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

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Speaker 1: President Donald Trump's impeachment trial heads toward an end on Wednesday,

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Speaker 1: with Senators all but certain to acquit him on charges

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Speaker 1: of abuse of power and obstruction of Congress after narrowly

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Speaker 1: rejecting Democratic demands for witnesses. Before a vote on four amendments.

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Speaker 1: On Friday, Minority Leader Chuck Schumer sought to clear up

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Speaker 1: one uncertainty that's hung over the trial, whether Chief Justice

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Speaker 1: John Roberts, the trial's presiding officer, would cast a vote

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Speaker 1: to break a tie. Here's Robert's response. If the members

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Speaker 1: of this body, elected by the people and accountable to them,

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Speaker 1: divide equally on a motion, the normal rule is that

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Speaker 1: the motion fails. I think it would be inappropriate for me,

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Speaker 1: an unelected official from a different branch of government, to

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Speaker 1: assert the power to change that result so that the

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Speaker 1: motion would succeed. My guest is Frank Bowman, professor with

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Speaker 1: the University of Zuri and an expert on impeachment. His

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Speaker 1: latest book is High Crimes and Misdemeanors, A History of

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Speaker 1: Impeachment for the Age of Trump. The Chief Justice said

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Speaker 1: it would be inappropriate for him to break any tie

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Speaker 1: votes in a sent impeachment trial. What's your take on

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Speaker 1: his refusal to do that. I understand it from a perspective,

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Speaker 1: I mean, one, he does not want to get himself

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Speaker 1: as sort of the representative of the Supreme Court in

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Speaker 1: the middle of this ugly partisan fight um and breaking

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Speaker 1: a tie on particularly on these issues would certainly be

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Speaker 1: perceived as doing so. Equally important is the sort of

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Speaker 1: pragmatic calculation here. He's going to want to, I think,

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Speaker 1: husband his moral authority or the institutional authority for for

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Speaker 1: occasions when it might matter, and you know, to break

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Speaker 1: a tie on a question of say, witnesses in this case,

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Speaker 1: if that had come up. I mean, Roberts is a

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Speaker 1: smart guy. He can count. He knows that there's no

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Speaker 1: way that President Trump is ever going to be removed,

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Speaker 1: he recognizes, frankly, having listened to all the evidence that

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Speaker 1: the case against Trump is overwhelming on the facts already,

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Speaker 1: nobody except Trump's most ardent partisans believes otherwise. In fact,

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Speaker 1: one of the things you heard at the end from

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Speaker 1: a number of sort of sheepish Republican senators was, in effect,

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Speaker 1: oh well, okay, we don't need to hear more evidence,

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Speaker 1: because actually the case has already proven an additional evidence

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Speaker 1: isn't going to prove it anymore, and which is of

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Speaker 1: course the truth, right, I mean, that's the state of

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Speaker 1: the evidence. So back to Roberts. Roberts knows that he

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Speaker 1: knows the evidence is powerful against the president. Then he

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Speaker 1: knows that additional evidence, whether it's Bolton or anything else,

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Speaker 1: is not going to change the political calculus. You're not

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Speaker 1: going to get twenty Republican senators to vote the guy out.

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Speaker 1: And so that being so, for what purpose would he

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Speaker 1: expend his moral and institutional capital? One can imagine a

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Speaker 1: circumstance where h Justice believe that the president in the

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Speaker 1: office was deeply dangerous to the country, and I saw

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Speaker 1: in front of him a trial where the outcome remained

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Speaker 1: in doubt and hinged perhaps on the production of some

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Speaker 1: additional evidence. And you can imagine therefore a Chief Justice

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Speaker 1: who would be willing to step in and and make

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Speaker 1: judgments about the propriety of introducing that additional events. But

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Speaker 1: Roberts is looking out at a landscape where he knows

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Speaker 1: the result is completely baked in. Why should he expend

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Speaker 1: the courts capital his personal capital in a feudal gesture

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Speaker 1: through where I land on that. I just also want

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Speaker 1: to go through some of the Republican senators some of

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Speaker 1: their excuses. Some people might call it reasoning, other people

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Speaker 1: might call it for not voting for witnesses. Senator Marco Rubio,

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Speaker 1: Republican from Florida, said, just because actions meet a standard

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Speaker 1: of impeachment does not mean it is in the best

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Speaker 1: interest of the country to remove a president from office.

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Speaker 1: If actions meet a standard of impeachment, should a president

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Speaker 1: then be impeached and convicted? Well, I mean this this

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Speaker 1: raises a tricky point. I mean it's sort of an

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Speaker 1: echo of the Clinton affair. In the end, Democrats rationale

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Speaker 1: for quitting Clinton. Indeed, the rationality I think some Republicans

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Speaker 1: who voted for acquittal was it it Clinton had done

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Speaker 1: bad things, he'd committed indeed one or more felonies, but

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Speaker 1: that the gravity of what he had done didn't require

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Speaker 1: his removal. Indeed, the you know, the best interests of

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Speaker 1: the country suggests that he shouldn't be removed. I think

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Speaker 1: that Rubio is making a somewhat inelegant version of the

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Speaker 1: same argument now, and really this is just sort of

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Speaker 1: a terminological quibble. I mean, I would say, as somebody

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Speaker 1: who spends time thinking about impeachment, that if you, as

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Speaker 1: a senator, conclude that the president has committed an impeachable offense,

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Speaker 1: that necessarily requires that you vote to impeach and remove him.

