Rigged: The Acquittal of Donald J. Trump

Sens. Jeff Merkley and Brian Schatz join Mehdi Hasan to discuss the implications of Wednesday’s Senate vote finding the president not guilty on both articles of impeachment.

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As predicted, the Republican-controlled Senate voted on Wednesday to find President Donald Trump not guilty on both articles of impeachment brought by the House of Representatives. It was a party-line vote, with one notable exception: Utah Sen. Mitt Romney became the first senator in U.S. history to vote to remove a president of his own party. Democratic Sens. Jeff Merkley of Oregon and Brian Schatz of Hawaii, who both voted to remove the president, joined Mehdi Hasan by phone shortly after the vote to discuss the implications of Trump’s acquittal for the future of the Senate.

Mehdi Hasan: Hello, this is Mehdi Hasan — a quick announcement before we start the show today: if you’re in LA this coming Monday, February 10th, we’re recording a special episode of Deconstructed on the massive issue of criminal justice reform and mass incarceration and racism in front of a live audience at the Writers Guild Theater, and with special, oh very special guests John Legend, yeah, that John Legend, and Black Lives Matter co-founder Patrisse Cullors. Go to the Intercept website or to my Twitter feed for details on how to buy tickets, before they’re all gone – and if you’re NOT in LA, well make sure you tell your friends and family in LA about it. You do not want to miss this show. Now, on to the show.


Jeff Merkley: I don’t believe you can truly be acquitted if you haven’t had a fair and full trial. This is the first time in the history of the United States of America that the majority leader conspired to ensure there was not a fair trial.

[Music interlude.]

MH: Welcome to a special early edition of Deconstructed at the end of the Senate impeachment trial. I’m Mehdi Hasan.

Donald Trump is in the clear. He may be an impeached president — only the third in American history — but he wasn’t convicted or removed from office on Wednesday. No, he was acquitted by the United States Senate — or, I should say, by every single Republican senator bar Mitt Romney.

Brian Schatz: Mitt Romney changed the equation. This is now the first instance of a United States senator voting to convict a president of his or her own party.

MH: That was the voice of Democratic Senator Brian Schatz of Hawaii, who is one of my guests on the show today, as is the Democratic Senator from Oregon, Jeff Merkeley, both of whom, like every other Democrat voted to remove the president from office. But they failed. And Trump lives to fight another day. So now what? What does this all mean?

John Roberts: The Senate having tried Donald john Trump, President of the United States, upon two articles of impeachment, exhibited against him by the House of Representatives, and two thirds of the senators present not having found him guilty of the charges contained therein, it is therefore ordered and adjudged that the said Donald John Trump be, and he is hereby acquitted of the charges in said articles.

MH: There you have it. The Senate voting to acquit Donald John Trump, 45th president of the United States, on charges of abuse of power and obstruction of Congress, charges for which he was impeached in the House of Representatives.

In the Senate though, it wasn’t really a trial. I mean, have you ever heard of a trial with no witnesses in it? None. Nada. Zero. In fact, it was the first Senate impeachment trial in American history not to feature any witnesses. Even though one potential witness, John Bolton, the president’s own former national security adviser, one-time hero of the Republican Party, volunteered to testify in the Senate, and even has a book coming out filled with his eye-witness testimony. He, by the way, says in that book, yeah Trump did do what the Democrats accuse him of doing, of holding up aid to Ukraine in order to get the Ukrainians to investigate the Bidens — ergo he was not called by Republican senators. They didn’t wanna know. You remember that old saying: “See no evil, hear no evil and then do…lots of evil.”

Republicans bent over backwards to try and defend Trump or justify keeping him in office: yeah he did bad things, but they’re not impeachable. They’re not crimes — and you have to commit a crime to be impeached and removed — a position, by the way, shared by no constitutional scholars or legal experts on this subject with the exception of former Jeffrey Epstein lawyer Alan Dershowitz.

