1 00:00:03,520 --> 00:00:07,040 Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every 2 00:00:07,120 --> 00:00:09,680 Speaker 1: day we bring you insight and analysis into the most 3 00:00:09,720 --> 00:00:12,200 Speaker 1: important legal news of the day. You can find more 4 00:00:12,240 --> 00:00:16,160 Speaker 1: episodes of the Bloomberg Law Podcast on Apple Podcasts, SoundCloud, 5 00:00:16,280 --> 00:00:20,160 Speaker 1: and on Bloomberg dot com slash podcasts. On Thursday, Speaker 6 00:00:20,239 --> 00:00:23,480 Speaker 1: Nancy Pelosi said the House will draft articles of impeachment 7 00:00:23,520 --> 00:00:26,840 Speaker 1: against President Donald Trump for abusing his office in a 8 00:00:26,920 --> 00:00:30,600 Speaker 1: profound violation of the public trust. This followed a day 9 00:00:30,600 --> 00:00:34,879 Speaker 1: of testimony from four constitutional law professors about whether Trump's 10 00:00:34,960 --> 00:00:38,680 Speaker 1: conduct regarding Ukraine meets the definition of high crimes and 11 00:00:38,720 --> 00:00:43,560 Speaker 1: misdemeanors required by the Constitution for impeachable offenses. Harvard law 12 00:00:43,600 --> 00:00:46,400 Speaker 1: professor Noah Feldman and the two other professors called by 13 00:00:46,440 --> 00:00:51,120 Speaker 1: the Democrats said Trump has committed impeachable offenses, while George 14 00:00:51,120 --> 00:00:55,120 Speaker 1: Washington University law professor Jonathan Turley said he has not. 15 00:00:56,240 --> 00:01:00,120 Speaker 1: Soliciting the leader of a foreign government in order to 16 00:01:00,400 --> 00:01:06,360 Speaker 1: announce investigations of political rivals and perform those investigations would 17 00:01:06,400 --> 00:01:10,920 Speaker 1: constitute a high crime and misdemeanor. The problem is not 18 00:01:11,080 --> 00:01:14,319 Speaker 1: that abusive power can never be an impeachable offense. You 19 00:01:14,480 --> 00:01:17,800 Speaker 1: just have to prove it and you haven't. Join me 20 00:01:17,840 --> 00:01:20,480 Speaker 1: is Leo Littman, a professor of constitutional law at the 21 00:01:20,600 --> 00:01:23,920 Speaker 1: University of Michigan Law School. Leo, what stood out to 22 00:01:23,959 --> 00:01:26,679 Speaker 1: you in the many hours of testimony? I think a 23 00:01:26,680 --> 00:01:29,600 Speaker 1: few things stood out from the testimony. The first is 24 00:01:30,360 --> 00:01:33,520 Speaker 1: many of them were actually all of them were careful 25 00:01:33,520 --> 00:01:38,120 Speaker 1: to underscore that something can be impeachable even though it 26 00:01:38,200 --> 00:01:43,640 Speaker 1: does not violate the criminal statute. Even Professor Turley, who 27 00:01:43,720 --> 00:01:47,039 Speaker 1: was the expert called by the Republicans, conceded that point 28 00:01:47,120 --> 00:01:51,360 Speaker 1: and has previously written about that same conclusion. So that's 29 00:01:51,360 --> 00:01:53,800 Speaker 1: the first important thing that stood out to me, is 30 00:01:53,840 --> 00:01:57,280 Speaker 1: the unanimity among the experts that something can be impeachable 31 00:01:57,280 --> 00:02:01,240 Speaker 1: even though it doesn't violate a federal criminal statue. The 32 00:02:01,280 --> 00:02:05,800 Speaker 1: second thing that stood out to me was the emphasis 33 00:02:05,840 --> 00:02:10,200 Speaker 1: that several of the experts placed on how important impeachment 34 00:02:10,240 --> 00:02:15,240 Speaker 1: can be when the alleged impeachable offense pertains to the 35 00:02:15,280 --> 00:02:20,560 Speaker 1: integrity of elections, because in that scenario, relying on elections 36 00:02:20,600 --> 00:02:25,959 Speaker 1: as a solution to presidential misconduct is not going to 37 00:02:26,000 --> 00:02:29,000 Speaker 1: address the problem. And I think several of the experts 38 00:02:29,000 --> 00:02:33,480 Speaker 1: testified about how impeachment is in the Constitution, partially because 39 00:02:33,639 --> 00:02:36,600 Speaker 1: the people who wrote the Constitution didn't believe that elections 40 00:02:36,600 --> 00:02:40,120 Speaker 1: would be sufficient in order to address abuses of office. 