Speaker 1: You're listening to Bloomberg Law with June Grozzo from Bloomberg Radio.
Speaker 1: Four months after Democrats in the House of Representatives launched
Speaker 1: a formal impeachment in Korean to President Donald Trump's dealings
Speaker 1: with Ukraine, the Senate acquitted him on charges of abusive
Speaker 1: power and obstruction of Congress today, an outcome that was
Speaker 1: never in doubt. My guest is Harold Crant, professor at
Speaker 1: the Chicago Kent College of Law. Looking back at this
Speaker 1: process of four months and we're back to the inevitable.
Speaker 1: What's your take on the whole impeachment process. I think
Speaker 1: people looking back at this impeachment will ask themselves whether
Speaker 1: impeachment can work in an era of great partisanship. And
Speaker 1: we've seen in this impeachment proceeding much more than in
Speaker 1: Clinton and much more than in the Nixon debacle, that
Speaker 1: impeachment is pretty weak vehicle give us. There's deep divisions
Speaker 1: between the two leading political parties. It's just not a
Speaker 1: successful constitutional weapon to overcome partnership. I think that's one
Speaker 1: lesson to be learned here, and another lesson is that
Speaker 1: Congress continues to give way more and more power to
Speaker 1: the executive. One of the two articles of impeachment was
Speaker 1: contempt of Congress, meaning contempt not only of Democrats, but
Speaker 1: contempt of Republicans. But the Republicans didn't care. And we
Speaker 1: will see this continuing shift of power over time to
Speaker 1: the chief executive and President Trump has made much of
Speaker 1: that and will so in the future. What should Americans
Speaker 1: take away from the process. What I'm afraid is that
Speaker 1: there will be a faction of people in the United
Speaker 1: States who will become demoralized from politics even more will
Speaker 1: shut down the process, believe that there's nothing to be
Speaker 1: gained from being active, from being engaged, and they will
Speaker 1: just be alienated. And whether they're alienated in a way
Speaker 1: that is destructive of the common good, who knows. I mean,
Speaker 1: some may be energized, some may become more engaged, but
Speaker 1: I'm afraid that other people will look at this and say,
Speaker 1: how can we trust the government processes? No one can
Speaker 1: get very report thing, no one can get a fair deal,
Speaker 1: no one can get a fair trial, and they will
Speaker 1: become sort of marginalized in society more. And I don't
Speaker 1: think that will benefit the American public very much. Where
Speaker 1: the Framers wrong, just wrong to require a two thirds
Speaker 1: vote I mean, even in the case of Andrew Johnson,
Speaker 1: the Senate couldn't get a two thirds vote to convict him.
Speaker 1: One slightly positive thing, I think the narrative of the
Speaker 1: Republicans have changed over time. I think think that's to
Speaker 1: the good. The narrative at first was that Trump didn't
Speaker 1: do anything. The narrative was this isn't a high crim
Speaker 1: or misdemeanor. And I think the narrative now has turned
Speaker 1: to one where impeachment is very serious and this was wrong,
Speaker 1: but we don't think this is serious enough to be impeachable,
Speaker 1: and that's their right to do so under history, and
Speaker 1: I think that line does less damage to impeachment as
Speaker 1: a tool. And I do think that the two thirds
Speaker 1: majority was put in because this is a very rare
Speaker 1: and momentous constitutional action, and so the fact that it's
Speaker 1: taken seriously think is good. Obviously there was partisanship involved
Speaker 1: in this case, but I do think the fact that
Speaker 1: there is a two thirds majority supermajority will mean, though
Speaker 1: the impeachment won't be used, probably less and less over
Speaker 1: time because the hurdle is so high. There was some
Speaker 1: talk on the Senate floor from Senator Joe Mansion of
Speaker 1: having a cent your vote against the president, and the
Speaker 1: House Speaker Nancy Pelosi said no, you know, if we've
Speaker 1: impeached him, would center have been a good idea? Center
Speaker 1: may have been a good idea and indeed may have
Speaker 1: generated a majority of both the House and the Senate.
