WEBVTT - House to Draft Articles of Impeachment

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<v Speaker 1>Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every

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<v Speaker 1>day we bring you insight and analysis into the most

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<v Speaker 1>important legal news of the day. You can find more

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<v Speaker 1>episodes of the Bloomberg Law Podcast on Apple Podcasts, SoundCloud,

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<v Speaker 1>and on Bloomberg dot com slash podcasts. On Thursday, Speaker

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<v Speaker 1>Nancy Pelosi said the House will draft articles of impeachment

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<v Speaker 1>against President Donald Trump for abusing his office in a

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<v Speaker 1>profound violation of the public trust. This followed a day

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<v Speaker 1>of testimony from four constitutional law professors about whether Trump's

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<v Speaker 1>conduct regarding Ukraine meets the definition of high crimes and

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<v Speaker 1>misdemeanors required by the Constitution for impeachable offenses. Harvard law

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<v Speaker 1>professor Noah Feldman and the two other professors called by

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<v Speaker 1>the Democrats said Trump has committed impeachable offenses, while George

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<v Speaker 1>Washington University law professor Jonathan Turley said he has not.

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<v Speaker 1>Soliciting the leader of a foreign government in order to

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<v Speaker 1>announce investigations of political rivals and perform those investigations would

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<v Speaker 1>constitute a high crime and misdemeanor. The problem is not

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<v Speaker 1>that abusive power can never be an impeachable offense. You

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<v Speaker 1>just have to prove it and you haven't. Join me

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<v Speaker 1>is Leo Littman, a professor of constitutional law at the

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<v Speaker 1>University of Michigan Law School. Leo, what stood out to

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<v Speaker 1>you in the many hours of testimony? I think a

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<v Speaker 1>few things stood out from the testimony. The first is

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<v Speaker 1>many of them were actually all of them were careful

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<v Speaker 1>to underscore that something can be impeachable even though it

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<v Speaker 1>does not violate the criminal statute. Even Professor Turley, who

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<v Speaker 1>was the expert called by the Republicans, conceded that point

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<v Speaker 1>and has previously written about that same conclusion. So that's

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<v Speaker 1>the first important thing that stood out to me, is

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<v Speaker 1>the unanimity among the experts that something can be impeachable

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<v Speaker 1>even though it doesn't violate a federal criminal statue. The

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<v Speaker 1>second thing that stood out to me was the emphasis

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<v Speaker 1>that several of the experts placed on how important impeachment

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<v Speaker 1>can be when the alleged impeachable offense pertains to the

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<v Speaker 1>integrity of elections, because in that scenario, relying on elections

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<v Speaker 1>as a solution to presidential misconduct is not going to

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<v Speaker 1>address the problem. And I think several of the experts

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<v Speaker 1>testified about how impeachment is in the Constitution, partially because

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<v Speaker 1>the people who wrote the Constitution didn't believe that elections

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<v Speaker 1>would be sufficient in order to address abuses of office.

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<v Speaker 1>But then some of their specific testimony focused on the

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<v Speaker 1>importance of elections and the importance of congressional oversight as

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<v Speaker 1>a mechanism of checking abuses of office as well. So

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<v Speaker 1>Jonathan Turley basically said, it's a rush to judgment here.

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<v Speaker 1>There's not enough evidence. You should take more time. Is

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<v Speaker 1>that actually advisable considering that some of the most important witnesses,

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<v Speaker 1>it seems, have not been called by the Democrats because

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<v Speaker 1>they've been blocked by President Trump. I think that's part

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<v Speaker 1>of why Professor Turley's suggestion and criticism of the impeachment

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<v Speaker 1>process is not particularly persuasive. Versus even setting aside the

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<v Speaker 1>fact that the president has forbidden certain people from testifying,

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<v Speaker 1>or at least attempted to forbid them from testifying, the

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<v Speaker 1>reality is that even without these additional witnesses, there's no

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<v Speaker 1>serious dispute about what happened. There's more than enough evidence,

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<v Speaker 1>particularly given that the president's chief of staff mcildaney and

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<v Speaker 1>his personal lawyer have all repeatedly conceded that yes, President

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<v Speaker 1>Trump held up aid because he wanted this announcement into

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<v Speaker 1>an investigation into Joe Biden's son, or because he wanted

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<v Speaker 1>Ukraine to make an announcement into the interference to the election.

