C-SPAN's Q&AAugust 03, 20181:57 p.m. EST
BRIAN LAMB: Professor Michael Gerhardt, when did you first start thinking about the book that you wrote back in 2013 on the Forgotten Presidents?
MICHAEL GERHARDT: I've been thinking about that a lot, I, for a lot, I mean, for a lot of other projects I kept running across presidents that nobody thinks about it all but presidents who had done things that seem to be interesting, and maybe even significant.
So I had thought about the Forgotten Presidents even before I began the book, and then it occurred to me that there might be something all these presidents had in common, that they were forgotten, but perhaps they were also significant in some way.
So, I began to think about it years before 2013, but began to kind of assemble different chapters on different presidents, and of course, one of the critical things to think about was who was forgotten, you know, for purposes of a book like this?
And so I had to do various surveys, talk to different people, figure out, OK, how do I make that determination? And then once I'd settled on a group of people to talk about, I began sort of figure and thinking about what did they have in common, and what could we learn from them.
LAMB: What kind of reaction did you get from somebody out there that is a big favorite of one of these presidents? And I've got a list here about who they are, and they didn't think they belonged in forgotten presidents?
GERHARDT: Well, the reactions I got that were maybe critical were less about who was in there than who should have been in there, and so some people thought that maybe other presidents such as James Buchanan could be in there, why not Polk, why not some of the other presidents that in, particularly in the 19th century?
And one or two, the presidents that are here, perhaps Carter, Jimmy Carter, and perhaps when William Howard Taft were people that I've heard from some commentators, and just friends, well maybe they're not as forgotten as you might think they are.
And so one of things we can talk about and certainly I'll try and talk about the book is, what were the ways to determine who's forgotten? And then we can talk about as I did in the book, what makes them important or more it makes them interesting?
LAMB: Just quickly go, Van Buren, William Henry Harrison, John Tyler, Zachary Taylor, Millard Fillmore, Franklin Pierce, Chester Arthur, Grover Cleveland, Benjamin Harrison, Grover Cleveland again, because he was in two different terms divided by Benjamin Harrison and William Howard Taft, Calvin Coolidge, and Jimmy Carter. When did you first get interested in the whole idea of politicians, presidents, politics?
GERHARDT: It's a good question. I think it happened very early on, probably so early I can't even remember.
I grew up in Alabama, and I grew up Jewish in Alabama in the 1960s, and that was a time of great turbulence, and the time the civil rights movement was sort of unfolding, and it was all unfolding in front of me, and I paid attention to it, and that -- those events that arose in the 60's and early 70's really shaped my interest in civil rights, but also my interest in law.
And I was watching presidents, watching courts, and watching Congress, and local politicians as well, all throughout that period. And so by the time I got out of high school, I was pretty sure I wanted to be a lawyer, and I'm also pretty sure I wanted to study constitutional, and the rest as they may say is history.
LAMB: When did you decide that you wanted to get involved in the 1984 Al Gore campaign?
GERHARDT: Well, that happened...
LAMB: Well, by the way for senator, not for president.
GERHARDT: That's correct. So, that was years ago and the reason I got interested in that is because I had come to Tennessee after graduating from law school at the University of Chicago. And I had worked first for a federal district judge in Memphis, and then I worked as law clerk to a judge in Nashville.
And when I was in Nashville, as I was beginning to think about what I wanted to do at the end of that second clerkship, I was looking around me, and suddenly realized there was a Senate campaign going on or just beginning there, and it involved somebody I thought was not just somebody I thought could be a great senator but somebody I had a lot of respect for and that was Al Gore, Jr.
So, by the time my clerkship ended I was able to contact the folks in the campaign and see if they could use me, and I got involved the campaign and worked on that for a while. And of course, it was a successful campaign.
LAMB: Was that the last time you did any political work?
GERHARDT: Not the last time, I mean, I also ended up working later on Senator Gore's presidential campaign, and I also ended up working on some other campaigns both locally as I began to move around, for example, I live in North Carolina now.
And presidential as well, I worked -- I ended up working in the Clinton-Gore transition for example, later. So, one thing often leads to another, and that -- and the work I've done, and the people I met along the way have continued to be important in my professional life.
LAMB: What did you take away from being inside politics instead of being outside?
GERHARDT: Well, one thing you take away from it is it's actually very, very hard work. It's hard work physically, on the one hand, people who are good at it really have to be up and about and on pretty much 24/7, it's a physically demanding job.
And then the second thing is it's not an intellectually demanding job, if you are good at it, and you really care about it, and you work at it, you've got to know a lot about a lot of different things. And hopefully something more than just superficialities about any of those things.
So, we oftentimes can be cynical about people who go into politics, but my view up close, and then also as somebody who has studied the history is that these folks work hard, and they oftentimes care a lot, and they oftentimes have to know a great deal, in order to they're elected or appointed to do.
LAMB: When I -- we've been doing a series of programs on this program about presidents. And one of those in this book is one that at my age can remember very well. But it's Jimmy Carter who was president from 1977 to 1981, what would you -- if somebody out of the blue said to you, which I'm about to do, explain Jimmy Carter as a person?
GERHARDT: Well, Jimmy Carter as a person is to some extent what you still see today. Even though he's an ex-president, he is somebody who clearly sort of almost leads with his heart, he is somebody who's got a lot of intense feeling and commitment to certain issues, and he was somebody who had a core of integrity which I think was very important to his election and really to his life.
