Impeachment as Law and Politics
In a December 2019 episode, Bob Zadek raised the question of how to frame impeachment. He noted that Republicans and pundits had been using the phrase “this is nothing short of a coup d’état,” and he pushed back on that framing, observing that a coup d’état is “kind of ineffective if somebody picked by the president and of the same party then becomes president.” He asked whether impeachment should be looked at as a political process, “nothing other than another notch up from the House or the Senate censuring the president.”
Gene Healy answered that impeachment is “part legal and part political.” The legal part, he said, comes from the Constitution, which “sets out in Article II, Section 4, the standard: treason, bribery, or other high crimes and misdemeanors.” He noted that even if the Supreme Court never rules on what a high crime and misdemeanor means, “it’s still important to try to figure out what that means.” The political part, Healy continued, is that once you decide something is an impeachable offense, “it doesn’t solve all your problems.” He cited obstruction of justice as an example: Richard Nixon had articles of impeachment about obstruction of justice and was driven from office; Bill Clinton was impeached for obstruction of justice, but the Senate decided removal was not warranted. Healy emphasized that impeachment “is not a criminal process. It doesn’t require a crime. Crimes are neither necessary nor sufficient to make an impeachable offense.” He concluded that it is “a mixed operation of law and politics,” and that “the law part doesn’t answer everything, but in the main, it’s not a criminal law analysis.”
The excerpt from this episode ends mid-sentence in a section titled “Historical Precedents for Impeachment,” with Bob Zadek’s name and no further text. No historical precedents are stated in the available excerpt.
Reforming the Electoral Count Act
In two August 2022 episodes, Ilya Somin discussed the Electoral Count Act of 1887. He said the 2020 election “revealed a lot of problems with this piece of legislation that probably most Americans had never even heard of before 2020.” The act was enacted, he said, “in the wake of the disputed election of 1876.” Somin identified several vague aspects that “Trump and others tried to exploit in 2020.”
First, it is “not entirely clear at what point states have to certify their votes.” As a result, there were efforts—“fortunately they failed”—to have state legislatures “after the fact, you know, create a different slate of electors, which was not the one that was chosen.” Somin said this was “arguably legal under the 1887 act, but it was vague.” He proposed that states “have to set the system by which this is going to be done before Election Day so that they can’t monkey around after the fact just because they don’t like the result.”
Second, it is “not entirely clear what happens if a governor or a secretary of state or some other official in charge of certifying the vote” refuses to do so, “as Trump tried to pressure some Republicans into not doing so in 2020.” Somin proposed allowing judicial review so that “if a state official is acting illegally, judges can review it and strike it down.”
Third, there is the issue of “Congress’s and the vice president’s powers to refuse to recognize particular electoral votes.” Somin recalled that what precipitated January 6th was that Congress was meeting to certify electoral votes, and “some right-wing Republicans in Congress were saying, well, we’re going to refuse to certify the vote from Pennsylvania and some other disputed states.” He said Donald Trump pressured Vice President Mike Pence “to try to on his own determine like, I, Mike Pence, you know, do not believe that certain electoral votes were properly cast and therefore I just on my own authority as the VP am going to refuse them.” Somin called for reform to make clear that Congress can only refuse to recognize votes “for a narrowly specified set of reasons, like some kind of actual, you know, calamity or strong evidence of fraud or the like,” and that “the vice president in fact cannot overturn results on his own authority.” He noted that Pence “to his credit, correctly decided that he didn’t have that authority even under the 1887 act, but it’s desirable to make that more clear.”
Somin also addressed the threshold for challenges. Under current rules, he said, “anytime there is one senator or one member of the House of Representatives who’s willing to challenge any state’s electoral votes, that in itself is enough to trigger a process in Congress and to trigger a vote to potentially reject that.” He said it would be desirable to raise that so “it’s not enough to have sort of one rogue ambitious senator like Josh Hawley, who was the ringleader of this stuff on the Republican side.” At minimum, “you should have to have some significant percentage of members of Congress who are willing to start a challenge before you can initiate that.”
Somin argued that even those who like Trump and the Republican Party “should recognize that similar shenanigans could easily be used by the Democrats if they got the chance to do so, and we should not want that sort of thing to happen.” He called it “ridiculous” to assert that the vice president—“who often is actually a competitor in the election like Pence was or like Al Gore was back in 2000 and 2001”—should have the right “on his or her own authority to overturn electoral vote counts.” He asked whether Republicans would trust Kamala Harris with that authority, or Democrats a Republican VP, and said “the answer is no, and for good reason.”