Meanwhile, House Democrats, who I criticized on this show for not going bigger on impeachment —not going after Trump for all his other high crimes and misdemeanors, from his corruption and violation of the Emoluments Clause, to his obstruction of justice over the Russia investigation, to his kidnapping of migrant children from their parents at the border — those House Democrats, to be fair to them, led by Adam Schiff, did make a pretty strong case for convicting Trump over abuse of power and obstruction of Congress in relation to his attempt to extort and pressure the president of Ukraine, to use U.S. aid money to try and trigger a bogus corruption investigation into a domestic political rival.

Adam Schiff: Donald Trump has betrayed his oath to protect and defend the Constitution but it’s not too late for us to honor ours, to wield our power to defend our democracy.

MH: But the whole thing was rigged from the get-go. Not just in terms of no witnesses, even when John Bolton was volunteering in the midst of the Senate trial to testify, and dodgy Trump donor and indicted Rudy Giuliani associate Lev Parnas was producing secret recordings of Trump ordering the taking out of the US ambassador to Ukraine, but also in terms of the trial itself and the “jurors” themselves. Because that’s what senators were supposed to be: independent and impartial jurors, they took an oath to that effect, and yet before it even began you had Senate Majority Leader Republican Mitch McConnell saying:

Mitch McConnell: Everything I do during this, I’m coordinating with White House Counsel. There will be no difference between the president’s position and our position.

MH: And Republican Senator Lindsey Graham saying:

Lindsey Graham: I am trying to give a pretty clear signal I’ve made up my mind. I am not pretending to be a fair juror here.

MH: Got that? Jurors, on tape, bragging that they have no intention of being fair or impartial and that they’re openly coordinating with the defendant. That’s the “trial” we just had in the Senate – surely a low point in the modern history of that body. I mean, first confirming Brett Kavanaugh and now acquitting Donald Trump.

So what happens now? Well, giving leaders impunity, especially reckless power-hungry rulers like Trump, has consequences and they tend not to be good ones. Do you remember what happened the day after Robert Mueller testified in Congress last July and then… nothing happened? There were no consequences for Trump, no impeachment of the president. Well, the next day, the very next day, an emboldened Trump made his “perfect” phone call to the Ukrainian president asking him to investigate the Bidens. One can only imagine what the acquitted yet still very corrupt and crooked president will be doing on Thursday, the morning after he’s acquitted: who he’ll be calling, what he’ll be demanding.

It is not an overstatement, it’s not hyperbole, to say that American politics, American democracy, is in crisis. I mean: How can a presidential system like America’s survive when you have a president who isn’t constrained by any constitutional checks or balances? When his own party says he can do what he likes and he won’t be stopped, he won’t be touched?

Listen to presidential history Jon Meacham speaking the other day on television:

Jon Meachem: President Trump is functionally a monarch at this point. If the king does it, it’s okay that’s what we’re seeing unfold in Washington right now.

MH: But, with this shameful vote, the Republicans have decided, and announced to the world, that their party is officially the Trump Party, the Trump Cult, that the constitution doesn’t matter, that Congress doesn’t matter, checks and balances don’t matter, foreign policy and national security doesn’t matter.

Well, Republicans with the exception of Mitt Romney. On Wednesday, the junior Republican senator from Utah, former Republican presidential candidate, decided to do the right thing and voted to convict and remove Donald Trump becoming the first senator in U.S. history to vote to remove a president of his own party from office:

Mitt Romney: Corrupting an election to keep oneself in office is perhaps the most abusive and destructive violation of one’s oath of office that I can imagine. With my vote, I will tell my children, their children that I did my duty to the best of my ability believing that my country expected it of me.

