WEBVTT - Impeachment Trial With No Witnesses 0:00:00.680 --> 0:00:05.320 You're listening to Bloomberg Law with June Grozzo from Bloomberg Radio. 0:00:05.559 --> 0:00:09.080 Senators and President Donald Trump's impeachment trial posed dozens of 0:00:09.200 --> 0:00:14.000 questions to House Democrats prosecuting the case and Trump's defense team. 0:00:14.040 --> 0:00:17.119 The questions ran the gamut from quid pro quos and 0:00:17.160 --> 0:00:21.639 whistleblowers to the Constitution and an unpublished book. Joining me 0:00:21.680 --> 0:00:25.320 is former federal prosecutor Jessica rob a professor at Cardozo 0:00:25.400 --> 0:00:29.600 Law School. So, as far as the question phase, are 0:00:29.640 --> 0:00:33.760 we learning anything new or is it repetition? So far 0:00:34.000 --> 0:00:35.760 from day one and what we've seen of day two 0:00:35.800 --> 0:00:38.720 of the questioning, um, what we've seen really are what 0:00:38.760 --> 0:00:41.519 I would characterize as friendly questions in the sense that 0:00:41.640 --> 0:00:46.280 the Republican senators are posing questions to the president's legal team, 0:00:46.320 --> 0:00:50.040 the Democratic senators are posing questions to the House managers 0:00:50.400 --> 0:00:52.680 I'm all of whom are Democrats. And the point of 0:00:52.720 --> 0:00:55.600 the question seems to be provide an opportunity for rebuttal 0:00:55.680 --> 0:00:58.760 for each side, that is, to reiterate their main points 0:00:58.800 --> 0:01:01.320 and address points that were made by the opposite side. 0:01:01.680 --> 0:01:03.960 And in that respect, they actually remind me more of 0:01:04.000 --> 0:01:06.039 the kinds of questions you might see it an appellate 0:01:06.120 --> 0:01:09.039 argument caused by judges who want to actually make a 0:01:09.080 --> 0:01:11.080 point to their fellow judges on the panel to win 0:01:11.120 --> 0:01:13.720 them over, as opposed to the questions you might see 0:01:13.720 --> 0:01:17.040 at a jury trial from jurors, where the questions usually 0:01:17.040 --> 0:01:20.360 reflect questions that are actually on the jurors mind that 0:01:20.440 --> 0:01:23.640 they need answers to before they can get comfortable reaching 0:01:23.680 --> 0:01:28.200 a verdict. This seems much more rehearsed and coordinated and 0:01:28.319 --> 0:01:31.319 with an aim to allowing the lawyers to make particular 0:01:31.400 --> 0:01:33.960 points that the lawyers want to make, as opposed to 0:01:33.959 --> 0:01:36.240 addressing what's really on the mind of the people asking 0:01:36.280 --> 0:01:40.600 the questions. Why it doesn't the Democratic Senator ask a 0:01:40.680 --> 0:01:44.800 tough question of the defense team, why don't they get 0:01:44.840 --> 0:01:47.319 some of those questions that we hear them talking about 0:01:47.680 --> 0:01:51.040 when they come out of the chamber. So that's a 0:01:51.080 --> 0:01:53.760 really interesting question. I've been thinking about it as well, 0:01:53.800 --> 0:01:55.640 and I think the best answer I can come up 0:01:55.680 --> 0:01:58.040 with is that they don't want to provide the opportunity 0:01:58.720 --> 0:02:02.720 for the opposing side to answer the question in a 0:02:02.800 --> 0:02:05.840 way that is beneficial to the side answering the question. 0:02:05.880 --> 0:02:08.680 It's similar to when you're a lawyer at a trial 0:02:08.720 --> 0:02:10.480 and you you don't ask a question you don't know 0:02:10.520 --> 0:02:13.440 the answer to, and you don't ask an open ended 0:02:13.520 --> 0:02:16.720 question to a hostile witness that allows the witness to 0:02:16.880 --> 0:02:20.959 give an explanation that really destroys the point you want 0:02:20.960 --> 0:02:23.120 to make. So I think that's what's going on. It's 0:02:23.120 --> 0:02:26.239 a very strategic calculation. And I said again, I think 0:02:26.240 --> 0:02:30.600 it reflects the political nature of this process and how 0:02:30.639 --> 0:02:33.800 different it is from a regular trial. There was one 0:02:33.919 --> 0:02:39.120 question from Senator Rand Paul of Kentucky that Chief Justice 0:02:39.240 --> 0:02:43.200 John Roberts refused to read. He said, the presiding officer 0:02:43.320 --> 0:02:47.280 declines to read the question as submitted, and this was 0:02:47.320 --> 0:02:51.720 a question about the whistleblower. That was something that Roberts 0:02:51.720 --> 0:02:55.120 has not done before. Yes, as I understand it, the 0:02:55.160 --> 0:02:57.880 reason not to read the question allowed was because it 0:02:58.000 --> 0:03:01.840 may have named the whistleblower. So that's obviously a controversial, 0:03:01.880 --> 0:03:05.760 perhaps unlawful thing to do, to name the whistleblower who's 0:03:05.880 --> 0:03:09.680 entitled to anonymity. And so I think it's understandable that 0:03:09.800 --> 0:03:13.400 Justice Roberts would have paused, certainly, and then decided not 0:03:13.520 --> 0:03:16.320 to read the question. And I would imagine that there 0:03:16.360 --> 0:03:20.360 are conversations going on behind closed doors about the appropriate 0:03:20.400 --> 0:03:23.960 way perhaps to honor the spirit of the question without 0:03:24.000 --> 0:03:28.080 in public naming this person. Well, it's always seemed odd 0:03:28.120 --> 0:03:31.480 to me that many Republicans have pushed to have the 0:03:31.600 --> 0:03:35.560 name of the whistleblower, even at this late stage where 0:03:35.560 --> 0:03:38.720 it doesn't seem to make any difference who the whistleblower was. 0:03:39.480 --> 0:03:42.160 It is striking that there would be any discussion at 0:03:42.200 --> 0:03:45.320 this point about the whistleblower. But I think it's in 0:03:45.400 --> 0:03:46.960 line with some of the arguments and the lawyers and 0:03:46.960 --> 0:03:50.080 the questions both yesterday and today today. Already there's been 0:03:50.120 --> 0:03:53.840 a couple questions about the process and the rules surrounding 0:03:53.840 --> 0:03:57.720 the issuance of subpoenas in the House, suggesting that those 0:03:57.760 --> 0:04:01.320 subpoenas by the House as part of the first oversight 0:04:01.400 --> 0:04:05.560 and then the impeachment inquiries were illegitimate um and perhaps 0:04:05.640 --> 0:04:07.800 then to set up the argument that all the evidence 0:04:07.840 --> 0:04:10.960 and testimony that then flowed from the issuance of those 0:04:10.960 --> 0:04:15.000 subpoenas should somehow be disregarded. Um. So I find it 0:04:15.080 --> 0:04:18.520 puzzling some of the subjects that the suspended is spending 0:04:18.560 --> 0:04:21.200 time on. So I would put in that category some 0:04:21.279 --> 0:04:23.280 of these sort of attacks on the process and the 0:04:23.279 --> 0:04:26.520 issuance of subpoenas in the House, and also the whistleblower complained. 0:04:27.000 --> 0:04:32.280 Does it seem as if Trump lawyer Alan Dershowitz has 0:04:32.360 --> 0:04:38.400 gone beyond what he argued that these charges against President Trump, 0:04:38.480 --> 0:04:41.520 even if true, don't rise to the level of impeachment. 0:04:41.920 --> 0:04:45.480 He told senators that presidents could not be impeached for 0:04:45.640 --> 0:04:49.880 legal actions they believe we're in the public interest. Where 0:04:49.880 --> 0:04:52.960 does that come from? I'm not sure where Professor Dershowitz 0:04:53.120 --> 0:04:56.479 came up with the precise language and contours of the 0:04:56.600 --> 0:05:00.240 argument that he made. It certainly isn't something that's born 0:05:00.320 --> 0:05:03.039 out of the Constitution or any laws. I think he 0:05:03.160 --> 0:05:05.640 was really trying to make a logical argument, but he 0:05:05.680 --> 0:05:10.159 didn't do it well, frankly, because it's so extreme that 0:05:10.440 --> 0:05:15.360 it can be rebutted quite handily. I think the better argument, 0:05:15.440 --> 0:05:18.640 and perhaps the one that