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 of the Bloomberg Law Podcast on Apple Podcasts, SoundCloud,
Speaker 1: and on Bloomberg dot com slash podcasts. The complaint by
Speaker 1: a CIA whistleblower alleging that multiple government officials were alarmed
Speaker 1: about President Trump's conversation with Ukraine's leader in the efforts
Speaker 1: at the White House to lockdown records of the call,
Speaker 1: offers a roadmap to impeachment. How Speaker Nancy Pelosi explained
Speaker 1: the process ahead on MSNBC's Morning Joe Today, Just up
Speaker 1: to the committee. They will do the work that they're
Speaker 1: set out to do, following the facts and the time
Speaker 1: that it takes to find the facts. As you know,
Speaker 1: you never know where we're going next. Now I think
Speaker 1: we're getting involved in the cover up of the cover up,
Speaker 1: and that may be something that will take some time
Speaker 1: to investigating. Joining me is Michael Gerhard, a professor of
Speaker 1: constitutional law at the University of North Carolina School of
Speaker 1: Law who has written extensively on the impeachment process, including
Speaker 1: a sort of primer impeachment what everyone needs to know.
Speaker 1: Thanks for joining us, Michael, thanks for having me so.
Speaker 1: According to a senior administration official who corroborated the whistleblowers complaint,
Speaker 1: it was National Security Council lawyers who directed that the
Speaker 1: record of Trump's conversation with Zelensky be stored on a special,
Speaker 1: highly classified server. So far, there's no evidence that President
Speaker 1: Trump was directly involved in this. So how would those
Speaker 1: facts play into an impeachment inquiry. Well, it's a very
Speaker 1: good question. Um, I think we'll have to do certainly
Speaker 1: going to need more fact finding and determine who essentially
Speaker 1: told the national security lawyers to do that. Um, it's
Speaker 1: highly a usual thing. It's almost I've never done it. Certainly,
Speaker 1: it makes no sense under the current circle substances for
Speaker 1: it to be done for any reason other than to
Speaker 1: cover up. So I think we've got to kind of
Speaker 1: follow the evidence we're going to have and and figure
Speaker 1: out who was directing them and who that person reported to. Uh,
Speaker 1: it may well be that the president creating the atmosphere
Speaker 1: in which people felt the need to protect him from himself.
Speaker 1: Some Democrats are saying that the articles of impeachment could
Speaker 1: be drawn up by the end of the month. How
Speaker 1: is how important is it the way that the articles
Speaker 1: are drafted? Are they moving too fast? They could be? Um?
Speaker 1: You typically you House, you want the House Senior Share
Speaker 1: Committee to do its own fact finding and to be deliberate,
Speaker 1: um as it goes along. Um. In contrast with the
Speaker 1: peating of Bill Clinton, there was extremely fast rush to judgment,
Speaker 1: as you might recall, and both the proceedings went very
Speaker 1: very fast, and there was no fact funding. So um.
Speaker 1: How in fact finding, I think it's important to help
Speaker 1: maintain the legit legitimacy of what the House is doing.
Speaker 1: You mentioned the Judiciary Committee. There seems to be a
Speaker 1: shift in focus from the Judiciary Committee being the lead
Speaker 1: committee to the Intelligence Committee. Does that raise any concerns
Speaker 1: because of the legal expertise on the Judiciary Committee, which
Speaker 1: usually moves impeachment processes. I don't think so. I think
Speaker 1: there's a good deal of legal expertise on the Intelligence Committee.
Speaker 1: It's not uncommon for other committees to be helping with
Speaker 1: or during the fact finding and then share that with
Speaker 1: the House Judiciary Committee. But Richard Nixon, the critical fact
Speaker 1: finding was done by committees other than Judiciary and eventually
Speaker 1: a judiciary took control of it. So it's it's a
Speaker 1: very sort of organic process and it's not at all surprising.
Speaker 1: Intelligence would be the first to deal with this because
Speaker 1: this situation deals with NASSA national security step taking in
Speaker 1: the impeach proceedings against both President Nixon and Clinton was
Speaker 1: that House leaders had a floor vote authorizing the Judiciary
Speaker 1: Committee to conduct an impeachment investigation. That hasn't happened yet.
