Pushkin from Pushkin Industries. This is Deep Background, the show where we explore the stories behind the stories in the news. I'm Noah Feldman. If you're joining us for the first time, welcome. If you've missed any of our earlier episodes, which used to be behind a paywall, you can now get them for free exactly where you found this one. A bit about me. I teach constitutional law at Harvard. I love a well tailored suit, and I had a pretty eventful winter break. Do you swear or affirm, under penalty of perjury that the testimony you're about to give is true and correct to the best of your knowledge, information, and belief. So help you God. This past December, I was an expert witness called by the Democrats to testify at the impeachment inquiry and the House of Representatives into President Donald Trump. To be honest with you, it was extremely nerve racking. My job is to study and to teach the Constitution from its origins until the president. I'm here today to describe three things. Why the framers of our Constitution included a provision for the impeachment of the president. What that provision providing for impeachment for high crimes and misdemeanors means, and last, how it applies to the question before you and for the American people, whether President Trump has committed impeachable offenses under the Constitution. The other expert witnesses called by the Democrats were Pamela Carlin, a law professor at Stanford. When President Trump invited, indeed demanded, foreign involvement in our upcoming election, he struck at the very heart of what makes this a republic to which we pledge allegiance. And Michael Gerhart, a law professor at the University of North Carolina at Chapel Hill. If what we're talking about is not impeachable, then nothing is impeachable. I recently got the chance to talk to Michael Gerhart about that day and all that has happened since I was, unfortunately recovering from a slight cold. Michael, thank you so much for joining me. We've spoken on the phone, but we actually haven't seen each other since December fourth, when we both had the opportunity and maybe dubious honor of testifying at the House Judiciary Committees hearing on impeachment. How you've been doing since then? It's been busy teaching classes, and also trying to be part of the national conversation on a very important subject. What I would love for us to do in this conversation is open up for listeners some of the backstory and the back scenes of what we experienced that day, how we prepared for it, and also the sort of bigger picture of consequences of what's been going on. So maybe the way to start is I had never done this before, so it was all a surprise to me. But you had done this before twenty years previously, when they were a group of law professors, I think twenty one in total, who testified about Bill Clinton's impeachment to the House Judiciary Committee. And not only were you one of them, but you were also the only one who was jointly put forward by the Republicans and the Democrats. So take us back, if you will, twenty years and tell us how that happened. You know, nowadays it's almost inconceivable to imagine there being somebody who was acceptable to both sides. Well, twenty years seems a long time ago. It's going to seem even longer when we put together what was happening back then, it'll seem completely alien to us. So I had spent a fair bit of my academic career studying and writing about impeachment, also testifying and consulting with members of Congress. That was all known by the time we got to nineteen ninety eight, And there was a special moment for me in nineteen ninety eight when Jim Leech or Republican David Skaggs Democrat called me up on the phone and said, would you come talk to us in Washington? Generally, if members of Congress want to talk to me about something, I think that's a great honor. Night went and they said to me, well, what we'd like you to do after you talk to us right now is go speak to the entire House of Representatives. I didn't know that coming into that moment, and they had arranged like they wanted to speak to the House right then, Yes, right then. Um, so I thought, well, this is going to be a good test whether or not I know the subject matter. And so then we walked over to the House and I had to get special permission to walk onto the floor of the House and then behind closed doors with no staff, no press or anything. I then talked to the entire House of Representatives about impeachment. It's been about two hours doing it. No no cameras, nothing, nothing, just nothing. It was all Is there a written record of your coup? Don't think there's a written record. I think it was also amazing. You had a confidential conversation with four hundred and thirty five people. Hard to the biggest lecture of my life or one of the biggest lectures, but it was. I tried to design more as a conversation, and it was a very congenial, collegial conversation. At the end of it, Charles Kennedy, Republican, Bobby Scott, a Democrat who happened to be my representative, came up to me and said, well, if you have have a hearing on this, would you come, And I said, well, think sure, I'd be honored. And then that hearing to which you just alluded happened a few weeks later, where I was then brought in by both the Republicans and Democrats to testifize one of the experts, one of the many experts, including Alan Dershowitz, on the question of whether or not President Clinton's alleged misconduct rose to the level of being an impeachable offense and what did you say. What I talked about was basically the law of impeachment. I tried to kind of lay out the things we knew that I thought were clear, and then kind of talked about some things that maybe unsettled, and said, here's what we know about them. Here are the arguments on both sides, and kind of walked everybody through that and then got questions. But there was no personal attack. It was always very much you know, in this footnote you said this, but now today you're saying that fair I can try and answer that. Did they actually give you a chance to answer it? I say that in light of our experiences this time around. They asked a question and then they actually let you answer it. It's like, you know, as you said, it sounds like the Middle Age, that's right. Yeah, So when we had our hearing, there was no chance to answer it, or at least we were given maybe a second and then that was about it. But yes, they would then give me a chance to answer it, and they appeared to be listening, and it was really more of a conversation than twenty years later it would be. It's sort of fascinating on many levels, but one of the reasons it's so fascinating is that most people at the time identified the impeachment of Bill Clinton, that moment as a high point in partisanship, the most partisan moment that people could remember in the United States and more than a century. And I think that was actually a fair assessment in historical terms. And now twenty years later, it sounds almost like a model of bipartisan cordiality and collegiality, even if they voted along party lines. Let me ask you a question, Michael, So, the reason you found yourself in that extraordinary position in the Clinton impeachment is that you were and remain the leading expert law professor on the subject of impeachment. Your Guide to the Impeachment Process book, you know, has come out and I think three editions. Now, why in the world, as a young law professor did you get interested in the impeachment as the topic? It was not a hot topic, you know when they lated eighties, when you must have started diving into it, or the middle ladies, when you started diving into it. Why did you choose the subject? Well, that's a good question. I grew up Jewish and Alabama in the nineteen sixties that that a lot comes with that. That's a big sentence where in Alabama mobile Okay, got it, And so I was my entire childhood was sort of shaped and defined by the Civil Rights movement. At the tail end of that civil rights movement was of course Watergate. So like many people of my generation, I watched Watergate. I was kind of thought it was an incredible moment to see the Congress sort of investigating the president and eventually the president resigned, and that that stuck with me. That was something that I felt the Civil Rights movement and the Watergate had in common a respect for the rule of law. I had in common the idea that law could bring order to chaos, and so that was very appealing to me. I had an interest in the law as a result. And I think one thing that's common about impeachment and importance for me is there not just academic areas of interest. There are areas where I feel like, as a lawyer and law professor, I have a duty to try to speak truth to power and to be a part of the process which enriches my understanding and that I hope I can bring that to my students. So let's fast forward then to now. So When I got the call in November saying, you know, might you be open to testifying? I took a long, deep breath, I said yes. And the next thing I did as soon as I got off the phone is I dove into the books and I massively read every letter that I could find on impeachment. And I was the whole time struck by just how much ground I had to cover. Because although I teach constitutional law like you do, I added a constitutional law casebook, impeachment appears on like one page of a twenty five hundred page casebook. Now, you must have been in a completely different situation because you literally wrote the book. Well, I should say you're a wonderfully quick study, and of course you've mastered it very well. Um, I don't know how. I don't know how quick it