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Speaker 1: This is Bloomberg Law. Some complicated international law issues here.

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Speaker 1: What kind of docket is Chief Justice Robert's facing interviews

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Speaker 1: with prominent attorneys in Bloomberg Legal experts joining me is

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Speaker 1: Bloomberg New Supreme Court reporter Greg Store, Neil Devon's professor

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Speaker 1: at William and Mary Law School, and analysis of important

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Speaker 1: legal issues, cases and headlines. President Trump lost resoundingly in

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Speaker 1: the circuit courts and the unusually large number of immigration cases.

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Speaker 1: Bloomberg Law. With June Grasso from Bloomberg Radio. Welcon to

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Speaker 1: Bloomberg Law. I'm June Grosso. The impeachment drama will shift

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Speaker 1: to the Senate this week. My guests former Federal Prosecutor

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Speaker 1: Robert Mentz, a partner at McCarter in English. So, Bob,

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Speaker 1: did the delay help the Democrats cause in any way?

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Speaker 1: I think the answer to that question is very much

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Speaker 1: in the ivy beholder. For the Democrats, what they were

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Speaker 1: trying to do was to move the needle in terms

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Speaker 1: of public opinion, to try to bring more support for

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Speaker 1: these articles of impeachment and try to sway perhaps a

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Speaker 1: number of Republicans to come over and support their call

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Speaker 1: for witnesses. So far, it doesn't seem like that has succeeded.

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Speaker 1: Mick McConnell is taking the view that witnesses will be

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Speaker 1: decided after both the House managers present their case and

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Speaker 1: the president's lawyers have an opportunity to present their defense,

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Speaker 1: they'll take up the question of witnesses at that time.

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Speaker 1: That's not something the Democrats are happy with, but ultimately

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Speaker 1: I think it is something they're going to have to

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Speaker 1: live with. Pelosi criticized Senate Majority Leader Mitch McConnell for

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Speaker 1: supporting a resolution to dismiss the articles unless they were

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Speaker 1: sent over soon. Now did McConnell just out maneuver Pelosi

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Speaker 1: or does he just have the leverage. It's something that

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Speaker 1: she can fight well. Ultimately, he was never a question

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Speaker 1: of if. It was always a question of when Nancy

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Speaker 1: Pelosi would be sending over these articles of impeachment, and

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Speaker 1: Mick McConnell knew that she had to ultimately turn these

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Speaker 1: articles over to the Senate so that his trial could proceed.

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Speaker 1: She was trying to delay as long as possible to

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Speaker 1: try to leverage what she could out of Republicans, but

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Speaker 1: I think she knew that it was unlikely to sway

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Speaker 1: votes at this time. I think her ultimate goal really

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Speaker 1: was to try to focus public opinion on this whole

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Speaker 1: perception as to whether or not this trial was a

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Speaker 1: real trial, was a fair trial, and whether or not

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Speaker 1: Republicans could credibly call this a true impeachment trial at

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Speaker 1: the same time taking a position that they don't need

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Speaker 1: to hear from any witnesses. President Trump's tweets this weekend

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Speaker 1: range from calling for a trial with Pelosi and Intelligence

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Speaker 1: Committee Chairman Adam Schiff being called as witnesses, to suggesting

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Speaker 1: that Senator should dismiss the House charges outright. Could the

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Speaker 1: Senate dismiss them out right? I think as a procedural matter,

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Speaker 1: the Senate could dismiss them out right. But remember here

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Speaker 1: that both sides are really playing to public opinion, They're

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Speaker 1: really playing to their bases. So a lot of things

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Speaker 1: are being said no wing that they're unlikely to happen.

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Speaker 1: I think Mitch McConnell knows that it would be ill

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Speaker 1: advised to simply dismiss these articles of impeachment without any

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Speaker 1: kind of process at all, because he does have at

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Speaker 1: least four Republican senators who are somewhat on the fence

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Speaker 1: on the question of witnesses, and they we're trying to

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Speaker 1: come up with some kind of compromise so that witnesses

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Speaker 1: can be called and there can be some process here

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Speaker 1: that in some way replicates the process that was followed

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Speaker 1: during the Clinton I teachment. President Trump has already said

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Speaker 1: that if former national security advisor John Bolton is called

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Speaker 1: that there will be questions of executive privilege. To me,

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Speaker 1: for the future, we have to protect presidential privilege. When

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Speaker 1: we start allowing national security advisors to just go up

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Speaker 1: and say whatever they want to say, we can't do that.

