WEBVTT - Will Bolton Testify at the Impeachment Trial?

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<v Speaker 1>This is Bloomberg Law. Some complicated international law issues here.

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<v Speaker 1>What kind of docket is Chief Justice Robert's facing interviews

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<v Speaker 1>with prominent attorneys in Bloomberg Legal experts joining me is

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<v Speaker 1>Bloomberg New Supreme Court reporter Greg Store, Neil Devon's professor

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<v Speaker 1>at William and Mary Law School, and analysis of important

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<v Speaker 1>legal issues, cases and headlines. President Trump lost resoundingly in

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<v Speaker 1>the circuit courts and the unusually large number of immigration cases.

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<v Speaker 1>Bloomberg Law. With June Grasso from Bloomberg Radio. Welcon to

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<v Speaker 1>Bloomberg Law. I'm June Grosso. The impeachment drama will shift

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<v Speaker 1>to the Senate this week. My guests former Federal Prosecutor

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<v Speaker 1>Robert Mentz, a partner at McCarter in English. So, Bob,

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<v Speaker 1>did the delay help the Democrats cause in any way?

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<v Speaker 1>I think the answer to that question is very much

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<v Speaker 1>in the ivy beholder. For the Democrats, what they were

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<v Speaker 1>trying to do was to move the needle in terms

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<v Speaker 1>of public opinion, to try to bring more support for

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<v Speaker 1>these articles of impeachment and try to sway perhaps a

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<v Speaker 1>number of Republicans to come over and support their call

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

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<v Speaker 1>Mick McConnell is taking the view that witnesses will be

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<v Speaker 1>decided after both the House managers present their case and

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<v Speaker 1>the president's lawyers have an opportunity to present their defense,

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<v Speaker 1>they'll take up the question of witnesses at that time.

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<v Speaker 1>That's not something the Democrats are happy with, but ultimately

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<v Speaker 1>I think it is something they're going to have to

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<v Speaker 1>live with. Pelosi criticized Senate Majority Leader Mitch McConnell for

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<v Speaker 1>supporting a resolution to dismiss the articles unless they were

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<v Speaker 1>sent over soon. Now did McConnell just out maneuver Pelosi

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<v Speaker 1>or does he just have the leverage. It's something that

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<v Speaker 1>she can fight well. Ultimately, he was never a question

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<v Speaker 1>of if. It was always a question of when Nancy

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<v Speaker 1>Pelosi would be sending over these articles of impeachment, and

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<v Speaker 1>Mick McConnell knew that she had to ultimately turn these

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<v Speaker 1>articles over to the Senate so that his trial could proceed.

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<v Speaker 1>She was trying to delay as long as possible to

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<v Speaker 1>try to leverage what she could out of Republicans, but

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<v Speaker 1>I think she knew that it was unlikely to sway

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<v Speaker 1>votes at this time. I think her ultimate goal really

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<v Speaker 1>was to try to focus public opinion on this whole

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<v Speaker 1>perception as to whether or not this trial was a

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<v Speaker 1>real trial, was a fair trial, and whether or not

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<v Speaker 1>Republicans could credibly call this a true impeachment trial at

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<v Speaker 1>the same time taking a position that they don't need

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<v Speaker 1>to hear from any witnesses. President Trump's tweets this weekend

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<v Speaker 1>range from calling for a trial with Pelosi and Intelligence

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<v Speaker 1>Committee Chairman Adam Schiff being called as witnesses, to suggesting

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<v Speaker 1>that Senator should dismiss the House charges outright. Could the

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<v Speaker 1>Senate dismiss them out right? I think as a procedural matter,

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<v Speaker 1>the Senate could dismiss them out right. But remember here

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<v Speaker 1>that both sides are really playing to public opinion, They're

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<v Speaker 1>really playing to their bases. So a lot of things

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<v Speaker 1>are being said no wing that they're unlikely to happen.

