Impeachment Trial

HUGH HEWITT: Welcome back, America. You know that music. That’s the Hillsdale Dialogue music—all things Hillsdale in the Friday of each week, often with Dr. Larry Arnn, president of Hillsdale College, but he is abroad and about this week. Therefore, we have Dean Matt Spalding, and it’s absolutely serendipitous.

Dean Spalding is a constitutional scholar. He is dean of the graduate program of Hillsdale College in Washington, DC. And he knows impeachment like nobody else knows impeachment. So while we have Senator Cruz and Senator Cornyn next hour, for the next three segments, we’ve got Dean Spalding.

Matt, good morning to you. Good Friday to you. You’ve got, I’m sure, a lot of Hillsdale students at the March for Life, but you must be having to watch the impeachment trial, correct?

MATT SPALDING: I am, off and on, in the midst of all that, and enjoying it thoroughly. It’s almost, sometimes, a comedy show, but it’s amazing to watch this play out. And I think we’re seeing a lot of arguments revealed. And got a better sense of what is going on.

I think there’s a serious debate we’re watching before us. We’re getting confused in the weeds sometimes about witnesses, and this kind of thing. But we’re actually seeing before us a debate about the nature of constitutional government, and whether we’re going to be ruled by men or by law. And it’s fascinating to watch, and I hope we’re getting the right lessons out of it, because it actually is an amazing thing, despite the fact that I think most senators are getting bored to death by it and are ready to move on, as are most American people.

HEWITT: Start from the beginning, Dean Spalding, because I think you’re uniquely positioned, both in the shadow of the Capitol and given your years of studying the Constitution with the articles themselves. I’ve argued in The Washington Post this is a very dangerous precedent for the presidency if it proceeds beyond. What do you make of it?

SPALDING: I think it is actually very dangerous. And I think it goes back to this—which we saw in the first day of the presentation of the argument. I consider the second accusation—having to do with the obstruction of Congress—I think that’s just patently absurd. The president was asserting his constitutional rights—potentially executive privilege. That’s not an obstruction of Congress. The courts will—no, that one doesn’t go anywhere.

It’s this abuse-of-power argument, which is what they laid out in their first day here. And, there, we see a very novel theory, which I think—therein lies the kernel of what is dangerous here. On the one hand—a quick technical point, which is, I’ve been rereading my Hamilton and The Federalist Papers, which is the best place to see this, Federalist 65—

HEWITT: 65, right? Yeah.

SPALDING: —66. That’s the best place to get the argument. Hamilton makes it clear. There doesn’t need to be a underlying crime on the one hand. On the other hand, it’s got to be more than a mere crime, if you will. It is a political question, but it’s ultimately a constitutional question. It’s got to be about treason, bribery, high crimes, and misdemeanors. It’s got to be a serious encroachment, a serious subversion of the Constitution.

So I think Hamilton makes that argument very powerfully. But the problem with the accusation here is that abuse, as it’s being advocated against the president, is about a permissible action. It’s absolutely clear. The Supreme Court upheld it in ‘36 with FDR. Presidents can withhold things like money in foreign policy. It’s a permissible action that he took.

And so they have to then go to their second argument. Well, he didn’t actually withhold it. It was an attempt. So it becomes a debate about motivation. And once you get into motivation, it gets very blurry. Was it a political benefit? I think that doesn’t go anywhere. I mean, Lincoln in 1864 had Sherman send soldiers home to Indiana to vote in the election. Was that a political motivation or was he trying to win the war?

HEWITT: Interesting.

SPALDING: This becomes absurd. So you go back to that. Was it a legitimate public purpose? That’s what it really comes down to. And you, among others, have pointed out footnote 565. There was a predicate. There was a predicate. Which means the motivation argument doesn’t go anywhere.

So what are you left with? Why is this dangerous? Because now they’ve set the precedent that, when a president, through an exercise of authority, which is not illegal and is within their power, but it’s offensive to the opposing political party, that political party can impeach. That undermines the separation of powers and, I will argue, threatens constitutional government, and becomes—this is now where we get to this question about overthrowing elections. That’s very dangerous.

HEWITT: And we have a minute to the break—that which gets rewarded gets repeated. So if they call witnesses, there is a path laid down for future majorities in the House that are opposite the party of those of the president to do the same thing regardless of the merits, unless this is expeditiously dismissed. Thirty-five seconds to you, Matt. Do you agree?

