today. It had nothing to do with the at all.  

HEWITT: But let's pause for a moment on Johnson, though, because I think it helps us understand what high crimes and misdemeanors are. It's actually a political dispute. It's a dispute between the Radical Republicans in the Reconstructionist Congress and a Southern Democrat, sort of Republican who is not in line with the Radical Reconstructionist, and Lincoln probably would have been with Andrew Johnson. Do you think that, Matt Spalding?  

MATTHEW SPALDING: Oh, I think that's right. I think Andrew Johnson—I think, imperfectly, he made some mistakes—was trying to implement Lincoln's view of Reconstruction up to a point. And, like Lincoln, the hardcore Reconstructionist wanted to be much more harsh in the South. And there was a significant policy difference. And it was driven by political reasons. You're absolutely right about that.  

HEWITT: And what about Chase? Do you—this is not a president. We've had three presidential impeachments, but—and we've had, by the way, a lot of judicial impeachments, when people are actually convicted of bribery and stuff like that. But Chase was another political impeachment, was it not?  

SPALDING: And, well, that one was even more political, in my opinion, which is why I think it's an interesting question for today. So, Chase is on the Supreme Court. And he comes in. He's—I think he's appointed under the Adam—by Adams—might actually go back to Washington. So, it's at the very beginning. What's interesting, I think, about this case is there's another debate going on, a political debate that has virtually nothing to do with Chase.  

Now, Chase is very open. He says what he thinks. He's got a hot temper. He's very political. But the argument has nothing to do with the substance of his decisions. It's completely his political views.  

But think about what is going on at the same time. They've just impeached a district judge in New Hampshire. Pickering was his name. And they're going to go after Chase at exactly the same time—exactly the same time. Jefferson is to become President. James Marshall is the chief justice. And they are sitting and considering a Supreme Court case called Marbury v. Madison.  

HEWITT: Yep.  

SPALDING: And, in the midst of that, Jefferson, the president of the United States pushes the House, which has just gone Republican—meaning his Jeffersonian Republicans—to go after Pickering as a warning, and then go after Chase, to get him. And they're thinking about going after John Marshall.  

HEWITT: And they—  

SPALDING: It's a completely political move.  

HEWITT: —get pushback, though. It's like the court packing plan by Roosevelt 150 years later. There are rules and boundaries we do not transcend in ordinary times, one of which is the independence of the judiciary.  

SPALDING: Right. And, in this case, they couldn't get the votes required in the Senate to convict him. And so, that tells us that, even there, there are some limits. You can't go so far—you can't impeach someone merely because you don't like what they said, or their political opinions, or their temper, or, in modern parlance, because of what they tweeted. Right? There has to be some substance. It has to be for a high crime or misdemeanor. There is still some notion that has to be something serious here.  

But—you know, so these cases, I think, all kind of drive us and put on some parameters, if you would, including the more—the recent case of Clinton that tells us some things as well, I think.  

HEWITT: We're going to come to that. I want to point out to people that the person who presides over the impeachment proceedings is the chief justice. I have a column in the Washington Post this morning about the strategic discretion of John Roberts. Do you remember when Rehnquist rolled in with his brightly colored robe for the impeachment of Bill Clinton?  

SPALDING: Yes. His new robes to make the point of the judiciary. No, I think that's—I think it's set up that way to give it a certain judicial sense about it. But it puts the chief justice in a difficult spot. He needs to make sure it's—he's mostly focused on the procedure, and the evidence and those kinds of things is his main role, which Rehnquist writes about at great length. He actually did a little kind of equivalent of a book on this question.  

HEWITT: And it's a very odd role for the chief justice. I'm sure Roberts is hoping this does not get out of the House, because he will have to preside if it does. And I believe his strategic discretion, as I describe it, he would really hate to have the Court involved in this one way or the other.  

Let's look first at Nixon. Now, I worked for Nixon from '78 to '80, and again from '89 to '91. I'm still close with the Nixon Foundation. I know intimately well the details of the impeachment. The articles were never passed, but they were going to pass. And, had they passed, he would have—all likelihood—gotten the two-thirds vote to remove. What was that about, Matt Spalding?  

SPALDING: Well, so—hey, I'm talking to you about the Nixon tapes. This is—you're going to know a lot more about this than I do. The accusation here, as I understand it, is that there were certain activities going on within the re-election campaign. There were various activities that reached the point where the question was: How much did Nixon know about? How much did he approve of them, including a break-in? And the political pressure built up against him. But I think that was a highly political case as well, because they wanted to stop Nixon's policies.  

HEWITT: It was a political case that grew out of the Vietnam War, the abuse of power, the Plumbers, all of that, the bombing of Cambodia. But it's all about politics. It wasn't about—I want to contrast it with the Trump allegations—personal gain. No one ever accused Nixon of trying to use the office for personal gain. That was not the issue then. It wasn't the issue with Andrew Johnson. It wasn't the issue with Chase and Pickering. And so, now we come to Clinton. What was the Clinton impeachment about?  

SPALDING: So, the Clinton one—so here's where I get back to my earlier thoughts, which, I think, right now, the way the current mindset in the House is, they were thinking this was going to be something like Clinton, which is we're going to get him on some technical, legal, clear violations. The accusations against Clinton—the two that got through the House—the main articles had to do with lying to a grand jury and obstructing justice because of a false affidavit encouraging false testimony and these kinds of things.  