41 00:02:40,480 --> 00:02:43,919 Speaker 1: But then some of their specific testimony focused on the 42 00:02:43,960 --> 00:02:48,799 Speaker 1: importance of elections and the importance of congressional oversight as 43 00:02:48,800 --> 00:02:52,640 Speaker 1: a mechanism of checking abuses of office as well. So 44 00:02:52,960 --> 00:02:57,640 Speaker 1: Jonathan Turley basically said, it's a rush to judgment here. 45 00:02:57,680 --> 00:03:00,760 Speaker 1: There's not enough evidence. You should take more time. Is 46 00:03:00,800 --> 00:03:05,880 Speaker 1: that actually advisable considering that some of the most important witnesses, 47 00:03:05,919 --> 00:03:09,200 Speaker 1: it seems, have not been called by the Democrats because 48 00:03:09,200 --> 00:03:11,720 Speaker 1: they've been blocked by President Trump. I think that's part 49 00:03:11,760 --> 00:03:16,240 Speaker 1: of why Professor Turley's suggestion and criticism of the impeachment 50 00:03:16,280 --> 00:03:21,800 Speaker 1: process is not particularly persuasive. Versus even setting aside the 51 00:03:21,800 --> 00:03:26,000 Speaker 1: fact that the president has forbidden certain people from testifying, 52 00:03:26,080 --> 00:03:29,160 Speaker 1: or at least attempted to forbid them from testifying, the 53 00:03:29,240 --> 00:03:33,000 Speaker 1: reality is that even without these additional witnesses, there's no 54 00:03:33,080 --> 00:03:36,640 Speaker 1: serious dispute about what happened. There's more than enough evidence, 55 00:03:36,680 --> 00:03:40,480 Speaker 1: particularly given that the president's chief of staff mcildaney and 56 00:03:40,560 --> 00:03:45,760 Speaker 1: his personal lawyer have all repeatedly conceded that yes, President 57 00:03:45,800 --> 00:03:51,000 Speaker 1: Trump held up aid because he wanted this announcement into 58 00:03:51,160 --> 00:03:55,880 Speaker 1: an investigation into Joe Biden's son, or because he wanted 59 00:03:56,000 --> 00:04:01,040 Speaker 1: Ukraine to make an announcement into the interference to the election. 60 00:04:01,560 --> 00:04:05,640 Speaker 1: So the relevant facts aren't really in dispute, and that's 61 00:04:05,720 --> 00:04:09,600 Speaker 1: part of why this additional time and additional witnesses isn't 62 00:04:09,640 --> 00:04:12,600 Speaker 1: really needed. Yes, you could have a more perfect process 63 00:04:12,680 --> 00:04:14,720 Speaker 1: if you could have more witnesses, but the question is 64 00:04:14,720 --> 00:04:17,760 Speaker 1: whether that's necessary given what we already know, and when 65 00:04:17,800 --> 00:04:21,839 Speaker 1: you have the relevant actors conceding that the pertinent events 66 00:04:21,839 --> 00:04:24,400 Speaker 1: took place, there's just not a ton of point in 67 00:04:24,520 --> 00:04:27,960 Speaker 1: having additional witnesses testify to that second is exactly what 68 00:04:28,000 --> 00:04:31,360 Speaker 1: you stated, namely that the Democrats could try to get 69 00:04:31,400 --> 00:04:35,680 Speaker 1: additional witnesses to testify, but these witnesses are refusing to 70 00:04:35,720 --> 00:04:39,480 Speaker 1: do so, pointing to the President and White House directives 71 00:04:39,480 --> 00:04:42,400 Speaker 1: that they need not as a reason not to testify. 