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<v Speaker 1>I think Mitch McConnell knows that it would be ill

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<v Speaker 1>advised to simply dismiss these articles of impeachment without any

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<v Speaker 1>kind of process at all, because he does have at

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<v Speaker 1>least four Republican senators who are somewhat on the fence

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<v Speaker 1>on the question of witnesses, and they we're trying to

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<v Speaker 1>come up with some kind of compromise so that witnesses

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<v Speaker 1>can be called and there can be some process here

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<v Speaker 1>that in some way replicates the process that was followed

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<v Speaker 1>during the Clinton I teachment. President Trump has already said

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<v Speaker 1>that if former national security advisor John Bolton is called

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<v Speaker 1>that there will be questions of executive privilege. To me,

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<v Speaker 1>for the future, we have to protect presidential privilege. When

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<v Speaker 1>we start allowing national security advisors to just go up

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

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<v Speaker 1>How strong an argument do they have for executive privilege? Well,

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<v Speaker 1>the real question about John bolton testimony is, first, willy

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<v Speaker 1>testify on Second, if he does testify, what exactly will

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<v Speaker 1>he be permitted to say? Executive privilege does cover president's

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<v Speaker 1>deliberations with his national security advisor on issues of foreign policy.

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<v Speaker 1>So there is a credible argument that some of these

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<v Speaker 1>conversations that John Bolton had with the President would be

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<v Speaker 1>protected by executive privilege. And that's a privilege that belongs

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<v Speaker 1>to the president, not the John Bolton. So if they

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<v Speaker 1>go into that area, if John Bolton is called to

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<v Speaker 1>testify and questions are asked about some of those deliberations

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<v Speaker 1>with the President. I think we can't expect to see

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<v Speaker 1>the White House exercising that right for executive privilege, and

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<v Speaker 1>that would have to then go to the courts to

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<v Speaker 1>be decided. I think what would ultimately happen is that

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<v Speaker 1>they would try to work around the privilege issue and

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<v Speaker 1>see whether Bolton could provide testimony that wasn't covered by

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<v Speaker 1>the privilege so that the trials could continue, because going

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<v Speaker 1>to the courts would only further delay this trial, drag

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<v Speaker 1>it out into the Iowa caucuses and other things having

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<v Speaker 1>to do with the Democratic primaries right now, and that's

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<v Speaker 1>what the Democrats are hoping to do. Does it matter

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<v Speaker 1>that some of what they'd be asking Bolton was testified

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<v Speaker 1>to already by witnesses at the House impeachment trial. Well,

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<v Speaker 1>certainly if other people were present during the conversations that

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<v Speaker 1>Bolton had with the President, and that testimony has already

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<v Speaker 1>been elicited, there's an argument that has been waived that

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<v Speaker 1>executive privilege would have had to have been raised while

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<v Speaker 1>those witnesses testified about those conversations. But the key to

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<v Speaker 1>the John Bolton testimony is, according to John Bolton's lawyer.

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<v Speaker 1>He has some relevant and material and important information which

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<v Speaker 1>has not been elicited by the House Intelligence Committee through

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<v Speaker 1>those other witnesses, and that is an instance where the

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<v Speaker 1>privilege may apply if it was a conversation that took

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<v Speaker 1>place solely between John Bolton and the President. Coming off

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<v Speaker 1>on Bloomberg Law, how long will the Senate trial chake

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<v Speaker 1>and will there be witnesses? I'm June Grosso and this

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<v Speaker 1>is Bloomberg. You're listening to bloom Law with June Grozzo

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<v Speaker 1>from Bloomberg Radio. President Trump Senate impeachment trial will begin

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<v Speaker 1>as soon as this week. I've been talking to former

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<v Speaker 1>federal prosecutor Robert Mint's a partner McCarter and English Bob

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<v Speaker 1>House Judiciary Chairman Jerry Nadler and Intelligence Chairman Adam Schiff

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<v Speaker 1>will likely be the top names on the prosecution team

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<v Speaker 1>in the Senate impeachment trial. According to Michigan Congressman Dan Kilde,

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<v Speaker 1>they're both lawyers. Is it important to have lawyers in

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<v Speaker 1>that position? Well, that's really entirely up to Nancy Pelosi

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<v Speaker 1>as to who she wants to name as House managers. Typically,

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<v Speaker 1>they do choose legislators who have prosecutorial experience, because really

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<v Speaker 1>they are acting as prosecutors. They're going to make out

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<v Speaker 1>the case for the articles of impeachment. They're gonna try

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<v Speaker 1>to persuade the Senate and really the larger audience of

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<v Speaker 1>the general American public that these articles of impeachment have merit,

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<v Speaker 1>and their opening statements are something that are going to

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<v Speaker 1>be watched very closely because there's a possibility that that

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<v Speaker 1>is all the ammery can public will ultimately hear about

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<v Speaker 1>these charges. White House Counsel Pat Sipoloni and Trump's personal