Speaker 1: Does that have to happen? Is that a missing element? No,
Speaker 1: it does not at all have to happen. Um. What's
Speaker 1: critical is what are the House rules that are given moment?
Speaker 1: And House rules and the statutes are different now than
Speaker 1: they were in those prior cases, and so there's really
Speaker 1: the procedures are different with right now the House leadership
Speaker 1: as well as the House Judiciary Committee are following the
Speaker 1: House rules as well as applicable statutes and there and uh,
Speaker 1: and that's appropriate. The Constitution doesn't spill out a specific
Speaker 1: process in an impeachment proceeding. Instead, it leads it to
Speaker 1: the House Houses discretion. I want to just talk a
Speaker 1: little bit about the articles of impeachment specifically explained to
Speaker 1: us what they have to contain well, the they have
Speaker 1: a pretty broad the House is pretty broad discretion ast
Speaker 1: to what it might choose to put into impeachment articles.
Speaker 1: They do not have to be literal crimes or felonies
Speaker 1: that have to be traced and and the facts have
Speaker 1: to be shown how they fit those Because in future
Speaker 1: offenses are not limited to actual crimes, but to serious
Speaker 1: abuses of power, these articles could be relatively broad. They
Speaker 1: will relate to things far more broadly than what the
Speaker 1: criminal law forbids. So then is it a bad strategy
Speaker 1: if they go forward and just focus on the incident
Speaker 1: involving Ukraine and don't include elements of the Mala report.
Speaker 1: I wouldn't say it's a bad strategy. You've got to
Speaker 1: take the evidence you've got and see where it leads.
Speaker 1: The Ukraine situation might be what we might refer to
Speaker 1: as sort of the easy case, the clearer case, the
Speaker 1: obvious case. It almost sort of makes just the facts
Speaker 1: alone are easy to follow, at least so far, and
Speaker 1: uh they seem to set up a classic compeatful offense.
Speaker 1: There are other situations the House Judiciary and other communities
Speaker 1: of investigating, ranging from tax returns, the fairy to produce them,
Speaker 1: as well as to the president's defiance of a number
Speaker 1: of Congressional subpoenas. There was a peach article Againstritch and
Speaker 1: Nixon based on his failure to comply with the legislatives.
Speaker 1: You know, President Trumps sales comply with a number of them.
Speaker 1: And as far as the stone walling of Congress being
Speaker 1: done by the Trump administration are there as the court,
Speaker 1: are the court cases likely to move any faster or
Speaker 1: have any more impetus because of the impeachment inquiry. Not necessarily.
Speaker 1: It could be that House lawyers may ask for some
Speaker 1: expodited decisions and perhaps those judges in those cases might agree. Um,
Speaker 1: But if we don't know what those judges will rule
Speaker 1: or whether they will experiting anything, impeachment might, as I said,
Speaker 1: justified trying effort to move faster, But typically court cases
Speaker 1: and impeachment proceedings just moved on different timelines. Listen a
Speaker 1: minute here. But there's been a lot of publicity about
Speaker 1: President Trump's statement that the whistle blower was almost a
Speaker 1: spy and wanting to know identities of the of the sources.
Speaker 1: Can that be part of impeachment? It might well be.
Speaker 1: He's clearly trying to intimidate a critical witness. The fact
Speaker 1: that's whoever the whistle blower is um is somebody who's
Speaker 1: trying to follow the rule of law, and the fact
Speaker 1: that the president's response to the situations to go after
Speaker 1: the whistle blower my show a disregard for the law
Speaker 1: as well as the basic boundaries within a present within
Speaker 1: which a president should operate. Thanks so much for joining
Speaker 1: us today. That's Michael Gerhard. He's a professor of constitutional
Speaker 1: law at the University of North Carolina School of Law.
Speaker 1: Thanks for listening to the Bloomberg Law Podcast. You can
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Speaker 1: and on Bloomberg dot com slash podcast. I'm June Brosso.
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