72 00:04:42,600 --> 00:04:45,800 Speaker 1: And so if the Democrats attempt to get these witnesses 73 00:04:45,839 --> 00:04:50,440 Speaker 1: to testify, that could take months, years and span well 74 00:04:50,520 --> 00:04:55,240 Speaker 1: past the election. Given that the alleged conduct again pertains 75 00:04:55,279 --> 00:04:57,480 Speaker 1: to the integrity of our elections. I think there is 76 00:04:57,520 --> 00:05:02,320 Speaker 1: a really serious concern learn about allowing this to continue 77 00:05:02,400 --> 00:05:06,480 Speaker 1: up until and through elections, and all of those concerns 78 00:05:06,560 --> 00:05:10,080 Speaker 1: really mitigate against the criticism that Professor Turley made of 79 00:05:10,120 --> 00:05:15,320 Speaker 1: the Democrats proceedings. So the Judiciary Chairman Jerry Nadler indicated 80 00:05:15,360 --> 00:05:17,720 Speaker 1: that the panel was moving toward at least three articles 81 00:05:17,720 --> 00:05:22,160 Speaker 1: of impeachment, abuse of power, bribery, and obstruction. Does it 82 00:05:22,160 --> 00:05:26,880 Speaker 1: seem as if there's more difficulty even for the constitutional 83 00:05:26,960 --> 00:05:30,800 Speaker 1: scholars to explain the bribery. You know, none of the 84 00:05:30,839 --> 00:05:35,680 Speaker 1: individuals that they called to testify were criminal law experts 85 00:05:35,680 --> 00:05:40,440 Speaker 1: in particular. However, all of them agree that in as 86 00:05:40,440 --> 00:05:42,680 Speaker 1: a sense can be impeachable even if it does not 87 00:05:42,839 --> 00:05:45,560 Speaker 1: violate a criminal statute, and so I think that they're 88 00:05:45,600 --> 00:05:51,000 Speaker 1: relevant expertise did give them helpful insight into what might 89 00:05:51,120 --> 00:05:56,080 Speaker 1: constitute the impeachable offense of bribery. Professor Gerhardt in particular 90 00:05:56,240 --> 00:05:58,760 Speaker 1: is a scholar of impeachment, and so he has studied 91 00:05:58,800 --> 00:06:01,000 Speaker 1: about what that word means in the context of the 92 00:06:01,040 --> 00:06:06,160 Speaker 1: impeachment clause. In particular, Tam Carlin is, you know, probably 93 00:06:06,200 --> 00:06:09,359 Speaker 1: one of the most, if the not most renowned election 94 00:06:09,480 --> 00:06:13,040 Speaker 1: law and voting rights scholar of our generation. And so 95 00:06:13,120 --> 00:06:16,520 Speaker 1: she has a lot of insight into what would count 96 00:06:16,560 --> 00:06:20,480 Speaker 1: as impermissible interference or a demand for interference into an 97 00:06:20,480 --> 00:06:26,360 Speaker 1: election um that would raise concerns about bribery UM. Similarly, 98 00:06:26,440 --> 00:06:30,000 Speaker 1: Professor Noah Feldman is an expert in constitutional interpretation and 99 00:06:30,040 --> 00:06:34,560 Speaker 1: constitutional law, and again, given the unanimous agreement among the 100 00:06:34,600 --> 00:06:38,040 Speaker 1: experts that something can be impeachable even if it does 101 00:06:38,080 --> 00:06:43,160 Speaker 1: not violate a criminal statute, their expertise in constitutional law, impeachment, 102 00:06:43,279 --> 00:06:47,960 Speaker 1: election law, and constitutional interpretation I think gave them important 103 00:06:48,000 --> 00:06:52,320 Speaker 1: insight into what would constitute bribery as far as an 104 00:06:52,320 --> 00:06:56,840 Speaker 1: impeachable offense. Leah, How important is the way the articles 105 00:06:56,880 --> 00:07:00,880 Speaker 1: of impeachment are drafted? Can bead draft doing cause a 106 00:07:00,920 --> 00:07:04,880 Speaker 1: problem down the road? I think it depends on what 107 00:07:05,080 --> 00:07:08,480 Speaker 1: anyone is hoping to get out of the articles of impeachment. 