And he was a -- he was somebody who also could be very demanding. He could be demanding of himself, and he could be even be very demanding of the people around him. And you can see that throughout his life.
LAMB: So what did he do before he ran for president?
GERHARDT: He was governor in Georgia, and had been really a local politician in Georgia of course before that. And as governor of Georgia he developed an ambition which I think surprised a lot of people, which was he was going to consider running for the presidency.
Now this was in the wake of Richard Nixon's resignation, and Gerald Ford's elevation to the presidency. So it was at a time when the nation was in some turbulence and there was some instability nationally. And there was a concern as Carter himself would later encapsulate it about what -- why not the best?
Why not look for somebody who's got integrity? Why not look for somebody was going to try and raise our ideals? Why not look for somebody not from Washington but from even the deep south? First president in a long time to be elected from the deep south who might try to raise us all up to some extent, to be a better country.
LAMB: Gerald Ford was president, he beat him, how did he do it?
GERHARDT: Well, a lot of people of course thought about this and written about it. I think Carter had a couple of advantages, one was being the outsider, not being the incumbent, Ford also a man of tremendous integrity had a unfortunately inherited the mantle of the Nixon administration. So that, I think probably weighed him down more than anything else.
Ford also pardoned Nixon in an attempt to put the whole Watergate episode behind us, but the pardoning of Nixon might have actually connected Ford more closely with Nixon in a way that wasn't necessarily good for Gerald Ford.
And Ford also might have made a mistake or two in presidential debates, he was a tremendously good man, but also perhaps one might go so far as to say a little bit bland in terms of his sort of demeanor, at least as it came across television and television was beginning sort of capture people's imagination in the -- at this time period.
So Ford may have had some things working against him on the one hand, and Carter had the idea of freshness, newness on the other -- and also a commitment to ethics, which I think was a very important element of his campaign and later in his administration.
LAMB: What do you mean by ethics?
GERHARDT: Carter wanted to restore ethics in Washington, and he particularly wanted to restore ethics in the White House.
And so he could make that part of his agenda, and he as president would later put into effect the Government Ethics Act which would be a very important cornerstone in modern sort of ethical law that pertains to federal officials.
And so, Carter I think could make those promises, and perhaps they were - they had some appeal and some believability for a lot of people. And again, in the wake of Watergate, a lot of the country, at least half, thought, OK, perhaps it is time to turn the page and see if we can do some -- do a little things better.
LAMB: In the world of ethics, what remains to this day that he did?
GERHARDT: Well, there's a number of things that still remain in effect that apply to judges and apply to other federal officials, disclosure requirements, other things that may pertain to people in federal office. And so, a lot of that is still what we'll call good law, still sort of around in one form or another.
And what some people may perceive is even an obsession to some extent on the government's part, if you look at Congress for example where there's an ethics committee, and where there are a lot of different forms and things that people who work there have to fill out and comply with.
If you look at the federal government executive branch and elsewhere, a lot of disclosure laws, a lot of requirements about what people can do and not do in terms of the interaction they can have with certain other people. All that kind of gets a lot of its genesis from the Carter days.
LAMB: You say that he got off to an unfortunate start with the transition from Gerald Ford to his own White House, how did -- how does that play out?
GERHARDT: Well, it plays out in a way I think we can probably even better appreciate today. Carter had the idea early on that he was going to be his own chief of staff.
And the idea behind that was he was going to put -- not really have an intermediary between himself and the people that had to interact with the presidency. And also another idea behind it was he didn't want anybody else determine his agenda.
So, if he could be chief of staff, he could determine who had access, he could also determine the agenda. In the abstract, those are good ideas, but the unfortunate thing is the presidency at the time Jimmy Carter came into it was a lot more complex institution than it had been in the 19th Century.
And so at the time Carter came into it, being your own chief of staff, and somehow trying to be president was much more than he can handle, so there was a sense of chaos and a sense of disorganization that marked his administration from the beginning.
LAMB: You were in your very early 20s when he became president. As a historian, how do you get the mood of what it was like in this town when he came here, in '77?
GERHARDT: Well, I get it from a few different places, one is a little bit from personal experience, but the other was to talk to people and interview people who were in and around the administration at the time, yet another of course is to look at some of the documents and primary materials that are being produced, the things Carter, the letters, the statements he made.
There are some videos, this is a sort of a new thing that or a newer thing let's say that's happening with Carter that wouldn't have been true of course in a much earlier time.
So with Carter we can actually see some things, that we wouldn't have to make them up, we can actually look into the historical record in a way that isn't available with some earlier presidents. So with his speeches for example, we can actually see those speeches, and not just hear the words but see how he delivered those speeches.
LAMB: I remember in the Washington Star was in business at the time, and they published a full page cartoon by Pat Oliphant that showed broken down wrecks on the front lawn of the White House, dogs that looked like they hadn't eaten for several days, making fun, and you're from Alabama, his Georgia roots. What did you find out about that and how much did that impact the town?
GERHARDT: I think that had a great deal of impact on the town and maybe even beyond the town, perhaps much of the country.
I think the South had a good deal of pride in Carter when he came into the White House, but because Carter wasn't a Washington creature, because Carter had not sort of developed as a politician in Washington really at all, hadn't really spent his formative years there had not been an administrator there. So he was a genuine outsider coming into Washington.
And he was an outsider coming into Washington from a place that many people in Washington may not have a lot of respect for. And that's the Deep South. And so, that made Carter's job harder.
People have expectations about what maybe a Southern governor would be like, particularly one that had a southern accent like Carter. And came from a place called Plains, Georgia which most people couldn't pick out on a map.