was, but it was hard. Now, well, in constutional time, it was quick, Yeah, exactly. I got the call. Actually, I think my call came the morning of Thanksgiving. Um, you know, I knew this hearing was coming up. I didn't have any I just I knew it was going to be important hearing, But I didn't necessarily know or think that I would be any part of it. I still would be I would care about it deeply, so I was following it. But then I did get a call Thursday morning saying, Okay, would you be willing to come testify? And then once I realized, okay, I am going to do this, UM, I did a little bit of study, but a lot of what I tried to do was sort of sit back and think about what's important for people to know and tried to pull together what I thought would be a very helpful narrative on how impeachment applies to the current situation. And so that became my focus. And one thing the course that stood out for me was how one of the critical things we see even now it was apparent back then, but we hear this and everything the president's lawyer is saying. I think we see this and everything the president does, and that is that all of that has in common the effort to make the president a monarch, perhaps even one could go so far as to say a tyrant, and that is not consistent with our Constitution in any way, shape or form. So having come to that conclusion, which I don't think was a hard one to reach, I then sort of built a case around did you sense before going in, Did you know this was going to be the kind of partisan battle royale that it sort of turned into. And were you comfortable inwardly with the idea that you were going to be able to say, look, according to the facts as they've been released in the House or discover in the House, if they're true, then the president deserves to be impeached under the Constitution, which is obviously what we both did say. But were you did you have any trepidation about that? Well, it's a good question I had already once I realized I guess I was going to be there. One of the other first things that occurs to me is to understand the venue, to understand the forum. And I was fairly fortunate in that I already testified in front of the Judiciary Committee on July twelfth basically about the Mother Report. So at that hearing in July twelfth, people came at after me rather personally, and I somehow survived, And I knew that this other hearing was going to be even more vicious. So my instinct was in that circumstance to dial it down, not to kind of meet them at the same level of yelling and screaming and personal attacks, but to try and sort of lower the temperature and make sure that whatever I was saying, and of course you were doing this as well, but to make sure everything I was saying was firmly grounded in the law. So if you if you know what you're saying is firmly grounded in law and it's backed up, you can have a lot of confidence when people come at you and attack you because you know the facts and you know the law, and you can then move forward on that basis. If you don't have those things on your side, I think, like the White House laws currently, you make things up. You know, you engage in a lot of inconsistent statements. But I felt the law was on our side. Let's talk a little bit about style in the presentation, because as you said, you were extremely calm throughout. I would say you were the calmest of the three of us, you and me and Pam Carlin. Was that fully your plan? Because I have to say, as I walked into that room with all of the cameras, I mean, I knew the cameras would be there. I knew it would be surrounded by you know, photographers. I knew they would melt away like a magic curtain, and behind them would be a whole walls worth of Judiciary Committee members. So I knew it in theory, but I kept on thinking of that expression of Mike Tyson's where he said everyone has a plan until they get punched in the face. And you know, that's sort of what it felt like to me. I walked in there with a plan, and I then felt just by the reality of it, it was like a punch in the face. And then I'm more or less adapted on the fly, and I think I changed the tone of my presentation and the tone of my answers based on the energy in the room. And I think I had the inward experience of feeling, Okay, you're about to open your mouth and say in substance that the presence of the United States is guilty of high crimes and misdemeanors. And logically speaking, although it's the choice of the House ought to be impeached, that's really a big deal. And it's not a time for half measures. It's not a time to say it as a on the one hand, or on the other hand, I think if I thought to myself, if I don't say it, definitively, clearly and bluntly, and again and again and again, the message really might not get through. And I don't think I really got that until I was sitting in the chair. Were you able to more or less? Was the strategy that you followed, the kind of the calm, rational one. Was that a strategy that that was the one you had going in. I'm not sure I had a well defined strategy going in other than kind of what I've said, other than I guess what is my typical temperament and disposition. And so what I felt at the time was I've got to get a feel for this room so very much like what you were saying, and that would help you know you know this very well. I think one problem for a lot of lawyers, particularly young lawyers, is they don't think about the forum. They don't think about the venue. They would argue the same way in a trial quarter as they would in congress or somewhere else. That's not a good move. You've got to be aware of who's listening, and you've got to be aware of your audience. And so part of what I was I felt I had to do was, Okay, I got to get a feel for that so many respects. The hardest moment is that first minute. Thank you, mister Chairman, ranking member, or other distinguished members of the committee. It's an honor and a privilege to join the other distinguished witnesses to discuss a matter of grave concern to our country and to our constitution. Because this House, the People's House, has the sole power of impeachment. There is no better forum to discuss the constitutional standard for impeachment and whether that standard has been met in the case of the current President of the United States. Where you're finding your voice and where you're trying to figure out what's the right tone. How do I play this room, so to speak. I don't want to diminish it by saying that, but I have to perform in these conditions, not academic conditions or something else. And so I once I got that feel, and I did have the benefit of following both you and Pam, so I was able to kind of studying and not just hear what y'all were saying, but also study the circumstances, which in some respects made me calmer because I felt I had a better grasp on the conditions. And then I kind of tailored my remarks. Accordingly, that's a great observation and it helps me to explain something that I was feeling before I started speaking, which was since I was the first witness, I had no idea what the tone in the room was. I mean, the Chairman Gerald, now they're set to start speaking. Professor Feldon, you may begin, and immediately the ranking Republican Doug cons interrupted me. Mister chairman before we get the chairman and members of the committee, mister Chairman have emotion. So that was already, you know, weird, and I wasn't clear on whether I should continue speaking or stop speaking, so I sort of stopped and then I started again. Mister Chairman and members of the committee, thank you very much for the opportunity to appear. And in my head, the blood was rushing and my heart was pounding, and I was just thinking to myself, I really don't want to sound nervous, and actually, at the end of my prepared statement, I thought to myself, well, Noah, you must have sounded very, very nervous. On the basis of the testimony and the evidence before the House, President Trump has committed impeachable high crimes and misdemeanors by corruptly abusing the office of the presidency. And it was only when I went back and watched myself on videotape that I realized that. Luckily, by trying to be forceful, I think I suppressed the shakiness in my voice and the you know, and the pounding heart, and I think maybe I almost had to be forceful in order to mask the fact that, you know, there was something nerve wracking about being the first one. I felt like I was speaking into the void. And I don't think I really understood why that was so painful, or not painful it is the wrong word, but why it was so challenging until you just talked about getting the feel of the room. It's hard to get the feel of the room when you're supposed to be the first person to talk. So that brings us to the public's reaction, which we didn't know when we were in the room, thank goodness, but which we discovered pretty clearly when we came out and turned on our phones. I mean, for me, a really dramatic moment was when we left at the very end of the day, this long, grueling day, nine plus hours. I think we were in there and someone from the Sergeant at Arms Office of the House was there to meet us in the witness room and said, Pam, you know, I hate to tell you this, but you're getting death threats. And you know, that was pretty shocking moment, certainly for me to hear, and I imagine for Pam as well, and it didn't really let up. Now. I think Pam unquestionably got the worst of it. I think a large part of that is good old fashioned misogyny. I think, you know, a woman taking on the president of the the United States is going to just get more and deeper negativity than men are. She also got, as I got, and