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Speaker 1: This is Bloomberg Law with June Grassoe from Bloomberg Radio.

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Speaker 1: On this vote, the eyes are two thirty two. The

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Speaker 1: names are one nine seven. The resolution is adopted without objection.

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Speaker 1: The motion to reconsider is laid upon the table, and

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Speaker 1: with that vote, President Donald Trump became the only president

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Speaker 1: in our country's history to be impeached for a second time.

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Speaker 1: Ten Republicans joined their Democratic colleagues for the vote, making

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Speaker 1: Trump's impeachment bipartisan Article of Impeachment exhibited by the House

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Speaker 1: of Representatives of the United States of America and the

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Speaker 1: name of itself and of the people of the United

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Speaker 1: States of America against Donald John Trump, President of the

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Speaker 1: United States of America, and maintenance and support of its

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Speaker 1: impeachment against him for high crimes and misdemeanors. Article one,

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Speaker 1: Incitement of insurrection. Trump was impeached on a single charge

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Speaker 1: of incitement of insurrection for his on the right by

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Speaker 1: his supporters that left five dead and the Capitol ransacked,

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Speaker 1: and his second impeachment trial will be the first ever

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Speaker 1: to take place after a president leaves office, creating a

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Speaker 1: novel legal question that Trump might use in his defense.

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Speaker 1: Joining me is an expert on impeachment law Frank Bowman

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Speaker 1: of a University of Missouri law school, looking at the

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Speaker 1: Constitution itself, did the Framers intend to allow a president

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Speaker 1: to be tried for impeachment after his term ends. Well,

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Speaker 1: let's be honest here, I don't think the Framers anticipated

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Speaker 1: every possible contingency. We often think that they were sort

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Speaker 1: of superhuman and that they're in the blazing Philadelphia summer

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Speaker 1: heat and thought through all the possible outcomes. And I

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Speaker 1: don't think they did. But I think we can say

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Speaker 1: some things about not too much even what they specifically intended,

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Speaker 1: but what the structure of the Constitution pretty plainly suggests. First,

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Speaker 1: the point of the impeachment remedy is dual. The primary

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Speaker 1: purpose is to ensure that if a presidents qualifies himself

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Speaker 1: in some way through really horrible personal conduct or shows

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Speaker 1: that he is the danger to the republic through his

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Speaker 1: public behavior, that he can be removed short of an

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Speaker 1: actual election. The Framers debated about that. Some of them

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Speaker 1: thought all Galian elections enough, but the majority said no,

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Speaker 1: we need some other remedies. So that certainly is the

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Speaker 1: primary point of impeachment, but it's not the only one.

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Speaker 1: They were deeply steeped in the learning about the classical republics,

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Speaker 1: about the Greek democracies, about the Roman republic, and one

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Speaker 1: of the lessons that they drew from their focus on

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Speaker 1: classicism was concerned that democracies and republics are vulnerable to

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Speaker 1: the wild demagogues when they talk about it all the time,

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Speaker 1: Concerned that such a person would arise and represent continuing

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Speaker 1: danger to the republic. And I think it is that

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Speaker 1: concern as much as any other single thing that led

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Speaker 1: them to include the disqualification. But the Framers recognized that

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Speaker 1: a sufficiently dangerous person, a person with sufficiently autocratic tendency,

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Speaker 1: is a person with sufficiently strong following, a person with

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Speaker 1: sufficient lack of scruple could close an ongoing danger even

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Speaker 1: though you're moved in from office. And that's why they

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Speaker 1: put in the disqualification remedies, not punishment profile access. It's

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Speaker 1: trying to make sure this person never troubles the republic again.

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Speaker 1: And it would be a very strange notion to have

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Speaker 1: a constitutional provision with that objective that could be thwarted

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Speaker 1: simply because either the impeached person just resigned really fast

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Speaker 1: before he could be impeached, or tried alternatively in this

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Speaker 1: Trump's case, that he reserved the worst of his behavior

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Speaker 1: until a period shortly enough before his departure from office

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Speaker 1: that you couldn't try. And I think it's pretty clear

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Speaker 1: if you look at the structure the constitution the purpose

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Speaker 1: of the framers that trying him after he leaves office

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Speaker 1: is entirely consistent with what they had in mind. Of course,

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Speaker 1: there's never been a situation like this before. But are

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Speaker 1: there other cases in our history that would support the

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Speaker 1: Senate's power to put Trump on trial even after his

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Speaker 1: term ends. Yes, there have been precedent for this. Indeed,

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Speaker 1: the very first impeachment that ever happened very early on

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Speaker 1: sev sevent ninety eight. William Blunt was a Tennessee senator

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Speaker 1: and land speculator who engaged in the scheme essentially to

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Speaker 1: transfer parts of them Spanish Florida and the Louisiana territory

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Speaker 1: to the British. Word got out about that, and when

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Speaker 1: it got back to Washington, the House immediately impeached him,

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Speaker 1: and shortly thereafter the Senate expelled him. But then, of

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Speaker 1: course there was a matter of impeachment, and they went

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Speaker 1: on to try him later on. Now he was acquitted.