MH: I want to say a couple of things about Mitt Romney. First off, and I never thought I’d say this: but respect to Romney. It’s not easy to go against your own friends, colleagues, many of your own constituents, your own political party, especially one as intolerant and cultish as the modern Republican Party. I’ve been a massive and long-standing critic of Romney. I thought he ran an awful campaign against Obama in 2012, and I thought he was a bit of a hypocrite for taking money and an endorsement from Trump in 2012, then attacking Trump in 2016, then trying to get a job in the Trump administration after Trump won, and getting Trump’s endorsement when he ran for the Senate in Utah. But, credit where credit’s due, he did the right thing today. He voted with his conscience — the only Republican to do so.

Secondly, though, what’s so ironic about the Romney vote is that almost immediately Don Jr, the president’s failson, took to Twitter, demanding Romney be expelled from the GOP. And yet, just a week ago, Republicans were clutching their pearls and pretending to be outraged when Adam Schiff referred to a CBS News report saying they were too afraid of voting against Trump because they’d been told “your head will be on a pike.”

James Landford: One of the most remarkable moments of the entire day was when Adam Schiff ended the night by saying “Republicans have been told their head will be on a pike by the president if they vote against him.” That is completely, totally false and all of us were shaking our heads like where in the world did that story come from?

MH: Well, turns out Trump and co do indeed want Romney’s head on a pike. They can’t tolerate the fact that even one Republican senator voted against the absolute monarch. Voted against King Trump.

Look, I know it’s fashionable to say that Americans don’t care about impeachment, it’s all very technical, it’s not a kitchen table issue, it’s too complicated, and it’s too distant from ordinary people’s lives, but let me be clear: if you care about democracy in this country, if you care about accountability, the rule of law, checks and balances, the constitution, if you care about the ongoing slide into full blown authoritarianism and open criminality, then you need to care about what happened today, you need to be angry and outraged that this trial was rigged by a Republican Party who wanted to impeach Hillary Clinton over Benghazi but give Donald Trump, who’s a thousand times more lawless and a million times more corrupt, a complete pass. So yes, please, get angry.

[Music interlude.]

MH: Joining me now to discuss this, from Capitol Hill, where the Senate trial of Donald Trump has just ended, is Democratic Senator Jeff Merkley of Oregon. Senator, great to have you back on the show, shame it’s under these circumstances.

JM: Yes, yes. Well, I’m feeling the weight of this dark and tragic day.

MH: I’m looking at a screen in front of me saying Donald Trump Acquitted is the banner headline on all the new sites. You’ve just come out of that trial and the voting. How do you feel about that?

JM: Well, I don’t believe you can truly be acquitted if you haven’t had a fair and full trial. And certainly, this is a tragic day because this is the first time in the history of the United States of America that the majority leader conspired, as he put it, hand in glove to work with the defendant to ensure there was not a fair trial. This is not doing impartial justice. And as every American knows a trial is not a trial if it does not have witnesses and documents. So, this was a cover up and it should be considered nothing more than that.

MH: Completely agree with you on your analysis of the cover up. But here’s a question for you as someone who deals with Republican senators, they’re your colleagues on Capitol Hill every day, even if they’d voted for witnesses, let’s say John Bolton had turned up and said, “Yes, the President told me last summer hold back the aid until we get the investigations into the Bidens,” do you think that they still wouldn’t have voted to acquit him?

JM: I believe that once the door was open to all of the machinations that were going inside, among the cabinet secretaries, among the Office of Management and Budget, we would have seen the profile of a much more extensive scandal, something that would have persuaded much of America that indeed, this was a crime against the Constitution, and that would have had a big impact on the vote.

MH: Now I understand what you’re saying and you might be right. I’m just looking at the polling which shows you know, half of Americans already so supported conviction and removal. Three quarters of Americans supported witnesses. The evidence the House managers brought forward from Trump employees, from members of you know, the administration was pretty damning. And yet you couldn’t get more than one Republican senator to join you in the vote today. That’s how they’ve doubled down behind Donald Trump, the Republicans in the Senate.

