>>> THIS IS "METROFOCUS" WITH RAFAEL PI ROMAN, JACK FORD, AND JENNA FLANAGAN.

"METROFOCUS" IS MADE POSSIBLE BY SUE AND EDGAR WACHENHEIM III, SYLVIA A.

AND SIMON B. POYTA PROGRAMMING ENDOWMENT TO FIGHT ANTI-SEMITISM, BERNARD AND DENISE SCHWARTZ, BARBARA HOPE ZUCKERBERG, AND BY JANET PRINDLE SEIDLER, JODY AND JOHN ARNHOLD, CHERYL AND PHILIP MILSTEIN FAMILY, JUDY AND JOSH WESTON, DR. ROBERT C. AND TINA SOHN FOUNDATION.

>>> GOOD EVENING AND WELCOME TO "METROFOCUS."

I'M JACK FORD.

AS YOU ALL KNOW, THIS PRESIDENTIAL ELECTION CYCLE HAS BEEN ONE OF THE MORE EXTRAORDINARY MOMENTS IN OUR NATION'S HISTORY, MARKED BY ONE OF THE MORE EXTRAORDINARY AND TERRIFYING MOMENTS IN OUR NATION'S HISTORY LAST WEEK WHEN THE RIOTOUS MOB ATTACKED THE CAPITOL.

WELL, THOSE EXTRAORDINARY MOMENTS ARE CONTINUING TODAY AS CONGRESS IS SET TO VOTE ON IMPEACHING PRESIDENT TRUMP FOR THE SECOND TIME.

BUT THERE ARE QUESTIONS SWIRLING ABOUT ALL OF THIS.

ASSUMING THAT THE HOUSE OF REPRESENTATIVES DOES INDEED VOTE TO IMPEACH, THEN IT WOULD GO TO THE SENATE FOR A TRIAL AND THE FIRST QUESTION IS CAN THE SENATE ENGAGE IN A TRIAL TO REMOVE A PRESIDENT WHO HAS ALREADY LEFT OFFICE, OUT OF OFFICE?

ALSO A QUESTION ABOUT THE 25th AMENDMENT.

HOW MIGHT THAT HAVE BEEN AND PERHAPS STILL BE USED.

AND THEN QUESTIONS ABOUT THE PRESIDENT'S ABILITY TO PARDON HIM HIMSELF.

ALL COMPELLING AND COMPLEX QUESTIONS.

AND WE'RE DELIGHTED TO HAVE WITH US TODAY A MAN WHO CAN HELP US UNDERSTAND ALL OF THE HISTORY BEHIND THIS AND PERHAPS ANSWER MANY OF THESE QUESTIONS.

MICHAEL WALDMAN JOINS US ONCE AGAIN.

MICHAEL ONE OF THE PREEMINENT NATIONAL PRESIDENTIAL HISTORIANS AND EXPERT ON OUR DEMOCRACY, ON OUR SYSTEMS, AND ON THE CONSTITUTION.

MICHAEL ALSO THE PRESIDENT OF THE BRENNAN CENTER FOR JUSTICE AT NYU'S SCHOOL OF LAW, WHICH IS A NON-PARTISAN LAW AND POLICY INSTITUTE THAT FOCUSES ON IMPROVING SYSTEMS OF DEMOCRACY AND JUSTICE.

AND WE'RE DELIGHTED TO HAVE HIM AS A GUEST.

MICHAEL, GOOD TO SEE YOU AGAIN.

>> GOOD TO SEE YOU IN THIS TIME OF INTENSE CRISIS FOR OUR COUNTRY.

>> IT IS INDEED.

WE HAVE MUCH TO TALK ABOUT AS WE ALWAYS DO WHEN YOU JOIN US.

LET'S START WITH THE IMPEACHMENT PROCESS.

I MENTIONED HISTORICAL.

WE HAVE TO ASSUME, AND I'LL MENTION FOR OUR VIEWERS YOU AND I ARE HAVING THIS CONVERSATION AROUND NOONTIME NOW.

THE PROCESS HAS GOTTEN STARTED.

IT WILL TAKE A LONG TIME.

IT MIGHT BE INTO THE NIGHT.

WE'RE NOT SURE.

BECAUSE OF COVID PROTOCOLS.

THE VOTING WILL TAKE A LONG TIME.

BUT THE HOUSE IS ENGAGED IN THAT RIGHT NOW.

LET'S ASSUME THAT THEY ARE GOING TO VOTE INDEED TO IMPEACH THE PRESIDENT.

WE KNOW.

IT'S THE FIRST STEP IN THE PROCESS.

BEFORE WE GET TO THE NEXT STEP, LET ME ASK YOU TO GIVE US A LITTLE HISTORICAL SENSE OF THIS.

WHAT DID THE FOUNDERS HAVE IN MIND?

AFTER THEY WRESTLED MIGHTILY WITH THIS WHOLE CONCEPT.

WHEN THEY PUT IN PLACE THE TERMS OF AN IMPEACHMENT PROCEDURE IN THE CONSTITUTION.

