Barbara McQuade: Criminal Law Vs. Impeachment Law

0:00 welcome back to the teach a fun 0:02 impeachment I'm here today with Barbara 0:04 McQuade who's a professor from practice 0:06 at the University of Michigan law school 0:07 and former United States Attorney for 0:10 the Eastern District of Michigan thank 0:12 you so much for joining us thanks for 0:13 inviting me Benjamin 0:14 okay well let's jump right into it can 0:16 you tell me a little bit more about your 0:18 background and and how you you know 0:20 became a professor here you know well I 0:23 spent most of my career as a prosecutor 0:25 went to law school here at the 0:26 University of Michigan law school worked 0:28 in private practice and 19 years as a 0:31 prosecutor I was the US attorney during 0:33 the Obama administration and when that 0:35 ended I was lucky enough to land here 0:37 you know I can't think of an institution 0:40 I love more than the Department of 0:42 Justice except for the University of 0:44 Michigan so I was just thrilled to be 0:45 here wonderful so we're also really 0:48 thrilled to have you here in the studio 0:49 today to dive a little bit deeper into 0:51 kind of the nuances that are starting to 0:53 emerge from this current impeachment 0:55 query but then also kind of taking a 0:57 historical look so one of the questions 0:59 that I think keeps coming up in in this 1:01 context is what are the key similarities 1:04 and differences between criminal 1:06 proceedings and an impeachment process 1:08 it's very interesting because the 1:11 impeachment process is kind of its own 1:12 animal I think there are times when 1:14 people look to the criminal law or even 1:17 civil law for analogies to figure out 1:19 what the rules ought to be but the 1:21 Constitution makes it pretty clear that 1:22 the House gets to set its own rules on 1:24 impeachment and the Senate gets to set 1:26 its own rules for the trial after an 1:28 impeachment that being said I think that 1:30 we've adopted a lot of the rules from 1:32 the criminal justice system like the 1:34 presentation of evidence the calling of 1:36 witnesses opening statements and closing 1:38 arguments very similar to what we would 1:40 see in a trial great so can you tell us 1:43 a little bit more about the the evidence 1:44 side of things how do the rules differ 1:47 so the federal rules of evidence which 1:49 would ordinarily apply in ordinary 1:51 criminal case don't apply in impeachment 1:54 but they still want things done in an 1:56 orderly way 1:56 and so the Chief Justice of the Supreme 1:59 Court will preside if it's either the 2:01 President or the Vice President who is 2:03 under impeachment inquiry in all other 2:06 cases it's the president of the Senate 2:08 who is the vice president of the United 2:10 States who presides you know for federal 2:11 judges or other executive 2:13 branch officials but if we're talking 2:14 about the president the chief justice is 2:16 there to make the rulings on evidentiary 2:18 matters and so there may be things like 2:20 relevance if someone is getting too far 2:22 afield from the articles of impeachment 2:23 or redundancy to kind of keep things on 2:26 track but technically the rules of 2:28 evidence like you're saying some of the 2:29 other rules you hear about don't apply 2:31 in an impeachment proceeding so what is 2:34 the burden of proof then in this context 2:36 well I can that's something else that is 2:38 undefined the Constitution allows the 2:41 Senate to define its own rules for the 2:44 impeachment trial and so they could 2:46 create new rules there's a whole manual 2:47 that's been written on it but in terms 2:50 of the burden of proof it is every 2:53 senator is supposed to vote his 2:54 conscience as to whether the articles of 2:57 impeachment have been proved so some 2:59 argue it ought to be guilt beyond a 3:01 reasonable doubt as we use in criminal 3:03 cases but others say this isn't really a 3:05 criminal case that isn't Liberty that's 3:07 at stake it's some other interests and 3:09 so perhaps the preponderance of the 3:11 evidence standard that we use in civil 3:12 cases ought to apply but it is 3:14 ultimately left to each senator to 3:15 decide for himself what that burden of 3:17 proof ought to be so you know when when 3:20 something like this ends up going to the 3:23 Senate who's presenting the evidence so 3:26 the rules is currently written for the 3:28 house again the Constitution just says 3:31 that the house gets to write its own 3:32 rules and they have written some rules 3:33 they say that they should select some of 3:35 its members to serve as managers to 3:38 present the evidence it also says that 3:39 they may use the assistance of counsel 3:41 so they can hire lawyers to come in and 3:44 actually present the evidence before the 3:46 Senate in the trial similarly the 3:48 defendant the the President or the Vice 3:51 President whoever it is under 3:52 impeachment that the officer has the 3:54 right to counsel as well so we'd have a 3:56 lawyer there to represent his his 3:57 interest sure so you know thinking about 4:01 who so the prosecution side of things so 4:04 who does the prosecution represent so in 4:07 in state criminal proceedings the 4:09 prosecutor represents the people and so 4:12 thinking through how this this kind of 4:14 manifests within an impeachment setting 4:16 does the prosecutor represent the house 4:19 where does it represent the people 4:21 through the house how does that work 4:23 now I don't know if that's ever been 4:24 articulated