So Carter had to not just come into Washington in an effort to change it, but he was coming into Washington and facing people even in his own party who were skeptical about him and maybe even had distain for him, and that all made his job harder.
LAMB: Well, you're -- of course, I remember Plains because you had Billy Carter's gas station and his mother Miss Lillian would sit at the railroad station and meet people rocking in a rocking chair, and he had the peanut farm and all that stuff, how much did that have on him getting elected?
GERHARDT: I have a feeling, I mean, there's certainly data to support this, that it probably all helped because it did show he was an outsider, but it also showed he was just to a large extent a self-made person.
And it showed further that he was coming from a very unpretentious background. Which I think could have a great deal of appeal for a lot -- for a lot of voters and others.
The idea that this person wasn't going to necessarily be full of himself, wasn't -- and could at least appreciate what it means to have to work for a living, getting up early, and throughout the day, and not working in a city but working out in a place, in the country which can be physically more demanding.
I think a lot of that had appeal for a lot of people, it also -- as I said, generated some skepticism from other people who perhaps were less familiar with him, or who had preconceptions about what it would mean for somebody to be coming from the Deep South.
One might want to remember that Jimmy Carter was educated at the Naval Academy. Obviously, one of our most prestigious and demanding institutions.
So, Carter although he may have come from the South, come from the Deep South, was a well educated person, was a very smart guy. And people sometimes don't expect that combination of things to happen for somebody who's coming from the Deep South.
LAMB: What was the economy like when he took over?
GERHARDT: Well, it was not strong, and it was one of the challenges he was going to have to face. And so, Carter had a lot of challenges coming at him very fast that he had to address and hopefully address from his point of view successfully.
Economy was not strong, there was the international situation was becoming more precarious. There was the disorganization throughout the executive branch.
All of this was on his desk so to speak, and not just his chief of staff, that he would to figure out who do I need - who does the president need to talk to, to talk to figure out all this stuff. But exactly what would be the initiatives the Carter administration was going to address to on the home front and domestic -- and foreign affairs.
LAMB: How did he deal with the price of oil, gasoline, inflation, all of that?
GERHARDT: Well some would say not very well at all. So, he brought in a number of advisors to try and help him figure out how to deal with that, he was also beginning to think about deregulation in some ways that was rather innovative and different at the time.
So, Carter I think was thinking about it in a way that may have marked not just him, but perhaps marked his party to some extent.
He was thinking about it from the federal government's perspective, what should the federal government be doing here to try and fix the economy? And that might have meant more federal intervention rather than less, and so that was Carter's mindset.
LAMB: But you point out he did something, excuse me, that very few presidents have done, he eliminated an agency of government.
GERHARDT: Yes. And Carter was thinking about reorganization at the time, yes. And so part of that was an attempt to not just balance the budget, but to make the government perhaps a little more efficient.
LAMB: What did he do?
GERHARDT: Well, so with the Department of -- there are several departments that had to be reorganized at the time including department of -- there was Health Education, and Welfare at the time which later would get transformed to Health and Human Services. So, there are -- there were a number of innovations.
LAMB: And what about the airline deregulation?
GERHARDT: And as I mentioned before with deregulation, Carter wanted to reduce the amount of federal management over the airlines. So that became a very big hallmark of his administration, was to deregulate the airline industry.
LAMB: But he eliminated the Civil Aeronautics Board, right?
GERHARDT: Right. And so he eliminated that Civil Aeronautics Board which was part of the regulatory scheme over the airlines.
And to try and turn over the management to the private sector, and let -- and that was one of the areas in which in fact the federal government is going to be less intrusive or less assertive than it had been.
LAMB: Any way to compare his deregulation to Ronald Reagan's deregulation?
GERHARDT: Well, not nearly as radical, of course, would be a blunt and short answer. It wasn't -- to the extent Carter had a well developed political philosophy. less government wasn't necessarily part of it.
Make government smaller was obviously something that was very central to Ronald Reagan's approach. I think Carter's ideas roughly speaking at the time were to make government better, maybe a little more efficient, again make it more ethical.
And the effort towards deregulation was rather controversial, airline deregulation. It was not -- it was something that turned out to be probably more controversial than he might have expected.
As often turned out to be the case with Carter, there'd be things he would do that he didn't expect to be trouble, I mean, and then there was trouble, and then he'd have to somehow figure out how to deal with that.
LAMB: What impact did he have on how the vice president should be used?
GERHARDT: Well, he had a big impact on it. So, until Carter came into office, there was -- let's say some difference of opinion about the importance of the vice president.
For many presidents up until Carter, their vice presidents were just simply something to be ignored or something to be cast aside, in the case of Richard Nixon, his vice president Spiro Agnew to be thrust aside, and pushed out.
But presidents oftentimes didn't think about their vice presidents as partners or people that they could turn over some administrative responsibilities to. Carter thought instead, no, my vice president Walter Mondale, could actually be somebody who could be important, he's not just important to my election, but he could be important in my administration.
So for example, Mondale became involved with all the important national security matters early on in the Carter Administration. And Mondale took on a more significant role than vice presidents generally had taken on before then, and that actually sets a modern precedent which has been followed sense.
LAMB: How did Walter Mondale like the way he was treated, do you know?
GERHARDT: Well, I would have to look a little more deeply into that, my guess is that he probably liked some of it, and probably didn't like other parts of it. Mondale was to some extent and outsider within the clique, so to speak, the Carter clique.
