Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every
Speaker 1: day we bring you insight and analysis into the most
Speaker 1: important legal news of the day. You can find more
Speaker 1: episodes of the Bloomberg Law Podcast on Apple Podcasts, SoundCloud,
Speaker 1: and on Bloomberg dot com slash podcasts. On Thursday, Speaker
Speaker 1: Nancy Pelosi said the House will draft articles of impeachment
Speaker 1: against President Donald Trump for abusing his office in a
Speaker 1: profound violation of the public trust. This followed a day
Speaker 1: of testimony from four constitutional law professors about whether Trump's
Speaker 1: conduct regarding Ukraine meets the definition of high crimes and
Speaker 1: misdemeanors required by the Constitution for impeachable offenses. Harvard law
Speaker 1: professor Noah Feldman and the two other professors called by
Speaker 1: the Democrats said Trump has committed impeachable offenses, while George
Speaker 1: Washington University law professor Jonathan Turley said he has not.
Speaker 1: Soliciting the leader of a foreign government in order to
Speaker 1: announce investigations of political rivals and perform those investigations would
Speaker 1: constitute a high crime and misdemeanor. The problem is not
Speaker 1: that abusive power can never be an impeachable offense. You
Speaker 1: just have to prove it and you haven't. Join me
Speaker 1: is Leo Littman, a professor of constitutional law at the
Speaker 1: University of Michigan Law School. Leo, what stood out to
Speaker 1: you in the many hours of testimony? I think a
Speaker 1: few things stood out from the testimony. The first is
Speaker 1: many of them were actually all of them were careful
Speaker 1: to underscore that something can be impeachable even though it
Speaker 1: does not violate the criminal statute. Even Professor Turley, who
Speaker 1: was the expert called by the Republicans, conceded that point
Speaker 1: and has previously written about that same conclusion. So that's
Speaker 1: the first important thing that stood out to me, is
Speaker 1: the unanimity among the experts that something can be impeachable
Speaker 1: even though it doesn't violate a federal criminal statue. The
Speaker 1: second thing that stood out to me was the emphasis
Speaker 1: that several of the experts placed on how important impeachment
Speaker 1: can be when the alleged impeachable offense pertains to the
Speaker 1: integrity of elections, because in that scenario, relying on elections
Speaker 1: as a solution to presidential misconduct is not going to
Speaker 1: address the problem. And I think several of the experts
Speaker 1: testified about how impeachment is in the Constitution, partially because
Speaker 1: the people who wrote the Constitution didn't believe that elections
Speaker 1: would be sufficient in order to address abuses of office.
Speaker 1: But then some of their specific testimony focused on the
Speaker 1: importance of elections and the importance of congressional oversight as
Speaker 1: a mechanism of checking abuses of office as well. So
Speaker 1: Jonathan Turley basically said, it's a rush to judgment here.
Speaker 1: There's not enough evidence. You should take more time. Is
Speaker 1: that actually advisable considering that some of the most important witnesses,
Speaker 1: it seems, have not been called by the Democrats because
Speaker 1: they've been blocked by President Trump. I think that's part
Speaker 1: of why Professor Turley's suggestion and criticism of the impeachment
Speaker 1: process is not particularly persuasive. Versus even setting aside the
Speaker 1: fact that the president has forbidden certain people from testifying,
Speaker 1: or at least attempted to forbid them from testifying, the
Speaker 1: reality is that even without these additional witnesses, there's no
Speaker 1: serious dispute about what happened. There's more than enough evidence,
Speaker 1: particularly given that the president's chief of staff mcildaney and
Speaker 1: his personal lawyer have all repeatedly conceded that yes, President
Speaker 1: Trump held up aid because he wanted this announcement into
Speaker 1: an investigation into Joe Biden's son, or because he wanted
Speaker 1: Ukraine to make an announcement into the interference to the election.
Speaker 1: So the relevant facts aren't really in dispute, and that's
Speaker 1: part of why this additional time and additional witnesses isn't
Speaker 1: really needed. Yes, you could have a more perfect process
Speaker 1: if you could have more witnesses, but the question is
Speaker 1: whether that's necessary given what we already know, and when
Speaker 1: you have the relevant actors conceding that the pertinent events
Speaker 1: took place, there's just not a ton of point in
Speaker 1: having additional witnesses testify to that second is exactly what
Speaker 1: you stated, namely that the Democrats could try to get
Speaker 1: additional witnesses to testify, but these witnesses are refusing to
Speaker 1: do so, pointing to the President and White House directives
Speaker 1: that they need not as a reason not to testify.
Speaker 1: And so if the Democrats attempt to get these witnesses
Speaker 1: to testify, that could take months, years and span well
Speaker 1: past the election. Given that the alleged conduct again pertains
Speaker 1: to the integrity of our elections. I think there is
Speaker 1: a really serious concern learn about allowing this to continue
Speaker 1: up until and through elections, and all of those concerns
Speaker 1: really mitigate against the criticism that Professor Turley made of
Speaker 1: the Democrats proceedings. So the Judiciary Chairman Jerry Nadler indicated
Speaker 1: that the panel was moving toward at least three articles
Speaker 1: of impeachment, abuse of power, bribery, and obstruction. Does it
Speaker 1: seem as if there's more difficulty even for the constitutional
Speaker 1: scholars to explain the bribery. You know, none of the
Speaker 1: individuals that they called to testify were criminal law experts
Speaker 1: in particular. However, all of them agree that in as
Speaker 1: a sense can be impeachable even if it does not
Speaker 1: violate a criminal statute, and so I think that they're
Speaker 1: relevant expertise did give them helpful insight into what might
Speaker 1: constitute the impeachable offense of bribery. Professor Gerhardt in particular
Speaker 1: is a scholar of impeachment, and so he has studied
Speaker 1: about what that word means in the context of the
Speaker 1: impeachment clause. In particular, Tam Carlin is, you know, probably
Speaker 1: one of the most, if the not most renowned election
Speaker 1: law and voting rights scholar of our generation. And so
Speaker 1: she has a lot of insight into what would count
Speaker 1: as impermissible interference or a demand for interference into an
Speaker 1: election um that would raise concerns about bribery UM. Similarly,
Speaker 1: Professor Noah Feldman is an expert in constitutional interpretation and
Speaker 1: constitutional law, and again, given the unanimous agreement among the
Speaker 1: experts that something can be impeachable even if it does
Speaker 1: not violate a criminal statute, their expertise in constitutional law, impeachment,
Speaker 1: election law, and constitutional interpretation I think gave them important
Speaker 1: insight into what would constitute bribery as far as an
Speaker 1: impeachable offense. Leah, How important is the way the articles
Speaker 1: of impeachment are drafted? Can bead draft doing cause a
Speaker 1: problem down the road? I think it depends on what
Speaker 1: anyone is hoping to get out of the articles of impeachment.