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Speaker 1: But you know, you can also recognize that the whole

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Speaker 1: notion of what's at least a convictable offense, it's not

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Speaker 1: only about the president's conduct, but it's also about the

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Speaker 1: welfare of the country. And I think it's entirely within

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Speaker 1: the sentis purview to conclude that even though a president

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Speaker 1: has done improper things, bad things on a single occasion,

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Speaker 1: that the gravity of those bad things, when weighed against

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Speaker 1: the other good things he's doing for the country, pushes

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Speaker 1: in the direction of a quittal. That's why this is

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Speaker 1: a political process. That's why, in large measure, the Framers

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Speaker 1: gave the decision to the political branches. And I disagree

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Speaker 1: with you Senator Rubio's assessment here. I think not only

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Speaker 1: did the president do it, but the kinds of things

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Speaker 1: he did here are of such gravity that it's hard

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Speaker 1: to see how you can honestly conclude that a he

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Speaker 1: did it and be it's not serious enough to remove him.

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Speaker 1: But that's at least closer to intellectual honesty than, you know,

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Speaker 1: than the president's lawyers or you know, the vast majority

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Speaker 1: of the commentators on Fox News and frankly a number

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Speaker 1: of the other Senators who were walking around saying, well,

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Speaker 1: he didn't actually do anything wrong, that's rubbish. Of course

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Speaker 1: he did. I mean, he did wrong. It was plainly proven.

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Speaker 1: And the question really is does that warrant removal or not?

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Speaker 1: And you know, I think it does. I think any

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Speaker 1: senator with you know, any interest in the Constitution, the

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Speaker 1: preservation of frankly, the checks and balances, any interest in,

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Speaker 1: you know, ensuring that the presidents he doesn't essentially become

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Speaker 1: a kingship, ought to vote to convict and remove this president.

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Speaker 1: But I mean, Rubio is at least close sertain intellectual

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Speaker 1: honesty than some of his his colleagues. One thing that

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Speaker 1: has remained clear throughout this is that there won't be

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Speaker 1: the votes to convict President Trump. So what implications does

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Speaker 1: that have for future impeachments or for future attempts to

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Speaker 1: reign in a president That I think very much depends

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Speaker 1: on a number of things, and one of them is

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Speaker 1: the outcoming outcome of the election. Um remember, of course,

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Speaker 1: that the Framers basically devised two mechanisms for removal of

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Speaker 1: a president who is misbehaving or is underperforming, and one

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Speaker 1: of them is impeachment, of course, but the other's elections.

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Speaker 1: They originally thought about not having impeachments at all because

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Speaker 1: they thought elect Some of them thought elections would be enough,

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Speaker 1: but of course they decided elections might not be enough.

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Speaker 1: But they understood that there also was a relationship between

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Speaker 1: the two. And if Trump escapes conviction in this case,

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Speaker 1: given all the evidence, frankly, given the incredible efforts on

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Speaker 1: the part of the members of his party to conceal

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Speaker 1: the full extent of it, and then manages to win

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Speaker 1: the election anyway, that I think is profoundly troublesome, to

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Speaker 1: the mildest word I can come up with, because not

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Speaker 1: only in the short term will he, I think, feel

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Speaker 1: more or less unbound to completely ignore Congress altogether. But

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Speaker 1: it creates a precedent going forward that we should all

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Speaker 1: be very very wary of. If, on the other hand, um,

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Speaker 1: you know, the President and his party go down to

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Speaker 1: a resounding defeat, then the impeachment will be viewed differently.

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Speaker 1: Eachment will be viewed as one mechanism by which wrongdoing

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Speaker 1: by the president is exposed uh and by which, even

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Speaker 1: if his party protects him, the public has an opportunity

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Speaker 1: to find out what wrong has been done and to

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Speaker 1: respond electorally. Um. I I think we should all be

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Speaker 1: very very afraid here. Unless one is already bound heart

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Speaker 1: and soul to Donald Trump. The consequences of this acquittal

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Speaker 1: followed by re election are very frightening. Indeed, when we

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Speaker 1: look at the three times that presidents have been impeached,

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Speaker 1: does it show that the Framers set the bar too

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Speaker 1: high to require a two thirds vote in the Senate?

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Speaker 1: You know? In retrospect, I kind of think so. I

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Speaker 1: think we ought to. I think we ought to. Uh.