>> WELL, WHEN THE FOUNDERS PUT IMPEACHMENT IN THE CONSTITUTION, THEY WERE DRAWING ON THE HISTORY OF WHAT HAD HAPPENED IN ENGLAND WITH MINISTERS FOR THE KING AND THEY VIEWED THIS AS A VERY IMPORTANT WAY OF HOLDING POTENTIALLY ABUSIVE EXECUTIVE BRANCH OFFICIALS TO ACCOUNT.

THIS WAS A SIGNIFICANT POWER GIVEN TO CONGRESS WHICH WAS AS THEY SAW IT SUPPOSED TO BE THE KIND OF PREEMINENT BRANCH IN THE FIRST PLACE.

AND IT IS IMPORTANT TO UNDERSTAND THAT THEY SAW THIS NOT AS QUITE THE SAME THING AS A CRIMINAL TRIAL BUT IN FACT RELATING TO THE POLITICAL ABUSES THAT THEY KNEW YOU COULD GET FROM PEOPLE IN POWER.

?

AND I THINK IT'S AN IMPORTANT POINT FOR PEOPLE TO UNDERSTAND.

IN THE LAST IMPEACHMENT PROCEDURE FOR PRESIDENT TRUMP THERE WAS SIGNIFICANT ARGUMENTS ABOUT, WELL, IS WHAT HE DID OR WAS WHAT HE DID A CRIME?

AND DO YOU NEED ACTUALLY -- NOW, WE KNOW THE CONSTITUTION TALKS ABOUT BRIBERY, TREASON, AND THEN THE FOUNDERS THREW IN THIS OTHER PHRASE, OTHER HIGH CRIMES AND MISDEMEANORS, WHICH BY DEFINITION HIGH CRIMES AND MISDEMEANORS SOUND SORT OF COUNTERINTUITIVE THERE.

SO EXPLAIN WHY THIS IS A POLITICAL PROCESS AND WHERE THE RULES COME FROM.

>> WELL, THEY DECIDED NOT TO INCLUDE MALADMINISTRATION, FOR EXAMPLE, AS A BASIS FOR IMPEACHMENT, THAT IT HAD TO BE SOMETHING REALLY BAD AND INVOLVING AN ABUSE.

AND THE WAY IT HAS PLAYED OUT IN AMERICAN HISTORY, THERE HAVE BEEN ONLY A FEW SERIOUS IMPEACHMENT EFFORTS.

ONE WAS ANDREW JOHNSON IN THE 1860s.

RICHARD NIXON IN 1974.

BILL CLINTON, WHO I WORKED FOR, IN 1998.

AND DONALD TRUMP I GUESS IN 2020 AND 2021.

THE WAY IT HAS EVOLVED IS FIRST OF ALL THEY REALLY DO GENERALLY LOOK FOR SOME CRIMINAL ACTIONS BUT THEY THEN ON TOP OF THAT HAVE TO HAVE ABUSE OF POWER, ABUSE OF THE OFFICE OF THE PRESIDENCY FOR IMPROPER ENDS.

AND YOU REMEMBER A YEAR AGO IT FELT LIKE 30 YEARS AGO THE QUESTION WAS WHETHER WHAT DONALD TRUMP DID IN CALLING THE PRESIDENT OF UKRAINE AND PRESSURING HIM TO DIG UP DIRT ON JOE BIDEN IN EXCHANGE FOR MILITARY AID, WAS THAT THE KIND OF THING THAT IMPEACHMENT WOULD BE CONSIDERED FOR?

BUT I WOULD HAVE TO SAY THAT GEORGE WASHINGTON AND JAMES MADISON AND THE REST WOULD MOST CERTAINLY THINK THAT A PRESIDENT CALLING UP AN INSURRECTION TO ATTACK THE CAPITOL AND THE CONGRESS, THAT WOULD COUNT.

THIS ONE IS NOT A VERY HARD QUESTION AS A CONSTITUTIONAL MATTER.

IF THIS IS NOT AN IMPEACHABLE ACT, IT'S KIND OF HARD TO THINK ABOUT JUST ABOUT ANYTHING THAT WOULD BE.

>> THEN REPRESENTATIVE GERALD FORD WAS FAMOUSLY QUOTED BACK IN THE NIXON -- THE TIME OF THE NIXON TURMOIL, WHEN ASKED WHAT IS AN IMPEACHABLE OFFENSE, SAYING SOMETHING TO THE EFFECT OF IT IS WHATEVER THE CONGRESS AT THAT MOMENT SAYS IT IS.

IS THAT ACCURATE?

>> YES, IT IS ACCURATE.

BUT AS I SAY, THEY HAVE EVOLVED, LOOKING FOR ABUSE OF POWER AND USUALLY COUPLING IT WITH SOMETHING RESEMBLING CRIMINAL CONDUCT.

YOU KNOW, IN THIS INSTANCE THERE WAS EXTRAORDINARY ABUSE OF POWER AND THERE WAS CRIMINAL CONDUCT BY THOUSANDS OF PEOPLE EGGED ON BY DONALD TRUMP AND IN SO MANY WAYS IT WOULD BE HARD PERHAPS TO BRING A CRIMINAL PROSECUTION AGAINST TRUMP IN A COURT OF LAW FOR SENDING PEOPLE UP TO CONGRESS TO BUST THE PLACE UP BECAUSE OF THE FIRST AMENDMENT PROTECTIONS THAT COURTS OFTEN RELY ON.