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<v Speaker 1>attorney j Seklo are set to head up the president's

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<v Speaker 1>defense team. There's also a question about whether some House

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<v Speaker 1>Republicans who staunchly advocated for Trump during the impeachment inquiry,

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<v Speaker 1>such as Ohio Representative Jim Jordan's, should be added to

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<v Speaker 1>the team. Well, I think ultimately it's up to the

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<v Speaker 1>President and his team as to who he is going

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<v Speaker 1>to choose to defend him against these articles of impeachment,

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<v Speaker 1>and if he believes that there are some House members

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<v Speaker 1>who can articulate that position, well they may add them

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<v Speaker 1>to the legal team. It really is a decision for

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<v Speaker 1>the president to make and ultimately Mick McConnell will abide

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<v Speaker 1>by whatever the president's wishes are in that regard. According

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<v Speaker 1>to CNN, the trial brief for the president likely could

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<v Speaker 1>be submitted within two days of the House vote to

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<v Speaker 1>transmit the articles. What does that tell you about what's

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<v Speaker 1>in the trial brief? Is going to be the arguments

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

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<v Speaker 1>going to be very similar to the arguments that House

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<v Speaker 1>Republicans have been arguing all along here. I think they're

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<v Speaker 1>going to stick to the argument that none of this

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<v Speaker 1>rises to the level of an impeachable offense, that the

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<v Speaker 1>President did absolutely nothing wrong, and they're probably going to

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<v Speaker 1>try to keep this as streamlined as possible. There's been

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<v Speaker 1>lots of talk about calling Hunter Biden and other witnesses here,

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<v Speaker 1>but I think both sides recognize that there is an

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<v Speaker 1>inherent risk in calling witnesses on either side, whether that

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<v Speaker 1>would be John Bolton or Hunter Biden, because nobody knows

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<v Speaker 1>exactly what these witnesses are going to say, and prosecutors

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<v Speaker 1>do not like to call witnesses to the stand in

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<v Speaker 1>the middle of a trial when they don't know what

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<v Speaker 1>the testimony is going to be so. As much as

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<v Speaker 1>the Democrats want to hear from John Bolton, and it's

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<v Speaker 1>no question that they want to do that, the fact

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<v Speaker 1>is that nobody really knows what he would say, and

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<v Speaker 1>he has a bit of a ticking time bomb. He's

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<v Speaker 1>an independent person who has a times parted ways with

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<v Speaker 1>the Trump administration, and we really don't know whether he

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<v Speaker 1>would be a defense witness or a prosecution witness. Will

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<v Speaker 1>really have to see if it comes to pass that

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

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<v Speaker 1>Senator Lindsey Graham, of course, a staunch ally of President Trump,

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<v Speaker 1>predicted that the trial would be over in a matter

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

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<v Speaker 1>I don't think it's going to be days. I think

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<v Speaker 1>they're going to have to make at least a credible

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<v Speaker 1>presentation here of going through the process, allowing the house

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<v Speaker 1>managers to present their case, however long that takes, allowing

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

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<v Speaker 1>and then at that time, according to Mitch McConnell, they

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<v Speaker 1>will follow the Clinton model and take up the question

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<v Speaker 1>of whether or not any additional witnesses will be called

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<v Speaker 1>on both sides. It's still a possibility that witnesses will

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<v Speaker 1>be called. I think one thing Mitch McConnell wants to

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<v Speaker 1>do is to see how the case goes in, how

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<v Speaker 1>the prosecution's case went, how the defense went, and then

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<v Speaker 1>make the call at the end of the day. But

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<v Speaker 1>I think there is a perception here that Mitch McConnell

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<v Speaker 1>is trying to on the one hand, expedite this process.

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<v Speaker 1>On the one hand, remove any potential surprises or kicking

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<v Speaker 1>time bombs that could explode in the middle of list

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<v Speaker 1>trial and change the trajectory of the outcome. But at

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<v Speaker 1>the same time, there has to be some perception that

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<v Speaker 1>this is a fair process, that it is a process

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<v Speaker 1>that was followed similarly in the Clinton impeachment model, and

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<v Speaker 1>that people believe that this was not a sham, that

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<v Speaker 1>they gave it its due process, and ultimately the outcome

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<v Speaker 1>is something that is supported by the evidence that was

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

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<v Speaker 1>have an impeachment trial so close to a reelection campaign. Well,