He wasn't somebody that had known Carter before then, he wasn't somebody that had sort of grown up with Carter, he was probably viewed as an outsider from those people closest to Carter. On the other hand, Mondale in an attempt to be a good team player was trying to sort of help Carter realize his initiatives.
They would necessarily agree on a lot of different things, and sometimes I think Mondale wasn't part of a more smaller network that was interacting with Carter on some issues. So while Mondale was involved more, he probably wasn't involved as much as Mondale would have liked.
LAMB: As you know more than anybody because you study this all the time and teach it there, some presidents have been only there four years had as many as four or five appointments to the Supreme Court, he had none.
GERHARDT: That's right.
LAMB: What impact did he have on the selection of judges though beyond the Supreme Court?
GERHARDT: So it is important to recognize at the outset that Carter is the only president to have served a full term without a Supreme Court appointment, which is remarkable. I think that was a tremendous disappointment to his administration, and probably to him personally.
Nonetheless, judgeships became important to Carter in a way that they hadn't been important before, and they were important to Carter for the purpose of increasing the diversity of the federal bench, to bring more minorities, more women on to the federal bench, in a way that was historic and expansive and inclusive.
And so Carter tried to find ways to implement those objectives, one of which was to develop judicial commissions, and try and use those commissions to advise him, and to maybe in some respects diminish the role of the Senate in the course of trying to figure out who will I nominate to these judgeships, who will later have to get confirmed in the Senate.
And so Carter's approach actually began to sort of tear apart his relationship with the Senate, it became a very controversial matter, it was one of the things that for example put -- created difference between Carter and Ted Kennedy, something that would later become a bigger problem.
But Carter's approach also I think set the Democratic Party on the path that it still tries to follow to this day. And that is, in trying to pick judges, we're not going to just pick white males, we're going to think about what other qualified people are out there, and people that look like America as Bill Clinton would later put it, people that we could put on the bench and they could become judges and important officials as well in government. And Carter I think was very much a trailblazer in that regard.
LAMB: What impact did he have on his presidency that he granted amnesty to draft dodgers in Vietnam?
GERHARDT: Well, there were a lot of things that Carter's presidency, and I think that was probably one of them. So, Carter, I think was even to some extent like Gerald Ford, trying to think of how do we heal the country, how do we bring people together, people that have been divided by one means or another.
The people that had left the country and were -- or dodged the draft, avoided the draft, because they didn't like the Vietnam War, didn't believe in it, those people were viewed by some Americans as unpatriotic and bad. Carter looked at it rather differently, Carter wanted to find a way to bring these people back to -- again, to heal some divisions.
So, the pardon from his perspective made sense, but it also perhaps signaled to people on the other side, particularly in the Republican Party, that Carter was going to be too sympathetic to people that didn't follow the rule of law, and to people that were viewed as hippies and far to left liberals, the draft dodgers.
And so Carter's pardoning those people may have aligned him with a group that wasn't popular with people who were going to become Carter's critics.
LAMB: As you know Cyrus Vance, his secretary of state, quit, resigned in the middle of a controversy. Ted Sorenson did not get to be head of the CIA. Gordon Liddy was pardoned I believe in this whole process. Talk about those three and can you tell us -- give us some background on it?
GERHARDT: Well, so there's a lot happening, and it's not just domestically, so we've got the hostage situation arising in Iran, which is going to become a real big problem for Carter, he's also developing some interpersonal friction between himself and some other key officials, as you mentioned, Cyrus Vance, secretary of state.
And so Vance was a very eminent, very well respected civil servant, obviously a secretary of state of great prominence. But he didn't feel fully appreciated and he didn't have Carter listening to him all the time, so this did come to a head.
And Carter who had already tried to remove a number of other cabinet officials, was happy to get rid of Vance as well. And that created a rift. Which I think was not just -- and the rift not just in the cabinet, but it's going to come rift in the party as well.
With regard to other positions like Ted Sorenson, the CIA, what we're seeing with there is something that's going to become important, not just to Carter, but to other presidents, and throughout American history.
And that is as presidents try and fill certain positions, it turns out that the Senate which has the power to confirm, though, many of those officials will care about more positions than others, and some of those positions will happen in areas that are kind of more heated, or raise more important issues politically for presidents.
Among those positions would be secretary of state, but also the head of CIA, secretary of defense, let's say, attorney general, we can almost all imagine what those are because those are the officials that get a lot more attention, and the nominees for those positions get more attention.
Sorensen was one of them, and the rejection of Sorensen became a signal from the Senate to Carter that they weren't going to just accept his people because they were his people. So what we're seeing as a rift with Vance, now a rift with the Senate. And these things are going to expand, these are going to become more expansive problems for Carter.
LAMB: You have a footnote I want to ask you about. It's footnote 48 on one of the chapters. Carter's acknowledgment of his role in negotiating the Camp David Accord unwittingly reflects his penchant to assume all the responsibility for doing something, a recurrent problem with his administration.
And then you have a quote of his from a Cokie Roberts interview, and he says there's no doubt that I negotiated at Camp David with Begin and Sadat, very well aware that anything I said at Camp David as a contribution of the U.S. would be upheld by the Congress and the president did have that authority to negotiate.
So, yes, the president's right to conduct foreign affairs, to recognize any government in the world that he chooses to appoint diplomats and to withdraw them from office on the spur of the moment.