BUT AGAIN, AS A POLITICAL CRIME, AS IT WERE, IT'S AS CLOSE TO AN OPEN AND SHUT CASE AS YOU GET.

AND YOU EVEN HAVE PEOPLE IN THE DEBATES TODAY SAYING, WELL, YOU KNOW, HOW CAN WE DO THIS WITHOUT WITNESSES?

AND THE OTHER MEMBERS OF CONGRESS ARE SAYING, WELL, WE WERE THE WITNESSES.

WE HAD OUR -- I MEAN, WHEN YOU SAY IT OUT LOUD, IT'S JUST SO OUTLANDISH.

THAT BASICALLY, PRESIDENT TRUMP SENT A MOB TO BREAK INTO THE CAPITOL, MAYBE THREATEN, MAYBE KILL VICE PRESIDENT PENCE AND THE CONGRESS, TO STOP THE COUNTING OF THE ELECTORAL VOTES, ALSO IN THE CONSTITUTION, AND THUS IN EFFECT STOP THE PEOPLE'S VOTES FROM BEING COUNTED.

IT IS -- IT'S AN INSURRECTION.

IT WAS AN INSURRECTION WHICH WE ALL SAW UNFOLDING IN REAL TIME.

SO THE KIND OF BASICS OF IS THIS IMPEACHABLE CONDUCT, I THINK THEY'VE GOT THAT ONE KIND OF NAILED DOWN PRETTY GOOD.

>> AND AS YOU SAID, THE DIFFERENCE BETWEEN THIS ONE AND THE FIRST ONE THE FIRST ONE PEOPLE WERE ARGUING WELL, WHAT WAS THE CONDUCT, AND WAS THE CONDUCT OKAY OR WAS IT JUST MISGUIDED POLICY OR WAS IT APPROPRIATE POLICY ACCORDING TO PRESIDENT TRUMP'S SUPPORTERS?

HERE AS YOU SAID, WE KNEW EXACTLY WHAT IT WAS.

WE SAW IT ON TELEVISION.

IT'S ALMOST LIKE REMEMBER THE OLD GROUCHO MARX LINE?

WHO ARE YOU GOING TO BELIEVE, ME OR YOUR OWN EYES?

>> EXACTLY.

>> LET ME ASK YOU A QUESTION BEFORE I GET TO THE SECOND STEP WOULD BE THE POSSIBLE TRIAL IN THE SENATE.

AND YOU RAISE AN INTERESTING POINT, AND THAT IS THE MEMBERS OF THE HOUSE WILL BE VOTING ON THIS WERE IN SOME WAYS THE VICTIMS OF WHAT HAPPENED HERE.

IN MANY WAYS.

AND COULD WELL HAVE BEEN, GIVEN WHAT WE'VE SEEN AND WHAT WE'RE LEARNING NOW ABOUT THIS RIOTOUS MOB, THEY COULD HAVE BEEN VICTIMIZED SIGNIFICANTLY, PERSONALLY.

SO THE QUESTION IS, WELL, IS THERE ANYTHING THAT WOULD PROHIBIT THEM ESSENTIALLY AS VICTIMS AS SITTING IN JUDGMENT AT LEAST FOR THE FIRST PART OF THIS PROCESS, DETERMINING WHETHER THE PRESIDENT SHOULD BE IMPEACHED OR NOT?

WHAT DO YOU THINK ABOUT THAT?

>> WELL, AGAIN, IF THIS WERE A CRIMINAL TRIAL FOR SHOPLIFTING IN FOLEY SQUARE COURTHOUSE, YEAH, YOU WOULDN'T HAVE THOSE PEOPLE -- YOU WOULDN'T HAVE THE SHOPKEEPER ON THE JURY.

BUT THE CRIME, THE ASSAULT BY THIS WHITE SUPREMACIST MOB WAS AGAINST THE CONSTITUTION BUT IT WAS ALSO AGAINST THESE PEOPLE.

AND THESE PEOPLE WERE NOT JUST BYSTANDERS.

THEY WERE THE ELECTED REPRESENTATIVES DOING A DUTY THAT WAS ASSIGNED TO THEM BY THE CONSTITUTION.

SO I DON'T THINK THAT THAT IS SO MUCH OF A CHALLENGE.

I THINK THE CHALLENGE, AS YOU IDENTIFIED, IS THAT THEY'RE ACTING, THERE WILL BE BIPARTISAN SUPPORT, LIZ CHENEY AS OF THIS CONVERSATION, THE NUMBER 3 REPUBLICAN IN THE HOUSE OF REPRESENTATIVES, STRONGLY CAME OUT FOR IMPEACHMENT.

WE'VE LEARNED TOO THAT MITCH McCONNELL, THE SENATE REPUBLICAN LEADER, IS PRIVATELY SUPPORTIVE OF IT AS WELL AT THE VERY LEAST.

SO YOU KNOW, WHAT HAPPENS IN THE HOUSE WILL PROCEED PRESUMABLY ACCORDING TO THE RULES THAT HAVE BEEN LAID OUT, BUT THEN THE QUESTION IS THIS GUY'S LEAVING OFFICE IN A FEW DAYS ANYWAY AND WHAT HAPPENS THEN.