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<v Speaker 1>what's important to remember here is that the impeachment process

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<v Speaker 1>is fundamentally a political process, not a legal process, and

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<v Speaker 1>it's even more so in this case because this is

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<v Speaker 1>the first time in American history when there's been an

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<v Speaker 1>impeachment of a president prior to the re election of

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<v Speaker 1>a second term. So we've never had a president who

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<v Speaker 1>was impeached and then faced re election. And there are

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<v Speaker 1>lots of people who said that they should just let

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<v Speaker 1>the election take care of this process and not have

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<v Speaker 1>gone through this whole impeachment process in the in the

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<v Speaker 1>first place. But this is a process that is rife

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<v Speaker 1>with political implications, and both sides, the Democrats and the Republicans,

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<v Speaker 1>are making these decisions, both in terms of trying to

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<v Speaker 1>affect the ultimate outcome of the trial, but also trying

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<v Speaker 1>to calculate how this process would ultimately impact the elections.

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<v Speaker 1>You know, you watch TV and you see a lot

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<v Speaker 1>of clips from the Clinton impeachment trial, and it seems

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<v Speaker 1>as if senators are advocating exactly opposite things from what

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<v Speaker 1>they advocated in the Clinton impeachment trial. For example, Lindsey

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<v Speaker 1>Graham saying that you need witnesses at a trial and

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

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<v Speaker 1>there's been lots of clips of Senator Lynda Graham and

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<v Speaker 1>Senator Chuck Schumer taking the actually opposite positions during the

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<v Speaker 1>Clinton teachment process. That's not surprising because this is fundamentally

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<v Speaker 1>a political process, but there are some factual differences here

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<v Speaker 1>that do support perhaps exchanged view. In the Clinton teachment trial.

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<v Speaker 1>You have to remember that there were witnesses called at trial,

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<v Speaker 1>but every single one of the witnesses called a trial

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<v Speaker 1>had previously testified before the House Committee. This would be

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<v Speaker 1>the first time in the history of the country where

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<v Speaker 1>witnesses would testify during the Senate trial who had never

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<v Speaker 1>testified before on the House side. So it really is

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

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<v Speaker 1>historically as to how this process will proceed, which is

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<v Speaker 1>exactly why it is the free for all that it is.

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<v Speaker 1>Where you have both sides taking positions that seem to

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<v Speaker 1>be directly contrary to the positions they took during the

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<v Speaker 1>Clinton teachment process, and ultimately it is the political process

0:12:59.400 --> 0:13:02.600
<v Speaker 1>that will store this all out. If politicians on both

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<v Speaker 1>sides get pressure I have to call witnesses or to

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

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<v Speaker 1>And so forth. What Mr McConnell is trying to do

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<v Speaker 1>is to keep his Republicans in line. He's got to

0:13:12.960 --> 0:13:15.360
<v Speaker 1>keep to the four Republicans in line to make sure

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<v Speaker 1>they don't cross over and agree to call witnesses, because

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<v Speaker 1>if he does that, he loses control this trial, and

0:13:20.720 --> 0:13:23.880
<v Speaker 1>witnesses will then be called. And ultimately, if they call witnesses,

0:13:23.880 --> 0:13:25.360
<v Speaker 1>I'm going to assume that they're gonna be able to

0:13:25.400 --> 0:13:28.080
<v Speaker 1>call witnesses on both sides. So we might see John Bolton,

0:13:28.120 --> 0:13:30.120
<v Speaker 1>we might see Hunter Biden, and if we go down

0:13:30.120 --> 0:13:31.880
<v Speaker 1>that road, this is going to be a very different

0:13:31.880 --> 0:13:34.400
<v Speaker 1>impeachment trial than what people are anticipating at this point.

0:13:34.600 --> 0:13:38.080
<v Speaker 1>Thanks Bob, that's Robert Man's a partner McCarter in English.

0:13:38.480 --> 0:13:41.320
<v Speaker 1>And that's it for this edition of Bloomberg Law. I'm

0:13:41.400 --> 0:13:44.480
<v Speaker 1>June Grosso. Thanks so much for listening, and remember to

0:13:44.600 --> 0:13:48.360
<v Speaker 1>tune into The Bloomberg Law Show weeknights at ten pm Eastern,

0:13:48.520 --> 0:13:51.480
<v Speaker 1>seven pm Central, right here on Bloomberg Radio