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Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every

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Speaker 1: day we bring you insight and analysis into the most

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Speaker 1: important legal news of the day. You can find more

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Speaker 1: episodes of the Bloomberg Law Podcast on Apple Podcasts, SoundCloud,

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Speaker 1: and on Bloomberg dot com slash podcasts. Before President Trump

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Speaker 1: took the oath of office, there were already whispers about impeachment.

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Speaker 1: Those have grown louder as Trump ignores presidential norms and

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Speaker 1: tradition and tweets defiance of the rule of law. But

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Speaker 1: in the history of our country, no president has ever

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Speaker 1: been removed from office by impeachment. For good reason, one

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Speaker 1: of the nation's pre eminent constitutional law scholars, Lawrence Tribe,

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Speaker 1: professor at Harvard Law School, has written a new book

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Speaker 1: entitled to End a Presidency, The Power of Impeachment. He

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Speaker 1: joins me, now, thanks for being here, Larry, thank you.

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Speaker 1: So let's begin with the definition of high crimes and misdemeanors.

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Speaker 1: You write that when we think about high crimes and misdemeans,

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Speaker 1: we must ask will we survive this presidency? And if

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Speaker 1: we do, what kind of nation will we have become?

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Speaker 1: Explain that concept and where the abuse of power fits

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Speaker 1: into the considerations well. The original meaning of the phrase

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Speaker 1: high crimes and misdemeanors, which was added to make sure

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Speaker 1: that not only treason and bribery, but other grave abuses

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Speaker 1: of presidential power would be able to trigger impeachment and removal.

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Speaker 1: The original meaning had little or nothing to do with

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Speaker 1: ordinary crimes like tax evasion, and it had everything to

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Speaker 1: do with things that might or might not be criminal,

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Speaker 1: but that would undermine the system of checks and balances

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Speaker 1: and the rule of law. And that's what we have,

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Speaker 1: at least potentially in the case of Donald Trump. We

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Speaker 1: have a range of things from possible cooperation with Russia

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Speaker 1: in order to be home president and to do so

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Speaker 1: in violation of numerous laws. And we have a whole

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Speaker 1: series of things since his presidency that individually might not

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Speaker 1: be obstruction of justice or might but fit form a

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Speaker 1: pattern of obstruction, like dangling the possibility of pardons in

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Speaker 1: front of those who might incriminate him, firing the FBI

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Speaker 1: director and making clear the very next day that he

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Speaker 1: was doing it with Russia in mind, and taking a

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Speaker 1: number of other steps. So let's take up the pardon power,

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Speaker 1: which you mentioned. He's used the pardon power early in

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Speaker 1: his term, he's bypassed the office of the pardon attorney

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Speaker 1: for reasons that seemed to radiate around a defiance for

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Speaker 1: the judicial process. Has he actually crossed a line into

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Speaker 1: abuse of the pardon power with any of his pardons, Well,

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Speaker 1: I don't think the untraditional character of what he's doing

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Speaker 1: crosses an impeachable line. Its heart and parcel of his

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Speaker 1: deviation from all kinds of norms, which is dangerous in

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Speaker 1: the long run, but would be hard to claim as

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Speaker 1: a basis for removing a president. On the other hand,

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Speaker 1: take the example of Joe R. Pio, the infamously racist

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Speaker 1: sheriff who was convicted initially of violating the civil rights

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Speaker 1: of immigrants by rounding them up based on their appearance

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Speaker 1: as non white and as non citizens, whether they were

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Speaker 1: or were not, and who was ordered by a federal

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Speaker 1: court to stop that kind of racial profiling. He basically

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Speaker 1: thumbed his notes that the court defied. It was convicted

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Speaker 1: of contempt. And it was that contempt conviction that the

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Speaker 1: President of the United States, with a great flourish set aside,

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Speaker 1: saying Joe is a good guy and I'm in his

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Speaker 1: corner of that. Our book argues, is a serious abuse

