Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every
Speaker 1: day we bring you insight an 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 podcasts. The public hearings
Speaker 1: in the impeachment inquiry ended this week, with Gordon Sonlin,
Speaker 1: the US Ambassador to the EU, delivering the most explosive testimony.
Speaker 1: On Wednesday. Sonland said President Trump effectively directed him to
Speaker 1: brok her a quid pro quo with Ukraine to investigate
Speaker 1: a political rival. Secretary Perry, Ambassador Vulker, and I worked
Speaker 1: with Mr Rudy Giuliani on Ukraine matters at the express
Speaker 1: direction of the President of the United States, joining me
Speaker 1: as former federal Prosecutor Elie Hohenig of Lowenstein Sandler. How
Speaker 1: important was Ambassador soun lands testimony. I think the Ambassador
Speaker 1: Sam scored some important points for the Democrats. I do
Speaker 1: not think, however, that he ended up giving what a
Speaker 1: lot of people were calling a John Dean moment. When
Speaker 1: all is said and done, I think he incrementally moved
Speaker 1: the ball on a couple of key respects number one.
Speaker 1: I think the most important single line of his testimony
Speaker 1: was everyone was in the loop. I think there's been
Speaker 1: a lot of circumstantial evidence of that. I think common
Speaker 1: sense tells you that, but he laid it out. Pompeo
Speaker 1: knew what was going on, Mulvaney knew what was going on,
Speaker 1: Bolton knew what was going on, And to some extent
Speaker 1: you can infer from what he said, even the Vice
Speaker 1: president knew what was going on. And he's backed up
Speaker 1: by a lot of that with emails and documents that
Speaker 1: he had. So I thought that was such an important point.
Speaker 1: And the other important thing is he puts the word
Speaker 1: investigations in the President's mouth. He says the President talked
Speaker 1: about investigations on at least one occasion. So that's direct
Speaker 1: evidence of what, again is fairly apparent from the remainder
Speaker 1: of the evidence, but that the President had this interest
Speaker 1: in the investigation of Barisma and the election Mary. He
Speaker 1: admitted that he never personally discussed with Trump the idea
Speaker 1: that either military aid or a White House meeting was
Speaker 1: conditioned on Ukraine conducting investigations. Does that hurt the Democrats case?
Speaker 1: It does to an extent. I think it's a fair
Speaker 1: line of cross examination. I thought the Republicans did a
Speaker 1: good job of pointing out that sort of missing link.
Speaker 1: That said, I think the Republicans have oversold it. The
Speaker 1: fact that the President never said, hey, Gordon, I want
Speaker 1: to explicitly link AID, you know, with a White House
Speaker 1: meeting with investigations does not mean there's no case there.
Speaker 1: And I think this is a bit of a logical
Speaker 1: and legal fallacy that Republicans have been pursuing, this idea
Speaker 1: of magic words that unless the President said the magic words,
Speaker 1: unless he said out loud, this is a quid pro quoe,
Speaker 1: this is bribery, this is a crime, this is an
Speaker 1: abusive power. There's nothing impeachable. I mean, that's not the
Speaker 1: way the real world works. From doing trials, that's not
Speaker 1: the way you build a case, a criminal case. You
Speaker 1: build it piece by piece, block by block, You put
Speaker 1: all the evidence together, and you argue to the read.
Speaker 1: That's the common sense. Reasonable inference is whatever you want
Speaker 1: your conclusion to be. So the Republicans, I think, are
Speaker 1: doing some strategic goal post shifting and trying to make
Speaker 1: it almost an impossible standard for Democrats to reach. Speaking
Speaker 1: about keywords. During the Muller investigation, President Trump kept saying
Speaker 1: no collusion over and over, and in the impeachment inquiry,
Speaker 1: he's saying no quid pro quo. And he seemed to
Speaker 1: have started that way back in a conversation that Sunlin
Speaker 1: texted Ambassador Taylor about are the Democrats falling into a
Speaker 1: trap by continually bringing out that there was a quid
Speaker 1: pro quo. It's definitely strategic by Donald Trump, and I
Speaker 1: think the Democrats are doing a better job of avoiding
Speaker 1: that trap. So I think the trap is exactly what
Speaker 1: you said, Jude, which is this vague term that sounds
Speaker 1: legalistic but really is not collusion in the Mueller case.
Speaker 1: And now quid pro qoil. I mean, those are both
Speaker 1: words you might use in law school, but they're not
Speaker 1: technical terms of art that lawyers would use that are
Speaker 1: in the statute books. And I think the beauty of
Speaker 1: that approach for Donald Trump and for the Republicans is
Speaker 1: the definition is a morphous enough that you can always
Speaker 1: shift it a little bit and said, well that that's
Speaker 1: not collusion. That's not what we meant by collusion, that's
Speaker 1: not what a quid pro quo is. I think Adam
Speaker 1: Schiff has been very careful and very conscious of that
Speaker 1: and has tried to choose more direct, more relatable words
Speaker 1: like he has used bribery, he has used extortion, he
Speaker 1: has used quite simply abuse of power, which I think
Speaker 1: are easier to understand and better serve the democratic purposes.
