WEBVTT - What’s Ahead at Senate Impeachment Trial 0:00:03.520 --> 0:00:07.040 Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every 0:00:07.120 --> 0:00:09.680 day we bring you insight and analysis into the most 0:00:09.720 --> 0:00:12.200 important legal news of the day. You can find more 0:00:12.240 --> 0:00:16.160 episodes at the Bloomberg Law Podcast, on Apple podcast, SoundCloud, 0:00:16.280 --> 0:00:20.400 and on Bloomberg dot com slash podcast. On Wednesday, President 0:00:20.440 --> 0:00:23.400 Donald Trump was impeached by the House under the leadership 0:00:23.400 --> 0:00:26.720 of Speaker Nancy Pelosi. No one is about the law 0:00:26.800 --> 0:00:31.160 and the president has been held accountable. An impeachment trial 0:00:31.200 --> 0:00:33.320 and the Senate is next. But there seems to be 0:00:33.360 --> 0:00:36.880 as many questions as answers about what the third presidential 0:00:36.920 --> 0:00:40.199 impeachment trial and Senate history will look like. Joining me 0:00:40.280 --> 0:00:42.720 to answer some of them is Jessica Roth, a professor 0:00:42.760 --> 0:00:47.040 at Cardozo Law School and a former federal prosecutor. Jessica 0:00:47.120 --> 0:00:50.600 The Constitution, in Article one, Section three, gives the Senate 0:00:50.680 --> 0:00:54.840 the sole power to try all impeachments, but offers only 0:00:54.880 --> 0:00:58.880 one thirty four words of guidance about that trial, what 0:00:59.080 --> 0:01:04.960 specifically the Constitution provide. The Constitution provides that two thirds 0:01:05.000 --> 0:01:08.720 of the Senators who are present must vote to convict 0:01:08.800 --> 0:01:11.199 in order for the President or whoever is the subject 0:01:11.280 --> 0:01:14.640 of the impeachment to actually be convicted. Um, so that's 0:01:14.640 --> 0:01:18.280 provided in the Constitution. The Constitution also provides that when 0:01:18.319 --> 0:01:20.800 it is the president who is the subject of the impeachment, 0:01:21.000 --> 0:01:23.480 that the Chief Justice of the United States Supreme Court 0:01:23.560 --> 0:01:26.440 shall be the presiding officer in the Senate. And the 0:01:26.480 --> 0:01:29.319 Constitution also provides that the Senators, when they are sitting 0:01:29.360 --> 0:01:33.080 as jurors in an impeachment trial, must take a special oath. 0:01:33.400 --> 0:01:37.360 So many lawmakers on both sides are referring to the 0:01:37.440 --> 0:01:42.000 senators as jurors in the upcoming impeachment trial. But at 0:01:42.040 --> 0:01:45.639 the impeachment trial of President Clinton, Chief Justice rank Quist 0:01:45.920 --> 0:01:50.280 prohibited the House managers from calling the senators jurors. Explain 0:01:50.400 --> 0:01:54.040 why they're not really like jurors. There are many ways 0:01:54.080 --> 0:01:56.160 in which they are not like jurors in a normal 0:01:56.360 --> 0:01:59.800 judicial process, the most important of which is that they 0:01:59.840 --> 0:02:03.560 are also the determiners of the law as well. So 0:02:03.640 --> 0:02:07.760 although the Chief Justice can make preliminary rulings, for example, 0:02:08.160 --> 0:02:11.280 on evidence questions what evidence will be presented to the 0:02:11.320 --> 0:02:14.799 Senate to decide upon, he can actually be overruled by 0:02:14.840 --> 0:02:19.520 a majority of the senators on those essentially quasi legal questions. 0:02:19.880 --> 0:02:22.880 Governing what evidence they will hear, and the same is 0:02:22.880 --> 0:02:26.040 true with respect to rules governing the process of the 0:02:26.080 --> 0:02:29.240 impeachment trial that are not strictly about evidence, and so 0:02:29.320 --> 0:02:32.000 in that sense, they are as much the judges as 0:02:32.040 --> 0:02:35.079 they are the jurors when we think about the difference 0:02:35.080 --> 0:02:38.200 in the role between judges and jurors. So that's one way. 0:02:38.480 --> 0:02:41.640 Another way is that they are exposed to a lot 0:02:41.720 --> 0:02:47.400 of evidence outside of the process of impeachment. So jurors 0:02:47.600 --> 0:02:50.959 usually are told, don't consider anything you may have heard 0:02:51.000 --> 0:02:54.920 outside of the courtroom about this case in rendering your verdict. 