he meant to make but 0:05:18.960 --> 0:05:21.800 went too far sort of in the moment. I think 0:05:21.839 --> 0:05:25.560 the better argument is that on the facts presented, even 0:05:25.600 --> 0:05:28.000 if senators come to the conclusion that what the president 0:05:28.040 --> 0:05:31.400 did was wrong or reprehensible, that it doesn't rise to 0:05:31.520 --> 0:05:34.880 the level of an impeachable offense. And that's an argument 0:05:35.120 --> 0:05:39.839 that is one I expected, frankly, the lawyers representing the 0:05:39.839 --> 0:05:43.279 president to spend more time on because it doesn't require 0:05:43.320 --> 0:05:45.480 them to get bogged down in the facts. It doesn't 0:05:45.520 --> 0:05:48.880 require calling more witnesses, because if you accept as true 0:05:48.880 --> 0:05:51.839 for purposes of argument, that the allegations in the articles 0:05:51.839 --> 0:05:54.839 of impeachment are true, you can still argue, but it 0:05:54.880 --> 0:05:58.000 doesn't rise to the level of what requires impeachment. And you, 0:05:58.520 --> 0:06:01.279 ladies and gentlemen of the Senate it are the ultimate 0:06:01.360 --> 0:06:04.640 arbiters of what rises to that level. Your decision can't 0:06:04.680 --> 0:06:08.080 be overturned by a court. It's your decision, and you're 0:06:08.080 --> 0:06:10.640 accountable at the ballot box. But you're not going to 0:06:10.720 --> 0:06:13.839 be overturned on this legal question of what's an impeachable 0:06:13.839 --> 0:06:16.080 offense by any other court of law. I've been talking 0:06:16.080 --> 0:06:19.920 to Jessica rob professor at Cardozo Law School, about the 0:06:19.960 --> 0:06:24.719 impeachment trial of President Donald Trump. So, Jessica, the question 0:06:24.839 --> 0:06:28.320 of witnesses has dogged this trial, and at the beginning 0:06:28.360 --> 0:06:30.159 of the week it seemed as if there might be 0:06:30.279 --> 0:06:33.479 enough Senators to vote for witnesses, but that seems to 0:06:33.520 --> 0:06:37.040 have changed. Have you seen anything during the last few 0:06:37.200 --> 0:06:42.159 days of questions that would indicate why the senators might 0:06:42.240 --> 0:06:46.200 not want to hear from witnesses. I don't know what's 0:06:46.240 --> 0:06:51.360 happening UM in private conversations behind the senators closed doors, UM, 0:06:51.400 --> 0:06:56.559 and among the senators along these lines. I imagine that 0:06:56.760 --> 0:07:01.320 this argument we were just discussing about, UM, even if 0:07:01.360 --> 0:07:04.479 you accept the facts as alleged as true, still it 0:07:04.480 --> 0:07:06.919 doesn't rise to the level of an impeachable offense, or 0:07:07.000 --> 0:07:11.200 you shouldn't vote to convict him here. UM. That that 0:07:11.240 --> 0:07:14.520 would be the argument that might cause senators to vote 0:07:14.520 --> 0:07:18.080 not to call additional witnesses. And so perhaps that is 0:07:18.600 --> 0:07:21.800 UM what senators are thinking about. But of course they're 0:07:21.800 --> 0:07:25.400 all kinds of political considerations that may be dominant here 0:07:25.840 --> 0:07:27.680 as opposed to what I just laid out, which is 0:07:27.720 --> 0:07:30.760 more of a legal analysis. It may be a political 0:07:30.800 --> 0:07:34.120 calculus that they need to move on and carry out 0:07:34.160 --> 0:07:37.360 other business in the Senate and that their constituents are 0:07:37.400 --> 0:07:40.640 tired of hearing them debating impeachments. It may be a 0:07:40.680 --> 0:07:43.239 political calculus having to do with support from the President. 