>> SO LET'S TALK ABOUT THAT.

AS YOU SAID, THERE WILL BE BIPARTISAN SUPPORT IN THE HOUSE.

A QUESTION ABOUT HOW MUCH THAT WILL BE, BUT SOME SIGNIFICANT BIPARTISAN SUPPORT.

WE'RE SEEING NOW INDICATIONS THAT A NUMBER OF REPUBLICAN SENATORS COULD ALSO VOTE.

AS PEOPLE REMEMBER IMPEACHMENT IS THE EQUIVALENT OF THE INDICTMENT.

THEN YOU GO TO THE TRIAL, WHICH TAKES PLACE IN THE SENATE.

SO LET'S TALK ABOUT THAT.

BECAUSE A NUMBER OF MOSTLY REPUBLICAN SENATORS ARE COMMENTING THAT, WELL, WHY ARE WE DOING THIS?

PERHAPS MORE IMPORTANTLY CAN WE DO THIS?

SO LET'S GO TO THE CAN PART FIRST WITH YOU.

AS A PRESIDENTIAL SCHOLAR, A SCHOLAR OF THE CONSTITUTION, IS THERE ANYTHING THAT WOULD PROHIBIT THE SENATE FROM CONDUCTING A TRIAL AND VOTING WHEN THE PRESIDENT HAS ALREADY LEFT OFFICE?

>> WELL, YOU KNOW, THERE'S A FIRST TIME FOR EVERYTHING.

APPARENTLY, EARLY IN THE COUNTRY'S HISTORY FOR LESSER OFFICES THIS WAS DONE.

TWICE.

BUT CERTAINLY NOT FOR PRESIDENT.

AND THE MAIN SANCTION OF COURSE WITH IMPEACHMENT IS REMOVING FROM OFFICE.

AND YOU NEED A 2/3 VOTE.

IN OTHER WORDS, 67 VOTES TO REMOVE FROM OFFICE.

AND TO THE EXTENT THAT THE PURPOSE HERE IN PART WAS TO KEEP TRUMP FROM DOING MORE CRAZY STUFF, PARDONING ALL THE RIOTERS, TRYING TO USE THE MILITARY OR ANY OF THESE OTHER THINGS, IF HE'S OUT OF OFFICE THOSE THINGS ARE DONE.

BUT THERE'S ANOTHER SANCTION THAT THE CONSTITUTION IDENTIFIES THAT COMES WITH IMPAECHT WHICH IS IF YOU'VE BEEN IMPEACHED AND CONVICTED THEN THE CONGRESS CAN VOTE TO BAR YOU FROM RUNNING FOR FEDERAL OFFICE AGAIN.

WE THINK.

NONE OF THIS HAS EVER BEEN FULLY NAILED DOWN.

IT ALL HAS TO GO TO THE COURTS.

AND CERTAINLY THAT PROHIBITION ON TRUMP AND HIS MILITANT INSURRECTIONIST, FORGIVE THE EDITORIALIZING, TREASONOUS BAND OF SUPPORTERS, KEEPING THEM FROM GOING FORWARD IS A GOAL.

BUT NOBODY REALLY KNOWS.

AND OF COURSE WHAT MITCH McCONNELL HAS SUGGESTED IS HE'S ENCOURAGED THIS TO WAIT UNTIL BIDEN IS PRESIDENT IN EFFECT AND THE QUESTION REALLY IS WOULD THIS JUST UPEND THE FIRST FEW WEEKS OF BIDEN'S TERM OR COULD CONGRESS PROCEED ON THIS AND ALSO CONFIRM THE NOMINEES FOR TOP CABINET APPOINTMENTS AND THINGS LIKE THAT?

THOSE ARE THINGS THEY'RE WORKING OUT.

AGAIN, NO ONE'S EVER DEALT WITH THIS BEFORE.

SO CHUCK SCHUMER OF BROOKLYN IN NEW YORK WILL HAVE A LOT TO DO WITH THAT.

HE WILL BECOME THE MAJORITY LEADER WHEN KAMALA HARRIS IS SWORN IN AS VICE PRESIDENT ON JANUARY 20th.

>> SO IF THE SENATE CAME TO YOU AND SAID ALL RIGHT, MICHAEL, YOU ARE, AS I SAID, ONE OF OUR PREEMINENT EXPERTS IN THE PRESIDENCY, WRITTEN EXTENSIVELY ON VARIOUS ASPECTS OF THE PRESIDENCY, I LOVE YOUR BOOK ABOUT PRESIDENTIAL SPEECHES, YOU ARE AN EXPERT ON THE CONSTITUTION, ON OUR DEMOCRATIC PROCESSES.

SO IF THEY CAME AND SAID TO YOU THIS IS AN EXTRAORDINARY SITUATION, CAN WE PROCEED, EVEN IF HE'S OUT OF OFFICE, AFTER JANUARY 20th, CAN WE PROCEED AS A SENATE TO CONDUCT THIS TRIAL, WHAT WOULD YOU SAY TO THEM?

>> I THINK SO.

THAT'S NOT A VERY GOOD ANSWER.

>> THAT'S THE LAWYER PART OF YOU.