Those kinds of things are extremely important to the ability of a president to negotiate a peace agreement. I mean, as I read that I'm thinking about today. This president and all that. Is there any similarity between what he negotiated with Begin and Sadat, and what we've been hearing over the time about President Trump and his meetings?
GERHARDT: I don't think so. I mean, there's not much similarity, I mean, I think to go back to Carter first kind of draw out the comparison, I appreciate your reading footnotes, not many people do, and that's for a law professor, that's a -- that's a great thing. And I appreciate it.
LAMB: I want an A, by the way, I mean, yeah.
GERHARDT: You got it. OK. Maybe even A+. So Carter became to some extent his own worst enemy. And this is part of the legacy that's going to sort of haunt Carter.
As you noted in the -- from the footnote, in taking -- in taking not just the responsibility, but also in trying to give himself credit, Carter was I think stumbling to some extent because he wasn't leaving the praise to others. And that made Carter appear as some critics would suggest more arrogant.
And Carter's arrogance, his moral arrogance, which he may have had in common with another southerner, Woodrow Wilson, became a liability for him as a politician. And Carter was to some extent there in the interview and elsewhere trying to shape his own legacy. The Camp David Accord by all accounts was a historic moment in foreign affairs.
But Carter also signaled it was his moment. There wasn't a team of people he was going to bring in to help do it, he did it. And so, that arrogance, I think, came back to haunt Carter. With President Trump, I think you see almost the opposite of what you see with Jimmy Carter.
You see somebody who's more than happy to try and give himself credit and his constituents, those that core group that seems to support him, seems to relish the president doing that. But that's - we've come a long way from Jimmy Carter who didn't make that one of his characteristics, that is to say he wasn't conscious of trying to be arrogant and boastful.
And that maybe part of the problem with Carter is that he wasn't aware of how that was going to kind of cut against himself. But President Trump, he's aware that it may hurt him with some people, but he doesn't care.
LAMB: What impact did he have on FISA?
GERHARDT: Well, the foreign intelligence surveillance - so that's an important development as well with Carter.
So we don't think about these things oftentimes when we look back in history and think about what maybe the impact of certain presidents and what their legacies may be because we're thinking in such big terms, we're thinking of big dramatic stuff, like wars, or Nixon's resignation.
But with Carter, some of the details matter a great deal. Carter was putting into place institutions that actually continue to this day. So with FISA, for example, he was trying to respond to a problem that had occurred in the Nixon administration, which was the boundaries between the CIA and the FBI and who could look at what and what grounds could they do these things and what - and particularly with respect to spies that may be present in United States territory. So how do we deal with that? Carter tried to put together institutions to address that.
LAMB: I want to make sure everybody knows about this book. It's available in paperback still to this day, The Forgotten President: Their Untold Constitutional Legacy. There's a lot more in here.
Most of them we have talked about before. But you have a new book. This original book was by Oxford, the new book by Oxford is called just Impeachment. Why did you write this and when did you finish it?
GERHARDT: Well, I wrote this fairly recently and I appreciate your being aware of it. So impeachment has also been a subject I've written about a lot over the years and thought about a lot over the years, because I've had a longstanding interest and its reflected in the Forgotten Presidents book.
It's also reflected in Impeachment book, longstanding interest in how constitutional law is done outside the courts. How people other than judges do constitutional law. How do presidents do it. How do members of Congress do it.
And one of Congress' most important responsibilities is its impeachment authority. So last Christmas, I had the chance - because my schedule opened up a little bit to put together the manuscript for this book, and that's when I wrote it, over my Christmas break.
And it has - the point of the book is to just try to explain the law of impeachment for everybody. This is not an academic book, so much as an effort to try to explain this whole area to people that are not lawyers.
LAMB: How involved were you with the Bill Clinton impeachment?
GERHARDT: Well, I was involved to some extent. What happened there is I was brought in as a joint witness in the hearings before the House Judiciary Committee during the Clinton impeachment process. And I became a joint witness there in part because I had written about impeachment before 1998, that's when the Clinton episode began to sort of really become heated.
And because I'd been involved with impeachment's as early as the late 1980s, people in Congress knew that this is an area that I'd written about, had thought about and even consulted on.
So I was brought in as a joint witness in front of the House in 1988. I did do some, helped advise some Senators as well, later when that process went over to the Senate.
And so, I had a chance not just to think about impeachment as an academic subject, but I had a chance to really sort of think about it in the real world, think about how does this stuff happen on the ground, what happens with - in a real impeachment.
And the presidential impeachment tends to be rare. So, I had a chance not just to write about it as I did later in this book among other things, but also I had a chance to think about it, testify, interact with members of Congress and get their sense of things.
LAMB: In your opinion, should Bill Clinton have been impeached?
GERHARDT: That's a great question. I think that Bill Clinton did a lot to merit his own impeachment. I think that he knew members of Congress were looking for him to make mistakes.
And then when he made those mistakes and then later testified under oath in a way that was false, and for which he was later held with contempt by a judge for perjury, Bill Clinton made his impeachment almost inevitable.
LAMB: Should Andrew Jackson have been impeached?
GERHARDT: Should Jackson been impeached? I would want to think about that a little bit. Jackson did a lot of things that were very controversial and he liked to tick people off.
And he took actions that were controversial at the time when he was president to undermine the National Bank, which the Congress had created. Those actions were thought by some to be illegal and inappropriate. Later, the Senate censured for him, they censured him for that.
But even later, he was able to get the censure expunged because he was able to get the Senate, more Democratic. He was a Democrat. He was more Democratic and therefore they were less inclined to punish him.
