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Speaker 1: This is Bloomberg Law with June Grosso from Bloomberg Radio.

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Speaker 1: Senate Democrats are making a final plea to at least

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Speaker 1: a few GOP senators to call witnesses in President Donald

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Speaker 1: Trump's impeachment trial, as senators began two days of questioning

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Speaker 1: his defense team and House prosecutors. The next phase of

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Speaker 1: the trial got underway today amid signs at a showdown

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Speaker 1: vote at the end of the week on whether to

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Speaker 1: call more witnesses is up for grabs. Joining me is

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Speaker 1: Brad Moss, a partner at Mark Zad. So there's talk

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Speaker 1: that John Bolton may be called, and now the White

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Speaker 1: House has issued a formal threat to Bolton to keep

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Speaker 1: him from publishing his book. How will that affect his

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Speaker 1: being called as a witness. Yes, so we're in a

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Speaker 1: bit of uncharted territory here. So to be clear, the

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Speaker 1: letter that was sent by the White House to Mr Bolton,

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Speaker 1: that reviewed the letter, it's up on Twitter at this point,

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Speaker 1: is not what I would considue as a threat. It's

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Speaker 1: actually I think been blowed a little bit out of portion.

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Speaker 1: This is somewhat standard correspondence that is issued when a

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Speaker 1: manuscript is undergoing classification. Review. The original version was submitted

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Speaker 1: on December by Mr Bolton's attorney to the National Security Council.

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Speaker 1: This has been following up saying we've already done a

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Speaker 1: preliminary review. We've already found some classified information, so there's

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Speaker 1: clearly to the stuff we're gonna require redactions on. The

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Speaker 1: review is ongoing. In the interim, you are not permitted

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Speaker 1: to publish anything until we give you final approval on

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Speaker 1: a version of this manuscript. Generally speaking, these kind of

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Speaker 1: letters are you know, generally really viewed any kind of

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Speaker 1: you know, threatening context. The reason it's been to view

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Speaker 1: that way here is because it's being issued in the

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Speaker 1: middle of it an impeachment saga in which John Bolton

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Speaker 1: is obviously a material fact with us, so it's taken

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Speaker 1: on a life of its own. The President can classify

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Speaker 1: anything he wants, can he? So? Can he classify the

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Speaker 1: book after it's already been written? Yes, so he could

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Speaker 1: classify the president if he wanted to determine the entirety

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Speaker 1: of this book is classified. However, if that were to

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Speaker 1: be what was done, if the White House were to

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Speaker 1: issue a final determination saying the President relying upon his

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Speaker 1: inherent article to authority has deemed your entire book to

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Speaker 1: be classified. Then under existing case law, John Bolton would

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Speaker 1: have the right to bring a First Amendment lawsuit challenging

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Speaker 1: the legality and a proprietary propriety of that classification determination,

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Speaker 1: and then the d o J in that lawsuit would

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Speaker 1: have to submit something from the President in which he

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Speaker 1: states publicly on the record that he is invoking his

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Speaker 1: article to authority to classify everything, in which case it

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Speaker 1: becomes a political liability for the president. But from a

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Speaker 1: legal standpoint, he could quote unquote win because at that

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Speaker 1: point that there's nothing to overrule the president's classification determination.

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Speaker 1: It becomes a question of whether or not they'd be

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Speaker 1: willing to put that in writing and submit it to

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Speaker 1: the court. Explain how that's different from the presidents saying

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Speaker 1: several times recently that you know he's going to exercise

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Speaker 1: executive privilege if Bolton wants to testify. Yes, So this

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Speaker 1: is a common misunderstanding that not only the presidents having,

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Speaker 1: but many people having executive privilege is a shield, it's

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Speaker 1: not a sword. So if someone who is a current

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Speaker 1: to form of government official has been subpoena to testify

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Speaker 1: and the the information they're going to testify about is

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Speaker 1: implicating executive privilege. They can refuse to testify in reliance

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Speaker 1: upon the fact that the president has the ability to

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Speaker 1: invoke executive privilege. But if that person wants to testify anyway,

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Speaker 1: the president has no ability to stop them, because again,

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Speaker 1: it is only a shield for them to rely upon

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Speaker 1: if they want it, is not a sword the president

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Speaker 1: can use to restrain them to censor their First Amendment communications. Now, obviously,

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Speaker 1: if they're an existing government employee, there's all other manner

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Speaker 1: of reasons why they wouldn't be allowed to testify anyway,

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Speaker 1: and they wouldn't want to they risk losing their job.