>> I THINK SO.

BUT WHAT'S INTERESTING OF COURSE IS THAT WHERE IT WOULD GET TESTS IS IF THEY DID CONVICT TRUMP AND THEN DID VOTE THAT HE COULDN'T RUN AGAIN AND THEN HE TRIED TO RUN AGAIN THEN IT WOULD END UP IN COURT AND THAT IS REALLY WHERE IT WOULD PLAY OUT.

YOU KNOW, THERE'S NOT A LOT OF GREAT ANSWERS HERE BECAUSE THE FUNDAMENTAL THING, AND I'M CERTAIN THIS IS WHAT THE MEMBERS OF CONGRESS OF BOTH PARTIES ARE THINKING, IS THEY HAVE TO DO SOMETHING.

THEY HAVE TO ARTICULATE THE OUTRAGE OF THE COUNTRY AND TO STAND UP FOR THE CONSTITUTIONAL ORDER AND FOR JUST THE REPUBLIC AND THE GOVERNMENT ITSELF.

AND IMPEACHMENT'S THE PRINCIPAL, THOUGH NOT THE ONLY TOOL THEY'RE GIVEN.

>> LET ME ASK YOU ABOUT WHEN YOU TALK ABOUT OTHER TOOLS.

BASICALLY, WE HAVE SOME TIME, BUT LET'S TALK ABOUT THE 25th AMENDMENT.

AND WE KNOW THAT THE HOUSE YESTERDAY TRIED TO PASS A RESOLUTION URGING THE VICE PRESIDENT AND A MAJORITY OF THE CABINET TO ENGAGE IN THE ELEMENTS AND THE PROCEDURES UNDER THE 25th AMENDMENT TO REMOVE THE PRESIDENT.

AGAIN, LET ME ASK YOU TO PUT ON YOUR PROFESSORIAL HAT HERE FOR A SECOND.

EXPLAIN TO US BRIEFLY IF YOU WOULD THE HISTORY BEHIND THE 25th AMENDMENT.

>> YES.

IT'S AN INTERESTING ONE.

THE 25th AMENDMENT IS BY THE NUMBERS YOU HEAR IT'S ONE OF THE MORE RECENT AMENDMENTS.

IT WAS PASSED IN THE 1960s AFTER THE ASSASSINATION OF PRESIDENT JOHN F. KENNEDY.

AND IT CREATED THE ORDER OF SUCCESSION THAT YOU COULD HAVE A NEW VICE PRESIDENT.

BUT THEY WERE ALSO WORRIED, HEY, WHAT WOULD HAVE HAPPENED IF PRESIDENT KENNEDY HAD BEEN WOUNDED AND UNABLE TO SERVE AS PRESIDENT BUT NOT PASSED AWAY?

AND EARLIER IN THE 20th CENTURY WOODROW WILSON HAD A VERY SEVERE STROKE AS PRESIDENT BUT NEVER RESIGNED.

HIS WIFE, THE FIRST LADY, BASICALLY RAN THE PRESIDENCY, RAN THE COUNTRY FROM HIS BEDROOM.

AND THAT WAS NOT REALLY ANYTHING ANYBODY HAD THOUGHT THROUGH.

SO THE 25th AMENDMENT PRINCIPALLY IS SUPPOSED TO BE ABOUT THE HEALTH, THE PHYSICAL HEALTH OF THE PRESIDENT.

AND IT'S SOMETIMES BEEN INVOKED WHEN PRESIDENT'S GO UNDER ANESTHESIA FOR A COLONOSCOPY ORRING?

LIKE THAT, THE VICE PRESIDENT GETS THE POWER TEMPORARILY AND THEN IT'S GIVEN BACK.

THE PROCEDURE IS THAT THE VICE PRESIDENT AND A MAJORITY OF THE CABINET, THE MAIN OFFICES OF THE CABINET IT SAYS, CAN SIGN A LETTER SAYING THE PRESIDENT IS TEMPORARILY NOT PRESENT ANYMORE, AND THEN THE POWER GOES BACK.

BUT IT DOESN'T SAY ONLY THAT IT'S HEALTH.

IT SAYS THAT THE PRESIDENT IS UNABLE TO FULFILL THE DUTIES OF PRESIDENT.

AND THAT CAN INCLUDE MENTAL HEALTH AND THAT CAN INCLUDE AS WELL AS PHYSICAL HEALTH.

BUT THAT CAN ALSO INCLUDE PERHAPS DERELICTION OF DUTY.

SO WHAT CONGRESS WAS URGING MIKE PENCE TO DO WAS TO SAY HEY, THIS GUY IS NOT REALLY ACTING AS PRESIDENT ANYMORE, WE NEED AN ORDERLY TRANSITION AND WE'RE BASICALLY TAKING AWAY THE STEERING WHEEL.

BUT MIKE PENCE HAS SAID HE ISN'T GOING TO DO IT.

NOW, THERE IS A PROVISION WHICH CONGRESS DID NOT USE.

>> I WANT TO ASK YOU ABOUT THAT BECAUSE THEY BASICALLY WANTED TO PASS A RESOLUTION.