as you got, a huge amount of negative commentary. I should say, I think I got about as much positive as negative. You know, huge numbers of people's coming out of the woodwork. You know, I knew you in summer camp. Thank you for your service to the country. Strangers writing that, lots of very uplifting stuff, but also a really strong thread of pretty vicious negativity. And at least in my instance, and we should talk about whether you had this experience too, A lot of it was anti semitic. A lot of the negative stuff was anti semitic. I'm wondering first of all, was that was that your experience? And then we should talk about how it felt that was mostly my experience. I mean, I guess the first thing I should mention is for me, the hate mail hugely outnumbered anything else it was. It may have been not just ten to one, it could be more. I think it's more like one hundred and one. I expected some of that. I don't know that I could expected, you know, the volume of it, and it was exactly the kind of vituol you described. It was very hateful, lots cursing, lots of profanity, and lots of declarations that you know you don't know X and you know you should be fired. And and yes, a lot of it was anti Semitic, and so that that was like a tidal way. And I got some very nice emails and even letters. And one thing that's very striking and actually very meaningful for me is that I heard from a lot of people that I grew up within forty years ago in Alabama, and they were very nice, remarkably kind, and very thoughtful, and that was I don't know that I expected. It was very nice. I think the level of anti semitism was more extreme this time than I've ever experienced it in this setting. I mean, obviously when I grew up, I experienced it a great deal. Well you say something about that, you say, you say obviously, But I think a lot of people, especially you know, let's say our kids age, don't really know what it would have been like to be a Jewish kid in Mobile, Alabama when you were growing up in the sixties and early SEVENTIESE what what was that like? I mean, how how did you experience anti Semitism as a kid? Was it was it comments? Was it people picking fights with you? How did it? How did it work? Yes? It was comments and it was fights. I got beaten up a fair bit. And you're a big guy, and you were a serious athlete, right, I mean, weren't you? Well I was. I read somewhere you were the number two tennis player in the state of Alabama, So you were you were a jock, and they were still coming after you. Yeah. Well you can imagine that you, as tennis player in football country was not exactly you know, a model citizen. Um and so um it manifested itself in all sorts of different ways. Yes, people in school would say nasty things, and certainly, both in school and out of school, I would get beaten up somewhat regularly, um and um. And although I was a competitive tennis player back at this period of time, I could not play in any country clubs because all the country clubs barre Jewish members. And so whenever there was a tennis tournament in a country club in those days, there were a lot of tennis tournaments in country clubs, I could not play, Wow, because it wasn't just that. So it wasn't just that you couldn't be a member. It was more like a segregation model. Yeah, literally could not go into the club. That's play Becauespecially there must have been other kids playing who weren't members, but they weren't Jewish, that's correct. Wow. And so I could play in public courts, but I couldn't play in private courts basically. And did that do you think affect you when you started getting you know, one hundred to one ratio of of hate mail with a lot of any Semitism? I mean, did was it upsetting? I don't. I don't know what the word would be. It's disturbing, I don't, Yeah, Um, I think it's it's really sad um and I think it was upset more from my family because their threats made against my family as well. So we had to get campus police UM and the local police in Chapel Hill to kind of monitor our home, and they're still coming by occasionally, goodness, check on our home. Upsetting. The law school has essentially raised my information and you know, I'm not I didn't ask for this, but the law school decided maybe the best response was less pretend like he's not here, so they took all indications of my office, my phone, my email, everything's gone. So it's a weird feeling. It's it's ironic. You're you're the most famous professor and there's no information about you on the website except that you are their most famous professor. Yeah. Well yeah, and somehow disappeared. Yeah wow. And and maybe some of this has to do with a little bit of being the south of the Chapel Hills. It's one of the great college towns. It's not an anti Semitic in any way shape course, of course, And so I think that it's um. So some of it did feel from your arn and maybe that just provoked to me a feeling of great sadness that after so many years, you know, I've come full circle. You know, I think you know what you're saying. First of all, I feel deep sympathy for you. I it's a reminder to me that you know, we've all we've we both have the white man privilege, which is a good privilege to have in life. But there's an extra privilege that I have of being in the Northeast and from a generation that didn't really experience any over anti semitism. You know, no getting beaten up, you know, certainly no inability to you know, play in a in a club. You mentioned your family. One of the pleasures for me of the whole long day was getting to spend a little bit of time in the witness room with your son Noah, who came and sat behind you during the entire hearing. What was his takeaway from the from the whole day? And he seems incredibly smart, incredibly focused, you know, knew all the details. Half the time. I thought to myself, maybe he should be up there testifying inside of me. Um, what what was it? What was his ultimate takeaway from the whole day? Well, that's very sweet, So thank you for saying that, and he said he saw you later in the airport as well, So yeah, we did see each other in the air I really then I was drinking a very large Manhattan and I would have invited him to join me, but he was not. He was not of itch, that's right. But but thank you for for all that. Um. This is my seventeen year old son. He's very interested in politics. It's very interested in the Constitution. But um and also, by the way, incredibly proud of his Jewish identity, and so he I think had asked me at some point, maybe way back in the summer, he said, well, Dad, if you end up he's hurt in our household. That I testified the Clining hearing. So at one point he said, you know, Dad, if you get invited, would you take me? And I said sure, what Dad? Would you know? You say sure? And then the day came and the first thing he said, after I you know, I mentioned that this had keim. He said, well, you promised, you promised to take me, So I did, and he paid very close attention. He was very incredibly sensitive to everything going on in the room, but also very aware. And if you see the videos of me testifying, you'll see him looking around the room a lot behind me, so he was absorbing it, and I think he was really struck by the really harsh partisanship. The tone just stunned him. The fact that people could talk that meanly to other people. You know, there is we've kind of touched on this a little bit. If you're concerned about equality, and we all are, it's remarkable when you're in a room like that and you have members of the House of Representatives yelling and screaming down at you, and here's the thing you cannot yell and scream back. True. That is the essence of inequality, I think, where they are using their position in a way to demean you. And my son really picked up on that. He thought it was just I can't even put in your superlatives here. He was just absolutely outraged by that. That's fascinating. Yeah, I'm glad you made that point, Michaelin. It brings me to my last question, and that has to do with how you think about our roles as law professors. Here. I have to say a couple of my most cynical friends, one of whom is actually a Trump person, you know, said to me privately, you know what were you doing out there sounding like you can speak on behalf of the constitution. In fact, someone said to me, you sound like a rabbi and synagogue trying to, you know, say what the toura means. And you know, my answer was, Okay, I'll take that analogy because part of my job as a law professor is to teach students and to teach them that there are two sides to every question. But that doesn't mean I can't believe that one of the answers is true. And in this instance, I felt like my job as a law professor was actually to stand up and say not on the one hand. On the other hand, but actually, this is what the constitution means. This isn't a hard case. The frameworks were really clear. They specifically talked about these issues. It's not like, what did the founding fathers think about smartphones when they never heard of a smartphone? This is what did they think about the distortion or presidential election? Well, as a matter of fact, they talked about it. What did they think about, you know, bribery, As a matter of fact, they talked about it. So I was sort of willing to embrace the idea that sometimes our job is to be kind of secular priests of the constitutional faith, you know, to stand up and speak on behalf of the constitution. You know, some of our colleagues think we shouldn't do that. Do you share some instinct that you know that is actually our role in those circumstances? Yes, I do share that. So there are two points, and I think that's