JM: Well, think about it this way: the more the scandal penetrated various departments of President Trump’s administration, the Secretary of State or the State Department, the Department of Defense, you of course, had the Foreign Service engaged in this. You had the Department of Energy engaged in this, the more determination of this administration to apply pressure to make sure that the lid was not lifted on this can of worms. And that pressure in this very partisan age, won out over the oath to do impartial justice and the oath to honor the constitution and of course, the constitution in calling for the Senate to hold a trial envisioned all of the protections of a trial for full justice, and that is witnesses and documents. So, people violated their oath to the constitution and violated their oath of impartial justice because of that pressure, and that’s what makes this a very tragic day in America.

MH: One person who says he had to break with his party because of his oath to the Constitution, he said, because of his conscience, because of his faith was former Republican presidential candidate, the Senator from Utah, Mitt Romney. What did you make of his vote today to convict and remove a president from his own party?

JM: It was a powerful statement that he delivered. I happened to be walking by a television as he came on to the screen. So, I heard at least a share of his statement and this is extraordinarily difficult to do. Remember you have the combined force of Mitch McConnell, who said he’d work hand in glove with the president to produce exoneration, you had all of these officials that serve the president, you have this extraordinary pressure to show that you are a member of the team, not the American team, not the team of senators assigned to do impartial justice but the Republican team assigned to defend the president. And that individual, Mitt Romney, did something remarkable that will be remembered through the decades to come as an act of extraordinary courage and fidelity to an oath that he took as he put it, not just to the Constitution and not just impartial justice, but to do so before God.

MH: And just on the House Democrats who brought the Articles of Impeachment to the Senate, do you think there’s anything they could have done differently either in the House or in terms of making their arguments in the Senate? What do you think about the Democratic approach to this whole thing?

JM: I don’t believe there’s anything else that they could have done that would have made a difference. Would I suggest to them that they had brought in Emoluments Clause? Yes. Would I suggest to them they should have brought forth an article of impeachment that addressed the four cases in the Mueller report, in which Muller found substantial evidence on all three key points of the law for obstruction of justice, including one obstruction of justice that included witness tampering? Absolutely. In fact, on those four cases, we received a letter from over 1,000 former federal prosecutors who said anyone else America would be indicted. I really disagreed with their decision not to lay out that set of cases. I would have liked to seen the House absolutely lay out the criminal issues. It is a crime to solicit foreign interference in an election. If that interference is worth over $25,000, it is a felony and if you’re holding up over $300 million of aid, you can anticipate the value of that contribution you’re seeking is over $25,000. This was a felony act. The House did not make that clear. I do not believe any of those things would have changed the outcome. But I do believe it would have been a much fuller exploration addressing the criminal conduct of Donald Trump.

MH: Do you think Democrats now should let go or there’s talk of actually expanding investigations back in the House, subpoenaing John Bolton, do you support that?

JM: That’s a decision for the House to make. I do feel that the window to explore this effort has from my perspective, closed. And that now we turn to the court of judgment that will occur in November with the election in the United States of America.

MH: And in that election, that’s coming up. We saw the Iowa caucuses. A little bit of a disaster for your party this week. What did you make of the fallout from Iowa?

JM: You know, time and again, I’ve seen software rolled out when it hadn’t been fully tested, and create a fiasco. The City of Portland, Oregon, had a water billing system that was a complete disaster. The State of Oregon was not prepared for a clean roll-out of the Affordable Care Act and we had to resort to paper because the website was such a mess. In this case, had we not — It’s just frustrating that they hadn’t learned the lessons of that, that you have to do a full test. It’s great to run a pilot project. It’s great to make the use optional, but be prepared for it not to work. I know that those who are evaluating this right now are going to make sure that it runs like clockwork four years from now. I don’t consider this a major flaw in the course, think of this is the first lap of a 50-lap race. And the track was messed up on that first track, on that first loop around the track, but it will be in good shape for the next 49.

MH: Senator, last time you were on the show back in 2018, you said you were considering running for president yourself you ended up deciding not to run? Do you have a candidate? Do you have a favorite? Have you picked anyone yet?