0:02:54.960 --> 0:02:57.520 You must limit your deliberation solely to the evidence that's 0:02:57.560 --> 0:03:00.720 been presented in the courtroom, and don't discussed the case 0:03:00.720 --> 0:03:04.639 with anybody outside of court. Nothing could be further here 0:03:04.800 --> 0:03:07.400 in terms of thinking about what the senators may be 0:03:07.520 --> 0:03:11.119 taking into account what they've been exposed to, and they 0:03:11.160 --> 0:03:14.040 can't be sequestered in the way that jurors could be 0:03:14.080 --> 0:03:16.880 in a highly sensational trial. There are other things you 0:03:16.919 --> 0:03:20.600 could do in a traditional criminal case if you were 0:03:20.639 --> 0:03:25.519 concerned about juror impartiality that are not available here. For example, 0:03:25.600 --> 0:03:28.760 you could seek to postpone a trial that had been 0:03:28.760 --> 0:03:31.920 the subject of extensive publicity until a time when that 0:03:31.919 --> 0:03:35.000 publicity had died down. You could also seek a change 0:03:35.000 --> 0:03:37.720 of venue, to move it to a location where perhaps 0:03:37.720 --> 0:03:40.320 there hadn't been as much publicity or people weren't as 0:03:40.360 --> 0:03:43.640 directly affected by the crime that was the subject of 0:03:43.680 --> 0:03:48.120 the trial. Again, there's no possibility of either of those here. 0:03:48.160 --> 0:03:51.000 So those are among the ways in which the senators 0:03:51.040 --> 0:03:53.960 are quite different from jurors in a traditional criminal case. 0:03:54.240 --> 0:03:58.720 It starts to sound less and less like a traditional trial. Also, 0:03:58.760 --> 0:04:02.000 the first thing a prosecute or defense attorney will consider 0:04:02.040 --> 0:04:04.520 when getting ready for a trial or even deciding whether 0:04:04.520 --> 0:04:07.280 to go to trial is what witnesses will be called. 0:04:07.680 --> 0:04:11.520 And in this case, Democrats want witnesses, and the Republicans, 0:04:11.720 --> 0:04:14.160 or at least send a majority leader Mitch McConnell has 0:04:14.200 --> 0:04:17.520 said he doesn't want witnesses. So what happens there a 0:04:17.520 --> 0:04:21.800 trial without witnesses. Well, there are no rules, either in 0:04:21.839 --> 0:04:25.320 the Constitution or in the Senate rules that govern in 0:04:25.400 --> 0:04:29.880 impeachment proceedings about whether there have to be witnesses. Certainly, 0:04:30.120 --> 0:04:32.840 the standing rules that have been adopted, the adopted several 0:04:32.839 --> 0:04:36.800 decades ago to government impeachments contemplate that there would be witnesses, 0:04:37.160 --> 0:04:39.599 but there don't have to be. But you're right that 0:04:39.680 --> 0:04:43.159 it's extremely unusual that you would have a normal trial 0:04:43.600 --> 0:04:47.360 that didn't involve witnesses. We think about that as being 0:04:47.440 --> 0:04:50.359 really one of the most salient characteristics of a trial, 0:04:50.400 --> 0:04:53.520 that you actually hear live testimony from witnesses. So it 0:04:53.560 --> 0:04:55.720 does seem bizarre that we would have something we'd even 0:04:55.760 --> 0:04:58.920 be calling a trial that would not involve the testimony 0:04:59.040 --> 0:05:02.839 of witnesses. Is in the Clinton impeachment trial, there was 0:05:02.920 --> 0:05:05.400 testimony of witnesses, but it was not live. It was 0:05:05.480 --> 0:05:09.080 done through videotaped testimony. So there's also that, if you will, 0:05:09.200 --> 0:05:12.960 intermediate step of having not live testimony from witnesses on 0:05:12.960 --> 0:05:18.120 the Senate floor, but pre prepared videotaped testimony. So Jessica. 