Speaker 1: The unfortunate reality is the Republican Senate and the Republican
Speaker 1: House seem impervious to persuasion on anything related to impeachment.
Speaker 1: So even if the Democrats wrote a perfect set of
Speaker 1: articles of impeachment, even if those articles referred to conducts
Speaker 1: that the President has personal representatives have conceded occurred, it's
Speaker 1: not clear that that would move the needle to cross
Speaker 1: the required votes to actually remove the president. That being said,
Speaker 1: different ways of drafting the articles of impeachment could generate
Speaker 1: more or less criticism, So of course it's better to
Speaker 1: produce a better draft that is less susceptible too easy critiques.
Speaker 1: But I don't think that the Democrats are going to
Speaker 1: produce in articles of impeachment that just implodes the case
Speaker 1: for impeachment, given the testimony that has already been given,
Speaker 1: and given the state of play right now again in
Speaker 1: which most of the relevant actors have conceded that the
Speaker 1: pertinent events occurred. There's been a lot of talk about
Speaker 1: keeping the investigation and the articles of impeachment narrow focused
Speaker 1: on the Ukraine matter. Do you believe that's wise or
Speaker 1: would it be a good idea to bring in some
Speaker 1: of the evidence from the Mueller Report. I think that
Speaker 1: that's a difficult question, and I'm going to punt on
Speaker 1: it just because I think it's a little above my
Speaker 1: pay scale. The reality is is that the conduct described
Speaker 1: in the Mueller Report, I think also more than crossed
Speaker 1: the threshold for an impeachable offense, particularly the charges of
Speaker 1: obstruction of justice and interference into the investigation of the
Speaker 1: Special Counsel's office. I also think the allegations concerning the
Speaker 1: welcoming of foreign interference in the election and not doing
Speaker 1: anything in response to foreign interference in the election are
Speaker 1: more than troubling to merit impeachment investigation. As to whether
Speaker 1: it makes sense for the Democrats to include that on
Speaker 1: top of the allegations related to Ukraine, I think there
Speaker 1: is value in doing a very streamlined articles of impeachment
Speaker 1: that is easily communicated, and so it is narrowly focused on,
Speaker 1: you know, this particular set of events and a specific occasion. However,
Speaker 1: part of why the Ukraine incident is so concerning is
Speaker 1: there's no reason to think this is the only time
Speaker 1: that the president has ever used any of the powers
Speaker 1: of his office inappropriately and abuse them for personal political
Speaker 1: gain and to inappropriate ends, and so bringing in other
Speaker 1: incidents in which he has done so strengthens the case
Speaker 1: for impeachment and makes it seem more pressing. And it
Speaker 1: also I think bolsters the allegations because the more and
Speaker 1: more evidence you have that a person does a particular
Speaker 1: thing here abusing an office for personal political ends, it
Speaker 1: can corroborate any of the other particular allegations. So I
Speaker 1: think there are important considerations on either side of the equation,
Speaker 1: either in keeping it narrow or in broadening it. And
Speaker 1: I don't pretend to know what the Democrats should do
Speaker 1: in any sense. Yesterday the White House Council was meeting
Speaker 1: with Senators and there are meetings going on about the
Speaker 1: parameters of the Senate trial. Should the articles of impeachment
Speaker 1: be voted by the House. How important are the parameters
Speaker 1: of the trial, how the trial is set up? Is
Speaker 1: there a lot of leeway for Mitch McConnell to change
Speaker 1: things or to truncate they trial? There are some House
Speaker 1: rules that established some guidelines for how an impeachment proceeding
Speaker 1: would work. However, the reality is the Senate controls its
Speaker 1: own procedures, and the Senate has considerable latitude over how
Speaker 1: an impeachment trial will proceed. So, yes, Mr McConnell has
Speaker 1: a lot of power in figuring out how this proceeding
Speaker 1: is going to be conducted. It's not limitless power. You know,
Speaker 1: if he decided there would be no witnesses and there
Speaker 1: would proceed to a vote immediately, that would, I think
Speaker 1: seriously raise questions about whether he was abusing his powers. However,
Speaker 1: there's just not a ton of guidance, in part because
Speaker 1: there have been so few impeachment proceedings thus far, about
Speaker 1: how an impeachment trial should actually work. Thanks Leah, that's Lee,
Speaker 1: a litment of the University of Michigan Law School. Thanks
Speaker 1: for listening to the Bloomberg Law Podcast. You can subscribe
Speaker 1: and listen to the show on Apple Podcasts, SoundCloud, and
Speaker 1: on bloomberg dot com slash podcast. I'm June Brosso. This
Speaker 1: is Bloomberg