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Speaker 1: How strong an argument do they have for executive privilege? Well,

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Speaker 1: the real question about John bolton testimony is, first, willy

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Speaker 1: testify on Second, if he does testify, what exactly will

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Speaker 1: he be permitted to say? Executive privilege does cover president's

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Speaker 1: deliberations with his national security advisor on issues of foreign policy.

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Speaker 1: So there is a credible argument that some of these

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Speaker 1: conversations that John Bolton had with the President would be

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Speaker 1: protected by executive privilege. And that's a privilege that belongs

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Speaker 1: to the president, not the John Bolton. So if they

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Speaker 1: go into that area, if John Bolton is called to

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Speaker 1: testify and questions are asked about some of those deliberations

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Speaker 1: with the President. I think we can't expect to see

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Speaker 1: the White House exercising that right for executive privilege, and

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Speaker 1: that would have to then go to the courts to

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Speaker 1: be decided. I think what would ultimately happen is that

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Speaker 1: they would try to work around the privilege issue and

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Speaker 1: see whether Bolton could provide testimony that wasn't covered by

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Speaker 1: the privilege so that the trials could continue, because going

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Speaker 1: to the courts would only further delay this trial, drag

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Speaker 1: it out into the Iowa caucuses and other things having

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Speaker 1: to do with the Democratic primaries right now, and that's

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Speaker 1: what the Democrats are hoping to do. Does it matter

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Speaker 1: that some of what they'd be asking Bolton was testified

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Speaker 1: to already by witnesses at the House impeachment trial. Well,

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Speaker 1: certainly if other people were present during the conversations that

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Speaker 1: Bolton had with the President, and that testimony has already

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Speaker 1: been elicited, there's an argument that has been waived that

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Speaker 1: executive privilege would have had to have been raised while

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Speaker 1: those witnesses testified about those conversations. But the key to

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Speaker 1: the John Bolton testimony is, according to John Bolton's lawyer.

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Speaker 1: He has some relevant and material and important information which

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Speaker 1: has not been elicited by the House Intelligence Committee through

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Speaker 1: those other witnesses, and that is an instance where the

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Speaker 1: privilege may apply if it was a conversation that took

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Speaker 1: place solely between John Bolton and the President. Coming off

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Speaker 1: on Bloomberg Law, how long will the Senate trial chake

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Speaker 1: and will there be witnesses? I'm June Grosso and this

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Speaker 1: is Bloomberg. You're listening to bloom Law with June Grozzo

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Speaker 1: from Bloomberg Radio. President Trump Senate impeachment trial will begin

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Speaker 1: as soon as this week. I've been talking to former

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Speaker 1: federal prosecutor Robert Mint's a partner McCarter and English Bob

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Speaker 1: House Judiciary Chairman Jerry Nadler and Intelligence Chairman Adam Schiff

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Speaker 1: will likely be the top names on the prosecution team

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Speaker 1: in the Senate impeachment trial. According to Michigan Congressman Dan Kilde,

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Speaker 1: they're both lawyers. Is it important to have lawyers in

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Speaker 1: that position? Well, that's really entirely up to Nancy Pelosi

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Speaker 1: as to who she wants to name as House managers. Typically,

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Speaker 1: they do choose legislators who have prosecutorial experience, because really

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Speaker 1: they are acting as prosecutors. They're going to make out

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Speaker 1: the case for the articles of impeachment. They're gonna try

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Speaker 1: to persuade the Senate and really the larger audience of

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Speaker 1: the general American public that these articles of impeachment have merit,

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Speaker 1: and their opening statements are something that are going to

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Speaker 1: be watched very closely because there's a possibility that that

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Speaker 1: is all the ammery can public will ultimately hear about