JM: No, I decided not to endorse, at least for now in the near future. And I must say it’s partly to celebrate the tremendous number of folks who are bringing their talents to bear who have so much to say about putting our nation back on track, about taking on the challenge of carbon pollution that’s destroying our planet. We see the ramifications all over my home state of Oregon, about taking on equality of opportunity for every American and certainly for the LGBTQ community and passing Equality Act, for taking on the fundamentals for families to thrive, because there’s four foundations, there’s healthcare, there’s education, there’s housing, and there’s good paying jobs, and there’s so much work to be done. And so I celebrate the many ideas that have been put forward, the dialogue that’s happened in this primary.

MH: That group that you’re celebrating, do you include in that former Republican mayor of New York, former George W. Bush supporter, Michael Bloomberg?

JM: Well, he will soon be entering the contest. And I do have reservations about the fact that we’ve reached the point in the extraordinary maldistribution of wealth, where a few individuals who have benefited so much from the infrastructure laid down by the preceding generation are in a position to essentially take a shortcut to prominence in the election. I don’t want to see a country and basically where you have to be a mega-millionaire to to run for office because we will not get the view of ordinary Americans expressed. I live in a blue collar community. I grew up in that blue collar community. My dad was a mechanic. We need more people who live in communities where families are experiencing the challenges of the shortcomings of government over the last four decades.

MH: One last question before I let you go, just circling back to the president and impeachment, now that he’s been “acquitted,” are we going to see an even more emboldened and reckless Trump who thinks “I can get away with anything?” Is he going to do even more crazier, more criminal things between now and November because he believes there are no constraints on him?

JM: Well, I do think that those around him will try to constrain the craziest acts he might embark on. But that’s never worked to date. In fact the lesson that he can take from this is not that be wary about abusing your office, but that if you abuse your office, you have a partisan team that will make sure that neither the judicial process nor the impeachment process can hold you accountable. That is a horrific lesson. That’s another reason today is a very dark and tragic day.

MH: On that note Senator Jeff Merkley. Thanks for joining me on deconstructed You’re welcome. Thank you.

[Music interlude.]

MH: That was Senator Jeff Merkley of Oregan, speaking to me from the Senate. One of the most fascinating and depressing things about watching this trial has been the way in which Republicans and their enablers in the media have been gaslighting us on a near daily basis, making demonstrably false claims, about how Republicans weren’t allowed to question witnesses in the House, which is a lie, or how the impeachment process itself is a violation of the Constitution, which is of course a lie.

One of the Democrats who has been best at calling at Republican hypocrisy, mendacity and gaslighting, and calling at the media’s failure to fully hold Trump and Co. to account is Senator Brian Schatz of Hawaii, who I would add is a very amusing politician to follow on Twitter. He joins me now on his way out of Capitol Hill, on the phone, after the vote:

Senator Brian Schatz thanks for joining me on Deconstructed.

BS: Happy to be here.

MH: You’ve just come out of the Senate vote. Donald Trump has been acquitted. What’s your first reaction?

BS: Well, it’s mixed feelings and I’ll tell you why. This was horrifying for American democracy. And partly because of the Dershowitz arguments that were being made over the final week. It became even more worrisome not just for Trump, but for any president and the idea that undergirds their theory of executive power is really dangerous for our constitutional order. So, that’s one thing. The other thing is that just on a personal level, I was deeply disappointed in some of my Republican colleagues, with whom I, by necessity have a functional working relationship, but to see them through this process, disappoint me and not be willing to even vote for something that would resemble a fair trial had gotten me down.

Now, let me tell you the good news. The good news is that Mitt Romney changed the equation. This is now the first instance of a United States senator voting to convict a president of his or her own party and that was an extraordinary act of courage. I worked really hard for Barack Obama and against Mitt Romney but Mitt has become my friend. Mitt is an example of the Republican Party of the 70s and 80s and 90s, with which I disagreed vehemently, but they were not doing the institutional damage that that Trump’s party is doing. So, it was just personally gratifying for me to see that and I think it’s got political implications too because they now have a bipartisan guilty vote. And also Doug Jones, who represents Alabama, Joe Manchin, who represents West Virginia, Kyrsten Sinema, who represents Arizona they all voted guilty on both counts.

