Speaker 1: You're listening to Bloomberg Law with June Grozzo from Bloomberg Radio.
Speaker 1: Senators and President Donald Trump's impeachment trial posed dozens of
Speaker 1: questions to House Democrats prosecuting the case and Trump's defense team.
Speaker 1: The questions ran the gamut from quid pro quos and
Speaker 1: whistleblowers to the Constitution and an unpublished book. Joining me
Speaker 1: is former federal prosecutor Jessica rob a professor at Cardozo
Speaker 1: Law School. So, as far as the question phase, are
Speaker 1: we learning anything new or is it repetition? So far
Speaker 1: from day one and what we've seen of day two
Speaker 1: of the questioning, um, what we've seen really are what
Speaker 1: I would characterize as friendly questions in the sense that
Speaker 1: the Republican senators are posing questions to the president's legal team,
Speaker 1: the Democratic senators are posing questions to the House managers
Speaker 1: I'm all of whom are Democrats. And the point of
Speaker 1: the question seems to be provide an opportunity for rebuttal
Speaker 1: for each side, that is, to reiterate their main points
Speaker 1: and address points that were made by the opposite side.
Speaker 1: And in that respect, they actually remind me more of
Speaker 1: the kinds of questions you might see it an appellate
Speaker 1: argument caused by judges who want to actually make a
Speaker 1: point to their fellow judges on the panel to win
Speaker 1: them over, as opposed to the questions you might see
Speaker 1: at a jury trial from jurors, where the questions usually
Speaker 1: reflect questions that are actually on the jurors mind that
Speaker 1: they need answers to before they can get comfortable reaching
Speaker 1: a verdict. This seems much more rehearsed and coordinated and
Speaker 1: with an aim to allowing the lawyers to make particular
Speaker 1: points that the lawyers want to make, as opposed to
Speaker 1: addressing what's really on the mind of the people asking
Speaker 1: the questions. Why it doesn't the Democratic Senator ask a
Speaker 1: tough question of the defense team, why don't they get
Speaker 1: some of those questions that we hear them talking about
Speaker 1: when they come out of the chamber. So that's a
Speaker 1: really interesting question. I've been thinking about it as well,
Speaker 1: and I think the best answer I can come up
Speaker 1: with is that they don't want to provide the opportunity
Speaker 1: for the opposing side to answer the question in a
Speaker 1: way that is beneficial to the side answering the question.
Speaker 1: It's similar to when you're a lawyer at a trial
Speaker 1: and you you don't ask a question you don't know
Speaker 1: the answer to, and you don't ask an open ended
Speaker 1: question to a hostile witness that allows the witness to
Speaker 1: give an explanation that really destroys the point you want
Speaker 1: to make. So I think that's what's going on. It's
Speaker 1: a very strategic calculation. And I said again, I think
Speaker 1: it reflects the political nature of this process and how
Speaker 1: different it is from a regular trial. There was one
Speaker 1: question from Senator Rand Paul of Kentucky that Chief Justice
Speaker 1: John Roberts refused to read. He said, the presiding officer
Speaker 1: declines to read the question as submitted, and this was
Speaker 1: a question about the whistleblower. That was something that Roberts
Speaker 1: has not done before. Yes, as I understand it, the
Speaker 1: reason not to read the question allowed was because it
Speaker 1: may have named the whistleblower. So that's obviously a controversial,
Speaker 1: perhaps unlawful thing to do, to name the whistleblower who's
Speaker 1: entitled to anonymity. And so I think it's understandable that
Speaker 1: Justice Roberts would have paused, certainly, and then decided not
Speaker 1: to read the question. And I would imagine that there
Speaker 1: are conversations going on behind closed doors about the appropriate
Speaker 1: way perhaps to honor the spirit of the question without
Speaker 1: in public naming this person. Well, it's always seemed odd
Speaker 1: to me that many Republicans have pushed to have the
Speaker 1: name of the whistleblower, even at this late stage where
Speaker 1: it doesn't seem to make any difference who the whistleblower was.
Speaker 1: It is striking that there would be any discussion at
Speaker 1: this point about the whistleblower. But I think it's in
Speaker 1: line with some of the arguments and the lawyers and
Speaker 1: the questions both yesterday and today today. Already there's been
Speaker 1: a couple questions about the process and the rules surrounding
Speaker 1: the issuance of subpoenas in the House, suggesting that those
Speaker 1: subpoenas by the House as part of the first oversight
Speaker 1: and then the impeachment inquiries were illegitimate um and perhaps
Speaker 1: then to set up the argument that all the evidence
Speaker 1: and testimony that then flowed from the issuance of those
Speaker 1: subpoenas should somehow be disregarded. Um. So I find it
Speaker 1: puzzling some of the subjects that the suspended is spending
Speaker 1: time on. So I would put in that category some
Speaker 1: of these sort of attacks on the process and the
Speaker 1: issuance of subpoenas in the House, and also the whistleblower complained.