0:07:43.280 --> 0:07:46.320 I don't know. Let's say, during the vote for witnesses, 0:07:46.600 --> 0:07:52.400 it comes down to can Chief Justice John Roberts break 0:07:52.480 --> 0:07:56.560 that tie. Yes, he is the presiding officer of the 0:07:56.600 --> 0:07:59.720 Senate in the context of the impeachment trial of the 0:07:59.720 --> 0:08:02.960 press event of the United States, and so in that 0:08:03.120 --> 0:08:06.560 role he has the authority to break a tie if 0:08:06.600 --> 0:08:09.120 there's a fifty fifty tie, much as the Vice President 0:08:09.200 --> 0:08:12.000 of the United States would during normal proceedings of the 0:08:12.040 --> 0:08:15.480 Senate when there is a fifty fifty tie. So it 0:08:15.680 --> 0:08:19.920 is an intriguing thought experiment to imagine that there is 0:08:19.960 --> 0:08:23.760 a vote, perhaps on Friday, about even calling any additional 0:08:23.800 --> 0:08:28.480 witnesses or calling for any additional documents as a general matter, 0:08:28.960 --> 0:08:32.080 And what if the Senate is split fifty fifty would 0:08:32.160 --> 0:08:36.120 Chief Justice Robert be casting the deciding vote on that 0:08:36.240 --> 0:08:40.600 general vote about any additional witnesses or documents, which then 0:08:40.880 --> 0:08:43.720 if that were carried by fifty one votes and were 0:08:43.760 --> 0:08:47.880 followed by specific votes on calling specific witnesses or calling 0:08:47.920 --> 0:08:51.040 for specific documents. So, for example, a motion to call 0:08:51.240 --> 0:08:54.720 John Bolton as a witness, how would Chief Justice Roberts 0:08:54.840 --> 0:08:57.360 vote if required to break a fifty fifty tie on 0:08:57.520 --> 0:09:01.520 that specific motion. So, again, he does have the authority, 0:09:01.559 --> 0:09:04.600 as I understand it, Whether will actually get to that 0:09:04.679 --> 0:09:07.840 point or not is another is another question. Speaking of 0:09:07.920 --> 0:09:12.920 John Bolton, since the revelations about his manuscript have come out. 0:09:13.520 --> 0:09:17.600 Now you've seen that the National Security Agency sent him 0:09:18.000 --> 0:09:22.840 a letter saying that his book contains classified material. What 0:09:23.000 --> 0:09:29.000 happens next. So there's one process for getting pre publication 0:09:30.160 --> 0:09:34.280 approval um from the national security agencies for this kind 0:09:34.320 --> 0:09:37.240 of book, and that has a route that would require, 0:09:37.280 --> 0:09:39.400 I think as the next step for he and his 0:09:39.559 --> 0:09:43.160 lawyers UM and publishers to attempt to negotiate with the 0:09:43.240 --> 0:09:46.800 national security agencies over what's in the book, what they 0:09:46.840 --> 0:09:49.400 deem to be classified, what perhaps could be taken out 0:09:49.480 --> 0:09:52.320 to satisfy them, And that would be sort of a 0:09:52.360 --> 0:09:56.440 process um that they would undertake, uh, sort of on 0:09:56.520 --> 0:09:59.200 the sidelines, if you will. If that breaks down, there 0:09:59.240 --> 0:10:02.480 is the possibility that he could go to court, I suppose, um, 0:10:02.559 --> 0:10:05.080 but I would imagine that he would try to avoid that. 0:10:05.280 --> 0:10:07.640 But that's there as a fallback. But then we have 0:10:07.720 --> 0:10:10.880 the separate tracts of interest for the ongoing trial of 0:10:10.920 --> 0:10:15.000 executive privilege, which is really separate from this pre publication 0:10:15.080 --> 0:10:19.160 review of the book that is going on right now. 0:10:19.920 --> 0:10:24.880 If people have already testified about some of the things 0:10:24.880 --> 0:10:27.320 that are in the book, that kind of material that's 0:10:27.440 --> 0:10:31.920 already out in the public domain, can it still be 0:10:32.000 --> 0:10:36.120 claimed that that's classified or that that's subject to executive privilege. 