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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 at the Bloomberg Law Podcast, on Apple podcast, SoundCloud,

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Speaker 1: and on Bloomberg dot com slash podcast. On Wednesday, President

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Speaker 1: Donald Trump was impeached by the House under the leadership

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Speaker 1: of Speaker Nancy Pelosi. No one is about the law

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Speaker 1: and the president has been held accountable. An impeachment trial

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Speaker 1: and the Senate is next. But there seems to be

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Speaker 1: as many questions as answers about what the third presidential

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Speaker 1: impeachment trial and Senate history will look like. Joining me

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Speaker 1: to answer some of them is Jessica Roth, a professor

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Speaker 1: at Cardozo Law School and a former federal prosecutor. Jessica

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Speaker 1: The Constitution, in Article one, Section three, gives the Senate

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Speaker 1: the sole power to try all impeachments, but offers only

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Speaker 1: one thirty four words of guidance about that trial, what

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Speaker 1: specifically the Constitution provide. The Constitution provides that two thirds

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Speaker 1: of the Senators who are present must vote to convict

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Speaker 1: in order for the President or whoever is the subject

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Speaker 1: of the impeachment to actually be convicted. Um, so that's

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Speaker 1: provided in the Constitution. The Constitution also provides that when

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Speaker 1: it is the president who is the subject of the impeachment,

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Speaker 1: that the Chief Justice of the United States Supreme Court

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Speaker 1: shall be the presiding officer in the Senate. And the

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Speaker 1: Constitution also provides that the Senators, when they are sitting

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Speaker 1: as jurors in an impeachment trial, must take a special oath.

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Speaker 1: So many lawmakers on both sides are referring to the

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Speaker 1: senators as jurors in the upcoming impeachment trial. But at

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Speaker 1: the impeachment trial of President Clinton, Chief Justice rank Quist

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Speaker 1: prohibited the House managers from calling the senators jurors. Explain

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Speaker 1: why they're not really like jurors. There are many ways

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Speaker 1: in which they are not like jurors in a normal

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Speaker 1: judicial process, the most important of which is that they

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Speaker 1: are also the determiners of the law as well. So

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Speaker 1: although the Chief Justice can make preliminary rulings, for example,

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Speaker 1: on evidence questions what evidence will be presented to the

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Speaker 1: Senate to decide upon, he can actually be overruled by

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Speaker 1: a majority of the senators on those essentially quasi legal questions.

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Speaker 1: Governing what evidence they will hear, and the same is

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Speaker 1: true with respect to rules governing the process of the

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Speaker 1: impeachment trial that are not strictly about evidence, and so

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Speaker 1: in that sense, they are as much the judges as

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Speaker 1: they are the jurors when we think about the difference

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Speaker 1: in the role between judges and jurors. So that's one way.

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Speaker 1: Another way is that they are exposed to a lot

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Speaker 1: of evidence outside of the process of impeachment. So jurors

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Speaker 1: usually are told, don't consider anything you may have heard

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Speaker 1: outside of the courtroom about this case in rendering your verdict.

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Speaker 1: You must limit your deliberation solely to the evidence that's

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Speaker 1: been presented in the courtroom, and don't discussed the case

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Speaker 1: with anybody outside of court. Nothing could be further here

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Speaker 1: in terms of thinking about what the senators may be

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Speaker 1: taking into account what they've been exposed to, and they

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Speaker 1: can't be sequestered in the way that jurors could be

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Speaker 1: in a highly sensational trial. There are other things you

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Speaker 1: could do in a traditional criminal case if you were

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Speaker 1: concerned about juror impartiality that are not available here. For example,

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Speaker 1: you could seek to postpone a trial that had been

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Speaker 1: the subject of extensive publicity until a time when that

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Speaker 1: publicity had died down. You could also seek a change

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Speaker 1: of venue, to move it to a location where perhaps

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Speaker 1: there hadn't been as much publicity or people weren't as

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Speaker 1: directly affected by the crime that was the subject of

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Speaker 1: the trial. Again, there's no possibility of either of those here.

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Speaker 1: So those are among the ways in which the senators

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Speaker 1: are quite different from jurors in a traditional criminal case.

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Speaker 1: It starts to sound less and less like a traditional trial. Also,

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Speaker 1: the first thing a prosecute or defense attorney will consider

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Speaker 1: when getting ready for a trial or even deciding whether

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Speaker 1: to go to trial is what witnesses will be called.