really the first point. Another way to put it is that I actually do believe in expertise, and I believe in facts, and I think that somebody who spends a lot of time studying something and has thought about it and analyzed it and read about it and sort of come up with, let's say, supportable insights and useful sort of thoughts about it, ought to share that expertise. So that's the first reason. But the second is I tell this to my class all the time, and I feel, to some extent this is our duty as well. One of the first things I always say, although fewer and fewer students are aware of this story, the great story about the Emperor's new clothes, and how what a lawyer has to do I think is have the courage to be able to say I don't think he has any clothes on. This comes back from my background and growing up in Alabama. Somebody has to be able to say, this is what a lawyer most useful function is. I think, hold on, now, that's a violation of the law. There's something bigger than us here and we have to recognize that. And that bigger thing is the Constitution. And if I think it's being breached, and I'm thoughtful and I'm doing this in good faith, I think I have a duty to express that. Michael, thank you for being a model to me of what it is to be an expert, what it is to believe that there is truth about the Constitution, and what it is to go out there and tell people what that truth is. Really. Thank you so much. Thank you such a great role model, and thanks thanks for this great conversation. It's great to talk to you. Thank you. Noah. Since Michael and I spoke, the impeachment trial has ground to a premature halt. As of this moment, it seems overwhelmingly likely that by the end of the day, the Senate of the United States is going to vote on whether to remove the president, and almost certainly it will vote not to remove him, and that it's going to do so without ever hearing any witnesses at all. That reason is a really fundamental question was the trial legitimate in the first place. This is going to be a difficult and controversial issue that Democrats and Republicans are going to continue to fight about for quite some time. You can expect Democrats to point out that never in the history of the United States Senate has there ever been an impeachment trial without witnesses before. You can also expect Democrats to say that the basic definition of a trial requires looking at some sort of evidence, whether it's witnesses or documents or something, and that therefore this really didn't count as a trial, and that the Senate in some sense failed to fulfill its constitutional responsibilities. On the Republican side, you can expect people to say, not only now, but well into the future, that the Senate just didn't have to consider anything more than the evidence that had been brought by the House. Some Republicans will say, as some are saying right now, that even if all of the charges against Donald Trump were true, they didn't rise to the level of an impeachable offense. Others will take the position that even if Trump did all of the things he was accused of doing. There was just nothing wrong with it at all. The judgment of history on this question is likely to remain mixed for some time, but that's not the most important point. The most important point is that future Senates are going to look back on what this Senate did and treat it as at least a somewhat convincing precedent for how they should act. It will no longer be possible to say that at every single impeachment trial since the beginning of the Republic there have always been witnesses, because now there will have been a trial with no witnesses at all. I should add that we did not get here overnight. Over time, the Senate has increasingly been willing to listen to witnesses who were not appearing directly in front of it, but who gave depositions behind closed doors which could then be watched indirectly as excerpts by the senators. On the surface, that might not sound like it was such a deviation from the tradition of hearing witnesses directly, and maybe it didn't seem so at the time, but in retrospect, it's really clear that not hearing directly for witnesses was one step along the way to a Senate that felt it did not need to hear witnesses at all. We even heard in this trial Republicans saying the rather shocking proposition that it was the job of the House of Representatives together all of the evidence, as though it weren't also the job of those who were running the trial to hear that evidence for themselves, as they had always done previously. The thing about impeachment is that precedent changes very slowly. Because we don't have very many impeachments to judge from. I think that it's inevitably the case now that we will come to see this trial as having been whether legitimate or not, one option available to the Senate. If we have a democratic president and a democratically controlled Senate, you will hear Democrats, not Republicans, saying, you know what, we don't absolutely need to have witnesses, because after all, they didn't have them the last time. In the long run, then we won't be debating the legitimacy of the trial or the fairness of the procedures. We'll just be debating whether to follow those procedures again the next time. After all, it's within the constitutional power of the Senate to decide if the trial that it conducted counted as a trial or not. And if you leave it to somebody to be the judge in his own cause, you can be pretty confident that he'll find himself not guilty. Now it's time for a segment I'll be doing every week called Playback. I'll choose a moment in the news, play it back to you, and then I'll try to make some sense out of it. Here's this week's major market alert. Stocks plunging is the spread of coronavirus rattles investors, But now the SMB and AZDAC all posted their biggest losses of the year by far. That's a clip from CNBC's Brian Sullivan about the impact that the coronavirus has been having on the markets, and where something affects the markets, before too long, it's going to start affecting the real economy too. How worried should we really be about the effect that the coronavirus might have on the global exchange of trade, which is so significantly affected by China. The answer to that question is one of the classic instances of questions that have to be answered by virtue of uncertainty. It's uncertain because all we have to go on is the experience of happened when China was struck by the Stars virus nearly twenty years ago, and that experience is very far from exact when it's compared to what we're dealing with now. First of all, those are two different viruses, and they might spread through the population in significantly different ways. Second of all, China's role in the international economy has expanded drastically since the last time, So all anyone can do is make a little bet about what the probabilities are that, in fact, we're going to be profoundly affected globally by a process in which China might become largely cut off from many of the supply chains in which it's presently centrally engaged. The markets are simply one measure of one collective group of people, acting individually, not coordinating with each other, making bets and gambles on the probability that this will happen, and the market is gambling from a standpoint of very significant ignorance. Now it may seem monstrous to try to make economic money making predictions and bets that are intended to pay off for the people making those bets on the basis of disease. But that's just business as usual for economic markets, which after all, have as their purpose trying to make a buck on the vicissitudes of human affairs. The markets as of this moment seem to think that the dangers of the coronavirus profoundly disrupting the global economy are relatively small. Among the epidemiologists, the prevailing view seems to be that the coronavirus is not one of those viruses that's susceptible to extraordinarily rapid spreading, infecting everybody who comes into any form of contact with those who have the disease. But notice that the epidemiologists are themselves little different from the people making bets in the markets. That is, they're just engaged expressing a statistical probability of what they think will happen, based on imperfect models and highly dissimilar past events. So what we're dealing with really is a set of statistical predictions by epidemiologists, and then a set of statistical predictions by people in the market who are betting on the bets of those epidemiologists. In their first place it's probabilities on probabilities. All this reminds me of a famous line by the Supreme Court Justice Oliver Wendell Holmes Junior. He was talking about the freedom of speech and the American system of government, and he said that the American system of government is at any rate an experiment, as all life is an experiment. What Holmes meant when he said all life is an experiment is that every day, and in almost every way, we are betting our future on probabilities, hundreds or thousands of probabilities of events taking place according to our expectations. We do our best, not because that's so great, not because it's good enough, but because it's our only option. Deep background is brought to you by Pushkin Industries. Our producer is Lydia gene Kott, with studio recording by Joseph Fridman and mastering by Jason Gambrel and Jason Roskowski. Our showrunner is Sophie mckibbon. Our theme music is composed by Luis Garat Special thanks to the Pushkin Brass Malcolm Gladwell, Jacob Weisberg, and Mia Lobel. I'm Noah Feldman. You can follow me on Twitter at Noah R. Feldman. This is deep background