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Speaker 1: In the end, it's generally believed that the reason for

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Speaker 1: his acquittal had nothing to do with the timing of

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Speaker 1: the impeachment or the trial, but with the Senate decision

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Speaker 1: that it had no jurisdiction over a editor. That is

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Speaker 1: to say, senators are not the civil officers who are

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Speaker 1: covered by the Constitution's impeachment provisions. So we have a

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Speaker 1: precise example of exactly this timing, and we have a

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Speaker 1: somewhat even more pronounced one in the impeachment of Secretary

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Speaker 1: of War Belknap during the Grand Administration in the eighteen seventies,

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Speaker 1: where Belknap, the Secretary of Wars, corrupt and he sold

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Speaker 1: an Indian agent position for money was found out and

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Speaker 1: it was clear that he was about to be impeached.

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Speaker 1: He went over to the White House and immediately resigned

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Speaker 1: and the hope of forestalling impeachment, but the House empeached

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Speaker 1: him anyway, went over to trial in the Senate, and

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Speaker 1: although again he managed to escape conviction, the Senate explicitly

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Speaker 1: considered the question of whether or not it retained jurisdiction

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Speaker 1: over him for trial, and it voted by a material

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Speaker 1: majority that it did have jurisdiction over him, even though

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Speaker 1: he impeached him after he left office entirely. There are

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Speaker 1: some scholars who argue that the Senate can't tried Trump

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Speaker 1: after he leaves office, So this might be left up

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Speaker 1: to the Supreme Court. But would the court even consider this? Well,

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Speaker 1: there you ask me to read Supreme Court key leaves,

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Speaker 1: and that's more important to read their minds, and and

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Speaker 1: that's probably beyond my power. But let's put it in

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Speaker 1: some procedural context. When might a court try to intervene?

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Speaker 1: Or when might Mr Trump ask a court to intervene?

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Speaker 1: There are two possibilities. One, he could try to take

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Speaker 1: an injunction in federal district court, presumably in the District

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Speaker 1: of Columbia before the Senate trial, asking the drudge to

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Speaker 1: prevent or to order the Senate not to proceed. And

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Speaker 1: I suspect the Senate, you know that they're not going

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Speaker 1: to probably feel obliged to do much in response to

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Speaker 1: a district court judge order, And in theories such an order,

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Speaker 1: could you feel with the Supreme Court, I very very

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Speaker 1: very much doubt that any district court would even entertain

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Speaker 1: such a lawsuit or certainly have the presumption to try

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Speaker 1: to enjoin the Senate impeachment trial of the president or former.

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Speaker 1: The more likely possibility would be if, frankly, if not

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Speaker 1: that likely, given the composition of the Senate, he were

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Speaker 1: to be tried and convicted, My guess is that he

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Speaker 1: would try to bring that up to a court, generally

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Speaker 1: starting again in the district court, and try to claim

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Speaker 1: that the Constitution doesn't permit such trial, and the courts

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Speaker 1: might or might not even entertain the question. It might

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Speaker 1: simply decide that it's nonjsticiable, as we said, or that

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Speaker 1: even if they consider it the first instant, that it's

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Speaker 1: really a separation of powers kinds of question, a political question,

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Speaker 1: and that particularly sends the Constitution so very plainly places

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Speaker 1: the impeachment remedy in the purview of Congress, that they're

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Speaker 1: going to give immense deference to the Senates interpretation of

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Speaker 1: its part of the impeachment role. So, yeah, it's possible

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Speaker 1: the courts could get into this. One doesn't like to

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Speaker 1: predict that kind of thing. My bet, if I had

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Speaker 1: to bet, would be that such a challenge would be unsuccessful.

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Speaker 1: Thanks Frank. That's Frank Bowman at the University of Missouri

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Speaker 1: Law School. Stephen Bryer has been a justice on the

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Speaker 1: Supreme Court for twenty six years, and at eighty two

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Speaker 1: years old, Brier is the oldest member of the Court.