Speaker 1: Does it seem as if Trump lawyer Alan Dershowitz has
Speaker 1: gone beyond what he argued that these charges against President Trump,
Speaker 1: even if true, don't rise to the level of impeachment.
Speaker 1: He told senators that presidents could not be impeached for
Speaker 1: legal actions they believe we're in the public interest. Where
Speaker 1: does that come from? I'm not sure where Professor Dershowitz
Speaker 1: came up with the precise language and contours of the
Speaker 1: argument that he made. It certainly isn't something that's born
Speaker 1: out of the Constitution or any laws. I think he
Speaker 1: was really trying to make a logical argument, but he
Speaker 1: didn't do it well, frankly, because it's so extreme that
Speaker 1: it can be rebutted quite handily. I think the better argument,
Speaker 1: and perhaps the one that he meant to make but
Speaker 1: went too far sort of in the moment. I think
Speaker 1: the better argument is that on the facts presented, even
Speaker 1: if senators come to the conclusion that what the president
Speaker 1: did was wrong or reprehensible, that it doesn't rise to
Speaker 1: the level of an impeachable offense. And that's an argument
Speaker 1: that is one I expected, frankly, the lawyers representing the
Speaker 1: president to spend more time on because it doesn't require
Speaker 1: them to get bogged down in the facts. It doesn't
Speaker 1: require calling more witnesses, because if you accept as true
Speaker 1: for purposes of argument, that the allegations in the articles
Speaker 1: of impeachment are true, you can still argue, but it
Speaker 1: doesn't rise to the level of what requires impeachment. And you,
Speaker 1: ladies and gentlemen of the Senate it are the ultimate
Speaker 1: arbiters of what rises to that level. Your decision can't
Speaker 1: be overturned by a court. It's your decision, and you're
Speaker 1: accountable at the ballot box. But you're not going to
Speaker 1: be overturned on this legal question of what's an impeachable
Speaker 1: offense by any other court of law. I've been talking
Speaker 1: to Jessica rob professor at Cardozo Law School, about the
Speaker 1: impeachment trial of President Donald Trump. So, Jessica, the question
Speaker 1: of witnesses has dogged this trial, and at the beginning
Speaker 1: of the week it seemed as if there might be
Speaker 1: enough Senators to vote for witnesses, but that seems to
Speaker 1: have changed. Have you seen anything during the last few
Speaker 1: days of questions that would indicate why the senators might
Speaker 1: not want to hear from witnesses. I don't know what's
Speaker 1: happening UM in private conversations behind the senators closed doors, UM,
Speaker 1: and among the senators along these lines. I imagine that
Speaker 1: this argument we were just discussing about, UM, even if
Speaker 1: you accept the facts as alleged as true, still it
Speaker 1: doesn't rise to the level of an impeachable offense, or
Speaker 1: you shouldn't vote to convict him here. UM. That that
Speaker 1: would be the argument that might cause senators to vote
Speaker 1: not to call additional witnesses. And so perhaps that is
Speaker 1: UM what senators are thinking about. But of course they're
Speaker 1: all kinds of political considerations that may be dominant here
Speaker 1: as opposed to what I just laid out, which is
Speaker 1: more of a legal analysis. It may be a political
Speaker 1: calculus that they need to move on and carry out
Speaker 1: other business in the Senate and that their constituents are
Speaker 1: tired of hearing them debating impeachments. It may be a
Speaker 1: political calculus having to do with support from the President.
Speaker 1: I don't know. Let's say, during the vote for witnesses,
Speaker 1: it comes down to can Chief Justice John Roberts break
Speaker 1: that tie. Yes, he is the presiding officer of the
Speaker 1: Senate in the context of the impeachment trial of the
Speaker 1: press event of the United States, and so in that
Speaker 1: role he has the authority to break a tie if
Speaker 1: there's a fifty fifty tie, much as the Vice President
Speaker 1: of the United States would during normal proceedings of the
Speaker 1: Senate when there is a fifty fifty tie. So it
Speaker 1: is an intriguing thought experiment to imagine that there is
Speaker 1: a vote, perhaps on Friday, about even calling any additional
Speaker 1: witnesses or calling for any additional documents as a general matter,
Speaker 1: And what if the Senate is split fifty fifty would
Speaker 1: Chief Justice Robert be casting the deciding vote on that
Speaker 1: general vote about any additional witnesses or documents, which then
Speaker 1: if that were carried by fifty one votes and were
Speaker 1: followed by specific votes on calling specific witnesses or calling
Speaker 1: for specific documents. So, for example, a motion to call
Speaker 1: John Bolton as a witness, how would Chief Justice Roberts
Speaker 1: vote if required to break a fifty fifty tie on
Speaker 1: that specific motion. So, again, he does have the authority,
Speaker 1: as I understand it, Whether will actually get to that
Speaker 1: point or not is another is another question. Speaking of
Speaker 1: John Bolton, since the revelations about his manuscript have come out.