Pushkin from Pushkin Industries. This is Deep Background, the show where we explore the stories behind the stories in the news. I'm Noah Feldman. If you're joining us for the first time, welcome. If you've missed any of our earlier episodes, which used to be behind a paywall, you can now get them for free exactly where you found this one. A bit about me. I teach constitutional law at Harvard. I love a well tailored suit, and I had a pretty eventful winter break. Do you swear or affirm, under penalty of perjury that the testimony you're about to give is true and correct to the best of your knowledge, information, and belief. So help you God. This past December, I was an expert witness called by the Democrats to testify at the impeachment inquiry and the House of Representatives into President Donald Trump. To be honest with you, it was extremely nerve racking. My job is to study and to teach the Constitution from its origins until the president. I'm here today to describe three things. Why the framers of our Constitution included a provision for the impeachment of the president. What that provision providing for impeachment for high crimes and misdemeanors means, and last, how it applies to the question before you and for the American people, whether President Trump has committed impeachable offenses under the Constitution. The other expert witnesses called by the Democrats were Pamela Carlin, a law professor at Stanford. When President Trump invited, indeed demanded, foreign involvement in our upcoming election, he struck at the very heart of what makes this a republic to which we pledge allegiance. And Michael Gerhart, a law professor at the University of North Carolina at Chapel Hill. If what we're talking about is not impeachable, then nothing is impeachable. I recently got the chance to talk to Michael Gerhart about that day and all that has happened since I was, unfortunately recovering from a slight cold. Michael, thank you so much for joining me. We've spoken on the phone, but we actually haven't seen each other since December fourth, when we both had the opportunity and maybe dubious honor of testifying at the House Judiciary Committees hearing on impeachment. How you've been doing since then? It's been busy teaching classes, and also trying to be part of the national conversation on a very important subject. What I would love for us to do in this conversation is open up for listeners some of the backstory and the back scenes of what we experienced that day, how we prepared for it, and also the sort of bigger picture of consequences of what's been going on. So maybe the way to start is I had never done this before, so it was all a surprise to me. But you had done this before twenty years previously, when they were a group of law professors, I think twenty one in total, who testified about Bill Clinton's impeachment to the House Judiciary Committee. And not only were you one of them, but you were also the only one who was jointly put forward by the Republicans and the Democrats. So take us back, if you will, twenty years and tell us how that happened. You know, nowadays it's almost inconceivable to imagine there being somebody who was acceptable to both sides. Well, twenty years seems a long time ago. It's going to seem even longer when we put together what was happening back then, it'll seem completely alien to us. So I had spent a fair bit of my academic career studying and writing about impeachment, also testifying and consulting with members of Congress. That was all known by the time we got to nineteen ninety eight, And there was a special moment for me in nineteen ninety eight when Jim Leech or Republican David Skaggs Democrat called me up on the phone and said, would you come talk to us in Washington? Generally, if members of Congress want to talk to me about something, I think that's a great honor. Night went and they said to me, well, what we'd like you to do after you talk to us right now is go speak to the entire House of Representatives. I didn't know that coming into that moment, and they had arranged like they wanted to speak to the House right then, Yes, right then. Um, so I thought, well, this is going to be a good test whether or not I know the subject matter. And so then we walked over to the House and I had to get special permission to walk onto the floor of the House and then behind closed doors with no staff, no press or anything. I then talked to the entire House of Representatives about impeachment. It's been about two hours doing it. No no cameras, nothing, nothing, just nothing. It was all Is there a written record of your coup? Don't think there's a written record. I think it was also amazing. You had a confidential conversation with four hundred and thirty five people. Hard to the biggest lecture of my life or one of the biggest lectures, but it was. I tried to design more as a conversation, and it was a very congenial, collegial conversation. At the end of it, Charles Kennedy, Republican, Bobby Scott, a Democrat who happened to be my representative, came up to me and said, well, if you have have a hearing on this, would you come, And I said, well, think sure, I'd be honored. And then that hearing to which you just alluded happened a few weeks later, where I was then brought in by both the Republicans and Democrats to testifize one of the experts, one of the many experts, including Alan Dershowitz, on the question of whether or not President Clinton's alleged misconduct rose to the level of being an impeachable offense and what did you say. What I talked about was basically the law of impeachment. I tried to kind of lay out the things we knew that I thought were clear, and then kind of talked about some things that maybe unsettled, and said, here's what we know about them. Here are the arguments on both sides, and kind of walked everybody through that and then got questions. But there was no personal attack. It was always very much you know, in this footnote you said this, but now today you're saying that fair I can try and answer that. Did they actually give you a chance to answer it? I say that in light of our experiences this time around. They asked a question and then they actually let you answer it. It's like, you know, as you said, it sounds like the Middle Age, that's right. Yeah, So when we had our hearing, there was no chance to answer it, or at least we were given maybe a second and then that was about it. But yes, they would then give me a chance to answer it, and they appeared to be listening, and it was really more of a conversation than twenty years later it would be. It's sort of fascinating on many levels, but one of the reasons it's so fascinating is that most people at the time identified the impeachment of Bill Clinton, that moment as a high point in partisanship, the most partisan moment that people could remember in the United States and more than a century. And I think that was actually a fair assessment in historical terms. And now twenty years later, it sounds almost like a model of bipartisan cordiality and collegiality, even if they voted along party lines. Let me ask you a question, Michael, So, the reason you found yourself in that extraordinary position in the Clinton impeachment is that you were and remain the leading expert law professor on the subject of impeachment. Your Guide to the Impeachment Process book, you know, has come out and I think three editions. Now, why in the world, as a young law professor did you get interested in the impeachment as the topic? It was not a hot topic, you know when they lated eighties, when you must have started diving into it, or the middle ladies, when you started diving into it. Why did you choose the subject? Well, that's a good question. I grew up Jewish and Alabama in the nineteen sixties that that a lot comes with that. That's a big sentence where in Alabama mobile Okay, got it, And so I was my entire childhood was sort of shaped and defined by the Civil Rights movement. At the tail end of that civil rights movement was of course Watergate. So like many people of my generation, I watched Watergate. I was kind of thought it was an incredible moment to see the Congress sort of investigating the president and eventually the president resigned, and that that stuck with me. That was something that I felt the Civil Rights movement and the Watergate had in common a respect for the rule of law. I had in common the idea that law could bring order to chaos, and so that was very appealing to me. I had an interest in the law as a result. And I think one thing that's common about impeachment and importance for me is there not just academic areas of interest. There are areas where I feel like, as a lawyer and law professor, I have a duty to try to speak truth to power and to be a part of the process which enriches my understanding and that I hope I can bring that to my students. So let's fast forward then to now. So When I got the call in November saying, you know, might you be open to testifying? I took a long, deep breath, I said yes. And the next thing I did as soon as I got off the phone is I dove into the books and I massively read every letter that I could find on impeachment. And I was the whole time struck by just how much ground I had to cover. Because although I teach constitutional law like you do, I added a constitutional law casebook, impeachment appears on like one page of a twenty five hundred page casebook. Now, you must have been in a completely different situation because you literally wrote the book. Well, I should say you're a wonderfully quick study, and of course you've mastered it very well. Um, I don't know how. I don't know how quick it