They were actual technical—those are violations of the law, which was used to make the argument that he had not fulfilled his oath of office. I think that's where they were going to start with the arguments against Trump. I think that those—you know, so you throw in something like the emoluments clause, a technical violation. But I think they have now since seen that those really aren't going anywhere. They've not seen evidence of obstruction of justice.  

And so, they're actually moving down this path toward a broader abuse claim, which is why I think these other examples, moving back towards the Chase argument or the model they're going to follow, which is a broad abuse argument. Think about this declaration of emergency powers. They argue that that's an abuse and it was a circumvention of congressional authority. Having said that, there is something there which makes—complicates the case, which was that there's congressional legislation upon which he is acting.  

HEWITT: When we come back, we're going to talk about whether or not President Trump has abused his powers. Because I think Matt Spalding is on to something. I didn't know we agreed on this. I think the articles of impeachment are going to include, when the Democrats get around to it, a charge that he has abused his executive power pursuant to the Emergency Powers Act. That's where we conclude in the next segment of this week's Hillsdale Dialogue. Don't go anywhere except the Hillsdale.edu, America. Stay tuned.  

Welcome back, America. Last segment of this week's Hillsdale dialogue with Dr. Matthew Spalding, director of the Kirby Center in DC—Hillsdale College—lantern of reason in the shadow of the Capitol. Dr. Spalding, I want to end—and all of the Hillsdale Dialogues are collected at HughforHillsdale.com, everything Hillsdale at Hillsdale.edu. Go sign up for Imprimis today. I want to end by giving you sort of free range over five minutes to predict what's going to happen as a consequence of what, I think, is the inevitable demand of the Democratic base that the Democratic House majority impeach the president.  

SPALDING: Well, I think that that pressure will continue to build. And I think you're absolutely right. My argument would be—my prediction would be they're going to drive towards a very broad charge, as we talked about in our history of previous impeachment cases, back towards an abuse argument. And I'm increasingly of the opinion they're going to use the declaration of a national emergency to do so on the grounds that the president used this—he did this as a way to circumvent a power of Congress, which is to appropriate moneys. He did this way to circumvent the legislative power. And that's a usurpation and, therefore, an abuse of power. And I think they're going to try to make that the centerpiece of their argument.  

And, in doing so, I think they'll actually look back to another Nixon precedent. If you recall, Nixon declared a national emergency in '71 concerning the financial reserves and put in a 10% surcharge on certain imposts. He was sued to do that, to declare that action invalid. They won at the trial court level. It goes to appeals, to what is now essentially the circuit court. They reversed that decision, saying that this is an action we the court don't question. But they brought up this issue about some future president might broadly abuse this declaration of emergency powers.  

I think they'll go strongly in that direction—drive that—because they have this slightly—they have a slight problem, which is why I think the tactical argument doesn't work as well for them—is that in '76, also in the Nixon era or after the Nixon era, they passed an Emergency Procedures Act actually delegating to the president and, by extension, the administrative state the ability to declare emergencies.  

HEWITT: And that was a statute.  

SPALDING: So, they've got to get around the fact— 

HEWITT: So, people understand, that was passed by the House, passed by the Senate, signed by the president. It is a legitimate act.  

SPALDING: It is a legitimate statute. So, they're going to get around that problem by not questioning the ability to declare the emergency, because the courts have said that that's a political question. They don't question the existence of legislation. But they're going to argue that he used it as a way to circumvent or get around a legitimate congressional power.  

He has said that he didn't have to do it. His comments have not helped him. They'll use those against him. And they will argue this is a political question, not a technical, legal question—a political question that we're going to make this broad argument. I think they're going to set that up.  

So, they will proceed down this path. Whether they proceed with it or not is always an open political question. But they want to make this re-election campaign focus on that in the same way that I think the president wants to use the declaration of emergency powers to focus on the broad policy debate. They'll use the same thing. And this will be the reverse argument. And that'll—I think at the very least, they would like to see all of that suck as much the oxygen out of the room as possible.  

So, they—so going down this path, they could make it to a big political argument that'll have election consequences. And, in order to make that point, I think there'll be a lot of pressure to actually proceed down this course.  

HEWITT: Last question, Matt Spalding.  

SPALDING: And I think it'll be an overwhelming vote.  

HEWITT: I hope they do. I hope they—we have one-minute left. I hope they do this. I think it will be a disaster for the Democrats. I think it's imprudent in the extreme. What do you think?  

SPALDING: No, I think that's right. I think it probably would end up helping him, because think about how this is framed. I'm not sure this is the right constitutional way to go down this path at all. But the politics of it will be to focus the House on a political claim. But, behind that political claim, the president will be able to make a very strong argument about what he is trying to accomplish in the name of national security, which is about securing the borders. I think, in that debate, it probably works out best for him and the House looks pretty petty and small, making a political argument rather than going after an actual legal violation or a constitutional violation of law.  

HEWITT: Matt Spalding, director—Dr. Matthew Spalding, director of the Kirby Center of Hillsdale College, thank you. Remember, everything Hillsdale is at Hillsdale.edu. All of my conversations collected at HughforHillsdale since 2013 with our Hillsdale friends at HughforHillsdale. And, coming up, Lindsey Graham, chairman of the Senate Judiciary Committee. Don't miss it.