So Jackson, I don't know if he merited impeachment or not, but history holds him accountable for a lot of things. One thing to understand about impeachment is that not everything is impeachable.
So there's a floor to it, so to speak. So, high crimes and treason, bribery or other high crimes and misdemeanors, those define what may occur in impeachment.
Presidents can do bad things, but they may not necessarily rise to the level of impeachment. At the same time, presidents may do some things that are justifiably impeachable, but Congress doesn't pursue impeachment against them.
LAMB: Should Andrew Johnson have been impeached? Which he was but not convicted.
GERHARDT: Well, there are a lot of people - actually, a growing number of people that think Johnson was justifiably subject to impeachment because he was hostile to reconstruction, and particularly to the reconstruction policy that Congress was putting together at that time. So a lot of people think, yes, Johnson was flaunting the law, disregarding the law, not just of reconstruction but even the law that restricted how he should go about dismissing cabinet officials.
Well, Johnson not only flaunted the law that restricted how he should get rid of cabinet officials, it's called the Tenure of Office Act. He said, "I don't - I think that law is unconstitutional. I can fire my cabinet - my war secretary, Edwin Stanton, without getting the Senate's approval. I can do that.
Congress can't tell me not to." That was technically illegal under the - at that time. And then Johnson also flaunted reconstruction. He kept trying to sort of impede it in different ways.
So those acts, which are hostile to the law, could be viewed quite an appropriate basis for his impeachment, though it fell short of one vote in the Senate. Chief Just Rehnquist as you well know wrote a book on the subject of Johnson's impeachment among other things.
Rehnquist suggested a counterargument. The counterargument is that, well, what Johnson may have been standing for was the president's entitlement to take a different position on policy than Congress. So if he acts in good faith - which one might argue what Johnson was trying to do.
Then maybe he's entitled to have a difference of opinion on the law than Congress. And so, the lesson Rehnquist said from all this is it supports the president taking a different position in Congress on what policy could be.
LAMB: If Richard Nixon had not resigned, would he have been impeached and convicted?
GERHARDT: As best we know, the answer is yes. He certainly would've been impeached. The House of Representatives is moving very much in that direction. It had just approved articles of impeachment in the Judiciary Committee against him and then the matter would've gone to the Senate.
There, we think most senators would've voted to convict. Nixon was told shortly before he resigned by Barry Goldwater among other people.
But Goldwater was such an credible figure and such a loyal Republican, when Goldwater told Nixon, "I don't think you'll get more than 10 or 12 votes in the Senate," the math suggested to Nixon the game is up. You need at least two towards the Senate in order to convict and remove somebody.
Well, if you only have 10 or 12 senators at that time, you've got more than two-thirds voting to convict. And so, Nixon knew that he either should resign or he was going to be the first president both impeached and removed from office.
LAMB: How much did Chapter 8 in this book on impeachment drive you to write this book? And I'll pass on the title of the chapter, Will Donald Trump be impeached?
GERHARDT: Well, that was an important - that was an important subject obviously. And it's a topic a lot of people talk about. What I tried to do in that chapter was clean up a lot of misconceptions about what are the different legal issues here and what are the different constitutional issues that arise in this context.
And so, I tried to work through all the different subjects that could come up with President Trump and we're only at the beginning try to figure out what all those subjects are.
And so that became - it's a subject that interests me as somebody who studies impeachment. It interests me as somebody who teaches constitutional law and it interests me as an American. So that was an important chapter.
LAMB: Do you have a gut instinct as to whether or not there will be an attempt to impeach him at any point? And what will it take?
GERHARDT: Well, it's likely there'll be an attempt to impeach him. But whether or not it's successful seems doubtful. And the reason for that is because impeachment is at the end of the day a numbers game. It depends on who controls the House and it depends on who controls the Senate.
So if the president's party controls the House, that reduces the odds the president will be impeached almost regardless of what he's done. And then, of course, if his party controls or has enough seats in the Senate, it can block a conviction and removal. So the numbers are in President's Trump favor.
LAMB: Why is it that if his party, Republican Party in the House maintains their leadership position next time around? Why is it it's automatic that they will not impeach him and how many votes do you need in the House to impeach a president?
GERHARDT: You need a majority of the House in order to impeach…
LAMB: One vote. Just a plurality or a majority…?
GERHARDT: The majority.
LAMB: Majority of the 435?
GERHARDT: Yes. You need a majority of the House to formally impeach somebody.
LAMB: I mean where's the principle in all this?
GERHARDT: Well, there are maybe principle in there. It's just maybe hard to find. So you suggested it would be - it wouldn't necessarily be automatic not to impeach the president for a particular - for members of the presidents own party.
But they begin the process if they're thinking about impeachment already reflexively hesitant. That's the thing that has to be overcome.
And with a president who may be popular within the party that's controlling the House, that makes the members of the same party more hesitant to think about cutting themselves off from this more popular figure. And that's what has to be overcome, and that's just very difficult to overcome.
LAMB: The vote in the Senate must be what?
GERHARDT: It needs at least two-thirds.
LAMB: Two-thirds of the 100?
LAMB: So if there are five missing, it's still two-thirds of the 100?
GERHARDT: We think it's - it says of the members present. So, it'll get a little more complicating if some people are absent or not present. But we assume that it must be at least two-thirds of the people that are there, that is to say representing states in the Senate.
LAMB: You have somewhat of a long paragraph and it's attributed both to Professor Adrian - is it Vemeule?