SPALDING: No, I agree completely. I think this has got to be stopped, not just for the sake of this particular case, which I think is an extremely weak case. It’s the fastest one to the Senate. There are a million reasons why it was done improperly. But, in general, this needs to be stopped, because, otherwise, you set a precedent so that impeachment becomes a vote of no confidence, like a parliamentary system. And a vote of no confidence—it will be used over and over again by political opponents of the president, and that undermines the very rule of law.

HEWITT: Dean Matt Spalding will be back with me after the break. I would encourage everyone to go to HughHewitt.com and read my interview from yesterday with Jonah Goldberg, who vigorously disputes what Matt and I believe, but at least you’ll have both sides in a coherent form. More with Dean Spalding when we return to The Hugh Hewitt Show.

Morning glory, America, and bonjour, hi, everyone in Canada. I’m Hugh Hewitt. It’s the last radio hour of the week, and although we began last hour and we’re truncating this week to two segments, this hour. Dean Matt Spalding of the Hillsdale Washington, DC graduate school joins me this morning.

And there’s no better guest. He knows The Federalist Papers by heart. He can recite them the way that Boris Johnson can recite The Iliad in its ancient Greek. We’re very glad that the Federalists are not in ancient Greek.

Matt Spalding, when we went to break, we were talking about the predicate for what the president’s conversation with President Zelensky was. And you referred to what I call now famous footnote 565. Yesterday, I sat down with a couple dozen chiefs of staff, and it’s off the record what they told me, et cetera, on the Hill. And I said, just read this footnote. It’s got The New York Times, The Financial Times, and, most importantly, a Ken Vogel-David Stern article from Politico that point to contemporaneous accounts—even the Politico piece, before the president took office—of Ukrainian meddling.

Now, I point out Russian meddling in our election is similar to—they were the Houston Astros of cheating. But, even though the Ukrainian cheating was like the A-ball Mahoning Scrappers, nevertheless, it occurred. It was a predicate. And, therefore, the presidency’s full powers are available to him to talk with Zelensky. What does that mean for what is going on this week?

SPALDING: I think it means a lot, if not everything. Again, remember before, this has come down to a question of motivation. We’re already on amazingly thin ice here. There’s no actual criminal offense that’s in the charges, and I don’t think there really is one. There were lots of evidences out there. Nothing really points to that.

And so they’ve moved to this motivation argument, which, in a trial, or just in general, is extremely difficult to establish motivation. And so the having of a predicate, something out there that can be pointed to at the time, contemporaneously, which he was reading and picking up on—you might disagree. You might think there’s not as much there, or not enough there. But it is there. It is a predicate, which means there is a legitimate argument to establish motivation in a different direction.

And, with the lack of evidence, one way or the other, nothing proving evidence that there was a contrary motivation, that blows open a whole legal case. You can’t make the case if there’s contrary information suggesting that questions about—motivation is extremely hard to establish. And, in this case, they don’t have any direct evidence. They don’t have any people who spoke directly with the president about these things other than, I think, or I believe, or I’m assuming.

That’s not a case. That’s not a case, which is why this becomes so dangerous. You don’t like what someone is doing, you think this is what’s going on—that’s not a ground upon which to go after somebody, especially in the case of impeachment. That this is not a constitutional offense which rises to the point—we sometimes forget here. We’re getting caught up in witnesses and process.

We forget the claim here is that the president must be removed from office and prevented from running in the election. Removed from the ballot. That is an amazing claim.

Does this rise to that magnitude when we’re debating motivation, which we’ve now got a predicate to establish that he actually did have a reason—a legitimate reason—for what he was doing, which was within his power as president? It’s a matter of foreign policy.

HEWITT: Now, I want to break in, and—

SPALDING: It’s not a case. It’s not a case.

HEWITT: I want to be fair to Jonah Goldberg, who’s a friend of mine and a friend of yours. He argues that the president brought up CrowdStrike, which is a discredited conspiracy theory, and indeed, it is. However, he also brought up Hunter Biden. And Hunter Biden is not a discredited conspiracy theory. If any, it’s a whole hornet’s nest of unanswered questions.

But let’s focus on Jonah’s correct point. That the president, with a predicate, pursued the wrong path—CrowdStrike—doesn’t mean that the predicate didn’t exist. It just means he went down the wrong path in the call, but the power of the presidency allows him to go down that path. That’s what I’m trying to get people to understand.