Speaker 1: Center was discussed the great length during President Clinton's impeachment
Speaker 1: as well. The Center, of course, has no impact. It's
Speaker 1: merely a sense of the Congress that the president has
Speaker 1: overceptence spalance. But it does have some public residence, and
Speaker 1: the public will know that at least the Congress has
Speaker 1: taken a stand and taking a stand that interference to
Speaker 1: what the upcoming election should not be countenanced. So in
Speaker 1: retrospect that might have been more effective result. But I
Speaker 1: think that the Congress was hoping that there will be
Speaker 1: witnesses who would change the tide of public feeling and
Speaker 1: sentiment and pushed towards removal from office. And of course,
Speaker 1: the Center would have left the president securely within the
Speaker 1: confines of the oval office. What does this say? The
Speaker 1: Senate has been called the world's greatest deliberative body. Is
Speaker 1: that title up for grabs now? I don't think so.
Speaker 1: I think that there was a great debate. I don't
Speaker 1: think the witnesses would have changed that much in terms
Speaker 1: of leafs. Obviously, the House didn't have many witnesses. The
Speaker 1: House committees did, but the House itself did not um
Speaker 1: and so there weren't I don't think that the reputation
Speaker 1: of the Senate will be tarnished in new way, except
Speaker 1: for the fact that the Senate hasn't stood up for
Speaker 1: its own powers and is letting the President ride rough
Speaker 1: shot over its goals, whether in foreign affairs or um
Speaker 1: in particular, but also in trade wars and other issues
Speaker 1: during that we've seen during the Trump administration. So you've
Speaker 1: written about this, What does the Senate do or what
Speaker 1: does Congress do to get powers back that it's been
Speaker 1: giving away to the president or letting the president take
Speaker 1: for decades. There are some lovers in Congress's hands. The
Speaker 1: most important is Congress can say no to money. So
Speaker 1: if President wants money for the wall but Mexico, the
Speaker 1: Congress can say no. If President wants money for a
Speaker 1: particular policy in Iraq, the Congress can just say no.
Speaker 1: So that's the very critical lever. And another one, of
Speaker 1: course is on appointments. The Senate can say no to
Speaker 1: individuals for judges whom the president selects, or the Senate
Speaker 1: say no to treaties that the president wants to make.
Speaker 1: So these are some constitutionally based ways that the Senate
Speaker 1: and of course the House as well can stand on
Speaker 1: its rights against a president. Of course, they can always
Speaker 1: pass legislation and force the president to veto it. So, Harold,
Speaker 1: you said that one of the constitutional levels that Congress
Speaker 1: has against a president is to say no to money
Speaker 1: he wants. When the Congress refused to give President Trump
Speaker 1: the money to build the wall, he went around and said,
Speaker 1: I'm taking money from the military and the Department of Defense,
Speaker 1: and the Supreme Court just said go ahead with that
Speaker 1: while the case percolates through the lower courts. And I
Speaker 1: think it's a great example because the lower courts so
Speaker 1: far have said that the President has exceeded his constitutional
Speaker 1: powers in taking those moneys and the sort of define
Speaker 1: Congress as well with respect to funding the border wall.
Speaker 1: The Supreme Court allowed the action to continue, um, pending
Speaker 1: the case winding its way to the Supreme Court. Um.
Speaker 1: I think that the President is gonna lose ultimately, and
Speaker 1: I think that the Supreme Court is just try to
Speaker 1: step in to make sure that a lot of lower
Speaker 1: court judges weren't running to halt presidential administration policies before
Speaker 1: they were ventilated in the courts and found their way
Speaker 1: up to the Supreme Court. Um. But I do think
Speaker 1: that's a great example of where Congress said no, the
Speaker 1: president bypassed Congress, and the Congress could fight and say
Speaker 1: no more, We're not going to agree to any more
Speaker 1: appointments until you we send your policies. Um. Other Congresses
Speaker 1: have done that, And I think again, and if we
Speaker 1: see a shift to a Democratic Senate, you'll see those
Speaker 1: leverages being used much more effectively than they have. And
Speaker 1: I think enough for the for the country, it's a
Speaker 1: good thing to have more of a more of a
Speaker 1: check and balance between Congress and the president. Speaking about
Speaker 1: the Supreme Court and Chief Justice John Roberts, who of
Speaker 1: course presided over the impeachment trial, did he manage to
Speaker 1: keep himself above the partisan fray? Well, I think the
Speaker 1: real issue with Chief Justice Chief Justice Roberts is whether
Speaker 1: his experience with this partisanship will that affect his judging.