108 00:07:09,040 --> 00:07:15,800 Speaker 1: The unfortunate reality is the Republican Senate and the Republican 109 00:07:15,880 --> 00:07:22,120 Speaker 1: House seem impervious to persuasion on anything related to impeachment. 110 00:07:22,640 --> 00:07:26,400 Speaker 1: So even if the Democrats wrote a perfect set of 111 00:07:26,520 --> 00:07:30,360 Speaker 1: articles of impeachment, even if those articles referred to conducts 112 00:07:30,360 --> 00:07:34,600 Speaker 1: that the President has personal representatives have conceded occurred, it's 113 00:07:34,640 --> 00:07:40,040 Speaker 1: not clear that that would move the needle to cross 114 00:07:40,080 --> 00:07:44,240 Speaker 1: the required votes to actually remove the president. That being said, 115 00:07:44,520 --> 00:07:49,080 Speaker 1: different ways of drafting the articles of impeachment could generate 116 00:07:49,200 --> 00:07:52,920 Speaker 1: more or less criticism, So of course it's better to 117 00:07:53,320 --> 00:07:59,080 Speaker 1: produce a better draft that is less susceptible too easy critiques. 118 00:07:59,480 --> 00:08:02,120 Speaker 1: But I don't think that the Democrats are going to 119 00:08:02,200 --> 00:08:06,040 Speaker 1: produce in articles of impeachment that just implodes the case 120 00:08:06,160 --> 00:08:09,920 Speaker 1: for impeachment, given the testimony that has already been given, 121 00:08:10,040 --> 00:08:12,800 Speaker 1: and given the state of play right now again in 122 00:08:12,840 --> 00:08:15,600 Speaker 1: which most of the relevant actors have conceded that the 123 00:08:15,880 --> 00:08:19,040 Speaker 1: pertinent events occurred. There's been a lot of talk about 124 00:08:19,200 --> 00:08:24,880 Speaker 1: keeping the investigation and the articles of impeachment narrow focused 125 00:08:25,000 --> 00:08:29,200 Speaker 1: on the Ukraine matter. Do you believe that's wise or 126 00:08:29,640 --> 00:08:32,200 Speaker 1: would it be a good idea to bring in some 127 00:08:32,400 --> 00:08:35,160 Speaker 1: of the evidence from the Mueller Report. I think that 128 00:08:35,280 --> 00:08:37,560 Speaker 1: that's a difficult question, and I'm going to punt on 129 00:08:37,600 --> 00:08:39,400 Speaker 1: it just because I think it's a little above my 130 00:08:39,480 --> 00:08:43,440 Speaker 1: pay scale. The reality is is that the conduct described 131 00:08:43,520 --> 00:08:48,319 Speaker 1: in the Mueller Report, I think also more than crossed 132 00:08:48,360 --> 00:08:53,840 Speaker 1: the threshold for an impeachable offense, particularly the charges of 133 00:08:54,040 --> 00:08:57,720 Speaker 1: obstruction of justice and interference into the investigation of the 134 00:08:57,760 --> 00:09:02,400 Speaker 1: Special Counsel's office. I also think the allegations concerning the 135 00:09:02,440 --> 00:09:06,280 Speaker 1: welcoming of foreign interference in the election and not doing 136 00:09:06,320 --> 00:09:10,439 Speaker 1: anything in response to foreign interference in the election are 137 00:09:10,480 --> 00:09:15,360 Speaker 1: more than troubling to merit impeachment investigation. As to whether 138 00:09:15,440 --> 00:09:17,840 Speaker 1: it makes sense for the Democrats to include that on 139 00:09:18,000 --> 00:09:21,000 Speaker 1: top of the allegations related to Ukraine, I think there 140 00:09:21,080 --> 00:09:25,120 Speaker 1: is value in doing a very streamlined articles of impeachment 141 00:09:25,320 --> 00:09:29,880 Speaker 1: that is easily communicated, and so it is narrowly focused on, 142 00:09:30,040 --> 00:09:34,320 Speaker 1: you know, this particular set of events and a specific occasion. However, 143 00:09:35,160 --> 00:09:38,960 Speaker 1: part of why the Ukraine incident is so concerning is 144 00:09:39,360 --> 00:09:42,520 Speaker 1: there's no reason to think this is the only time 145 00:09:42,679 --> 00:09:45,320 Speaker 1: that the president has ever used any of the powers 146 00:09:45,360 --> 00:09:49,559 Speaker 1: of his office inappropriately and abuse them for personal political 147 00:09:49,920 --> 00:09:54,120 Speaker 1: gain and to inappropriate ends, and so bringing in other 148 00:09:54,200 --> 00:09:58,400 Speaker 1: incidents in which he has done so strengthens the case 149 00:09:58,520 --> 00:10:01,599 Speaker 1: for impeachment and makes it seem more pressing. And it 150 00:10:01,760 --> 00:10:05,480 Speaker 1: also I think bolsters the allegations because the more and 151 00:10:05,600 --> 00:10:09,239 Speaker 1: more evidence you have that a person does a particular 152 00:10:09,320 --> 00:10:12,720 Speaker 1: thing here abusing an office for personal political ends, it 153 00:10:12,760 --> 00:10:17,840 Speaker 1: can corroborate any of the other particular allegations. So I 154 00:10:17,880 --> 00:10:21,960 Speaker 1: think there are important considerations on either side of the equation, 155 00:10:22,000 --> 00:10:24,920 Speaker 1: either in keeping it narrow or in broadening it. And 156 00:10:25,120 --> 00:10:27,560 Speaker 1: I don't pretend to know what the Democrats should do 157 00:10:27,760 --> 00:10:31,839 Speaker 1: in any sense. Yesterday the White House Council was meeting 158 00:10:31,840 --> 00:10:35,160 Speaker 1: with Senators and there are meetings going on about the 159 00:10:35,200 --> 00:10:39,079 Speaker 1: parameters of the Senate trial. Should the articles of impeachment 160 00:10:39,120 --> 00:10:42,760 Speaker 1: be voted by the House. How important are the parameters 161 00:10:42,840 --> 00:10:46,319 Speaker 1: of the trial, how the trial is set up? Is 162 00:10:46,360 --> 00:10:50,679 Speaker 1: there a lot of leeway for Mitch McConnell to change 163 00:10:50,760 --> 00:10:55,960 Speaker 1: things or to truncate they trial? There are some House 164 00:10:56,160 --> 00:11:00,120 Speaker 1: rules that established some guidelines for how an impeachment proceeding 165 00:11:00,160 --> 00:11:04,319 Speaker 1: would work. However, the reality is the Senate controls its 166 00:11:04,360 --> 00:11:08,040 Speaker 1: own procedures, and the Senate has considerable latitude over how 167 00:11:08,080 --> 00:11:12,120 Speaker 1: an impeachment trial will proceed. So, yes, Mr McConnell has 168 00:11:12,160 --> 00:11:14,640 Speaker 1: a lot of power in figuring out how this proceeding 169 00:11:14,720 --> 00:11:18,600 Speaker 1: is going to be conducted. It's not limitless power. You know, 170 00:11:18,720 --> 00:11:21,120 Speaker 1: if he decided there would be no witnesses and there 171 00:11:21,120 --> 00:11:24,240 Speaker 1: would proceed to a vote immediately, that would, I think 172 00:11:24,280 --> 00:11:27,880 Speaker 1: seriously raise questions about whether he was abusing his powers. However, 173 00:11:28,440 --> 00:11:31,640 Speaker 1: there's just not a ton of guidance, in part because 174 00:11:31,679 --> 00:11:35,480 Speaker 1: there have been so few impeachment proceedings thus far, about 175 00:11:35,520 --> 00:11:40,160 Speaker 1: how an impeachment trial should actually work. Thanks Leah, that's Lee, 176 00:11:40,200 --> 00:11:44,000 Speaker 1: a litment of the University of Michigan Law School. Thanks 177 00:11:44,040 --> 00:11:47,319 Speaker 1: for listening to the Bloomberg Law Podcast. You can subscribe 178 00:11:47,320 --> 00:11:50,600 Speaker 1: and listen to the show on Apple Podcasts, SoundCloud, and 179 00:11:50,640 --> 00:11:55,160 Speaker 1: on bloomberg dot com slash podcast. I'm June Brosso. This 180 00:11:55,480 --> 00:11:56,160 Speaker 1: is Bloomberg