0:05:18.320 --> 0:05:22.360 Many Democrats have been critical of Senate Majority Leader Mitch 0:05:22.440 --> 0:05:25.760 McConnell for saying there's no chance Trump will be removed 0:05:25.760 --> 0:05:28.599 from office and also saying I'm going to take my 0:05:28.720 --> 0:05:33.279 cues from the president's lawyers. But is he just saying 0:05:33.480 --> 0:05:37.040 what's obvious and is there anything wrong with that? He 0:05:37.200 --> 0:05:40.000 may be saying the obvious that it does not seem 0:05:40.040 --> 0:05:43.200 that there are the votes to convict the President based 0:05:43.240 --> 0:05:49.200 on the already expressed views of a majority of Republican Senators. 0:05:49.480 --> 0:05:52.160 And so to the event that he's communicating what has 0:05:52.240 --> 0:05:55.680 already been conveyed publicly by others and just essentially pointing 0:05:55.680 --> 0:05:59.400 to the numbers, it strikes me that that's okay. When 0:05:59.480 --> 0:06:02.160 he said that he's doing everything in coordination with the 0:06:02.200 --> 0:06:04.520 White House and there'll be no distinction between the White 0:06:04.520 --> 0:06:07.839 House and the Republican Senators on the impeachment trial, that 0:06:07.839 --> 0:06:11.240 seems more problematic to me, because, as I said, the 0:06:11.360 --> 0:06:14.640 Constitution does require that the Senators take an oath to 0:06:14.720 --> 0:06:18.719 try the case impartially, and so to suggest that there 0:06:18.720 --> 0:06:21.919 will be no independence in the conduct of the trial 0:06:22.320 --> 0:06:25.159 on the part of Senate Republicans seems to fly in 0:06:25.200 --> 0:06:29.200 the face of that requirement by Senators that they try 0:06:29.360 --> 0:06:33.840 the case impartially. You mentioned Chief Justice John Roberts, who 0:06:33.839 --> 0:06:37.920 will be presiding. Can he decide what evidence will come in? 0:06:38.120 --> 0:06:42.440 Could he force reluctant witnesses to testify if he wanted to. 0:06:42.960 --> 0:06:48.080 Chief Justice Roberts will be acting essentially as the spokesperson 0:06:48.279 --> 0:06:53.880 for the Senate in serving subpoenas on witnesses and ruling 0:06:54.040 --> 0:06:58.200 on recalcitrant witnesses. Essentially, he's not going to be acting 0:06:58.600 --> 0:07:02.760 on his own in that regard. The Senators, for example, 0:07:02.800 --> 0:07:06.400 will be asking him to call witnesses and he would 0:07:06.400 --> 0:07:09.960 serve the subpoena in their name. Where he will have 0:07:10.160 --> 0:07:14.520 some independence will be on these evidentiary rulings, but he 0:07:14.600 --> 0:07:19.120 doesn't have to actually make those rulings. The rules governing 0:07:19.240 --> 0:07:24.040 the empeachment proceedings say that he may rule on evidentiary questions, 0:07:24.080 --> 0:07:27.280 but he doesn't have to. He could defer to a 0:07:27.360 --> 0:07:31.080 majority of the Senate in the first instance on those questions, 0:07:31.240 --> 0:07:34.600 or if he exercises his discretion to make an initial ruling, 0:07:35.040 --> 0:07:39.480 that could be overridden by a Senate majority. So that's 0:07:39.520 --> 0:07:42.760 the space where he has some room for independence, but 0:07:43.000 --> 0:07:46.760 it's not absolute. As I said, he could be overridden 0:07:46.800 --> 0:07:50.360 by a majority. And in the Clinton impeachment trial, Chief 0:07:50.400 --> 0:07:53.920 Justice Rehnquist took a very sort of passive role, was 0:07:54.080 --> 0:07:57.720 very deferential to the majority in the Senate, and really 0:07:57.760 --> 0:08:00.400 seemed to be seeking to play a minimalist role in 0:08:00.440 --> 0:08:03.320 that process. So it will be interesting to see how 0:08:03.400 --> 0:08:07.440 Chief Justice Roberts decides to view his role and exercise 0:08:07.520 --> 0:08:11.120 the discretion he does have under the rules governing impeachment. 0:08:11.280 --> 0:08:16.640 Thanks Jessica. That's Jessica Roth of Cardosa Law School. Thanks 0:08:16.640 --> 0:08:19.960 for listening to the Bloomberg Law Podcast. You can subscribe 0:08:19.960 --> 0:08:23.200 and listen to the show on Apple Podcasts, SoundCloud, and 0:08:23.280 --> 0:08:27.760 on bloomberg dot com slash podcast. I'm June Brosso. This 0:08:28.080 --> 0:08:28.800 is Bloomberg