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Speaker 1: But if they're a former employee like John Bolton, there

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Speaker 1: is nothing the president can do, for example, to censor

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Speaker 1: unclassified information that might implicate executive privilege. That's in Bolton's book.

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Speaker 1: He has no ability under the law to do that.

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Speaker 1: He can only sensor classified information. Looking at the way

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Speaker 1: things are going, and I know that Mitch McConnell said

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Speaker 1: he didn't have the votes to stop witnesses, but that

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Speaker 1: could also be a ploy on his part. How likely

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Speaker 1: are we to hear from witnesses? It's really tough to assassinate.

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Speaker 1: I mean, I saw the same reports from Leader McConnell,

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Speaker 1: and I take it with the same grain. Assaut I

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Speaker 1: think you do. I think a lot of this somewhat posturing.

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Speaker 1: It's an indication that the votes likely to be close,

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Speaker 1: whatever it is, but that there's several members, most likely

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Speaker 1: Susan Collins, Senator Murkowski, Senator Romney, and maybe Senator Alexander

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Speaker 1: who were on the fence at the moment who were

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Speaker 1: uncomfortable with how this has gone forward and might want

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Speaker 1: to hear from witnesses such as John Bolton, and so

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Speaker 1: McConnell let that leak to kind of put pressure on

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Speaker 1: those senators to try to bring in some public pressure

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Speaker 1: to get them to back off. But I don't think

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Speaker 1: we're going to truly know one way or the other

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Speaker 1: how that vote is going to play out until we

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Speaker 1: have the vote itself. Does it seem to you as

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Speaker 1: if John Bolton may really want to testify now because

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Speaker 1: of this onslaught of attacks on him on his credibility.

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Speaker 1: I think originally the reason John Bolton, you know, wanted

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Speaker 1: to get this book out so quickly was he didn't

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Speaker 1: want his own professional reputation that he's built up over decades,

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Speaker 1: and his potential book sales to be tainted or stained

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Speaker 1: by the idea that he held back relevant information to

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Speaker 1: impeachment just to sell books. That was probably his original

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Speaker 1: impetis to move so quickly now with the various attacks

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Speaker 1: coming at him, I'm sure part of the reason he's

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Speaker 1: probably even more so willing to testify is to basically say, look,

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Speaker 1: I tried to do this the proper way. You guys

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Speaker 1: can't handle it. The president's threatening me, the media is

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Speaker 1: threatening me. If I'm called to testify, I'll testify. And

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Speaker 1: he's basically saying, you don't control me. I'm a private citizen.

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Speaker 1: I'll say whatever I want, so long as I don't

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Speaker 1: expose classified information. I've been talking to Brad Moss about

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Speaker 1: the latest phase of the impeachment trial, sixteen full hours

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Speaker 1: of questions from the senators. So, broadly speaking, do you

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Speaker 1: expect to hear any new arguments, any new information during

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Speaker 1: this period? Not really so A lot of what I

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Speaker 1: you know, starting to see this with some of the

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Speaker 1: initial questions, A lot of this is uh political theater

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Speaker 1: right now. Some of these questions when he saw I

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Speaker 1: think with Senator Mike Lee, who had a question of

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Speaker 1: isn't it the president's prerogative to decide how to conduct

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Speaker 1: foreign policy? Which was an easy, layup, softball question to

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Speaker 1: the president's lawyers. Some of that's just for the TV,

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Speaker 1: some of that's just a political theater and you know,

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Speaker 1: talking points. Um, there will be some relevant questions. There

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Speaker 1: was an interesting question from Senator Rick Scott of Florida

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Speaker 1: asking the extent to which, uh, you know, the House

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Speaker 1: and Patriot Managers have the equivalent of Brady requirements to

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Speaker 1: to divulge exculpatory information that could exonerate the president as

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Speaker 1: part of their presentation. It's an interesting question. I think.