was, but it was hard. Now, well, in constutional time, it was quick, Yeah, exactly. I got the call. Actually, I think my call came the morning of Thanksgiving. Um, you know, I knew this hearing was coming up. I didn't have any I just I knew it was going to be important hearing, But I didn't necessarily know or think that I would be any part of it. I still would be I would care about it deeply, so I was following it. But then I did get a call Thursday morning saying, Okay, would you be willing to come testify? And then once I realized, okay, I am going to do this, UM, I did a little bit of study, but a lot of what I tried to do was sort of sit back and think about what's important for people to know and tried to pull together what I thought would be a very helpful narrative on how impeachment applies to the current situation. And so that became my focus. And one thing the course that stood out for me was how one of the critical things we see even now it was apparent back then, but we hear this and everything the president's lawyer is saying. I think we see this and everything the president does, and that is that all of that has in common the effort to make the president a monarch, perhaps even one could go so far as to say a tyrant, and that is not consistent with our Constitution in any way, shape or form. So having come to that conclusion, which I don't think was a hard one to reach, I then sort of built a case around did you sense before going in, Did you know this was going to be the kind of partisan battle royale that it sort of turned into. And were you comfortable inwardly with the idea that you were going to be able to say, look, according to the facts as they've been released in the House or discover in the House, if they're true, then the president deserves to be impeached under the Constitution, which is obviously what we both did say. But were you did you have any trepidation about that? Well, it's a good question I had already once I realized I guess I was going to be there. One of the other first things that occurs to me is to understand the venue, to understand the forum. And I was fairly fortunate in that I already testified in front of the Judiciary Committee on July twelfth basically about the Mother Report. So at that hearing in July twelfth, people came at after me rather personally, and I somehow survived, And I knew that this other hearing was going to be even more vicious. So my instinct was in that circumstance to dial it down, not to kind of meet them at the same level of yelling and screaming and personal attacks, but to try and sort of lower the temperature and make sure that whatever I was saying, and of course you were doing this as well, but to make sure everything I was saying was firmly grounded in the law. So if you if you know what you're saying is firmly grounded in law and it's backed up, you can have a lot of confidence when people come at you and attack you because you know the facts and you know the law, and you can then move forward on that basis. If you don't have those things on your side, I think, like the White House laws currently, you make things up. You know, you engage in a lot of inconsistent statements. But I felt the law was on our side. Let's talk a little bit about style in the presentation, because as you said, you were extremely calm throughout. I would say you were the calmest of the three of us, you and me and Pam Carlin. Was that fully your plan? Because I have to say, as I walked into that room with all of the cameras, I mean, I knew the cameras would be there. I knew it would be surrounded by you know, photographers. I knew they would melt away like a magic curtain, and behind them would be a whole walls worth of Judiciary Committee members. So I knew it in theory, but I kept on thinking of that expression of Mike Tyson's where he said everyone has a plan until they get punched in the face. And you know, that's sort of what it felt like to me. I walked in there with a plan, and I then felt just by the reality of it, it was like a punch in the face. And then I'm more or less adapted on the fly, and I think I changed the tone of my presentation and the tone of my answers based on the energy in the room. And I think I had the inward experience of feeling, Okay, you're about to open your mouth and say in substance that the presence of the United States is guilty of high crimes and misdemeanors. And logically speaking, although it's the choice of the House ought to be impeached, that's really a big deal. And it's not a time for half measures. It's not a time to say it as a on the one hand, or on the other hand, I think if I thought to myself, if I don't say it, definitively, clearly and bluntly, and again and again and again, the message really might not get through. And I don't think I really got that until I was sitting in the chair. Were you able to more or less? Was the strategy that you followed, the kind of the calm, rational one. Was that a strategy that that was the one you had going in. I'm not sure I had a well defined strategy going in other than kind of what I've said, other than I guess what is my typical temperament and disposition. And so what I felt at the time was I've got to get a feel for this room so very much like what you were saying, and that would help you know you know this very well. I think one problem for a lot of lawyers, particularly young lawyers, is they don't think about the forum. They don't think about the venue. They would argue the same way in a trial quarter as they would in congress or somewhere else. That's not a good move. You've got to be aware of who's listening, and you've got to be aware of your audience. And so part of what I was I felt I had to do was, Okay, I got to get a feel for that so many respects. The hardest moment is that first minute. Thank you, mister Chairman, ranking member, or other distinguished members of the committee. It's an honor and a privilege to join the other distinguished witnesses to discuss a matter of grave concern to our country and to our constitution. Because this House, the People's House, has the sole power of impeachment. There is no better forum to discuss the constitutional standard for impeachment and whether that standard has been met in the case of the current President of the United States. Where you're finding your voice and where you're trying to figure out what's the right tone. How do I play this room, so to speak. I don't want to diminish it by saying that, but I have to perform in these conditions, not academic conditions or something else. And so I once I got that feel, and I did have the benefit of following both you and Pam, so I was able to kind of studying and not just hear what y'all were saying, but also study the circumstances, which in some respects made me calmer because I felt I had a better grasp on the conditions. And then I kind of tailored my remarks. Accordingly, that's a great observation and it helps me to explain something that I was feeling before I started speaking, which was since I was the first witness, I had no idea what the tone in the room was. I mean, the Chairman Gerald, now they're set to start speaking. Professor Feldon, you may begin, and immediately the ranking Republican Doug cons interrupted me. Mister chairman before we get the chairman and members of the committee, mister Chairman have emotion. So that was already, you know, weird, and I wasn't clear on whether I should continue speaking or stop speaking, so I sort of stopped and then I started again. Mister Chairman and members of the committee, thank you very much for the opportunity to appear. And in my head, the blood was rushing and my heart was pounding, and I was just thinking to myself, I really don't want to sound nervous, and actually, at the end of my prepared statement, I thought to myself, well, Noah, you must have sounded very, very nervous. On the basis of the testimony and the evidence before the House, President Trump has committed impeachable high crimes and misdemeanors by corruptly abusing the office of the presidency. And it was only when I went back and watched myself on videotape that I realized that. Luckily, by trying to be forceful, I think I suppressed the shakiness in my voice and the you know, and the pounding heart, and I think maybe I almost had to be forceful in order to mask the fact that, you know, there was something nerve wracking about being the first one. I felt like I was speaking into the void. And I don't think I really understood why that was so painful, or not painful it is the wrong word, but why it was so challenging until you just talked about getting the feel of the room. It's hard to get the feel of the room when you're supposed to be the first person to talk. So that brings us to the public's reaction, which we didn't know when we were in the room, thank goodness, but which we discovered pretty clearly when we came out and turned on our phones. I mean, for me, a really dramatic moment was when we left at the very end of the day, this long, grueling day, nine plus hours. I think we were in there and someone from the Sergeant at Arms Office of the House was there to meet us in the witness room and said, Pam, you know, I hate to tell you this, but you're getting death threats. And you know, that was pretty shocking moment, certainly for me to hear, and I imagine for Pam as well, and it didn't really let up. Now. I think Pam unquestionably got the worst of it. I think a large part of that is good old fashioned misogyny. I think, you know, a woman taking on the president of the the United States is going to just get more and deeper negativity than men are. She also got, as I got, and