Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every
Speaker 1: day we bring you insight and analysis into the most
Speaker 1: important legal news of the day. You can find more
Speaker 1: episodes at the Bloomberg Law Podcast, on Apple podcast, SoundCloud,
Speaker 1: and on Bloomberg dot com slash podcast. On Wednesday, President
Speaker 1: Donald Trump was impeached by the House under the leadership
Speaker 1: of Speaker Nancy Pelosi. No one is about the law
Speaker 1: and the president has been held accountable. An impeachment trial
Speaker 1: and the Senate is next. But there seems to be
Speaker 1: as many questions as answers about what the third presidential
Speaker 1: impeachment trial and Senate history will look like. Joining me
Speaker 1: to answer some of them is Jessica Roth, a professor
Speaker 1: at Cardozo Law School and a former federal prosecutor. Jessica
Speaker 1: The Constitution, in Article one, Section three, gives the Senate
Speaker 1: the sole power to try all impeachments, but offers only
Speaker 1: one thirty four words of guidance about that trial, what
Speaker 1: specifically the Constitution provide. The Constitution provides that two thirds
Speaker 1: of the Senators who are present must vote to convict
Speaker 1: in order for the President or whoever is the subject
Speaker 1: of the impeachment to actually be convicted. Um, so that's
Speaker 1: provided in the Constitution. The Constitution also provides that when
Speaker 1: it is the president who is the subject of the impeachment,
Speaker 1: that the Chief Justice of the United States Supreme Court
Speaker 1: shall be the presiding officer in the Senate. And the
Speaker 1: Constitution also provides that the Senators, when they are sitting
Speaker 1: as jurors in an impeachment trial, must take a special oath.
Speaker 1: So many lawmakers on both sides are referring to the
Speaker 1: senators as jurors in the upcoming impeachment trial. But at
Speaker 1: the impeachment trial of President Clinton, Chief Justice rank Quist
Speaker 1: prohibited the House managers from calling the senators jurors. Explain
Speaker 1: why they're not really like jurors. There are many ways
Speaker 1: in which they are not like jurors in a normal
Speaker 1: judicial process, the most important of which is that they
Speaker 1: are also the determiners of the law as well. So
Speaker 1: although the Chief Justice can make preliminary rulings, for example,
Speaker 1: on evidence questions what evidence will be presented to the
Speaker 1: Senate to decide upon, he can actually be overruled by
Speaker 1: a majority of the senators on those essentially quasi legal questions.
Speaker 1: Governing what evidence they will hear, and the same is
Speaker 1: true with respect to rules governing the process of the
Speaker 1: impeachment trial that are not strictly about evidence, and so
Speaker 1: in that sense, they are as much the judges as
Speaker 1: they are the jurors when we think about the difference
Speaker 1: in the role between judges and jurors. So that's one way.
Speaker 1: Another way is that they are exposed to a lot
Speaker 1: of evidence outside of the process of impeachment. So jurors
Speaker 1: usually are told, don't consider anything you may have heard
Speaker 1: outside of the courtroom about this case in rendering your verdict.
Speaker 1: You must limit your deliberation solely to the evidence that's
Speaker 1: been presented in the courtroom, and don't discussed the case
Speaker 1: with anybody outside of court. Nothing could be further here
Speaker 1: in terms of thinking about what the senators may be
Speaker 1: taking into account what they've been exposed to, and they
Speaker 1: can't be sequestered in the way that jurors could be
Speaker 1: in a highly sensational trial. There are other things you
Speaker 1: could do in a traditional criminal case if you were
Speaker 1: concerned about juror impartiality that are not available here. For example,
Speaker 1: you could seek to postpone a trial that had been
Speaker 1: the subject of extensive publicity until a time when that
Speaker 1: publicity had died down. You could also seek a change
Speaker 1: of venue, to move it to a location where perhaps
Speaker 1: there hadn't been as much publicity or people weren't as
Speaker 1: directly affected by the crime that was the subject of
Speaker 1: the trial. Again, there's no possibility of either of those here.
Speaker 1: So those are among the ways in which the senators
Speaker 1: are quite different from jurors in a traditional criminal case.
Speaker 1: It starts to sound less and less like a traditional trial. Also,
Speaker 1: the first thing a prosecute or defense attorney will consider
Speaker 1: when getting ready for a trial or even deciding whether
Speaker 1: to go to trial is what witnesses will be called.