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Speaker 1: And in this case, Democrats want witnesses, and the Republicans,

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Speaker 1: or at least send a majority leader Mitch McConnell has

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Speaker 1: said he doesn't want witnesses. So what happens there a

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Speaker 1: trial without witnesses. Well, there are no rules, either in

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Speaker 1: the Constitution or in the Senate rules that govern in

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Speaker 1: impeachment proceedings about whether there have to be witnesses. Certainly,

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Speaker 1: the standing rules that have been adopted, the adopted several

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Speaker 1: decades ago to government impeachments contemplate that there would be witnesses,

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Speaker 1: but there don't have to be. But you're right that

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Speaker 1: it's extremely unusual that you would have a normal trial

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Speaker 1: that didn't involve witnesses. We think about that as being

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Speaker 1: really one of the most salient characteristics of a trial,

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Speaker 1: that you actually hear live testimony from witnesses. So it

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Speaker 1: does seem bizarre that we would have something we'd even

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Speaker 1: be calling a trial that would not involve the testimony

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Speaker 1: of witnesses. Is in the Clinton impeachment trial, there was

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Speaker 1: testimony of witnesses, but it was not live. It was

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Speaker 1: done through videotaped testimony. So there's also that, if you will,

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Speaker 1: intermediate step of having not live testimony from witnesses on

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Speaker 1: the Senate floor, but pre prepared videotaped testimony. So Jessica.

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Speaker 1: Many Democrats have been critical of Senate Majority Leader Mitch

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Speaker 1: McConnell for saying there's no chance Trump will be removed

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Speaker 1: from office and also saying I'm going to take my

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Speaker 1: cues from the president's lawyers. But is he just saying

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Speaker 1: what's obvious and is there anything wrong with that? He

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Speaker 1: may be saying the obvious that it does not seem

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Speaker 1: that there are the votes to convict the President based

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Speaker 1: on the already expressed views of a majority of Republican Senators.

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Speaker 1: And so to the event that he's communicating what has

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Speaker 1: already been conveyed publicly by others and just essentially pointing

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Speaker 1: to the numbers, it strikes me that that's okay. When

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Speaker 1: he said that he's doing everything in coordination with the

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Speaker 1: White House and there'll be no distinction between the White

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Speaker 1: House and the Republican Senators on the impeachment trial, that

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Speaker 1: seems more problematic to me, because, as I said, the

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Speaker 1: Constitution does require that the Senators take an oath to

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Speaker 1: try the case impartially, and so to suggest that there

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Speaker 1: will be no independence in the conduct of the trial

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Speaker 1: on the part of Senate Republicans seems to fly in

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Speaker 1: the face of that requirement by Senators that they try

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Speaker 1: the case impartially. You mentioned Chief Justice John Roberts, who

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Speaker 1: will be presiding. Can he decide what evidence will come in?

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Speaker 1: Could he force reluctant witnesses to testify if he wanted to.

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Speaker 1: Chief Justice Roberts will be acting essentially as the spokesperson

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Speaker 1: for the Senate in serving subpoenas on witnesses and ruling

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Speaker 1: on recalcitrant witnesses. Essentially, he's not going to be acting

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Speaker 1: on his own in that regard. The Senators, for example,

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Speaker 1: will be asking him to call witnesses and he would

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Speaker 1: serve the subpoena in their name. Where he will have

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Speaker 1: some independence will be on these evidentiary rulings, but he

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Speaker 1: doesn't have to actually make those rulings. The rules governing

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Speaker 1: the empeachment proceedings say that he may rule on evidentiary questions,

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Speaker 1: but he doesn't have to. He could defer to a

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Speaker 1: majority of the Senate in the first instance on those questions,

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Speaker 1: or if he exercises his discretion to make an initial ruling,

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Speaker 1: that could be overridden by a Senate majority. So that's

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Speaker 1: the space where he has some room for independence, but

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Speaker 1: it's not absolute. As I said, he could be overridden

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Speaker 1: by a majority. And in the Clinton impeachment trial, Chief

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Speaker 1: Justice Rehnquist took a very sort of passive role, was

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Speaker 1: very deferential to the majority in the Senate, and really

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Speaker 1: seemed to be seeking to play a minimalist role in

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Speaker 1: that process. So it will be interesting to see how

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Speaker 1: Chief Justice Roberts decides to view his role and exercise

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Speaker 1: the discretion he does have under the rules governing impeachment.

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Speaker 1: Thanks Jessica. That's Jessica Roth of Cardosa Law School. Thanks

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

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

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

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Speaker 1: is Bloomberg