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Speaker 1: Now that Democrats have won control of the U. S. Senate,

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Speaker 1: it will be easier for President elect Joe Biden to

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Speaker 1: fulfill his campaign promise of appointing the first black woman

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Speaker 1: to a Supreme Court seat, and so progressives are putting

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Speaker 1: pressure on Brian to retire now and following the footsteps

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Speaker 1: of Justice is Byron White and David Suitor, who gave

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Speaker 1: the last two Democratic presidents a Supreme Court seat to

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Speaker 1: fill in their first year in office. Joining me as

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Speaker 1: constitutional law professor Stephen Vladdock, a professor at the University

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Speaker 1: of Texas School of Law. Are Democrats now in the

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Speaker 1: seat that Republicans have been in for four years? As

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Speaker 1: far as judicial nominations, I think the tables certainly have turned.

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Speaker 1: I don't think it's quite the same, just because you know,

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Speaker 1: I don't think there's ever been quite the same effort

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Speaker 1: on the part of Democrats to prioritize the judgeships. Indicial

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Speaker 1: conversation is Republicans and also we haven't had the lead up.

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Speaker 1: I mean, one of the familes that really made the

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Speaker 1: Trump im axo dramatic was that Senate and Georgy leader

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Speaker 1: McConnell had been remarkably successful in denying open seats. The

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Speaker 1: President Obama said that when Trump came to office, there

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Speaker 1: are already a number of agencies to fill. I think

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Speaker 1: for President elect is soon to be President Biden, that's

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Speaker 1: gonna be more question of how many judges who are

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Speaker 1: currently active now we'll take senior status because there's a

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Speaker 1: democratic president and at least nominal democratic control of the Senate.

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Speaker 1: Why is the DC Circuit seat that Judge Garland is

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Speaker 1: leaving to become Attorney General. Why is that being eyed

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Speaker 1: as a potential springboard for a future Supreme Court justice. Well,

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Speaker 1: I think because it has been in the past. I mean,

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Speaker 1: you know, we have Justice Kavanaugh was a DC Circuit judge.

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Speaker 1: Chief Justice Roberts was a DC Circuit judge. Justice Ginsburg

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Speaker 1: was a DC Circuit judge. Justice Thomas was a DC

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Speaker 1: Circuit judge. I mean, this is historically the stepping stone

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Speaker 1: to the Supreme Court. You know, most folks call it

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Speaker 1: the second highest court in the land. And so I

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Speaker 1: think the idea is that whoever President Biden puts in

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Speaker 1: that seat, it's probably gonna be at the very top

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Speaker 1: of his shortlist for filling the next week that opens

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Speaker 1: on the Supreme Court. President like Biden hasn't even been

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Speaker 1: sworn into office yet, and there are already people calling

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Speaker 1: for Justice Stephen Bryan to retire. In fact, as soon

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Speaker 1: as it was clear that the Democrats had won the

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Speaker 1: Georgia election, why the rush. Well, I think given what

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Speaker 1: happened with Jesfice Ginsberg and Jeffice Start, I think that

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Speaker 1: tempers are understandably short, and that there's a very real

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Speaker 1: concern that opportunities shouldn't be passed up when it comes to,

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Speaker 1: you know, a chance or Justice Brier to be replaced

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Speaker 1: by someone who's younger, someone who shares his progressive news.

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Speaker 1: Perhaps maybe it's more progressive, and so I think the

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Speaker 1: concern is that even though Jesfice prior might look at

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Speaker 1: the current political climate and say, well, I can wait

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Speaker 1: a bit, I can wait at least until next year,

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Speaker 1: you know, a fifty fifty cent and is no guarantee.

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Speaker 1: I mean, all it takes is one set of circumstances

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Speaker 1: where a seat opens up in a state with the

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Speaker 1: republic looking governor, and all of a sudden the Senate

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Speaker 1: could kill faster Republican control. So for folks who have

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Speaker 1: viewed the Supreme Court as this critical political prize, now

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Speaker 1: is the moment for Justice Prior, who you know, we

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Speaker 1: should say, I mean, has been on the Court for

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Speaker 1: nearly three decades, has been a federal judge for over

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Speaker 1: four decades. You know, now is the time for him

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Speaker 1: to step aside and let someone younger come along. He's

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Speaker 1: in the same situation that the late Ruth Vader Ginsburg

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Speaker 1: was in, and that after all his years on the bench,

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Speaker 1: he's just become the leader of the liberal justices. Is

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Speaker 1: that a pull for him as it was for RBG?

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Speaker 1: And I think only Justice Prior could answer that. But

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Speaker 1: you know, just looking at this from the outside, one

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Speaker 1: of the remarkable things that you know, came late to

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Speaker 1: Justice Ginsworth in her career was the power and at

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Speaker 1: least a handful of cases to actually assign the majority opinion.