which makes it a great 4:26 question but I think it makes sense to 4:28 think of it as representing the house 4:29 the Constitution is divided up to give 4:32 us three branches of government that are 4:33 co-equal and service checks on each 4:35 other and so this is a core function of 4:38 the House of Representatives to serve as 4:40 a check and so it seems that these 4:42 managers who are elected are there on 4:44 behalf of the House of Representatives 4:45 to serve that function okay thank you so 4:49 what about conviction so what are the 4:52 consequences of conviction and in this 4:54 case the consequence of conviction is 4:56 removal from office and it's immediate 4:58 as soon as they decide the person is no 4:59 longer the President or the vice 5:01 president or whatever office they had 5:02 they can also take one step further 5:04 which is not only shall you be removed 5:07 from office but you can never hold 5:08 office again 5:09 of course we've never actually made it 5:11 this far an impeachment proceeding to 5:13 see if the Senate would go that far too 5:15 as to say not only should a president be 5:17 removed from office but could never be 5:19 elected president again it has been done 5:21 in other instances involving judges but 5:24 of course we haven't seen this moment 5:25 before so it is a possibility though 5:27 great so that was a lot of kind of the 5:29 legal process there there's also a 5:32 political process that is unfolding 5:34 during an impeachment investigation can 5:37 you tell us a little bit more from your 5:38 perspective what is the overlap between 5:40 the legal and the political processes 5:42 yeah and I think this is an area where 5:44 there is some confusion in the public I 5:47 suppose if you were to draw a Venn 5:49 diagrams there'd be an overlap between 5:50 the circle that's criminal law and the 5:53 circle that's impossible offense if 5:56 something is a crime it could be 5:58 impeachable but not necessarily and 6:00 something could be impeachable without 6:02 also being a crime for example I've 6:04 heard people say that what Bill Clinton 6:06 did and allegedly since he was acquitted 6:09 lying before a grand jury committing 6:11 perjury was criminal but there were 6:13 senators who found that that didn't make 6:15 it 6:16 impeachable it was not an abuse of power 6:18 I think the main function of impeachment 6:22 according to the framers of the 6:24 Constitution was to remove someone for 6:26 abuse of power in the office abuse of 6:28 the presidency using the presidency for 6:31 personal enrichment those kinds of 6:33 things so there could be crimes even 6:34 talks about bribery treason or other 6:37 high crimes and misdemeanors and so you 6:39 know I think President Ford famously 6:41 said it's whatever the House of 6:43 Representatives thinks it is but I think 6:45 there's more clarity on that there's 6:46 been a lot of publications recently some 6:49 very good books on impeachment I've read 6:51 some of them and they seem to focus much 6:52 more on the idea of abuse of power in 6:54 office and so that may overlap with with 6:57 crimes a bribery and extortion those 6:59 kinds of things are also criminal but an 7:01 abuse of the power is what makes it in P 7:03 chable okay so just thinking about your 7:06 previous experience as the United States 7:08 Attorney is there anything else that 7:10 you'd like to offer that would really 7:11 help our learners contextualize what is 7:13 happening today I think there are a lot 7:15 of similarities between impeachment and 7:17 criminal prosecution I think one of the 7:19 things that's useful that prosecutors 7:22 keep in mind is just because you can 7:24 charge some of the crime doesn't mean 7:26 you should charge someone with a crime 7:27 so for example if a president is 7:29 believed to have committed impeachable 7:31 offenses it doesn't mean you must 7:33 automatically impeach that you have a 7:35 duty to impeach there's still a fair 7:37 amount of room for discretion to decide 7:39 is this in the best interest of the 7:40 country to impeach under these 7:42 circumstances is this an abuse of power 7:43 that is so egregious that we ought to 7:46 step up and draw a line here and I think 7:49 that the house has to think as we did at 7:52 the Department of Justice in the US 7:53 Attorney's Office about what kind of 7:55 precedent are you setting what kind of 7:57 institutional values is there what kind 7:58 of deterrent effect is this likely to 8:00 have what kind of chilling effect is 8:01 like it's likely you have to go forward 8:03 so I think in deciding whether to 8:07 proceed first with an impeachment 8:08 inquiry the Speaker of the House has to 8:10 make that decision whether it's 8:12 worthwhile to take that step even if 8:13 there is impeachable conduct and then 8:15 that next step when the house votes by a 8:18 majority to decide whether to authorize 8:21 impeachment articles that's when that 8:24 discretion is going to come into play 8:25 super helpful context thank you and I 8:27 think that there's you know a lot for us 8:29 to be reflecting on and learning about 8:31 right right now and I'm sure we'll be 8:33 able to take a look back on this very 8:35 moment and kind of draw a lot of 8:37 additional lessons learned thank you so 8:39 much for joining us this quick 8:41 conversation great thanks Benjamin glad 8:42 to be here great and thank you for 8:44 joining us in this segment of the 8:45 Teachout we look forward to continuing 8:47 the conversation with you and 8:48 segment