Speaker 1: Now you've seen that the National Security Agency sent him
Speaker 1: a letter saying that his book contains classified material. What
Speaker 1: happens next. So there's one process for getting pre publication
Speaker 1: approval um from the national security agencies for this kind
Speaker 1: of book, and that has a route that would require,
Speaker 1: I think as the next step for he and his
Speaker 1: lawyers UM and publishers to attempt to negotiate with the
Speaker 1: national security agencies over what's in the book, what they
Speaker 1: deem to be classified, what perhaps could be taken out
Speaker 1: to satisfy them, And that would be sort of a
Speaker 1: process um that they would undertake, uh, sort of on
Speaker 1: the sidelines, if you will. If that breaks down, there
Speaker 1: is the possibility that he could go to court, I suppose, um,
Speaker 1: but I would imagine that he would try to avoid that.
Speaker 1: But that's there as a fallback. But then we have
Speaker 1: the separate tracts of interest for the ongoing trial of
Speaker 1: executive privilege, which is really separate from this pre publication
Speaker 1: review of the book that is going on right now.
Speaker 1: If people have already testified about some of the things
Speaker 1: that are in the book, that kind of material that's
Speaker 1: already out in the public domain, can it still be
Speaker 1: claimed that that's classified or that that's subject to executive privilege.
Speaker 1: So I'm not going to speak to whether it can
Speaker 1: be deemed classified, because that's a separate analysis. But on
Speaker 1: the executive privilege, the fact that much of this information
Speaker 1: is already out in the public domain really weakens the
Speaker 1: claim that it is still covered by executive privilege because
Speaker 1: one of the factors that is taken into account and
Speaker 1: determining um whether something is protected by executive privileg which
Speaker 1: is the ongoing need that the executive has to keep
Speaker 1: it secret. And once something is out there in the
Speaker 1: public domain, it's hard to make a good argument that
Speaker 1: there's an ongoing need for secrecy because it's not secret anymore.
Speaker 1: The executive privilege is a qualified privilege as opposed to
Speaker 1: an absolute privilege, and so it can yield and does
Speaker 1: yield when the need for things to remain secret that
Speaker 1: over which executive privilege has been asserted has dissipated um
Speaker 1: and when there is a very strong need for the
Speaker 1: disclosure of the information. And so in the context of
Speaker 1: the Senate impeachment trial that's going on, right now, there
Speaker 1: is a very very strong case to be made that
Speaker 1: the Senate has a need to hear from John Bolton
Speaker 1: about his communications with the President, the substance of which
Speaker 1: essentially are already out in the public domain. And the
Speaker 1: need is great precisely because of some of the arguments
Speaker 1: that the president lawyers have made about the lack of
Speaker 1: wrecked evidence of the President's intent and of his actions.
Speaker 1: Even and John Bolton's testimony, it would seem could go
Speaker 1: precisely to those areas as to which both parties are
Speaker 1: essentially agreeing there is a vacuum of other direct evidence.
Speaker 1: The President has said many times that he might have
Speaker 1: to exert executive privilege over matters, but he's never actually
Speaker 1: done that, and we've seen, as I mentioned, testimony, so
Speaker 1: as he waived the privilege, so arguably he has um
Speaker 1: That's another reason why I think a claim for executive
Speaker 1: privilege to prevent John Bolton from answering questions in a
Speaker 1: Senate trial about his conversations with the President about Ukraine
Speaker 1: would be a weak claim of executive privilege because, as
Speaker 1: I said, one of the things courts taken too account
Speaker 1: in evaluating claims of executive privilege is the ongoing need
Speaker 1: to keep the information secret. And so we could characterize
Speaker 1: what the president has done, UM by himself tweeting and
Speaker 1: talking about conversations with Bolton and about these matters, we
Speaker 1: could say he's waived the privilege. Um, we could say, uh,
Speaker 1: that he has right talking about it also just made
Speaker 1: it weaker, and he claimed that he has it, that
Speaker 1: the privilege needs to be kept secret. UM. These are
Speaker 1: different ways of sort of talking about the same concept,
Speaker 1: which is that, um, it's no longer a credible claim
Speaker 1: that he needs to keep those conversations with John Boltan
Speaker 1: secrets as a matter of national security or protecting the
Speaker 1: internal deliberations of the president. Thanks for being on Bloomberg Lage. Jessica.
Speaker 1: That's Jessica Roth, a professor at Cardoza Law School.