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Speaker 1: of the pardon power. Even standing alone, it might eventually

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Speaker 1: count as an impeachable offense because it basically challenges the

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Speaker 1: ability of courts to enforce rights under the Constitution. As

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Speaker 1: if the president basically can say I don't like this

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Speaker 1: or that group of citizens, so I don't care who

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Speaker 1: violates their rights or defies the courts when they tell

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Speaker 1: them to stop, I'm going to pardon them. That's a

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Speaker 1: fundamental abuse. And the whole system of checks and balances

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Speaker 1: couldn't survive if presidents could do that. So, Larry, as

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Speaker 1: you know, in our history, the Senate has never gotten

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Speaker 1: the two thirds vote necessary to throw a president out

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Speaker 1: of office. And one of the questions you write is

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Speaker 1: crucial to ask when considering impeachment is whether removal is

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Speaker 1: likely to succeed. How do you decide that in what

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Speaker 1: may be a changing scenario. Well, you can't decide it

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Speaker 1: with certitude, but if it's clear, as it would be

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Speaker 1: for example today, that there just wouldn't be sixty votes

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Speaker 1: the two thirds needed in the Senate to remove the president,

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Speaker 1: deciding to impeach him, even if you have the votes

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Speaker 1: in the House, could be a foolhardy effort foolhardy, because

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Speaker 1: he would be acquitted in the Senate in all likelihood

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Speaker 1: and would then go around saying no, no obstruction, no collusion.

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Speaker 1: See I was innocent. It was a witch hunter all along,

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Speaker 1: and he would be emboldened. And you can't do it

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Speaker 1: more than once to a single president, sort of like

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Speaker 1: the Boy who Cried Wolf. So you have to be

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Speaker 1: very careful about not moving too quickly, but also not

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Speaker 1: moving too slowly, because if a president threatens the rule

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Speaker 1: of law and threatens the very survival of our democracy,

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Speaker 1: saying that we will do nothing about it is really unacceptable.

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Speaker 1: So what's your opinion, after studying this for decades and

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Speaker 1: after writing this book, should try be impeached? Well, my

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Speaker 1: opinion is it would be a big mistake to have

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Speaker 1: a clear opinion of that until the full investigation occurs.

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Speaker 1: That is, if somebody says, oh, I'm convinced he should

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Speaker 1: be impeached, then that person can't really take part in

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Speaker 1: a meaningful way in the national dialogue that's needed when

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Speaker 1: the impeachment investigation and impeachment resolutions come to the floor

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Speaker 1: for debate. A lot of this is not like a

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Speaker 1: snapshot it's a movie. It's a question of how the

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Speaker 1: president reacts to every step of the impeachment process. If,

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Speaker 1: for example, the Democrats were to win a majority in

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Speaker 1: the House of Representatives in the fall, and we're to

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Speaker 1: start a broad scale impeachment investigation of the kind that

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Speaker 1: the House engaged in for ten months with respect to

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Speaker 1: Richard Nixon, another kind that unlike a grand jury, would

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Speaker 1: be open to the public. If the President at that

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Speaker 1: point refuses to testify under oath, or if he refuses

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Speaker 1: to comply with a subpoena, that kind of reaction would

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Speaker 1: I think constitute enough to say that we really have

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Speaker 1: to move forward, and hopefully the Senate would also be

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Speaker 1: outraged by that sort of defiance. But trying to predict

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Speaker 1: all of that now, I think would be really unwise.

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Speaker 1: About only a minute left, But is there any other

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Speaker 1: way to reign Trump in other than impeaching him? Oh?