RESOLUTION IS IF YOU'RE SAYING HEY, GUYS, PAY SOME ATTENTION TO THIS FOR A MINUTE BUT IF YOU DON'T WANT TO THERE'S NO CONSEQUENCES FOR THAT.

BUT COULD THEY HAVE DONE SOMETHING MORE?

>> YOU KNOW, THERE'S ALSO LANGUAGE, AND ALL OF THESE -- IT'S IMPORTANT TO NOTE ALL OF THESE ARE THINGS YOU HAVE TO KIND OF DUST OFF BEFORE EVEN READING THEM BECAUSE THEY'RE IN THE CONSTITUTION BUT THEY'VE NEVER BEEN USED OR EVEN CONTEMPLATED IN ANY SERIOUS WAY.

IT SAYS ALSO THAT NOT ONLY THE VICE PRESIDENT AND THE CABINET BUT ANY BODY DESIGNATED BY THE CONGRESS COULD ALSO MAKE THIS DETERMINATION.

AND AGAIN, IF YOU THINK ABOUT IT, WHAT IF THE VICE PRESIDENT AND THE PRESIDENT WERE BOTH WOUNDED IN A TERRORIST ATTACK?

THEN CONGRESS WOULD APPOINT A COMMITTEE OF DOCTORS TO SAY HEY, YOU KNOW, THIS IS NOT WORKING, WE NEED TO HAVE SOMEBODY ELSE BE ACTING PRESIDENT.

BUT YOU KNOW, IT WAS CERTAINLY POSSIBLE I SUPPOSE THAT CONGRESS COULD DESIGNATE SOME PEOPLE TO MAKE THE DETERMINATION.

AND YOU KNOW, WHAT WE'VE HAD IN THE WAKE OF THE ATTACK ON DEMOCRACY LAST WEEK IS A LOT OF EVIDENCE THAT DIFFERENT PARTS OF THE GOVERNMENT ARE NOT REALLY LISTENING TO TRUMP ANYMORE.

I MEAN, HE BASICALLY SITS IN HIS BEDROOM AND NOW I GUESS HE WATCHES TV SINCE HE'S NOT ABLE TO TWEET.

BUT IT SEEMS THAT MIKE PENCE DIRECTED THE NATIONAL GUARD TO GO PROTECT THE CONGRESS AND THE CAPITOL.

WE SAW THAT SPEAKER PELOSI WAS IN TOUCH WITH THE JOINT CHIEFS TO MAKE SURE THERE WASN'T GOING TO BE ANY USE OF THE MILITARY TO TRY TO CHANGE THE SUBJECT OR NUCLEAR STRIKES.

WE HAD AN EXTRAORDINARY LETTER, EXTRAORDINARY, RELEASED YESTERDAY BY THE JOINT CHIEFS OF STAFF ALL SIGNING IT SAYING THAT WHAT HAPPENED WAS SEDITION.

AND YOU HAD THE GENERAL IN CHARGE OF U.S.

FORCES IN KOREA SENDING A MESSAGE TO THE TROOPS IN KOREA, AMERICA'S TROOPS IN KOREA, SAYING REMEMBER, WE SWORE TO UPHOLD AN OATH AGAINST ALL ENEMIES OF THE CONSTITUTION, FOREIGN AND DOMESTIC.

WELL, WHO'S THE DOMESTIC ENEMY?

HE'S TALKING ABOUT THE PRESIDENT OF THE UNITED STATES.

SO YOU'RE SORT OF SEEING POWER EBBING AWAY FROM TRUMP.

WHETHER HE SITS IN THE WHITE HOUSE OR NOT.

YOU KNOW, AS YOU REMEMBER, THIS ACTUALLY HAPPENED TO SOME DEGREE WITH NIXON.

IN 1974.

IT IS BELIEVED, AT IT HASN'T EVER FULLY BEEN PROVEN, IT IS BELIEVED THAT THE SECRETARY OF DEFENSE OF THE TIME WAS WORRIED THAT NIXON MIGHT ORDER A NUCLEAR STRIKE OR TRY TO USE TROOPS TO SEIZE THE CAPITOL OR SOMETHING LIKE THAT, AND HE TOLD THE PENTAGON DON'T FOLLOW ANY ORDERS FROM NIXON.

YOU'VE GOT TO TAKE THEM FROM ME.

AND HE'S DENIED IT.

BUT THAT KIND OF THING SEEMS EFFECTIVELY TO BE HAPPENING NOW TOO.

>> I HEARD A REPUBLICAN LEADER RECENTLY SAYING THAT PERHAPS THE PRESIDENT'S SPELL HAS BEEN BROKEN.

AND THAT'S ONE OF THE POLITICAL CONSEQUENCES OF THIS, IS TO SHAKE A LOT OF PEOPLE AWAKE.

I HOPE.

AND TO GIVE A LOT OF PEOPLE THE CHANCE TO BE ALMOST DEPROGRAMMED FROM THIS.

YOU KNOW, WE HAVE TWO POLITICAL PARTIES.

THE COUNTRY BENEFITS FROM HAVING TWO POLITICAL PARTIES.

BUT THE REPUBLICANS TO FAR TOO GREAT A DEGREE BECAME JUST AN ARM OF TRUMP AND HIS EGO.