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Speaker 1: I don't think, as far as I'm concerned, they don't

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Speaker 1: have that obligation, but it was a valid legal question

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Speaker 1: to ask. Uh. Senator Ronnie's going to have several questions,

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Speaker 1: especially about John Bolton, especially about Rudy Giuliani and what

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Speaker 1: exactly the President was tasking him with to do in Ukraine. UM.

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Speaker 1: So there's for the individuals who truly are still kind

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Speaker 1: of on the fence where she washed you about how

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Speaker 1: they're going to proceed. I expect to see some decent

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Speaker 1: questions out of them for everybody else the hardcore you

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Speaker 1: know partisans amongst in the Senate, you're gonna see just politicized,

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Speaker 1: you know questions. Let's look back at the arguments and

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Speaker 1: compare the strength of the House arguments with the strength

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Speaker 1: of the defense. So I think the House put on

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Speaker 1: what would be viewed as a very methodical, very well

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Speaker 1: presented case if this were a normal criminal prosecution in

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Speaker 1: a court of law. Um, they walked through it step

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Speaker 1: by step from the entire chronology, piece by piece, with texts,

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Speaker 1: with video. Let's started with the transcripts of calls, with memoranda,

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Speaker 1: with witness testimony, and they get They gave you a

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Speaker 1: plus B plus C equals the required result of the conviction,

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Speaker 1: and that would have worked great if it was a

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Speaker 1: court of law. The president's legal team did what they

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Speaker 1: would what you would expect them to do, given that

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Speaker 1: this is a political court, not a court of law,

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Speaker 1: but a court of politics in the context of impeachment.

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Speaker 1: And they argued a lot of peripheral facts that would

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Speaker 1: have been viewed as irrelevant by enlarged an actual court case.

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Speaker 1: But would you can bring up here. They talked about

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Speaker 1: the FBI surveillance a card to page they talked about Mueller,

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Speaker 1: they talked about the Steel dossier, things that have nothing

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Speaker 1: to do with this case but which serve as great

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Speaker 1: political theater. Main crux of their legal defense basically became justification,

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Speaker 1: which was the President had a reasonable basis to believe

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Speaker 1: Hunter Biden's activities were corrupt, possibly criminal, and that's why

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Speaker 1: he did what he did. In terms of trying to

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Speaker 1: get the Ukrainians to launch an investigation, they did through

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Speaker 1: a lot about a Hunter Biden, and again that was

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Speaker 1: largely for public consumption, because there is no dj investigation

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Speaker 1: of Hunter Biden. There's no indictment of Hunter Biden. But

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Speaker 1: the justification they were trying to put up was this

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Speaker 1: was how Donald Trump was trying to get to the truth.

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Speaker 1: He's not the most taxful man, but that's not required

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Speaker 1: under the law. And what do you make of some

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Speaker 1: of the Republicans saying, you know, we want to make

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Speaker 1: a deal John Bolton for Hunter Biden. Why would they

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Speaker 1: even say that they can just call whoever they want, Well,

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Speaker 1: they don't want to have any witnesses. The reason they're

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Speaker 1: the reason they were proposing this deal isn't so much

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Speaker 1: about a worried about the Democrats they were worried about

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Speaker 1: people like, you know, like Senators Romney and Barkowski and Collins,

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Speaker 1: who might want to look into some of the facts

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Speaker 1: that the rest of the Republican caucus is really trying

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Speaker 1: to avoid getting into. And so to try to head

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Speaker 1: off that potential issue, they were trying to throw up

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Speaker 1: this idea of a deal of Okay, we'll let you

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Speaker 1: have John Bolton, but then we want to bring in

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Speaker 1: Hunter Biden, and so they could get their entire caucus

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Speaker 1: on board with that as well. It was, you know,

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Speaker 1: a political you know, trial balloon. It didn't really go

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Speaker 1: very well. I'm not quite sure how that would play out.