Voter Ignorance and Disinformation
In the same 2022 episode, Bob Zadek asked about voter ignorance and disinformation. He noted that the “rational voter” does not spend a lot of time studying complex issues, and asked how Somin would describe the problem and what solution is consistent with libertarian values.
Somin said most voters “have very little incentive to be well-informed, not because they’re stupid, but because there’s only a small chance that their vote will make a difference and they have lots of other things to do with their lives.” He compared voters to sports fans: “any information that reflects well on their favorite team they love,” while information that reflects badly “is going to make them mad.” He said the people he calls “political fans” are “probably even worse than hardcore sports fans in terms of being very biased in the way they evaluate information.” This makes people “more vulnerable to disinformation or deception,” and the problem “long predates social media.”
Somin rejected government restrictions on misinformation. He said the authors of the progressive report argue “maybe the government can try to restrict the flow of misinformation,” but “we in our report counsel against this. We do not believe the government can be trusted to do this.” He said they would be “very tempted to try to use any information censoring system in a very partisan sort of a way,” and it is “very doubtful if they can actually catch up to all of the flow of this disinformation unless we had a near totalitarian state.”
Instead, Somin proposed “empowering people to make more decisions by voting with their feet and fewer at the ballot box.” When you vote with your feet, he said, “you can still make mistakes, you can still be influenced by ignorance—it’s not perfect—but you have much more incentive to both seek out information and be objective in evaluating it.” He gave the example of a conspiracy theory about a school or a product: “you’re going to in general be more careful and skeptical in evaluating it than if someone gives you a conspiracy theory about some politician that you might vote for or against.”
Bob Zadek summarized this as “a libertarian abstention” and asked whether Somin saw any structural solution other than moving to a different state. Somin said he does not think “we can reduce the amount of it very much, but we can certainly counter the ill effects of it by having more decisions made in frameworks where people have better incentives to seek out information, also evaluate it objectively.” He added that he is “somewhat skeptical of claims that disinformation or political ignorance is much worse in recent years than it was historically,” noting “there are lots of previous historical periods where it was really awful.”
The Electoral College
Bob Zadek also asked about the Electoral College. He noted that as designed, voters did not vote for president but for electors who would vote for president, outsourcing the selection to those “presumably wiser.” Somin said the system “has never worked the way some of the founding fathers thought it would.” From “the very first seriously contested presidential election in 1796 on to the present, it’s never worked out that way.” In reality, “nobody knows, almost nobody knows who those electors are, and it’s very clear that what you’re actually doing is voting for a preferred party or candidate.” He said this was true even in 1796: “Almost everyone who voted in that election probably were like, ‘I’m not voting for Joe Schmo, the Federalist Party elector for Delaware’ or whatever. If you asked them, ‘I’m voting for John Adams or Jefferson.’”
Somin said the electors are “sort of ciphers chosen by their political parties and chosen deliberately so that the person will be almost certain to cast their electoral vote for the candidate of their party rather than go rogue.” In the entire history of the Electoral College, “there’s only been a relative handful of examples where somebody did go rogue, and it has never actually changed the outcome of an election.” Speaking for himself, Somin said “very little would be lost if we just eliminated the electors themselves and just said, ‘If you win the popular vote in a given state, you get all of that state’s electoral votes’ or you get some proportion of them, or there are other approaches.” He added that he “even would be fine—this would require a constitutional amendment—but I even would be fine with just saying let’s get rid of the Electoral College entirely and let’s have one of several possible alternative systems, like a French-style two-round election, for example.”
Across Episodes
The 2019 episode with Gene Healy focuses on impeachment as a constitutional process, while the 2022 episodes with Ilya Somin focus on election law reform, voter ignorance, and the Electoral College. The excerpts do not show the same topic argued across multiple episodes; each episode addresses distinct subjects. The only overlap is the general theme of constitutional structures and political conflict, but the excerpts do not develop a shared argument across episodes.
What the Sources Do Not Cover
The excerpts do not state the outcome of any impeachment proceeding, nor do they describe the specific articles of impeachment against any president beyond Healy’s brief references to Nixon and Clinton. The excerpts do not state whether any Electoral Count Act reform was enacted, nor do they name any bill or its provisions beyond Somin’s general proposals. The excerpts do not cover the 2019 episode’s section on historical precedents for impeachment, which breaks off before any content. The excerpts do not state the name of the progressive report Somin references, nor the names of its authors.