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Speaker 1: You know, it's hard to imagine when Justice Bryor is

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Speaker 1: going to have that power because the liberal block of

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Speaker 1: which he's now the senior member, has once you're justice

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Speaker 1: in it, and the only way that it's one imagined

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Speaker 1: that the progressives are going to be able to create

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Speaker 1: five four majorities in the court going forward is to

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Speaker 1: bring in the Chief Justice along with them. So I

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Speaker 1: suggest there are a number of considerations, and it made

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Speaker 1: him Justice Friars calculation. I just think that's probably pretty

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Speaker 1: low on the list. There's been a lot of reporting

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Speaker 1: about President Barack Obama setting up a lunch with RBG

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Speaker 1: to mention retirement, which obviously failed to convince her. Is

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Speaker 1: maneuvering to get a justice to retire a thing that's

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Speaker 1: often done. I think it depends on what we mean

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Speaker 1: by maneuver. I think there's always a you know, very

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Speaker 1: very sort of informal back channel avenue of communication between

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Speaker 1: justices and white houses that are sympathetic to their political views.

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Speaker 1: You know, I think the lunch between President Obama and

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Speaker 1: then Justin Skinford was probably about as close as we've

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Speaker 1: come to any kind of direct contact. And even there,

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Speaker 1: you know, all reports suggests that you never asked her

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Speaker 1: to resign, that you know, it never came up directly.

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Speaker 1: But I mean, jun the reality is Sesis Friar is

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Speaker 1: a very davvy guy. I don't think he needs to

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Speaker 1: be told that a vacancy on the Supreme Court in

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Speaker 1: the jest to fill his seat would be a huge

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Speaker 1: priority and potentially a huge boon to the Biden administration.

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Speaker 1: I thinks this is just a question of his own

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Speaker 1: calculus and his own analysis of what the best time

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Speaker 1: in this for him. Some might say that Justice Kennedy

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Speaker 1: was maneuvered to leave the Court by promises made to

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Speaker 1: him about his replacement by the Trump administration. Might that

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Speaker 1: happen here as well? There are allegations about what Kennedy

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Speaker 1: was told and what he might even have communicated to

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Speaker 1: the Trump White House that I don't know if ever

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Speaker 1: been substantiated. I doubt that your I think sessis Friar.

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Speaker 1: You know, is the kind of person, the kind of

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Speaker 1: jurist who's not going to have incredibly strong views about

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Speaker 1: particular people as his successor, as opposed to just who

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Speaker 1: should be choosing that successor under what circumstances. And I think,

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Speaker 1: especially in this context, you know where cousin Biden, with

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Speaker 1: a basiccy on the Supreme Court would have a chance

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Speaker 1: to add a real measure of adversity to the Court

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Speaker 1: in a way that his predecessor hasn't I suspected from

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Speaker 1: Justice Briar's perspective, he's probably willing to just give the

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Speaker 1: new administration event has it's out on this. Let's talk

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Speaker 1: about some of the people who have been discussed as

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Speaker 1: potential Supreme Court nominees. Biden has said that he will

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Speaker 1: nominate a black woman to the Court, and one of

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Speaker 1: the names that comes up all the time, and at

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Speaker 1: the top of the list maybe is Judge Katangi Brown Jackson.

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Speaker 1: She's a former Briar clerk. Actually tell us a little

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Speaker 1: bit about her. Yeah, I mean Judge Jackson, I think

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Speaker 1: is a very highly regarded federal district judge in Washington's

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Speaker 1: She's been on the bench since the administration. Of the

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Speaker 1: folks who have practiced before her, her colleagues, they all

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Speaker 1: seek very highly occur I think one of the thoughts

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Speaker 1: actually is that with Merrick Garlands potentially leaving his seat

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Speaker 1: to become the Attorney General, you know, one possibility is

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Speaker 1: actually to nominate Judge Jackson to the DC Circuit first,

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Speaker 1: until and unless there's a Supreme Court vacancy, just so

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Speaker 1: that she can further developed her appellate chops. But you know,

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Speaker 1: I think she's one of the people that she's at

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Speaker 1: the top of the shortlist seconds for a very good reason.

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Speaker 1: She's highly regarded, she's incredibly smart, she has written some

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Speaker 1: pretty impressive opinions in her time on the Digital Court.