Speaker 1: But you have the the verbiage and terminology is really
Speaker 1: important here. Now that the hearings are over, the Democrats
Speaker 1: will be drafting articles of impeachment. Do you think we'll
Speaker 1: see words like bribery and extortion. It's an interesting strategic
Speaker 1: decision that Democrats have to make. I do think we
Speaker 1: will see a broadly phrased article of impeachment for abuse
Speaker 1: of power or conspiracy or the like, because you want
Speaker 1: to when you're drafting up whether it's an invite in
Speaker 1: a criminal case or articles of impeachment, you want to
Speaker 1: paint broadly enough to capture all the relevant conduct. I
Speaker 1: think that the interesting call they have to make is
Speaker 1: do they list out specific criminal or criminal style offenses.
Speaker 1: If they do that, I think that the two lead
Speaker 1: ones would be bribery and extortion, which are sort of
Speaker 1: the flip sides of the same coin. Think of bribery
Speaker 1: as I will give you this illicit benefit if you
Speaker 1: give me that illicit benefit, and extortion is I will
Speaker 1: harm you in this way if you do not give
Speaker 1: me that illicit benefit. So there's not a whole lot
Speaker 1: of difference between them. There's also a separate federal crime
Speaker 1: of soliciting foreign election aid. The beauty of that for Democrats,
Speaker 1: it's not even a two way street. It's a crime
Speaker 1: simply to ask, So you can say it doesn't matter
Speaker 1: if it's a quid pro quot, it doesn't matter if
Speaker 1: there's an exchange. So long as the president tried to
Speaker 1: get help in his election campaign from a foreign national,
Speaker 1: that would satisfy that statute as well. So I think
Speaker 1: you're gonna see that type of articles impeachment, and I
Speaker 1: think we've seen during the hearings this week Democrats are
Speaker 1: likely going to seek an article of impeachment for obstruction
Speaker 1: of Congress, for blocking the witnesses, for blocking documents. They
Speaker 1: made a big deal about that and during the solent
Speaker 1: testimony how important the documents were that are being withheld
Speaker 1: from Congress. Do you think the Democrats were right or
Speaker 1: wrong in deciding that when witnesses like Ambassador Bolton refused
Speaker 1: to testify. They weren't going to court to try to
Speaker 1: force them to testify because that would hold up the proceedings.
Speaker 1: It's a great question. I think that Democrats did the
Speaker 1: right thing by proceeding with hearings because they looked at
Speaker 1: what happened to Jerry Nadler, and I think they learned
Speaker 1: their lesson. Adam Schiff learned his lesson because look, Nadler
Speaker 1: chased down these blockades in courts and they're still in
Speaker 1: the courts. That Don McGann's hearing is still going on.
Speaker 1: So I think they avoided getting slow played to death
Speaker 1: like Jerry Nadler did. Now, I guess the separate question
Speaker 1: is could they have done both? Could they have done
Speaker 1: these very expedited hearings, which they did, I give them
Speaker 1: a lot of credit, but also been in the courts
Speaker 1: and also seeking expedited rulings in the court. I think
Speaker 1: part of that maybe just simply an issue of personnel.
Speaker 1: Do they have enough bodies to do this? I mean,
Speaker 1: these hearings, I'm sure are all consuming for the lawyers
Speaker 1: who are doing them, and to be in court at
Speaker 1: the same time might just be more personnel than they
Speaker 1: have on hand. So yeah, I think you could fairly
Speaker 1: second guess them, for well, why not do your hearings
Speaker 1: and go to court and fight for Bolton, Mulvaney Pompeo.
Speaker 1: But they made a strategic decision to keep it simple,
Speaker 1: and I think they've made a calculation that they have
Speaker 1: enough between Taylor and Salmon and Ken and Fiona Hill
Speaker 1: and Maria Vanovitch and the other witnesses we've seen this week,
Speaker 1: coupled with remember the transcript, I mean, the transcript is
Speaker 1: and should always remain Exhibit A. Finally, is this going
Speaker 1: to make a difference? Is it going to change people's
Speaker 1: opinions about whether to impeach the president or not? Is
Speaker 1: it going to change any Republican minds? So I break
Speaker 1: down into two parts. I do not see any indication
Speaker 1: right now that any Republican members of Congress are ready
Speaker 1: to jump ship and vote either to impeach in the
Speaker 1: House or to convict in the Senate. That said, I
Speaker 1: think the stronger case the Democrats build, and I think
Speaker 1: they've done a really commendable job of building the case
Speaker 1: in the House, the harder it gets for Republicans to defend,
Speaker 1: the more the American public understands. This is real. This,
Speaker 1: this conduct was problematic and harmful, and that could exact
Speaker 1: the political poll on Republicans and ultimately to an extent,
Speaker 1: I think you're if you're Democrats, you're talking to the
Speaker 1: history books. I think you want history to record this
Speaker 1: as a fair and just proceeding and something that was
Speaker 1: worthwhile and that merited the severe remedy of impeachment. Thanks Ellie,
Speaker 1: that's Ellie Honig of Lowenstein Sandler. Thanks for listening to
Speaker 1: the Bloomberg Law Podcast. You can subscribe and listen to
Speaker 1: the show on Apple Podcasts, SoundCloud, and on bloomberg dot
Speaker 1: com slash podcast. I'm June Brosso. This is Bloomberg