AND THIS DOES SEEM TO HAVE SPLIT THAT OFF FROM HAPPENING.

>> A COUPLE OF AREAS I WANT TO GET TO.

FIRST OF ALL ABOUT THE POSSIBILITY OF THE SHOULDth AMENDMENT.

THEN I WANT TO TALK ABOUT THE IDEA AND YOU MENTIONED THIS, THE PRESIDENT'S PARDON POWERS.

BRIEFLY IF I CAN, WE HEARD A NUMBER OF DEMOCRATIC MEMBERS OF CONGRESS SAYING THEY WANTED TO EXERCISE THE POWERS OF THE 14th AMENDMENT TO ESSENTIALLY EXPEL MEMBERS OF CONGRESS, HOUSE AND SENATE, WHO SUPPORTED THIS, WHAT THEY'VE DESCRIBED AS THIS ACT OF SEDITION, OF INSURRECTION.

LET ME TELL OUR VIEWERS WHAT WE'RE TALKING ABOUT.

14th AMENDMENT SAYS NO PERSON SHALL BE A SENATOR OR REPRESENTATIVE IN CONGRESS OR ELECTOR OR PRESIDENT OR VICE PRESIDENT OR HOLD ANY OFFICE CIVIL OR MILITARY UNDER THE UNITED STATES OR UNDER ANY STATE WHO HAVING PREVIOUSLY TAKEN AN OATH AS A MEMBER OF CONGRESS OR AS AN OFFICER OF THE UNITED STATES, WAS A MEMBER OF ANY STATE LEGISLATURE, TO SUPPORT THE CONSTITUTION OF THE UNITED STATES, THAT PERSON SHALL HAVE ENGAGED IN INSURRECTION OR REBELLION AGAINST THE SAME OR GIVEN AID OR COMFORT TO THE ENEMIES THEREOF.

RIGHT?

NOW, FIRSTLY, GIVE US A QUICK HISTORY.

14th AMENDMENT.

WHY DID IT COME INTO EXISTENCE?

>> SO THE 14th AMENDMENT WAS PASSED DURING RECONSTRUCTION, IN THE YEARS AFTER THE CIVIL WAR, WHEN YOU HAD STILL IN THE SOUTH THE FORMER SLAVE POWER, THE ENSLAVERS WHO HAD BEEN DEFEATED IN THE CIVIL WAR, WERE ENGAGING IN TERRORISM AND WERE TRYING TO RESURRECT THEIR CAUSE.

AND ACTUALLY ANDREW JOHNSON, THE PRESIDENT OF THE TIME, WAS TRYING TO PARDON A NUMBER OF THEM AND GET THEM SO THEY COULD RUN FOR OFFICE AND BE BACK IN CONGRESS AGAIN.

AND WHAT THIS PROVISION SAID AT THE TIME WAS BASICALLY ROBERT E. LEE AND JEFFERSON DAVIS COULD NOT RUN FOR CONGRESS, THAT THE PEOPLE WHO HAD TAKEN UP ARMS AGAINST THE UNITED STATES UNDER THE BANNER OF THE CONFEDERATE FLAG WERE ENEMIES OF THE UNITED STATES AND COULD NOT JUST GET THEMSELVES INTO CONGRESS.

WELL, FAST FORWARD TO RIGHT NOW.

I THINK THERE'S A VERY IMPORTANT PROVISION.

AND THE GREAT HISTORIAN ERIC S HONER, THE HISTORIAN OF THE RECONSTRUCTION AND THE CIVIL WAR, HAS POINTED OUT THE RELEVANCE OF THIS.

WE HAVE HERE FIRST OF ALL PEOPLE WHO ENGAGED IN INSURRECTION AS THE JOINT CHIEFS OF STAFF IDENTIFIED IT AS I NEXT MENTIONED IN THEIR LETTER.

NOT THAT THEY'RE THE ONES TO MAKE THE DECISION BUT IT'S PRETTY CLEAR.

YOU HAD A WHITE SUPREMACIST MOB CLEARLY AND INCREASINGLY CLEARLY ORGANIZED, THE MORE WE LEARN THE SCARIER IT IS, ORGANIZED TO TRY TO SEIZE THE CAPITOL, KIDNAP SOME PEOPLE, MAYBE KILL SOME PEOPLE, AND THEY WERE CARRYING, MANY OF THEM, THE CONFEDERATE FLAG, LITERALLY THE SAME FLAG THAT THAT AMENDMENT WAS WRITTEN FOR.

AND I THINK, AND WHAT THIS FOCUS ON THE 14th AMENDMENT SAYS, IS YES, BLAME THOSE RIOTERS, YES BLAME TRUMP, BUT ALSO THE MEMBERS OF CONGRESS WHO WERE PEDDLING THE LIE THAT THE ELECTION HAD BEEN STOLEN, THAT THE PEOPLE'S VOTES WERE NOT LEGITIMATE, THAT THEY SHOULD IGNORE THE VOTES OF THE PEOPLE IN THE ELECTION AND JUST TURN THE ELECTION OVER TO TRUMP, THAT THEY ARE RESPONSIBLE TOO.

THAT MOB MARCHED IN THE SERVICE OF THAT LIE.