SPALDING: That’s exactly right. And this goes back to something we’ve talked about on many occasions—the question of prudence. You have a president; they are to make decisions based on information they have using their judgment.

You can disagree with that judgment. You might think they’ve done something imprudent. They followed the wrong path. But that does not mean they have violated the Constitution to the point of being removed.

That gets us into this murky area where it’s a disagreement about policy, and assumptions, and what they’re doing, which creates the conflict we discussed earlier, by which impeachment does not become an extremely important and serious option within constitutional government to remove the president, which has got to be there, or else you go back to Charles I about cutting people’s heads off. But we’ve now diminished it to the point where it’s merely a disagreement about, I think he was wrong about that policy.

HEWITT: You know, I love the fact that you used the use the term imprudent. Jonah kept arguing, he’s guilty. And what you’re saying is, He may have been imprudent. What I am saying is, neither of those conclusions matter because he was within his authority as president to be having that conversation.

Now, the president says his conversation was perfect. I don’t agree with that because I could have done it better. So it’s not perfect. I could have said, President Zelensky, congrats—all that good stuff, I could’ve said. By the way, there are contemporaneous reports before I was elected that people in Ukraine did bad things about my election.

And I know Hunter Biden has been running around with a bad crowd over there. And I’m not concerned about 2020, but I want to know what your country did. The Democrats are demanding I do this to Russia, and I do it every time I see Putin, but I want to know what your country did in my country in 2016. Will you investigate that? Will you talk to Rudy? Will you talk to Barr? That would have been perfect, Matt. But he doesn’t talk that way.

SPALDING: No, that’s right. And, by the way, I’m not sure that would have been perfect because I don’t know that there are perfect conversations in that way when you’re in politics.

HEWITT: You’re right. You’re right.

SPALDING: This is the essence of what we misunderstand today. Both sides have made the mistake—Jonah’s a great friend of mine, but I think he makes the mistake. I think the left makes this mistake a lot as well.

We grab onto something. We like silver bullets. We like easy answers. We like absolutes. Technical violations of law—this is precisely what Hamilton and the whole Federalist Papers is teaching us—is not the right way to understand politics. Politics is about judgment, deliberation, reasoning through something, making a decision based on what you know, trying your best to make that decision in light of circumstances for some good. That’s what prudence is.

That means you have room for making mistakes, going down the wrong path. But these are not the grounds by which you remove a president. In the same way, they are not the grounds for—

Congress has the power, or should—the Court’s kind of taken away—to decide what is necessary and proper under the Constitution. Wow, you can drive a truck through that. But it’s required to allow them to deliberate and be prudent about public policy.

The Constitution sets up that framework. And in this case, we’re talking about the executive. The executive has executive power, oftentimes in cases of necessity where it’s really required, but also in cases like this, where there’s judgment required. You can disagree with his judgment. That’s why we have elections.

HEWITT: But can I pause, Matt? An executive power in the field of foreign affairs is at its flood tide, to quote Justice Jackson. It’s almost unrestrained. If you can launch missiles to kill Soleimani—and I’m glad that he did—and if you are President Obama and you can use drones to kill people, you can certainly have a conversation with Zelensky about corruption, for which there’s a predicate.

SPALDING: Absolutely. And you can withhold money, as the Supreme Court said in US v. Curtis with FDR. You can withhold money. You can withhold tanks.

HEWITT: Strong con law reference. Matt Spalding gets Double Jeopardy! for $2,000. Yeah.

SPALDING: Absolutely. And that’s why I think the backdrop of all this conversation is yet the latest version of the debate, the inherent debate, and the continued debate between the executive branch and the legislative branch. And we have a legislative branch—in this case, the House—controlled by a party which is diametrically opposed to the president, who is in the executive.

This is what this battle is all about. And they’re using the impeachment process—what impeachment is becoming—I fear it will become after this precedent is laid down, is this is political warfare by other means, to misquote Clausewitz. This is war by other means.

This is a mechanism they’re using. They don’t do budgets anymore. They’ve delegated a lot of their power. What do they have left in their quiver? Impeachment. Impeachment is now the political tool they’re using to fight political battles. It’s no longer a constitutional weapon that they’re using, and I think that was revealed in the arguments in front of the Senate.