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<v Speaker 1>So the relevant facts aren't really in dispute, and that's

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<v Speaker 1>part of why this additional time and additional witnesses isn't

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<v Speaker 1>really needed. Yes, you could have a more perfect process

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<v Speaker 1>if you could have more witnesses, but the question is

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<v Speaker 1>whether that's necessary given what we already know, and when

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<v Speaker 1>you have the relevant actors conceding that the pertinent events

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<v Speaker 1>took place, there's just not a ton of point in

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<v Speaker 1>having additional witnesses testify to that second is exactly what

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<v Speaker 1>you stated, namely that the Democrats could try to get

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<v Speaker 1>additional witnesses to testify, but these witnesses are refusing to

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<v Speaker 1>do so, pointing to the President and White House directives

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<v Speaker 1>that they need not as a reason not to testify.

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<v Speaker 1>And so if the Democrats attempt to get these witnesses

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<v Speaker 1>to testify, that could take months, years and span well

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<v Speaker 1>past the election. Given that the alleged conduct again pertains

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<v Speaker 1>to the integrity of our elections. I think there is

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<v Speaker 1>a really serious concern learn about allowing this to continue

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<v Speaker 1>up until and through elections, and all of those concerns

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<v Speaker 1>really mitigate against the criticism that Professor Turley made of

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<v Speaker 1>the Democrats proceedings. So the Judiciary Chairman Jerry Nadler indicated

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<v Speaker 1>that the panel was moving toward at least three articles

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<v Speaker 1>of impeachment, abuse of power, bribery, and obstruction. Does it

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<v Speaker 1>seem as if there's more difficulty even for the constitutional

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<v Speaker 1>scholars to explain the bribery. You know, none of the

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<v Speaker 1>individuals that they called to testify were criminal law experts

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<v Speaker 1>in particular. However, all of them agree that in as

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<v Speaker 1>a sense can be impeachable even if it does not

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<v Speaker 1>violate a criminal statute, and so I think that they're

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<v Speaker 1>relevant expertise did give them helpful insight into what might

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<v Speaker 1>constitute the impeachable offense of bribery. Professor Gerhardt in particular

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<v Speaker 1>is a scholar of impeachment, and so he has studied

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<v Speaker 1>about what that word means in the context of the

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<v Speaker 1>impeachment clause. In particular, Tam Carlin is, you know, probably

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<v Speaker 1>one of the most, if the not most renowned election

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<v Speaker 1>law and voting rights scholar of our generation. And so

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<v Speaker 1>she has a lot of insight into what would count

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<v Speaker 1>as impermissible interference or a demand for interference into an

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<v Speaker 1>election um that would raise concerns about bribery UM. Similarly,

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<v Speaker 1>Professor Noah Feldman is an expert in constitutional interpretation and

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<v Speaker 1>constitutional law, and again, given the unanimous agreement among the

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<v Speaker 1>experts that something can be impeachable even if it does

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<v Speaker 1>not violate a criminal statute, their expertise in constitutional law, impeachment,

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<v Speaker 1>election law, and constitutional interpretation I think gave them important

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<v Speaker 1>insight into what would constitute bribery as far as an

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<v Speaker 1>impeachable offense. Leah, How important is the way the articles

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<v Speaker 1>of impeachment are drafted? Can bead draft doing cause a

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<v Speaker 1>problem down the road? I think it depends on what

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<v Speaker 1>anyone is hoping to get out of the articles of impeachment.

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<v Speaker 1>The unfortunate reality is the Republican Senate and the Republican

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<v Speaker 1>House seem impervious to persuasion on anything related to impeachment.

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<v Speaker 1>So even if the Democrats wrote a perfect set of

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<v Speaker 1>articles of impeachment, even if those articles referred to conducts

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<v Speaker 1>that the President has personal representatives have conceded occurred, it's

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<v Speaker 1>not clear that that would move the needle to cross

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<v Speaker 1>the required votes to actually remove the president. That being said,

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<v Speaker 1>different ways of drafting the articles of impeachment could generate

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<v Speaker 1>more or less criticism, So of course it's better to

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<v Speaker 1>produce a better draft that is less susceptible too easy critiques.