Speaker 1: He has been a critical fifth vote, swing vote in
Speaker 1: a number of important Supreme Court cases despite his conservative leanings,
Speaker 1: because he does care about the integrity of the Supreme Court,
Speaker 1: and this may sort of further his beliefs that you
Speaker 1: need to have a separate Supreme Court, untarnished by political
Speaker 1: leanings in order for the country to run, the government
Speaker 1: to run smoothly. So perhaps, if you want to look
Speaker 1: at a silver lining, maybe this experience will push Chief
Speaker 1: Justice to ensure that the Court is seen as independent
Speaker 1: in the upcoming UM months when they start delivering their decisions.
Speaker 1: So after four months, it seems as if impeachment has
Speaker 1: helped Trump. His poll numbers have never been higher. What
Speaker 1: does that say about the process itself and whether the
Speaker 1: Democrats should have just let it go and not impeach him.
Speaker 1: Nancy Pelosi consciously delayed impeachment and rejected others calls for
Speaker 1: impeachment after the Russian investigation UM for just that reason.
Speaker 1: She was concerned that a sort of what you might
Speaker 1: consider a premature UM impeachment would boomerang against democratic interests. Um.
Speaker 1: She waited, and when the Ukraine scandal emerged, she said,
Speaker 1: the time is right. We have to move now or
Speaker 1: or never. Um. Was she wrong? I don't know. I
Speaker 1: think that at that point she really had no choice
Speaker 1: but to continue on with impeachment. She knew was a risk,
Speaker 1: but I think she Alt and others around her, did
Speaker 1: such a serious sort of compromise of national security, serious
Speaker 1: compromise of any kind of ethics um that you had
Speaker 1: to go forward and take the chance, knowing that the
Speaker 1: world would be tough, and it turned out to be
Speaker 1: perhaps even tougher than you feared. Now after the impeachment
Speaker 1: may be over, but there are still House investigations of
Speaker 1: President Trump and how Judiciary Chair Jerry Nadler says they'll
Speaker 1: likely subpoena John Bolton. Are there are there legal problems
Speaker 1: there can the president of sort executive privilege. Bolton had
Speaker 1: said that he'll comply with the subpoena from the Senate,
Speaker 1: But this is a subpoena from the House. So I
Speaker 1: think that what John Boldness said is that he would
Speaker 1: comply with the subpoena if a court would instruct him to.
Speaker 1: So what he believes is that should be a orderly
Speaker 1: process to his testimony. So my guess is that if
Speaker 1: the House subpoena him, subpoenas him, he will invite the
Speaker 1: President to respond and wait for the court to make
Speaker 1: a decision whether he should honor the subpoena. My guess
Speaker 1: is that the subpoena will be honored, and that Bolden
Speaker 1: can testify, though a couple of things he might say
Speaker 1: would be subject to executive privilege, and at that time
Speaker 1: the president's lawyer can claim privilege um with respect at
Speaker 1: least parts of his testimony. So that would be my guest.
Speaker 1: I think, if you want to speculate in the future,
Speaker 1: something that may arise but not likely to rise, is
Speaker 1: what if the next Congress becomes more firmly democratic, would
Speaker 1: it try to impeach President Trump again based upon the
Speaker 1: same largely the same evidence that led to the impeachment
Speaker 1: this time. We don't know. Impeachment doesn't seem to have
Speaker 1: a start dat or end date, and it is possible
Speaker 1: that a strongly democratic Congress in the future could go
Speaker 1: back with Bolton's testimony new information and decide to reimpeach him.
Speaker 1: It's never happened in our history, but academics don't know
Speaker 1: whether or not the idea of impeachment as time part. Well,
Speaker 1: suppose let's just say that President Trump becomes even more
Speaker 1: emboldened by the fact that he was acquitted and does
Speaker 1: something that the Democrats feel is again an abuse of power.
Speaker 1: Is there anything stopping them from impeaching him on a
Speaker 1: whole new set of facts. Oh, there's no question that
Speaker 1: the Democrats can impeach President Trump again on based on
Speaker 1: new facts. But we don't know is whether the impeachment
Speaker 1: can cover ground for which the Senate has already acquitted.
Speaker 1: Because the rules i impeachment are not like that those
Speaker 1: in criminal trials, we don't have any kind of double
Speaker 1: jeopardy sense or notions. Um So, Congress, the House would
Speaker 1: be free to impeach President Trump for new reasons, but
Speaker 1: might also be able to include reasons that that to
Speaker 1: be equittal in this case. Thanks for being on Bloomberg Law, Harold.
Speaker 1: That's Harold Granted, profess with the Chicago Kent College of
Speaker 1: Law and author of the book Presidential Powers.