HEWITT: It strikes me—we’ll come back, one more segment with Matt Spalding—the impeach-ification of everything strikes me very much as a Roman-revolution kind of trend, back to when the republic fell and was replaced by the empire, when every iteration of political combat became less and less concerned with tradition and prudence and more and more concerned with power.

Dean Matt Spalding is my guest. Don’t go anywhere, America. I’ll be right back—one more segment with the dean this morning on The Hugh Hewitt Show.

Welcome back, America. I’m Hugh Hewitt. Truncated Hillsdale Dialogue today with Dean Matthew Spalding. He is the dean of the Hillsdale College Washington graduate program. All things Hillsdale at Hillsdale.edu, this conversation being so important we’re posting it both at YouTube and at HughforHillsdale.com.

Dean Spalding, in these five minutes, I have two questions. One, your recommendation to the president’s lawyers on tone. I hope they adopt “more in sorrow than in anger” tone, but I’d like your input. And then, what did Adam Schiff do to Hamilton’s letter from Washington yesterday? You can take them in either order you’d like.

SPALDING: Well, I guess I’ll address the first one first, which is, I would agree with you. The document they put together is actually quite good, and quite measured, quite powerful. I think if they make that argument clearly, and I would say in a tight form—not use up all their time—I think they’ll be quite successful.

The sense I’ve gotten from a lot of the senators I’ve talked to is that, not only are they bored—there’s a lot of repetition in the arguments they’ve heard so far—but they’re increasingly annoyed because the House managers are attacking them—attacking the senators, and the Senate. It’s treacherous to vote against this, says Nadler. That doesn’t help their case at all, which is why I think it’s increasingly unlikely that there will be any witnesses going from here. So I think they should make their case, make it powerfully, make it clearly.

But on the Hamilton point—this gets back to our earlier conversation. We’ve got to back up, and what is going on here? This larger debate about constitutional government. And don’t focus on the immediate details and minutiae, although we got to do that too. But you back it up.

And one of the first things Adam Schiff did was he quoted a letter from Alexander Hamilton to George Washington. It just so happens to be one of my favorite passages. And he completely turned it around. It means exactly the opposite than what he used it for, and it goes directly to our point.

He quoted Hamilton telling Washington about an unprincipled man who gets on his hobbyhorse and wants to ride the storm and direct the whirlwind. He quoted it as a way of—Hamilton’s warning Washington about not being a monarch.

But it actually means exactly the opposite. Hamilton was defending Washington. Washington was being attacked by his opposition, and Hamilton was warning Washington that the only way that our system will be subverted is not by a restoration of a monarchy, but by those who excite the jealousies and apprehensions of the people in a way that sows confusion and brings civil commotion. And that will give rise to those who want to mount their hobbyhorse of popularity, join the cry of danger, flatter, and fall in with all the nonsense of the zealots of the day. Hamilton was talking about Adam Schiff.

HEWITT: Wow.

SPALDING: He was not talking about—

HEWITT: Matt Spalding, I didn’t know this. I’m not afraid to admit ignorance. I have not read this letter. I’m not surprised Adam Schiff misquoted it. Jerry Nadler misquoted Jonathan Turley. But what you’re saying is, Hamilton warned against Schiff, and Nadler, and Pelosi, and this crazy Twitter mob.

SPALDING: So this gets back to the larger thing that’s going on here. You, before this segment, referred to Rome. Let me make a more immediate comparison: England. England goes through civil wars, one of which—Oliver Cromwell gets control in the legislature, and they behead the king. That’s why we have impeachment in our Constitution.

What’s going on here, I think, is a move to assert legislative power over the executive. This is a bloodless revolution, an un-glorious revolution, referring to the British Glorious Revolution of old.

HEWITT: Different from the Charles beheading. This is 1688. This one’s a good one.

SPALDING: But there’s this sense in which the legislature is in charge of everything, and the president should merely be executing what the legislature says in a much more radical way. So the president can’t be doing things that are permissible actions that the legislature doesn’t want. He can’t be prudent in using his judgment in the way that legislators don’t want. That assertion is what gives rise to the threat of the executive, the presidency, but also constitutional government itself. Checks and balances, separation of powers. It’s this dangerous precedent.

HEWITT: Matt Spalding, you’re terrific as always. All of this will be on YouTube, also at Hillsdale.edu. Thank you, Matt. I’m coming right back with Senator Ted Cruz and Senator John Cornyn, jurors in the impeachment trial of Donald Trump. Stay tuned.