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<v Speaker 1>But I don't think that the Democrats are going to

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<v Speaker 1>produce in articles of impeachment that just implodes the case

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<v Speaker 1>for impeachment, given the testimony that has already been given,

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<v Speaker 1>and given the state of play right now again in

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<v Speaker 1>which most of the relevant actors have conceded that the

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<v Speaker 1>pertinent events occurred. There's been a lot of talk about

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<v Speaker 1>keeping the investigation and the articles of impeachment narrow focused

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<v Speaker 1>on the Ukraine matter. Do you believe that's wise or

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<v Speaker 1>would it be a good idea to bring in some

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<v Speaker 1>of the evidence from the Mueller Report. I think that

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<v Speaker 1>that's a difficult question, and I'm going to punt on

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<v Speaker 1>it just because I think it's a little above my

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<v Speaker 1>pay scale. The reality is is that the conduct described

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<v Speaker 1>in the Mueller Report, I think also more than crossed

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<v Speaker 1>the threshold for an impeachable offense, particularly the charges of

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<v Speaker 1>obstruction of justice and interference into the investigation of the

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<v Speaker 1>Special Counsel's office. I also think the allegations concerning the

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<v Speaker 1>welcoming of foreign interference in the election and not doing

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<v Speaker 1>anything in response to foreign interference in the election are

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<v Speaker 1>more than troubling to merit impeachment investigation. As to whether

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<v Speaker 1>it makes sense for the Democrats to include that on

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<v Speaker 1>top of the allegations related to Ukraine, I think there

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<v Speaker 1>is value in doing a very streamlined articles of impeachment

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<v Speaker 1>that is easily communicated, and so it is narrowly focused on,

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<v Speaker 1>you know, this particular set of events and a specific occasion. However,

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<v Speaker 1>part of why the Ukraine incident is so concerning is

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<v Speaker 1>there's no reason to think this is the only time

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<v Speaker 1>that the president has ever used any of the powers

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<v Speaker 1>of his office inappropriately and abuse them for personal political

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<v Speaker 1>gain and to inappropriate ends, and so bringing in other

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<v Speaker 1>incidents in which he has done so strengthens the case

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<v Speaker 1>for impeachment and makes it seem more pressing. And it

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<v Speaker 1>also I think bolsters the allegations because the more and

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<v Speaker 1>more evidence you have that a person does a particular

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<v Speaker 1>thing here abusing an office for personal political ends, it

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<v Speaker 1>can corroborate any of the other particular allegations. So I

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<v Speaker 1>think there are important considerations on either side of the equation,

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<v Speaker 1>either in keeping it narrow or in broadening it. And

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<v Speaker 1>I don't pretend to know what the Democrats should do

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<v Speaker 1>in any sense. Yesterday the White House Council was meeting

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<v Speaker 1>with Senators and there are meetings going on about the

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<v Speaker 1>parameters of the Senate trial. Should the articles of impeachment

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<v Speaker 1>be voted by the House. How important are the parameters

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<v Speaker 1>of the trial, how the trial is set up? Is

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<v Speaker 1>there a lot of leeway for Mitch McConnell to change

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<v Speaker 1>things or to truncate they trial? There are some House

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<v Speaker 1>rules that established some guidelines for how an impeachment proceeding

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<v Speaker 1>would work. However, the reality is the Senate controls its

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<v Speaker 1>own procedures, and the Senate has considerable latitude over how

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<v Speaker 1>an impeachment trial will proceed. So, yes, Mr McConnell has

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<v Speaker 1>a lot of power in figuring out how this proceeding

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<v Speaker 1>is going to be conducted. It's not limitless power. You know,

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<v Speaker 1>if he decided there would be no witnesses and there

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<v Speaker 1>would proceed to a vote immediately, that would, I think

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<v Speaker 1>seriously raise questions about whether he was abusing his powers. However,

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<v Speaker 1>there's just not a ton of guidance, in part because

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<v Speaker 1>there have been so few impeachment proceedings thus far, about

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<v Speaker 1>how an impeachment trial should actually work. Thanks Leah, that's Lee,

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<v Speaker 1>a litment of the University of Michigan Law School. Thanks

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<v Speaker 1>for listening to the Bloomberg Law Podcast. You can subscribe

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<v Speaker 1>and listen to the show on Apple Podcasts, SoundCloud, and

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<v Speaker 1>on bloomberg dot com slash podcast. I'm June Brosso. This

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<v Speaker 1>is Bloomberg