LAMB: OK. Who is he, by the way?
GERHARDT: He's a wonderful professor at Harvard Law School.
LAMB: But I want to read it and get - have you to break it down. He is asked whether we think a war without congressional approval - no, let me draw back.
We think a president who has unilaterally suspended habeas corpus, waged war without congressional approval and encourage and supported the prosecution of his political enemies may be impeached.
We could add to the list of misconduct the president's telling lies to the American public, making or encouraging racist statements and engaging in sexual escapades. Most people might be tempted to say yes. But - what's the but? And it sounds like another - maybe a current time in our existence, but…
GERHARDT: Well, it could be. Yes. So, what we're thinking about here is how do we analyze issues that relate to impeachment process. One of the first things we've got to understand is whether or not certain conduct is impeachable. Some misconduct as I mentioned before, may fall short of that. Other misconduct may actually qualify as an impeachable offense.
Even if we agree that some conduct may be impeachable, then the question becomes whether there's the political will to impeach. That sort of gets back to your…
LAMB: By the way, you are - following that. These are the things - well, not Trump, but rather Abraham Lincoln, Woodrow Wilson, Franklin Roosevelt, and John F. Kennedy.
GERHARDT: Yes. Yes. So what I think Adrian is getting at with that question and what I'm getting at in trying to sort of come back to that question has to do with the recognition that there are maybe things that presidents do that are bad.
And maybe even sometimes these things could rise to the level of being impeachable offense, at least in an abstract sense if not in a real sense.
But then we have to deal with the question - well, what's the significance of the failure to impeach in those conditions? And that's what I'm trying to address at that point in the book. I think there are several things that may be significant about it.
One is that it may remind us that, again, about the political will that maybe needed for impeachment. So you can have some kind of bad misconduct but then the question just becomes what is the political will at that time, did the numbers work in a certain way that would've worked against it.
A second thing to think about is that impeachment is inextricably linked, I think, to culture. There are things that the culture may not - may at any given time think are so bad that we've got to get rid of somebody.
But maybe the culture thinks or the culture is disposed more or less at a particular moment to discount certain things or not to treat certain things as terribly awful.
I think that helps explain Bill Clinton and why he's not tossed out of office, because I think the lie that did happen under oath was something that enough people in the Senate thought was not so bad for the president at this particular time that it justifies using the biggest gun we've got, which is conviction and removal.
So culture may help us figure out what is so bad that it justifies removal and what is so bad that maybe it isn't necessarily appropriate for impeachment, but history will come down hard on that person and perhaps the person's popularity will suffer.
LAMB: Let me go through those four names.
LAMB: By the way, would you have impeached, just if you had been around, who you have impeached any of those presidents?
GERHARDT: No, no.
LAMB: But Abraham Lincoln, I assume, is habeas corpus, can you explain that?
GERHARDT: Abraham Lincoln had unilaterally suspended habeas corpus. It's thought at that time that he did this for the sake of expediency, Congress wasn't in session, Lincoln will later defend that and seek Congress' approval for it.
We can perhaps criticize Lincoln for different things. But at the end of the day, I think most Americans accept Abraham Lincoln is one of our two greatest presidents, if not our greatest president.
LAMB: Who waged war without getting approval?
GERHARDT: Well, a number of presidents have done that, including Lincoln. And so, war can be authorized by means other than a declaration of war. And therefore, there could be support from Congress, that's given in a different form than a formal declaration.
And so, we might be able to find that presidents had some legal basis to use military force even though it wasn't formally declared by Congress.
LAMB: Which one of these four engaged in sexual escapades?
GERHARDT: Well, that would've been John F. Kennedy.
LAMB: And we know it at that time.
GERHARDT: We do not know it at that time. But although it is reported to some extent the reporters did know it and didn't disclose it, but it has something to do with the moral character of the president, and maybe it has something to do with whether or not we think the moral character of the president is a relevant consideration when it comes to impeachment.
But as I've suggested before and suggest in the book, maybe that had to do with culture as well at that time. It wasn't something that was publicly talked about. And later with Bill Clinton, it might be something that's publicly talked about. But people tend to discount how important that is to keeping the president in office.
LAMB: Racist statements?
GERHARDT: Racist statements can be made by presidents.
LAMB: Woodrow Wilson, is he on that?
GERHARDT: Woodrow Wilson certainly might be one of those presidents and it wouldn't be unique to make racist comments. Again, an unfortunate aspect of our culture at the time.
And here's one of the critical things, what if people vote for the president in part because of that or vote for the president in spite of that? Well, if the answer is yes to that, then impeachment isn't necessarily the right mechanism to use to get at that kind of misconduct.
LAMB: What about Franklin Roosevelt? Where was he vulnerable?
GERHARDT: Well, he might have lied to Congress or been a little bit - let's say quick - maybe didn't disclose certain things to Congress on how he was going to try and help some of our allies who were under siege from Nazi Germany at thet time.
So in taking some of those liberties, Roosevelt might have been using his judgment to try and do what he thought was best but wasn't necessarily communicating with all candor with Congress. Maybe we could look back on that and say, "Oh, that was not a great thing." Maybe we look back on that and say it was a bad thing.
But if we think of it in terms of what the benefits were, he was trying to protect the world against a force that was about to try and come after other countries and a force for evil.
LAMB: One of the things that's in your background is a lot of advice to the Senate about Supreme Court nominees. How many of those have you been involved in? How often have you testified, and what's your criteria for doing that?