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Speaker 1: I think there is. I mean one of the most

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Speaker 1: important things is through the subpoena and investigatory power. That

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Speaker 1: as if the House turns to Democratic hands, and if

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Speaker 1: they're smart enough not to suddenly jump to impeach, which

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Speaker 1: is really not why people would want to be electing Democrats,

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Speaker 1: but to conduct the kind of investigation I've talked about

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Speaker 1: that would begin raining him in by exposing for all

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Speaker 1: the world to see things that simply couldn't be denied

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Speaker 1: about the way he made his decision about Zte after

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Speaker 1: China gave half a billion dollars to an Indernesia project

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Speaker 1: in which he had a serious stake, the way his

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Speaker 1: policies with respect the Cutter moved back and forth depending

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Speaker 1: on how nice Cutter was being to his son in law,

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Speaker 1: all sorts of things that would brain him in simply

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Speaker 1: by exposure. And of course, thank you, Larry, I'm sorry,

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Speaker 1: we've come to the ending of our time. That's Harvard

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Speaker 1: Law School professor Lawrence Drive his book to end up Presidency,

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Speaker 1: The Power of Impeachment. Ever since he signed on to

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Speaker 1: be President Trump's chief lawyer in the Russia investigation, Ruted,

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Speaker 1: Giuliani has been a near constant presence. This week, he

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Speaker 1: addressed a business conference in Tel Aviv. A group of

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Speaker 1: thirteen highly partisan Democrats that make up the Muller team,

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Speaker 1: excluding him, are trying very very hard to frame him,

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Speaker 1: to get him in trouble when he hasn't done anything wrong. However,

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Speaker 1: Bloomberg is reporting that, despite Giuliani's continuing broadcast appearances, the

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Speaker 1: Mueller team is viewing the former New York mayor more

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Speaker 1: as a spokesman than a lawyer. Joining me as William Banks,

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Speaker 1: Professor at Syracuse University Law School, Bill Giuliani seems to

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Speaker 1: be constantly raising the bar with how outrageous and far

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Speaker 1: from any valid legal theories his statements are, the allegations

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Speaker 1: of conspiracy and fixing the case. Is he now crossing

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Speaker 1: any legal line of zealous advocacy for his client? Well,

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Speaker 1: I think, as you said in your introduction, if he's

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Speaker 1: been viewed more as a spokesperson or and advocate for

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Speaker 1: the president as his lawyer, perhaps not as his lawyer's

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Speaker 1: certainly grandstanding, I think, and and exceeding what a lawyer

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Speaker 1: would do, and representing client in the private sector. I

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Speaker 1: think it's it's all acclanish and unfortunate. So as we

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Speaker 1: look at how the Mueller team is viewing him, is

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Speaker 1: he effectively not able to do any kind of negotiations

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Speaker 1: with them because his statements have been discounted by, for example,

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Speaker 1: the Secretary of State Mike Pompeo, First Lady Milanni a

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Speaker 1: Trump documents filed in the Muller investigation, So does he

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Speaker 1: have any credibility at all with the with the Muller team. Well,

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Speaker 1: it's hard to know what what a one on one

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Speaker 1: conversation might be like without the reporters present, without any

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Speaker 1: comments thereafter, so we can't be sure. It's I think

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Speaker 1: it's a good thing for the President that he has

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Speaker 1: a larger legal team than than just Mr Giulianti. And

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Speaker 1: as far as the Muller team itself and what they

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Speaker 1: are doing, do do any of his comments have any impact,

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Speaker 1: because it does seem that his comments may be affecting

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Speaker 1: the public's perception about impeachment or some of the public's perception,

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Speaker 1: right you know, this is of course it's attorney for

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Speaker 1: our news cycle, and those perceptions are so volnable and

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Speaker 1: changing very much. Doubt that it's having any impact on

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Speaker 1: the investigation or on the Molar team. They've had their

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Speaker 1: heads down doing their job now for more than a year,

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Speaker 1: and they're all kinds of attempts by everybody, from the

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Speaker 1: President the Fox News to distract them. But it's not

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Speaker 1: worth now just to change topics for a moment here.

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Speaker 1: The former head of Security for the Senate Intelligence Committee

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Speaker 1: was arrested yesterday on charges he lied to the FBI

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Speaker 1: about his contracts with reporters in an investigation into leaks.