as you got, a huge amount of negative commentary. I should say, I think I got about as much positive as negative. You know, huge numbers of people's coming out of the woodwork. You know, I knew you in summer camp. Thank you for your service to the country. Strangers writing that, lots of very uplifting stuff, but also a really strong thread of pretty vicious negativity. And at least in my instance, and we should talk about whether you had this experience too, A lot of it was anti semitic. A lot of the negative stuff was anti semitic. I'm wondering first of all, was that was that your experience? And then we should talk about how it felt that was mostly my experience. I mean, I guess the first thing I should mention is for me, the hate mail hugely outnumbered anything else it was. It may have been not just ten to one, it could be more. I think it's more like one hundred and one. I expected some of that. I don't know that I could expected, you know, the volume of it, and it was exactly the kind of vituol you described. It was very hateful, lots cursing, lots of profanity, and lots of declarations that you know you don't know X and you know you should be fired. And and yes, a lot of it was anti Semitic, and so that that was like a tidal way. And I got some very nice emails and even letters. And one thing that's very striking and actually very meaningful for me is that I heard from a lot of people that I grew up within forty years ago in Alabama, and they were very nice, remarkably kind, and very thoughtful, and that was I don't know that I expected. It was very nice. I think the level of anti semitism was more extreme this time than I've ever experienced it in this setting. I mean, obviously when I grew up, I experienced it a great deal. Well you say something about that, you say, you say obviously, But I think a lot of people, especially you know, let's say our kids age, don't really know what it would have been like to be a Jewish kid in Mobile, Alabama when you were growing up in the sixties and early SEVENTIESE what what was that like? I mean, how how did you experience anti Semitism as a kid? Was it was it comments? Was it people picking fights with you? How did it? How did it work? Yes? It was comments and it was fights. I got beaten up a fair bit. And you're a big guy, and you were a serious athlete, right, I mean, weren't you? Well I was. I read somewhere you were the number two tennis player in the state of Alabama, So you were you were a jock, and they were still coming after you. Yeah. Well you can imagine that you, as tennis player in football country was not exactly you know, a model citizen. Um and so um it manifested itself in all sorts of different ways. Yes, people in school would say nasty things, and certainly, both in school and out of school, I would get beaten up somewhat regularly, um and um. And although I was a competitive tennis player back at this period of time, I could not play in any country clubs because all the country clubs barre Jewish members. And so whenever there was a tennis tournament in a country club in those days, there were a lot of tennis tournaments in country clubs, I could not play, Wow, because it wasn't just that. So it wasn't just that you couldn't be a member. It was more like a segregation model. Yeah, literally could not go into the club. That's play Becauespecially there must have been other kids playing who weren't members, but they weren't Jewish, that's correct. Wow. And so I could play in public courts, but I couldn't play in private courts basically. And did that do you think affect you when you started getting you know, one hundred to one ratio of of hate mail with a lot of any Semitism? I mean, did was it upsetting? I don't. I don't know what the word would be. It's disturbing, I don't, Yeah, Um, I think it's it's really sad um and I think it was upset more from my family because their threats made against my family as well. So we had to get campus police UM and the local police in Chapel Hill to kind of monitor our home, and they're still coming by occasionally, goodness, check on our home. Upsetting. The law school has essentially raised my information and you know, I'm not I didn't ask for this, but the law school decided maybe the best response was less pretend like he's not here, so they took all indications of my office, my phone, my email, everything's gone. So it's a weird feeling. It's it's ironic. You're you're the most famous professor and there's no information about you on the website except that you are their most famous professor. Yeah. Well yeah, and somehow disappeared. Yeah wow. And and maybe some of this has to do with a little bit of being the south of the Chapel Hills. It's one of the great college towns. It's not an anti Semitic in any way shape course, of course, And so I think that it's um. So some of it did feel from your arn and maybe that just provoked to me a feeling of great sadness that after so many years, you know, I've come full circle. You know, I think you know what you're saying. First of all, I feel deep sympathy for you. I it's a reminder to me that you know, we've all we've we both have the white man privilege, which is a good privilege to have in life. But there's an extra privilege that I have of being in the Northeast and from a generation that didn't really experience any over anti semitism. You know, no getting beaten up, you know, certainly no inability to you know, play in a in a club. You mentioned your family. One of the pleasures for me of the whole long day was getting to spend a little bit of time in the witness room with your son Noah, who came and sat behind you during the entire hearing. What was his takeaway from the from the whole day? And he seems incredibly smart, incredibly focused, you know, knew all the details. Half the time. I thought to myself, maybe he should be up there testifying inside of me. Um, what what was it? What was his ultimate takeaway from the whole day? Well, that's very sweet, So thank you for saying that, and he said he saw you later in the airport as well, So yeah, we did see each other in the air I really then I was drinking a very large Manhattan and I would have invited him to join me, but he was not. He was not of itch, that's right. But but thank you for for all that. Um. This is my seventeen year old son. He's very interested in politics. It's very interested in the Constitution. But um and also, by the way, incredibly proud of his Jewish identity, and so he I think had asked me at some point, maybe way back in the summer, he said, well, Dad, if you end up he's hurt in our household. That I testified the Clining hearing. So at one point he said, you know, Dad, if you get invited, would you take me? And I said sure, what Dad? Would you know? You say sure? And then the day came and the first thing he said, after I you know, I mentioned that this had keim. He said, well, you promised, you promised to take me, So I did, and he paid very close attention. He was very incredibly sensitive to everything going on in the room, but also very aware. And if you see the videos of me testifying, you'll see him looking around the room a lot behind me, so he was absorbing it, and I think he was really struck by the really harsh partisanship. The tone just stunned him. The fact that people could talk that meanly to other people. You know, there is we've kind of touched on this a little bit. If you're concerned about equality, and we all are, it's remarkable when you're in a room like that and you have members of the House of Representatives yelling and screaming down at you, and here's the thing you cannot yell and scream back. True. That is the essence of inequality, I think, where they are using their position in a way to demean you. And my son really picked up on that. He thought it was just I can't even put in your superlatives here. He was just absolutely outraged by that. That's fascinating. Yeah, I'm glad you made that point, Michaelin. It brings me to my last question, and that has to do with how you think about our roles as law professors. Here. I have to say a couple of my most cynical friends, one of whom is actually a Trump person, you know, said to me privately, you know what were you doing out there sounding like you can speak on behalf of the constitution. In fact, someone said to me, you sound like a rabbi and synagogue trying to, you know, say what the toura means. And you know, my answer was, Okay, I'll take that analogy because part of my job as a law professor is to teach students and to teach them that there are two sides to every question. But that doesn't mean I can't believe that one of the answers is true. And in this instance, I felt like my job as a law professor was actually to stand up and say not on the one hand. On the other hand, but actually, this is what the constitution means. This isn't a hard case. The frameworks were really clear. They specifically talked about these issues. It's not like, what did the founding fathers think about smartphones when they never heard of a smartphone? This is what did they think about the distortion or presidential election? Well, as a matter of fact, they talked about it. What did they think about, you know, bribery, As a matter of fact, they talked about it. So I was sort of willing to embrace the idea that sometimes our job is to be kind of secular priests of the constitutional faith, you know, to stand up and speak on behalf of the constitution. You know, some of our colleagues think we shouldn't do that. Do you share some instinct that you know that is actually our role in those circumstances? Yes, I do share that. So there are two points, and I think that's