MH: All Democrats in swing states.

BS: All democrats in swing states, all did the right thing and did it for the right reasons. And so perhaps unusually, but perhaps auguring well for unity and moral clarity, all of the Democrats were together, and the Republicans were at least ever so slightly split because I think what Adam Schiff tried to attempt to do was really smart. He knew he wasn’t going to win a conviction, but he just wanted to prick the consciences not just of the nation, but of individual senators and I thought it was extraordinary. And I was, for the first time in probably several weeks, I was, again, proud to be part of this institution.

MH: So let me just pick up you made a couple of points there. I’ll come back to Mitt Romney in a moment and that was a fascinating vote by him. But just in terms of you mentioned, kind of the implications for presidential power. You also mentioned your Republican colleagues. Let’s just start with the Republican colleagues, you said you were disappointed. Isn’t that a bit of an understatement given, it’s not just that all of them but Romney voted to clear the president. But they spent the last week or two and you saw this up close and personal, not just saying “Oh, we’re going to defend the president, we’re not going to vote to convict him,” but just lying and not just like gaslighting on a daily basis saying things like there’s no new evidence and there’s no need for witnesses and there are no witnesses and just the number of sheer lies they told over the last couple of weeks.

BS: Sure, but those are not the ones that disappointed me. I know Tom Cotton and Marsha Blackburn and all of these folks who make a living in that sort of fever swamp universe. They’re not capable of disappointing me.

MH: Susan Collins and Lisa Murkowski, they’re still capable of disappointing even now?

BS: Susan did not disappoint me and I will just leave it there. But Lisa and I are friends and she was there on the Brent Kavanaugh vote and she was there on the Affordable Care Act vote and she was personally not sure what to do all the way to the end. That was a personal disappointment to me. But I think you’re right that the behavior, to characterize what happened as disappointing is to understate the sort of venal, craven dishonest thing that’s going on right now and to underestimate the potential impact. Now, the silver lining on the Dershowitz theory of the case is that I mean, even the President’s Counsel basically benched him after he had that riff late at night. It was sort of, I likened it to a, you know, a sort of a self indulgent guitar solo, which starts out kind of interesting, but then sort of takes the song in a direction and everyone wants him to stop. I mean, that was about Alan Dershowitz.

MH: Just to clarify for our listeners, you’re referring to when Alan Dershowitz said, basically, if the president does something because he thinks he’s gonna get reelected, it’s in the public interest, whatever the President thinks is good for him is good for the country.

BS: Yeah, well, there were actually two arguments. That was sort of so outrageous that I don’t know that anybody really embraced it. But the other one is a little more insidious because what they’re basically saying is the president possesses power. And if he uses that power lawfully then it can’t be impeachable, and that is exactly upside down because the reason you give the impeachment authorities in Congress is because you’re giving a president this extraordinary Constitutional power. So let me give you an example. If a president decided to use the pardon power, which is total, which is plenary, which is sort of unquestioned as a matter of law, if he decided to pardon in people only in blue states or red states are only people who were for him or punish those who are against them, no one could say that he was unlawfully using his power. What we would say is he’s abusing the authority in his possession and therefore must be impeached. And what Dershowitz does is turn that whole thing on its head and say no, as long as it’s an Article Two power, it cannot be abused and that is terrifying.

MH: It’s terrifying also amusing. Of course, as you know, once there’s a Democratic president in office, they won’t be pushing these legal theories at all. It’s only lots of executive power if you’re a Republican president.