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Speaker 1: these charges. White House Counsel Pat Sipoloni and Trump's personal

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Speaker 1: attorney j Seklo are set to head up the president's

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Speaker 1: defense team. There's also a question about whether some House

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Speaker 1: Republicans who staunchly advocated for Trump during the impeachment inquiry,

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Speaker 1: such as Ohio Representative Jim Jordan's, should be added to

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Speaker 1: the team. Well, I think ultimately it's up to the

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Speaker 1: President and his team as to who he is going

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Speaker 1: to choose to defend him against these articles of impeachment,

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Speaker 1: and if he believes that there are some House members

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Speaker 1: who can articulate that position, well they may add them

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Speaker 1: to the legal team. It really is a decision for

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Speaker 1: the president to make and ultimately Mick McConnell will abide

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Speaker 1: by whatever the president's wishes are in that regard. According

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Speaker 1: to CNN, the trial brief for the president likely could

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Speaker 1: be submitted within two days of the House vote to

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Speaker 1: transmit the articles. What does that tell you about what's

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Speaker 1: in the trial brief? Is going to be the arguments

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Speaker 1: that we've been hearing from House Republicans. I think it's

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Speaker 1: going to be very similar to the arguments that House

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Speaker 1: Republicans have been arguing all along here. I think they're

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Speaker 1: going to stick to the argument that none of this

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Speaker 1: rises to the level of an impeachable offense, that the

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Speaker 1: President did absolutely nothing wrong, and they're probably going to

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Speaker 1: try to keep this as streamlined as possible. There's been

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Speaker 1: lots of talk about calling Hunter Biden and other witnesses here,

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Speaker 1: but I think both sides recognize that there is an

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Speaker 1: inherent risk in calling witnesses on either side, whether that

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Speaker 1: would be John Bolton or Hunter Biden, because nobody knows

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Speaker 1: exactly what these witnesses are going to say, and prosecutors

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Speaker 1: do not like to call witnesses to the stand in

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Speaker 1: the middle of a trial when they don't know what

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Speaker 1: the testimony is going to be so. As much as

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Speaker 1: the Democrats want to hear from John Bolton, and it's

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Speaker 1: no question that they want to do that, the fact

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Speaker 1: is that nobody really knows what he would say, and

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Speaker 1: he has a bit of a ticking time bomb. He's

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Speaker 1: an independent person who has a times parted ways with

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Speaker 1: the Trump administration, and we really don't know whether he

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Speaker 1: would be a defense witness or a prosecution witness. Will

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Speaker 1: really have to see if it comes to pass that

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Speaker 1: he testifies, where what side he's going to come down on. Now.

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Speaker 1: Senator Lindsey Graham, of course, a staunch ally of President Trump,

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Speaker 1: predicted that the trial would be over in a matter

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Speaker 1: of days, not weeks. Is he likely right about that now?

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Speaker 1: I don't think it's going to be days. I think

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Speaker 1: they're going to have to make at least a credible

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Speaker 1: presentation here of going through the process, allowing the house

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Speaker 1: managers to present their case, however long that takes, allowing

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Speaker 1: the President's lawyers to present their defense, however long that takes,

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Speaker 1: and then at that time, according to Mitch McConnell, they

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Speaker 1: will follow the Clinton model and take up the question

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Speaker 1: of whether or not any additional witnesses will be called

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Speaker 1: on both sides. It's still a possibility that witnesses will

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Speaker 1: be called. I think one thing Mitch McConnell wants to

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Speaker 1: do is to see how the case goes in, how

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Speaker 1: the prosecution's case went, how the defense went, and then

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Speaker 1: make the call at the end of the day. But

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Speaker 1: I think there is a perception here that Mitch McConnell

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Speaker 1: is trying to on the one hand, expedite this process.