really the first point. Another way to put it is that I actually do believe in expertise, and I believe in facts, and I think that somebody who spends a lot of time studying something and has thought about it and analyzed it and read about it and sort of come up with, let's say, supportable insights and useful sort of thoughts about it, ought to share that expertise. So that's the first reason. But the second is I tell this to my class all the time, and I feel, to some extent this is our duty as well. One of the first things I always say, although fewer and fewer students are aware of this story, the great story about the Emperor's new clothes, and how what a lawyer has to do I think is have the courage to be able to say I don't think he has any clothes on. This comes back from my background and growing up in Alabama. Somebody has to be able to say, this is what a lawyer most useful function is. I think, hold on, now, that's a violation of the law. There's something bigger than us here and we have to recognize that. And that bigger thing is the Constitution. And if I think it's being breached, and I'm thoughtful and I'm doing this in good faith, I think I have a duty to express that. Michael, thank you for being a model to me of what it is to be an expert, what it is to believe that there is truth about the Constitution, and what it is to go out there and tell people what that truth is. Really. Thank you so much. Thank you such a great role model, and thanks thanks for this great conversation. It's great to talk to you. Thank you. Noah. Since Michael and I spoke, the impeachment trial has ground to a premature halt. As of this moment, it seems overwhelmingly likely that by the end of the day, the Senate of the United States is going to vote on whether to remove the president, and almost certainly it will vote not to remove him, and that it's going to do so without ever hearing any witnesses at all. That reason is a really fundamental question was the trial legitimate in the first place. This is going to be a difficult and controversial issue that Democrats and Republicans are going to continue to fight about for quite some time. You can expect Democrats to point out that never in the history of the United States Senate has there ever been an impeachment trial without witnesses before. You can also expect Democrats to say that the basic definition of a trial requires looking at some sort of evidence, whether it's witnesses or documents or something, and that therefore this really didn't count as a trial, and that the Senate in some sense failed to fulfill its constitutional responsibilities. On the Republican side, you can expect people to say, not only now, but well into the future, that the Senate just didn't have to consider anything more than the evidence that had been brought by the House. Some Republicans will say, as some are saying right now, that even if all of the charges against Donald Trump were true, they didn't rise to the level of an impeachable offense. Others will take the position that even if Trump did all of the things he was accused of doing. There was just nothing wrong with it at all. The judgment of history on this question is likely to remain mixed for some time, but that's not the most important point. The most important point is that future Senates are going to look back on what this Senate did and treat it as at least a somewhat convincing precedent for how they should act. It will no longer be possible to say that at every single impeachment trial since the beginning of the Republic there have always been witnesses, because now there will have been a trial with no witnesses at all. I should add that we did not get here overnight. Over time, the Senate has increasingly been willing to listen to witnesses who were not appearing directly in front of it, but who gave depositions behind closed doors which could then be watched indirectly as excerpts by the senators. On the surface, that might not sound like it was such a deviation from the tradition of hearing witnesses directly, and maybe it didn't seem so at the time, but in retrospect, it's really clear that not hearing directly for witnesses was one step along the way to a Senate that felt it did not need to hear witnesses at all. We even heard in this trial Republicans saying the rather shocking proposition that it was the job of the House of Representatives together all of the evidence, as though it weren't also the job of those who were running the trial to hear that evidence for themselves, as they had always done previously. The thing about impeachment is that precedent changes very slowly. Because we don't have very many impeachments to judge from. I think that it's inevitably the case now that we will come to see this trial as having been whether legitimate or not, one option available to the Senate. If we have a democratic president and a democratically controlled Senate, you will hear Democrats, not Republicans, saying, you know what, we don't absolutely need to have witnesses, because after all, they didn't have them the last time. In the long run, then we won't be debating the legitimacy of the trial or the fairness of the procedures. We'll just be debating whether to follow those procedures again the next time. After all, it's within the constitutional power of the Senate to decide if the trial that it conducted counted as a trial or not. And if you leave it to somebody to be the judge in his own cause, you can be pretty confident that he'll find himself not guilty. Now it's time for a segment I'll be doing every week called Playback. I'll choose a moment in the news, play it back to you, and then I'll try to make some sense out of it. Here's this week's major market alert. Stocks plunging is the spread of coronavirus rattles investors, But now the SMB and AZDAC all posted their biggest losses of the year by far. That's a clip from CNBC's Brian Sullivan about the impact that the coronavirus has been having on the markets, and where something affects the markets, before too long, it's going to start affecting the real economy too. How worried should we really be about the effect that the coronavirus might have on the global exchange of trade, which is so significantly affected by China. The answer to that question is one of the classic instances of questions that have to be answered by virtue of uncertainty. It's uncertain because all we have to go on is the experience of happened when China was struck by the Stars virus nearly twenty years ago, and that experience is very far from exact when it's compared to what we're dealing with now. First of all, those are two different viruses, and they might spread through the population in significantly different ways. Second of all, China's role in the international economy has expanded drastically since the last time, So all anyone can do is make a little bet about what the probabilities are that, in fact, we're going to be profoundly affected globally by a process in which China might become largely cut off from many of the supply chains in which it's presently centrally engaged. The markets are simply one measure of one collective group of people, acting individually, not coordinating with each other, making bets and gambles on the probability that this will happen, and the market is gambling from a standpoint of very significant ignorance. Now it may seem monstrous to try to make economic money making predictions and bets that are intended to pay off for the people making those bets on the basis of disease. But that's just business as usual for economic markets, which after all, have as their purpose trying to make a buck on the vicissitudes of human affairs. The markets as of this moment seem to think that the dangers of the coronavirus profoundly disrupting the global economy are relatively small. Among the epidemiologists, the prevailing view seems to be that the coronavirus is not one of those viruses that's susceptible to extraordinarily rapid spreading, infecting everybody who comes into any form of contact with those who have the disease. But notice that the epidemiologists are themselves little different from the people making bets in the markets. That is, they're just engaged expressing a statistical probability of what they think will happen, based on imperfect models and highly dissimilar past events. So what we're dealing with really is a set of statistical predictions by epidemiologists, and then a set of statistical predictions by people in the market who are betting on the bets of those epidemiologists. In their first place it's probabilities on probabilities. All this reminds me of a famous line by the Supreme Court Justice Oliver Wendell Holmes Junior. He was talking about the freedom of speech and the American system of government, and he said that the American system of government is at any rate an experiment, as all life is an experiment. What Holmes meant when he said all life is an experiment is that every day, and in almost every way, we are betting our future on probabilities, hundreds or thousands of probabilities of events taking place according to our expectations. We do our best, not because that's so great, not because it's good enough, but because it's our only option. Deep background is brought to you by Pushkin Industries. Our producer is Lydia gene Kott, with studio recording by Joseph Fridman and mastering by Jason Gambrel and Jason Roskowski. Our showrunner is Sophie mckibbon. Our theme music is composed by Luis Garat Special thanks to the Pushkin Brass Malcolm Gladwell, Jacob Weisberg, and Mia Lobel. I'm Noah Feldman. You can follow me on Twitter at Noah R. Feldman. This is deep background