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Speaker 1: But if they have one witness, I have a feeling

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Speaker 1: we're gonna have multiple witnesses. Let's talk a little bit

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Speaker 1: about Trump attorney Alan Dershowitz's argument, because though it's definitely

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Speaker 1: a minority view of you know, what's necessary for high

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Speaker 1: crimes and misdemeanors, it does give some kind of cover

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Speaker 1: to Republicans who want to say, well, even if that's true,

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Speaker 1: this doesn't rise to the level of high crimes and misdemeanor. Yeah,

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Speaker 1: so what Alan Derschwitz has put forward and music putting

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Speaker 1: forward an argument like this for years. It's his very

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Speaker 1: you know, controversial but well established expansive view of presidential authority.

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Speaker 1: He has largely decided that impeachment that very little, if anything,

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Speaker 1: will ever qualify as an impeachable offense outside of actual treason,

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Speaker 1: and it would be virtually impossible to ever get to

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Speaker 1: that point as far as he's concerned. You know, the way,

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Speaker 1: the kind of the legal argument he set forth on

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Speaker 1: a constitutional standpoint is assumed that this was all entirely

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Speaker 1: a scheme to utilize to start to extort the Ukrainians,

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Speaker 1: to launch a frivolous, uh and unnecessary investigation into the

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Speaker 1: Bidens in order to get the foreign aid that we

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Speaker 1: were supposed to. That conversai a lotted under Elan Derschwitz

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Speaker 1: is analysis of the Constitution and the appeachment articles that's

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Speaker 1: permissible under the president's authority, and it's non impeachable offense.

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Speaker 1: If the president works to just let the Ukrainians right,

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Speaker 1: let the Russians take Alaska today and not do anything

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Speaker 1: in response. As far as Alan Dersho was is concerned,

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Speaker 1: that's not an impeachable offense. There's very little he views

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Speaker 1: as ever rising to the level of what qualifies as

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Speaker 1: impeachable and that justifies removal. It's an extremely expansive view

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Speaker 1: of presidential authority. It's not the first time someone's put

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Speaker 1: forth something like this, but it's concerning in this day

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Speaker 1: and age to see that argument still put forward on

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Speaker 1: the Florida sidate. So, even at this point, where there

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Speaker 1: may be witnesses called, the general consensus is that it

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Speaker 1: won't make a difference. That the House Democrats will never

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Speaker 1: get the number of votes needed to actually kick President

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Speaker 1: Trump out of office. So Nancy Pelosi and the Democrats,

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Speaker 1: were they wrong to put the nation through this? No,

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Speaker 1: so I think it was the right thing to do

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Speaker 1: from a constitutional obligation standpoint. But you still pursue it.

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Speaker 1: You still conducted only to make clear that the Congress

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Speaker 1: will not just be subjugated to the presidency and will

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Speaker 1: not allow it to act without political and without political consequences.

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Speaker 1: The fact that this is almost certainly going to result

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Speaker 1: in an acquittal is ultimately neither here nor there, because

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Speaker 1: the House it did its job to determine what it

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Speaker 1: viewed as impeachable, and the Senate is going to do

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Speaker 1: its job and decide whether or not to acquit, and

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Speaker 1: if the Senate chooses to acquit, that's the Senate's prerogative

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Speaker 1: and the decision is ultimately left to the voters of

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Speaker 1: what to do with it. But the two branches of

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Speaker 1: Congress did their job to fully, you know, explore the

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Speaker 1: matter and decide how they wanted to act from a

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Speaker 1: constitutional standpoint. Thanks Brad, that's Brad Mass, her partner in

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Speaker 1: Mark's Thanks for listening to the Bloomberg Law Podcast. You

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Speaker 1: can subscribe and listen to the show on Apple podcast, SoundCloud,

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Speaker 1: and on Bloomberg dot com slash podcast. I'm June Brasso.

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Speaker 1: This is Bloomberg Dependent dat