BS: Well, fair enough. I think that’s absolutely right. And, you know, one of our structural disadvantages is they are able to accomplish a lot of their goals, destroying the government’s — Doing everything they can to deregulate industries, getting a lot of federal judges through. They don’t need institutions to work in order to get what they want. We need institutions to work in order to pass our agenda. So the kind of maximalist sort of game theory, you know, the kind of internet strategist that says, “Why don’t you guys kick more ass and be more tough?” Fair enough, I think sometimes we are a little bit too focused on decorum and stability, but we do have to remember that we need these institutions and these guys don’t. They have what they need just as long as they can stack the federal judiciary and gut —

MH: But you don’t need, for example, a filibuster, which, you know, Republican behavior in recent days is another reminder of why candidates like Elizabeth Warren who say get rid of the filibuster probably are more practical about what needs to be done under a Democratic president than maybe other candidates who think I could still work with the Republicans.

BS: Yeah, I think, you know, listen, I think that we’ll see whose theory of the case ends up being right, but I have a strong, strong suspicion that the moment we have a Democratic president whether it’s anywhere anywhere from Joe Biden to Elizabeth to Amy Klobuchar to Bernie that they will treat them the same which is to block everything and then we’ll have some decisions to make.

MH: And let me just circle back to Lisa Murkowski and Mitt Romney. You mentioned that you know, you were disappointed, what happened. One of the things Lisa Murkowski said, “I was was very upset when Adam Schiff mentioned —” You know, a lot of these senators came out and said “We’re horrified that Adam Schiff could say that we’re being threatened by the White House, that our heads will be on pikes,” was a CBS News report. The irony is today after Mitt Romney voted to convict and remove Donald Trump, Donald Trump’s failson, Don Jr. took to Twitter to say he should be expelled from the GOP. Oh, the irony.

BS: Yeah, well, I mean, look, it was, yes, of course, they have heads on pikes. And by the way, I don’t know. I work in politics. Heads on pikes is not an uncommon phrase. I hate to say it when you’re talking about consequences politically, electorally, that’s one of the things people say maybe they shouldn’t, but it’s not so beyond the pale to imagine that a White House political advisor, whether it’s Eric Ueland or Rahm Emanuel, frankly, would talk like that. So, that’s number one. But I think the broader point is, remember, it was first that Nancy Pelosi used too many signing pens, right?

And then it was Jerry Nadler used the word treachery and then it was heads on pikes, and then it was Elizabeth Warren, asked the question of the Chief Justice that got someone’s nose out of joint. And my friend Sheldon Whitehouse, you know, we were sort of ruminating on what they do here because certainly you don’t want to give them any openings to claim grievances and outrage but in the end, you can’t execute perfectly and give them the aperture for outrage because they’re looking for one.

And especially in that moment, when Adam Schiff had the room and I could feel their guilt emanating almost had a physical sensation of how they were experiencing their conscience for that moment. And then he quoted the heads on pikes thing, and then Tom Cotton started shouting and James Lankford, you know, and what they found was, what Sheldon Whitehouse called the “outrage offramp”. That whatever Trump is doing, it is only just as bad as whatever the Democrats did.

MH: That’s their get out, obviously. And one the reasons I enjoy following you on Twitter, Senator, is you’re one of the few high profile Democrats who’s willing to basically call out the fact that the Republicans now, the vast majority of them, are bad faith actors, you can’t really take seriously a lot of what they say and their media enablers.

BS: Yeah, I mean, it’s sad for me to say but there are no moderates. You know, now the Cable News World characterizes the moderate as someone who doesn’t decide instantly the most right wing thing, but eventually comes around. Pat Toomey’s a moderate. Rob Portman’s a moderate. Pat Roberts is a moderate. I mean, they’re not. I mean, that doesn’t mean I’m never able to work with any of them. But the idea that you get your moderate card by not immediately racing to the Ted Cruz position is a sign of how much we’ve lowered the bar and I certainly hope that people who used to find themselves attracted to conservative principles understand that it’s not really a small-c Conservative Party, this is a corporatist party and they are Trump’s party.