GERHARDT: Well, I've had the chance to advise on a number of Supreme Court nominations, sometimes in more formal capacity as special counsel to the Senate Judiciary Committee. So, it's been as many as I think six.
LAMB: Can you tell us who those six are?
GERHARDT: Well, I would have to remember. So, just going back to…
LAMB: Were you Breyer or Ginsburg or…?
GERHARDT: Justice Breyer.
GERHARDT: Justice Samour, Justice Kagan and…
LAMB: What was your relationship with Alito, Justice Alito?
GERHARDT: Well, I've never met Justice Alito. He certainly came highly recommended at that time. And obviously, the President Bush not only nominated and the Senate confirmed them.
And of course, he's sitting on the Supreme Court to this day. I was called in by the Senate at that point, by the Senate Democrats to not necessarily oppose Justice Alito's nomination, but to defend a different proposition.
The proposition I came and to try and defend at the time was that the Senate was entitled to take people's ideology into account. The Senate could exercise an independent voice on Supreme Court nominations.
And so, that's what I came in to defend at that time because part of the pushback against the Democrats at that point in time was - well, maybe they should defer to what the president has done. I thought the Senate was entitled to have an independent voice and has always tried to defend that throughout American history.
LAMB: Who is your primary contact in the Senate that you've advised?
GERHARDT: Well, there've been a number of people. So I wouldn't say there's just one. So, I've been fortunate over the years to being able to advise more than one senator.
LAMB: How does that work? Did they pay you to advise them or you just do it out of the goodness of your heart?
GERHARDT: Both. So, sometimes it's been because it's been the pro bono service that I've done. And other times, I've been brought in technically on the staff where I do get paid and then try and honor that arrangement in that institutional situation. So, it just depends on - it's developed in different ways over the years.
LAMB: How much involved are you in the Brett Kavanaugh nomination?
GERHARDT: Well, I've been brought in as a special counsel to work with the Senate Democrats of the Judiciary Committee.
LAMB: You're going to testify or you're just an advisor or…?
LAMB: And how then when you go back into the classroom, or you go - you're involved with the National Constitution Center, how do you then separate your personal views from your professional presentations?
GERHARDT: Well, I try and always be aware of what the relationship may be between what I'm doing in any particular moment in time and what my responsibilities are.
So for example, in the classroom, I think my function there is to be an educator, not to be somebody who's trying to shape people's ideological views. I'm trying to help educate people about different things. So I don't think my personal views have any relevance whatsoever in the classroom.
I don't think necessarily they have much relevance at the National Constitution Center either, which is a wonderful institution that's devoted to constitutional education. So, that's also about educating, but particularly educating the public more broadly about the Constitution.
LAMB: Have you ever considered the opportunity to be on the bench somewhere, either district, circuit or Supreme Court?
GERHARDT: Well, I wouldn't say I've necessarily thought about that or considered that, but I think that one thing that's always been very important to me is public service.
And so hopefully, what I've been able to do over 30 years of teaching constitutional law and trying to be able to help other people that are officials, particularly in Congress, is to better understand the Constitution. I think all that is public service. And it's just been a tremendous honor throughout my life to try and engage in that public service.
LAMB: Going back to the original book we were talking about, The Forgotten Presidents, which of those 13 that you wrote about - actually, 12 men, 13 presidencies was the hardest to grasp?
GERHARDT: That's a good question. Carter maybe a little harder to grasp just because he's a little more recent and because there's such an active four years of trying to get a handle on all this stuff that happened during that time period, both in terms of what worked and what didn't work and what remains important lessons, and what can we gleam from that period and what may have been his legacy of then and as it's evolving.
I think another one that's particularly hard to grasp, a couple of them. William Henry Harrison only served for 30 days. And Zachary Taylor didn't serve much longer than that, about 15 months. They are typically dismissed as being not important. But I suggest in the book that they may have been more important that we think.
If we look at Harrison not just from the election, in a longer sense, with Harrison, if you look at the - from Election Day to when he came to office, then you start looking in terms of months. And there's stuff going on during that period.
I think it helps to shape our understanding what he actually might have accomplished even though he wasn't there long. And Taylor, you could argue the same way.
Taylor I think was trying to reshape the presidency at that time to be a more forceful figure in trying to determine the balance of power between the, those that supported slavery and those that didn't.
One of the themes of the book is that people come into the office and the office shapes them. But also, the people themselves may help shape the office in certain ways. And even in the shortest period of time as 30 days, I suggest we Henry Harrison might have done that.
LAMB: We know you teach at the University of North Carolina, is it a law school?
LAMB: And we know you're involved with the National Constitution Center. What do you do for them?
GERHARDT: Well, I have the wonderful opportunity to work with a lot of different people there, including the CEO and president Jeff Rosen. And one of the things I help do is oversee that the content of - that's produced by the National Constitution Center, it's produced in all sorts of different ways and is produced for the public.
It's produced on the internet and trying to help explain the Constitution, it's produced in public programs, which are put on there which the public are invited to and which are also available here in C-SPAN and also on the archives of the National Constitution Center.
And sometimes the programs are not just not in Philadelphia, but maybe other parts of the country so we may help try to arrange those and find people to come in and talk as part of this program.
LAMB: Michael J. Gerhardt has been our guest. He's got two books that you might be interested in. One of them is called Impeachment: What Everyone Needs To Know. Brand new from Oxford Publishing and The Forgotten Presidents: Their Untold Constitutional Legacy. And we thank you very much.
GERHARDT: Thank you. It's been a great honor.