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Speaker 1: I think we ought to be able to remove presidents

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Speaker 1: a little more easily. Maybe not on a you know,

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Speaker 1: on a straight up majority but vote, but certainly you

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Speaker 1: the modern era presidents could use a good deal more accountability,

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Speaker 1: of a good deal more personal and institutional humility. And

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Speaker 1: one of the problems that with this whole imperial presidency

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Speaker 1: that we've created over the last century or so is

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Speaker 1: that not only have we given presidents this fast almost

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Speaker 1: inconceivable personal power. But we've come to think of them

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Speaker 1: as being you know, once we elect them, is somehow

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Speaker 1: are there being indispensable, almost godlike, Um, that they somehow

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Speaker 1: they're embody the executive branch in some almost mystical sense,

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Speaker 1: and that to remove them is you know, a cataclysmic calamity.

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Speaker 1: It's not right, among other things. Um, you know, we now,

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Speaker 1: you know, elect people on a ticket one of the people.

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Speaker 1: Many people don't realize that when the Framers actually created impeachment,

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Speaker 1: the original mechanism for choosing president vice president was that

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Speaker 1: the presidency went to the person who had the most

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Speaker 1: electoral votes, and the vice presidency went to the person

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Speaker 1: who at the second most, which led in the third

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Speaker 1: election to having you know, John Adams be president and

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Speaker 1: his biggest adversary, Thomas Jefferson, be vice president, to predictable results.

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Speaker 1: And if we now had that rule, the vice president

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Speaker 1: obi Hillary Clinton. Obviously it didn't work very well, so

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Speaker 1: they changed it early on the end of the constitution

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Speaker 1: so that presidents and vice presidents were run together. But

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Speaker 1: that being so, all all impeachment means is that we

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Speaker 1: lose the individual at the top of the presidential ticket.

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Speaker 1: And we get the person whom the president chose um

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Speaker 1: to be his second in command or her second in command,

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Speaker 1: which is hardly a cataclysm, and we really ought to

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Speaker 1: be much more ready to dispense with the services of

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Speaker 1: any particular person. Really, the the world does not end

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Speaker 1: if we do that, and the democracy would undoubtedly be

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Speaker 1: healthier if we had something a little closer to a

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Speaker 1: parliamentary system, not exactly what they have where they can

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Speaker 1: get rid of the prime ministers, something with a vote

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Speaker 1: or no confidence in Parliament. Something a little closer to

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Speaker 1: that wouldn't be a bad idea, But then let's be realistic.

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Speaker 1: To fix to fix that problem would require an amendment

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Speaker 1: of the Constitution, and that's, you know, pretty inconceivable. On Sunday,

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Speaker 1: Adam Schiff, the Leader of the House Managers, said about

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Speaker 1: the Bolton information, whether in testimony for before the House,

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Speaker 1: in Bolton's book or in another form, the truth will

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Speaker 1: come out. But should the House of Representatives now be

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Speaker 1: calling Bolton to testify? You know, I'm I'm kind of

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Speaker 1: of two minds on that. I think it, I think

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Speaker 1: it's useful, I think the I think it will be

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Speaker 1: useful for the House to continue to UM employ its

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Speaker 1: oversight power two explore misbehavior by the president and the administration.

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Speaker 1: That's what they're there for, in part I mean is

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Speaker 1: to is to be check and on on the executive

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Speaker 1: and a vigilant overseer of what goes on there. So

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Speaker 1: I think they should do that. On the other hand,

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Speaker 1: what I think Democrats should certainly avoid doing is obsessing

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Speaker 1: over what is now or will be on Wednesday, you know,

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Speaker 1: a lost battle. UM. If all of this impeachment business

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Speaker 1: is to mean anything from the point of view, not

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Speaker 1: just of Democrats, but from the point of view of

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Speaker 1: preserving you know, constitutional government, Donald Trump has to be

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Speaker 1: defeated in November. That will be the event that would

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Speaker 1: validate all of this and would represent an affirmation that

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Speaker 1: the constitution can work in that presidents will not be king.

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Speaker 1: I think if Democrats come obsessed with trying to relitigate

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Speaker 1: UM this this particular impeachment for month after month after

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Speaker 1: month into the summer, they are doing themselves in the

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Speaker 1: country a disservice. They've got to focus on other issues

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Speaker 1: that concerned the country or perhaps even other areas of

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Speaker 1: wrongdoing by Mr Trump. That's fine, but in my view,

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Speaker 1: they need to get to the business at hand, which is,

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Speaker 1: you know, choosing an appropriate presidential candidate, appropriate were running mate,

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Speaker 1: and focus on turning this man out of office through elections.

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Speaker 1: Thanks for being on Bloomberg Law. That's Professor Frank Bowman

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Speaker 1: of the University of Missouri School of Law. His book

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Speaker 1: is High Crimes and Misdemeanors, A History of Impeachment for

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Speaker 1: the Age of Trump. Thanks for listening to the Bloomberg

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Speaker 1: Law podcast. You can subscribe and listen to the show

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Speaker 1: on Apple Podcasts, SoundCloud, and on bloomberg dot com slash podcast.

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Speaker 1: I'm June Brasso. This is Bloomberg, Drunk the t Lent

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Speaker 1: and Duck the Bill.