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Speaker 1: So I think that's why a lot of folks are

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Speaker 1: paying attention to her. That is similar to what happened

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Speaker 1: with Judge any Coney Barrett. They put her on the

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Speaker 1: Seventh Circuit. Well, I think, I mean, they've done this

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Speaker 1: a lot. I mean, so Justice Suitter was on the

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Speaker 1: First Circuit for a short period of time before he

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Speaker 1: was nominated. Justice Thomas was on the DC Circuit for

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Speaker 1: a short period time. Chief Justice Roberts was on the

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Speaker 1: CC circuits for a four period time before he was nominated.

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Speaker 1: I think there's just this mentality, for better or for worse,

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Speaker 1: that one of the easiest ways to sort of defeat

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Speaker 1: experience objections in the Supreme Court confirmation process is to

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Speaker 1: have nominated to have at least some period of time

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Speaker 1: of experience as federal circuit judges, because at least in

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Speaker 1: some superficial ways, the jobs aren't all that different. I

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Speaker 1: guess how to say, I mean, I'm one of those

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Speaker 1: who doesn't think that being a Circuit judge is or

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Speaker 1: should be a we represented doing with Supreme Court justice,

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Speaker 1: but at least of late that's increasingly become the norm.

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Speaker 1: Another name being floated is California Supreme Court Justice Leandre Krueger,

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Speaker 1: and her name is also being floated as Solicitor General.

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Speaker 1: What do we know about her? Yeah, I mean I

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Speaker 1: think you know, similar vein as um that Jackson esfics.

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Speaker 1: Krueger has private government experience, She's been in the executive branch,

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Speaker 1: and she has some really really impressive credentials. Her work

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Speaker 1: on the California Supreme Court has been highly regarded. Um,

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Speaker 1: and you have the added the added value of a

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Speaker 1: little more geographical and experiential diversity, you know, having a

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Speaker 1: state Supreme Court justice not into the Supreme Court. It's

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Speaker 1: been a while since that happened, Um, having a California

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Speaker 1: on the court. You know, that's this Kennedy's departure left

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Speaker 1: the court for rest um of anyone from the nation's

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Speaker 1: biggest state. So, you know, I think this is why

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Speaker 1: most discussions of President Biden's first Supreme Court nominee end

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Speaker 1: up with Katangi Brown Actulyandre Krueger, because they're just so

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Speaker 1: you know, because such compelling candidates on their own, Have

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Speaker 1: you heard any other names being floated? Those? You know,

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Speaker 1: those are the two you hear most often. Um, you know,

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Speaker 1: I think there are some there are the sort of

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Speaker 1: the wilder names that I think are not realistic, Like

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Speaker 1: folks who says, maybe Michelle Obama could beyond the Supreme

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Speaker 1: Court or State April. But at the end of the day,

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Speaker 1: I think this is really probably a two horse race,

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Speaker 1: at least for now. So looking at the court and

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Speaker 1: the way the way it is right now, do you

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Speaker 1: think it's a good idea for Justice prior to retire?

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Speaker 1: And I'm not sure. I don't know what what to

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Speaker 1: do with a good idea. I mean, I I think

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Speaker 1: I think Jessice Friar is gonna be under a lot

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Speaker 1: of pressure to set aside in favor of, you know,

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Speaker 1: a younger dominative and for good reason. And I think,

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Speaker 1: you know, there are a lot of folks who look

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Speaker 1: at you know, the sort of the the unfortunate date

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Speaker 1: of Justice Ginsburg um as a lesson to be avoided,

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Speaker 1: um as an example not to repeat. And so, you know,

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Speaker 1: I think there's gonna be a lot of pressure on

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Speaker 1: Justice Frior and I think, you know, given where we are,

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Speaker 1: might make a lot of sense um for you know,

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Speaker 1: President Biden to be able to put a nominee on

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Speaker 1: the Supreme Court sooner as than later, since we have

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Speaker 1: no idea what's going to happen to the Senate either

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Speaker 1: in the month or even in the terms. Thanks for

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Speaker 1: being on the Bloomberg Law Show, Steve. That's constitutional law

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Speaker 1: professor Stephen Vladdock of the University of Texas Law School.

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Speaker 1: I just want to note that Justice Brier himself has

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Speaker 1: not given any indication of when he wants to retire.

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Speaker 1: That's it for this edition of the Bloomberg Law Show.

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Speaker 1: Remember you can always get the latest legal news on

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Speaker 1: our Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify,

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Speaker 1: and at www dot Bloomberg dot com slash podcast slash Law.

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Speaker 1: I'm juven Grosso. Thanks so much for listening. Please tune

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Speaker 1: into The Bloomberg Laws Show every weeknight at ten pm

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Speaker 1: Eastern right here on Bloomberg Radio. Muted. The student descripen

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Speaker 1: of Jo