MH: It’s a Trump party indeed. Just before we finish on Trump himself, now that he’s got this acquittal from his party, with the exception of Mitt Romney, what does this mean politically for him? Is this good for him? Is he emboldened? Can he kind of do a victory lap? Or is he going to do more reckless, crazy criminal stuff, like he did after the Mueller report failed to land a blow?

BS: I have a hard time seeing around too many corners right now. I think there are a lot of variables here both in terms of his behavior and what he believes to be his political imperatives. I mean, the one thing that I think is worth remembering, you know, there’s a lot of retrospective analysis of the 2016 race. But one of the things that people forget is that — I don’t want to, I’m not sure whether it’s three or five weeks or even less, I don’t know, I don’t remember. But at the end of the race, Donald Trump stuck to a script. And so I think when he needs to, he’s going to contain his worst political instincts and do poll-tested stuff and look plausible for just long enough to try to capture back, you know, high income white women and the suburbs. So, I don’t think we should, I really believe that our strategy cannot depend on Donald Trump doing insane things because while that may happen, he may pull it together for seven weeks that he knows his political life and possibly his freedom depends on it.

MH: And you have no regrets about anything to do with his impeachment, how it was handled by the Democrats?

BS: No, I mean, I think in the big picture, we got everything right. I think the House managers did really well. You know, everybody who’s a lawyer or like an amateur lawyer, like me, has an idea of what should have been included in the articles like, my hobby horse was always the Emoluments Clause of the Constitution because I think there’s such a clear violation but I think part of what what ended up in the articles was a function of what could get a majority in the House, and I don’t think that those moderate Democrats who were just elected lots of with national security credentials were ready to impeach on emoluments. They were particularly offended by this because it had foreign policy and national security implications and it’s a Democratic process so you know, I lost out on that, but overall I thought manager Schiff, Jefferies, Zoe Lofgren, the whole team was extraordinary and I’m proud to be a Democrat and I would just say we just have to go win this election.

MH: And on that note, last last question, who’s gonna win the election for you? Do you have a candidate?

BS: I have no candidate and that’s just me being careful. I don’t have a candidate. I like a lot of them personally. I work with a lot of them personally. I would be thrilled to charge up the mountain for any of the major frontrunners.

MH: Including Bernie?

BS: Yes.

MH: Okay, Senator Brian Schatz, thanks so much for joining me on Deconstructed.

BS: Thank you very much.

[Music interlude.]

MH:That was Senator Brian Schatz of Hawaii. Reminding us that this impeachment trial has not just been about Ukraine or foreign policy or national security or the Bidens, but it’s also reminded us of the importance of having checks and balances of having limits on presidential power, so that you have an elected president bound by the Constitution, not a functional monarch, and that you have a party in Congress that stands up for the country, and isn’t just a Trump cult.

Anyways, next week, we won’t be talking impeachment, but we will be talking law and order, crime and punishment, mass incarceration, and the crisis in America’s prison system. How do you fix the criminal injustice system in the United States? That’s the question I’ll be asking my special guests: John legend, musician, activist, philanthropist, and Patrisse Cullors, activist, co-founder of Black Lives Matter. You can get tickets to be in the audience in LA next Monday, February 10. That special edition of Deconstructed will air later in the week.

[Music interlude.]

MH: That’s our show for today! Deconstructed is a production of First Look Media and The Intercept. Our producer is Zach Young. The show was mixed by Bryan Pugh. Our theme music was composed by Bart Warshaw. Betsy Reed is The Intercept’s editor in chief.

And I’m Mehdi Hasan. You can follow me on Twitter @mehdirhasan. If you haven’t already, please do subscribe to the show so you can hear it every week. Go to theintercept.com/deconstructed to subscribe from your podcast platform of choice, iPhone, Android, whatever. If you’re subscribed already, please do leave us a rating or review – it helps new people find the show. And if you want to give us feedback, email us at Podcasts@theintercept.com. Thanks so much! See you next week.

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