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Speaker 1: Tell us more about this and your take on it. Well,

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Speaker 1: it is a very disturbing report. It's very disturbing if

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Speaker 1: the allegations are true. This is a staff member for

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Speaker 1: perhaps the most sensitive committee in all of Congress, the

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Speaker 1: Senate Intelligence Committee. Their members obviously often currently in classified session,

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Speaker 1: and he, this staff member was responsible for assuring the

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Speaker 1: security of their materials and their meetings. So if he

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Speaker 1: was communicating with a reporter outside the meeting and course

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Speaker 1: against all protocols and all rules, he's certainly in very

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Speaker 1: deep trouble personally, and and it's going to require us

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Speaker 1: to take a second look at how we assure the

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Speaker 1: security of those proceedings. Is there any indication that there

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Speaker 1: there was a leak of information that was classified that

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Speaker 1: we know about that became published. Yes, No, that's not

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Speaker 1: clear as of yet. It may be it may have

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Speaker 1: been something that was classified at the time, but then

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Speaker 1: it was also released in other forms later, so that

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Speaker 1: it's nothing that we who are learning, uh, you know,

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Speaker 1: simply by virtue of whatever communication he had with the reporter.

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Speaker 1: I think, in other words, it may have been classified

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Speaker 1: at the time time, it sounds like it was, But

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Speaker 1: since it has been in the public domain, does it

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Speaker 1: seem to you as if classified materials are having less

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Speaker 1: impact the fact that they're classified than they did in

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Speaker 1: the past. We had the you know, the Senate, the

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Speaker 1: excuse me, the House Intelligence Committee looking into those the

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Speaker 1: allegations at the spy was planted and the man's name

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Speaker 1: was revealed in certain publications, even though there was a

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Speaker 1: fight about it. You know, I think the classification system

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Speaker 1: has come under fire. I think for many years it's

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Speaker 1: been fair to argue that there's too much that's classified,

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Speaker 1: and indeed, from the Bush administration and the Obama administration,

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Speaker 1: considerable efforts were made to lessen the amount of new

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Speaker 1: classified materials and to work at more rapidly declassified materials

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Speaker 1: that have been classified for a long time. Leaking as

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Speaker 1: another matter, and you know, leaks have been around for

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Speaker 1: as long as they've been secrets. Uh, and that was

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Speaker 1: electronic media and capabilities we had to garner information. I

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Speaker 1: think both leaking leaking is easier as is as is

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Speaker 1: failing to keep secrets. Trump applauded the charges against the

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Speaker 1: former head of security and the charges are lying to

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Speaker 1: the FBI. Is that a contradiction with what he said

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Speaker 1: before and specifically with his talk of a future pardon

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Speaker 1: for Martha Stewart about a minute here. Yes, well, Uh,

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Speaker 1: the president has never been one to hold too close

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Speaker 1: to a line of consistency, and he he picks his

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Speaker 1: favorites and his targets. I think that, you know, the

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Speaker 1: crime of lying to the FBI, like line to Congress,

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Speaker 1: is a serious federal offense. And we've learned that already

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Speaker 1: several times in the Trump Russian investigation, starting with his

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Speaker 1: own first national Secarney advisor. So I think, uh, if

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Speaker 1: he's going to pick to pardon convicted persons who who

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Speaker 1: are celebrities, are someone who he thinks he can score

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Speaker 1: points with, that's simply uh, the president of being the president.

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Speaker 1: I don't look for him to be consistent in that way.

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Speaker 1: Thanks so much, Phil. That's William Banks. He's a professor

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Speaker 1: at Syracuse University Law School and expert on national security.

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Speaker 1: Thanks for listening to the Bloomberg Law Podcast. You can

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Speaker 1: subscribe and listen to the show on Apple Podcasts. SoundCloud

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Speaker 1: and on bloomberg dot com slash podcast. I'm June Brosso.

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Speaker 1: This is Bloomberg Ye