WE ALSO HEAR THAT LIE IN STATES ALL OVER THE COUNTRY AS STATES TRY TO PASS LAWS TO RESTRICT VOTING.

BUT WHAT THIS PROVISION MIGHT SUGGEST IS THAT CERTAINLY THE MEMBERS OF CONGRESS WHO SEEM TO HAVE WORKED CLOSELY WITH THE RIOTERS, LIKE MO BROOKS OF ALABAMA WHO SPOKE AT THE RALLY AND OTHERS WHO WERE REALLY IN CLOSE TOUCH WITH THEM BUT EVEN PEOPLE LIKE TED CRUZ AND SENATOR HAWLEY WHO WENT OUTSIDE AND GAVE THAT VERY KIND OF LIKE MEDIOCRE CLENCHED FIST TO THE CROWD OR KEVIN McCARTHY, THE REPUBLICAN LEADER OF THE HOUSE OF REPRESENTATIVES WHO SPEWED THE SAME LIE THAT THOSE RIOTERS WERE FIGHTING FOR, THAT THEY HAVE TO BE HELD ACCOUNTABLE TOO.

WILL THEY BE EXPELLED?

YOU KNOW, I THINK IT WOULD BE UNFORTUNATE IF THERE WERE NO ACCOUNTABILITY AT ALL.

AGAIN, IT'S ALL NEW STUFF.

>> NEW AND FASCINATING.

WHETHER IT MIGHT BE APPLIED OR NOT.

LAST QUESTION FOR YOU.

I HAVE ABOUT A MINUTE AND A HALF LEFT.

IT GOES BACK TO SOMETHING YOU MENTIONED.

AND PEOPLE HAVE BEEN ASKING THIS QUESTION BEFORE.

YOU ARE AN EXPERT ON THE CONSTITUTION.

WE KNOW THE CONSTITUTION GIVES THE PRESIDENT EXTRAORDINARY PARDON POWER.

THAT'S NOT REVIEWABLE.

DO YOU THINK THE PRESIDENT HAS THE POWER TO PARDON HIMSELF?

>> WELL, WE DON'T KNOW FOR SURE.

IT'S NEVER BEEN DONE.

HE HAS BROAD PARDON POWER.

BUT IT IS SOMETIMES REVIEWABLE BY COURTS IF THERE'S CORRUPTION.

ONE OF THE ARTICLES OF IMPEACHMENT AGAINST RICHARD NIXON WAS THAT HE DANGLED IMPROPERLY PARDONS IN FRONT OF THE WATERGATE BURGLARS.

WHEN MY OLD BOSS BILL CLINTON GAVE SOME CONTROVERSIAL PARDONS AT THE END OF HIS TERM, THERE WAS A CRIMINAL INVESTIGATION, WHICH EXONERATED HIM, BUT STILL PEOPLE KNEW YOU COULD REVIEW THESE THINGS IN SOME WAYS.

THE JUSTICE DEPARTMENT IN 1974 LOOKING AT NIXON SAID NO, THE PRESIDENT CAN'T PARDON HIMSELF.

I MEAN, THINK ABOUT IT.

IF THE PRESIDENT -- THE VIEW GENERALLY IS PRESIDENTS CAN'T BE PROSECUTED WHILE IN OFFICE.

AND THEN THE PRESIDENT COULD PARDON HIMSELF FOR AFTERWARDS, THERE WOULD BE NO ACCOUNTABILITY TO THE RULE OF LAW AT ALL FOR THINGS PRESIDENTS DID.

BUT NO COURT HAS EVER RULED ON IT.

SO TRUMP WOULD BE TAKING, YOU KNOW, MATTERS INTO HIS OWN HANDS.

HE WOULD BE DARING MERRICK GARLAND AND THE JUSTICE DEPARTMENT TO PUT IT TO THE TEST.

AND IT WOULD BE ONE OF THE MORE OUTLANDISH AND OUTRAGEOUS THINGS ANY PRESIDENT HAS EVER DONE.

TRYING TO MAKE HIMSELF ABOVE THE LAW AS THEY LEAVE -- WALK OUT THE DOOR WITH THEIR POCKETS FILLED.

>> GIVEN WHAT WE'VE SEEN, EXTRAORDINARY CIRCUMSTANCES, WE WOULDN'T BE SURPRISED.

MICHAEL WALDMAN, ALWAYS A PLEASURE.

YOU ALWAYS HELP US UNDERSTAND ALL OF THESE VERY COMPLEX TOPICS.

YOU BE WELL AND WE'LL SEE YOU AGAIN SOON.

>> THANK YOU.

THANKS FOR HAVING ME.

>> "METROFOCUS" IS MADE POSSIBLE BY SUE AND EDGAR WACHENHEIM III, SYLVIA A.

AND SIMON B. POYTA PROGRAMMING ENDOWMENT TO FIGHT ANTI-SEMITISM, BERNARD AND DENISE SCHWARTZ, BARBARA HOPE ZUCKERBERG, AND BY JANET PRINDLE SEIDLER, JODY AND JOHN ARNHOLD, CHERYL AND PHILIP MILSTEIN FAMILY, JUDY AND JOSH WESTON, DR. ROBERT C. AND TINA SOHN FOUNDATION.