0:10:36.720 --> 0:10:38.480 So I'm not going to speak to whether it can 0:10:38.520 --> 0:10:42.160 be deemed classified, because that's a separate analysis. But on 0:10:42.200 --> 0:10:45.600 the executive privilege, the fact that much of this information 0:10:45.679 --> 0:10:49.720 is already out in the public domain really weakens the 0:10:49.760 --> 0:10:53.640 claim that it is still covered by executive privilege because 0:10:53.679 --> 0:10:56.160 one of the factors that is taken into account and 0:10:56.200 --> 0:11:00.200 determining um whether something is protected by executive privileg which 0:11:00.480 --> 0:11:03.760 is the ongoing need that the executive has to keep 0:11:03.800 --> 0:11:06.560 it secret. And once something is out there in the 0:11:06.559 --> 0:11:09.560 public domain, it's hard to make a good argument that 0:11:09.600 --> 0:11:12.720 there's an ongoing need for secrecy because it's not secret anymore. 0:11:13.160 --> 0:11:16.559 The executive privilege is a qualified privilege as opposed to 0:11:16.600 --> 0:11:20.320 an absolute privilege, and so it can yield and does 0:11:20.440 --> 0:11:24.600 yield when the need for things to remain secret that 0:11:24.760 --> 0:11:28.439 over which executive privilege has been asserted has dissipated um 0:11:28.559 --> 0:11:32.400 and when there is a very strong need for the 0:11:32.480 --> 0:11:35.959 disclosure of the information. And so in the context of 0:11:36.000 --> 0:11:39.199 the Senate impeachment trial that's going on, right now, there 0:11:39.280 --> 0:11:42.080 is a very very strong case to be made that 0:11:42.160 --> 0:11:45.000 the Senate has a need to hear from John Bolton 0:11:45.160 --> 0:11:49.079 about his communications with the President, the substance of which 0:11:49.160 --> 0:11:53.400 essentially are already out in the public domain. And the 0:11:53.440 --> 0:11:57.360 need is great precisely because of some of the arguments 0:11:57.360 --> 0:11:59.720 that the president lawyers have made about the lack of 0:12:00.000 --> 0:12:04.599 wrecked evidence of the President's intent and of his actions. 0:12:04.720 --> 0:12:09.040 Even and John Bolton's testimony, it would seem could go 0:12:09.200 --> 0:12:13.680 precisely to those areas as to which both parties are 0:12:13.760 --> 0:12:17.720 essentially agreeing there is a vacuum of other direct evidence. 0:12:18.600 --> 0:12:21.640 The President has said many times that he might have 0:12:21.840 --> 0:12:27.000 to exert executive privilege over matters, but he's never actually 0:12:27.200 --> 0:12:31.440 done that, and we've seen, as I mentioned, testimony, so 0:12:31.640 --> 0:12:35.520 as he waived the privilege, so arguably he has um 0:12:35.559 --> 0:12:38.000 That's another reason why I think a claim for executive 0:12:38.040 --> 0:12:41.760 privilege to prevent John Bolton from answering questions in a 0:12:41.880 --> 0:12:45.360 Senate trial about his conversations with the President about Ukraine 0:12:45.640 --> 0:12:48.640 would be a weak claim of executive privilege because, as 0:12:48.679 --> 0:12:51.800 I said, one of the things courts taken too account 0:12:51.880 --> 0:12:55.880 in evaluating claims of executive privilege is the ongoing need 0:12:55.960 --> 0:12:59.960 to keep the information secret. And so we could characterize 0:13:00.000 --> 0:13:03.679 what the president has done, UM by himself tweeting and 0:13:03.720 --> 0:13:07.160 talking about conversations with Bolton and about these matters, we 0:13:07.200 --> 0:13:11.720 could say he's waived the privilege. Um, we could say, uh, 0:13:11.760 --> 0:13:14.520 that he has right talking about it also just made 0:13:14.520 --> 0:13:16.720 it weaker, and he claimed that he has it, that 0:13:16.840 --> 0:13:19.720 the privilege needs to be kept secret. UM. These are 0:13:19.720 --> 0:13:21.840 different ways of sort of talking about the same concept, 0:13:21.880 --> 0:13:26.720 which is that, um, it's no longer a credible claim 0:13:26.760 --> 0:13:29.360 that he needs to keep those conversations with John Boltan 0:13:29.440 --> 0:13:33.080 secrets as a matter of national security or protecting the 0:13:33.160 --> 0:13:37.280 internal deliberations of the president. Thanks for being on Bloomberg Lage. Jessica. 0:13:37.640 --> 0:13:40.760 That's Jessica Roth, a professor at Cardoza Law School.