Speaker 1: And in this case, Democrats want witnesses, and the Republicans,
Speaker 1: or at least send a majority leader Mitch McConnell has
Speaker 1: said he doesn't want witnesses. So what happens there a
Speaker 1: trial without witnesses. Well, there are no rules, either in
Speaker 1: the Constitution or in the Senate rules that govern in
Speaker 1: impeachment proceedings about whether there have to be witnesses. Certainly,
Speaker 1: the standing rules that have been adopted, the adopted several
Speaker 1: decades ago to government impeachments contemplate that there would be witnesses,
Speaker 1: but there don't have to be. But you're right that
Speaker 1: it's extremely unusual that you would have a normal trial
Speaker 1: that didn't involve witnesses. We think about that as being
Speaker 1: really one of the most salient characteristics of a trial,
Speaker 1: that you actually hear live testimony from witnesses. So it
Speaker 1: does seem bizarre that we would have something we'd even
Speaker 1: be calling a trial that would not involve the testimony
Speaker 1: of witnesses. Is in the Clinton impeachment trial, there was
Speaker 1: testimony of witnesses, but it was not live. It was
Speaker 1: done through videotaped testimony. So there's also that, if you will,
Speaker 1: intermediate step of having not live testimony from witnesses on
Speaker 1: the Senate floor, but pre prepared videotaped testimony. So Jessica.
Speaker 1: Many Democrats have been critical of Senate Majority Leader Mitch
Speaker 1: McConnell for saying there's no chance Trump will be removed
Speaker 1: from office and also saying I'm going to take my
Speaker 1: cues from the president's lawyers. But is he just saying
Speaker 1: what's obvious and is there anything wrong with that? He
Speaker 1: may be saying the obvious that it does not seem
Speaker 1: that there are the votes to convict the President based
Speaker 1: on the already expressed views of a majority of Republican Senators.
Speaker 1: And so to the event that he's communicating what has
Speaker 1: already been conveyed publicly by others and just essentially pointing
Speaker 1: to the numbers, it strikes me that that's okay. When
Speaker 1: he said that he's doing everything in coordination with the
Speaker 1: White House and there'll be no distinction between the White
Speaker 1: House and the Republican Senators on the impeachment trial, that
Speaker 1: seems more problematic to me, because, as I said, the
Speaker 1: Constitution does require that the Senators take an oath to
Speaker 1: try the case impartially, and so to suggest that there
Speaker 1: will be no independence in the conduct of the trial
Speaker 1: on the part of Senate Republicans seems to fly in
Speaker 1: the face of that requirement by Senators that they try
Speaker 1: the case impartially. You mentioned Chief Justice John Roberts, who
Speaker 1: will be presiding. Can he decide what evidence will come in?
Speaker 1: Could he force reluctant witnesses to testify if he wanted to.
Speaker 1: Chief Justice Roberts will be acting essentially as the spokesperson
Speaker 1: for the Senate in serving subpoenas on witnesses and ruling
Speaker 1: on recalcitrant witnesses. Essentially, he's not going to be acting
Speaker 1: on his own in that regard. The Senators, for example,
Speaker 1: will be asking him to call witnesses and he would
Speaker 1: serve the subpoena in their name. Where he will have
Speaker 1: some independence will be on these evidentiary rulings, but he
Speaker 1: doesn't have to actually make those rulings. The rules governing
Speaker 1: the empeachment proceedings say that he may rule on evidentiary questions,
Speaker 1: but he doesn't have to. He could defer to a
Speaker 1: majority of the Senate in the first instance on those questions,
Speaker 1: or if he exercises his discretion to make an initial ruling,
Speaker 1: that could be overridden by a Senate majority. So that's
Speaker 1: the space where he has some room for independence, but
Speaker 1: it's not absolute. As I said, he could be overridden
Speaker 1: by a majority. And in the Clinton impeachment trial, Chief
Speaker 1: Justice Rehnquist took a very sort of passive role, was
Speaker 1: very deferential to the majority in the Senate, and really
Speaker 1: seemed to be seeking to play a minimalist role in
Speaker 1: that process. So it will be interesting to see how
Speaker 1: Chief Justice Roberts decides to view his role and exercise
Speaker 1: the discretion he does have under the rules governing impeachment.
Speaker 1: Thanks Jessica. That's Jessica Roth of Cardosa Law School. Thanks
Speaker 1: for listening to the Bloomberg Law Podcast. You can subscribe
Speaker 1: and listen to the show on Apple Podcasts, SoundCloud, and
Speaker 1: on bloomberg dot com slash podcast. I'm June Brosso. This
Speaker 1: is Bloomberg