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Speaker 1: On the one hand, remove any potential surprises or kicking

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Speaker 1: time bombs that could explode in the middle of list

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Speaker 1: trial and change the trajectory of the outcome. But at

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Speaker 1: the same time, there has to be some perception that

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Speaker 1: this is a fair process, that it is a process

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Speaker 1: that was followed similarly in the Clinton impeachment model, and

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Speaker 1: that people believe that this was not a sham, that

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Speaker 1: they gave it its due process, and ultimately the outcome

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Speaker 1: is something that is supported by the evidence that was

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Speaker 1: presented during the trial. It's an odd situation because you'll

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Speaker 1: have an impeachment trial so close to a reelection campaign. Well,

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Speaker 1: what's important to remember here is that the impeachment process

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Speaker 1: is fundamentally a political process, not a legal process, and

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Speaker 1: it's even more so in this case because this is

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Speaker 1: the first time in American history when there's been an

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Speaker 1: impeachment of a president prior to the re election of

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Speaker 1: a second term. So we've never had a president who

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Speaker 1: was impeached and then faced re election. And there are

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Speaker 1: lots of people who said that they should just let

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Speaker 1: the election take care of this process and not have

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Speaker 1: gone through this whole impeachment process in the in the

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Speaker 1: first place. But this is a process that is rife

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Speaker 1: with political implications, and both sides, the Democrats and the Republicans,

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Speaker 1: are making these decisions, both in terms of trying to

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Speaker 1: affect the ultimate outcome of the trial, but also trying

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Speaker 1: to calculate how this process would ultimately impact the elections.

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Speaker 1: You know, you watch TV and you see a lot

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Speaker 1: of clips from the Clinton impeachment trial, and it seems

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Speaker 1: as if senators are advocating exactly opposite things from what

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Speaker 1: they advocated in the Clinton impeachment trial. For example, Lindsey

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Speaker 1: Graham saying that you need witnesses at a trial and

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Speaker 1: Chuck Schumer saying that you don't need witnesses at a trial. Yeah,

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Speaker 1: there's been lots of clips of Senator Lynda Graham and

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Speaker 1: Senator Chuck Schumer taking the actually opposite positions during the

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Speaker 1: Clinton teachment process. That's not surprising because this is fundamentally

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Speaker 1: a political process, but there are some factual differences here

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Speaker 1: that do support perhaps exchanged view. In the Clinton teachment trial.

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Speaker 1: You have to remember that there were witnesses called at trial,

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Speaker 1: but every single one of the witnesses called a trial

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Speaker 1: had previously testified before the House Committee. This would be

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Speaker 1: the first time in the history of the country where

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Speaker 1: witnesses would testify during the Senate trial who had never

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Speaker 1: testified before on the House side. So it really is

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Speaker 1: an unprecedented situation. There's very little precedent, either legally or

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Speaker 1: historically as to how this process will proceed, which is

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Speaker 1: exactly why it is the free for all that it is.

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Speaker 1: Where you have both sides taking positions that seem to

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Speaker 1: be directly contrary to the positions they took during the

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Speaker 1: Clinton teachment process, and ultimately it is the political process

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Speaker 1: that will store this all out. If politicians on both

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Speaker 1: sides get pressure I have to call witnesses or to

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Speaker 1: simply end this trial, that's where this is going to go.

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Speaker 1: And so forth. What Mr McConnell is trying to do

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Speaker 1: is to keep his Republicans in line. He's got to

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Speaker 1: keep to the four Republicans in line to make sure

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Speaker 1: they don't cross over and agree to call witnesses, because

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Speaker 1: if he does that, he loses control this trial, and

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Speaker 1: witnesses will then be called. And ultimately, if they call witnesses,

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Speaker 1: I'm going to assume that they're gonna be able to

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Speaker 1: call witnesses on both sides. So we might see John Bolton,

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Speaker 1: we might see Hunter Biden, and if we go down

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Speaker 1: that road, this is going to be a very different

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Speaker 1: impeachment trial than what people are anticipating at this point.

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Speaker 1: Thanks Bob, that's Robert Man's a partner McCarter in English.

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Speaker 1: And that's it for this edition of Bloomberg Law. I'm

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Speaker 1: June Grosso. Thanks so much for listening, and remember to

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Speaker 1: tune into The Bloomberg Law Show weeknights at ten pm Eastern,

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Speaker 1: seven pm Central, right here on Bloomberg Radio