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Speaker 1: You're listening to Bloomberg Law with June Grozzo from Bloomberg Radio.

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Speaker 1: President Trump's legal team finished presenting its defense today on

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Speaker 1: their third day of arguments in the Senate impeachment trial.

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Speaker 1: Here's Trump's attorney, Jay Sekulo, to have have a removal

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Speaker 1: of a duly elected president based on a policy disagreement

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Speaker 1: that is not what the framers intended. And if you

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Speaker 1: lower the bar that way, danger, danger, Danger. My guest

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Speaker 1: is Josh Blackman, a professor at the South Texas College

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Speaker 1: of Law. Last night, Alan Dershowitz cited you you left.

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Speaker 1: Tell us what he said and whether he was correct

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Speaker 1: in the way he interpreted what you have written. Well,

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Speaker 1: first off, I wasn't actually listening to it live. I

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Speaker 1: was giving a lecture at the University of Oregon Law School.

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Speaker 1: In the middle of my lecture, my phone started exploding

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Speaker 1: and I got all these emails and text people were

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Speaker 1: sending that Dershwood's name tropped me. So after my talk,

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Speaker 1: I had to go back and you know, watched the video.

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Speaker 1: Last week, I had published an op ed in the

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Speaker 1: New York Times, and the op ed explained that what

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Speaker 1: President Trump was doing was politics. It was not an

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Speaker 1: abusive power. And I offered one example to put Trump's

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Speaker 1: actions into context. During the Civil War, there was an

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Speaker 1: election being held in Indiana and the Republican government Indiana

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Speaker 1: was in jeopardy being thrown out and present Lincoln worry

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Speaker 1: that if Indiana fell at of Republican power, they would

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Speaker 1: no longer support the war effort. As a result, Lincoln

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Speaker 1: wrote a letter to General Sherman, and Lincoln told Sherman,

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Speaker 1: can you please let the Indiana soldiers go home and

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Speaker 1: vote for the Republican party that has take them off

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Speaker 1: the front line and let them go vote. Lincoln recognized

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Speaker 1: that this action would put the troops in in peril,

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Speaker 1: but he was the commander in chief and he could

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Speaker 1: give this order. And he was also the lead of

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Speaker 1: the Republican Party, and he didn't want his party out

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Speaker 1: of power because out have injured the nation. UM. I

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Speaker 1: didn't offer this example to compare link in to Trump.

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Speaker 1: I think that's a gross that's a gross analogy at

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Speaker 1: many levels. My point is that presents routinely used their

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Speaker 1: official power as a means to advance directly and directly

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Speaker 1: political futures. And what happens with Lincoln and Trump while

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Speaker 1: people agree with disagree in the value, but these are

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Speaker 1: not unconsulutional abuses of power. Okay, well, I wrote the

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Speaker 1: opped it got a lot of feedback, allow blowback. And

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Speaker 1: then last night or on eight thirty PM in prime time,

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Speaker 1: Alan Dershwitz said, and let me read an article from

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Speaker 1: Professor Blackman, and he spent about a minute and a

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Speaker 1: half reading my article and saying he agreed with me.

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Speaker 1: What can I say? I agree with dersh I think

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Speaker 1: he made the right argument, but it was very surprising

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Speaker 1: to hear. And uh, I'm flattered, honored, and shocked all

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Speaker 1: at once. You agree with Dershowitz saying the Founders meant

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Speaker 1: impeachment to be used for explicitly criminal acts such as

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Speaker 1: treason or bribery. No, I don't. I don't agree with Derschwitz,

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Speaker 1: and entirely. Dershowitz argued that the only offenses that can

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Speaker 1: be impeachable are actual criminal offenses. I don't think he's

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Speaker 1: right about that. But where Derschwitz and I agree is

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Speaker 1: on what is not impeachable. And I think merely using

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Speaker 1: official acts to help yourself politically is not an abuse

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Speaker 1: of power. It might be bad politics, would be something

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Speaker 1: the voters can consider, but I don't think it wants

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Speaker 1: removal from office. Do you think the Democrats have presented

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Speaker 1: a case for impeachment, Well, there are two articles. One

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Speaker 1: is based on the abuse of power. The second is

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Speaker 1: based on what's called obstruction of Congress. I don't I

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Speaker 1: don't have a strong opinion the second one. We'll focus

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Speaker 1: on the first one. Um, the first one, even if

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Speaker 1: we assume the facts are true that President Trump withheld

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Speaker 1: the money UH in order to get the Ukrainians investigated Biden,

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Speaker 1: his political opponent, even if the facts are as pleaded, Um,

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Speaker 1: I don't think that would be in the power. I

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Speaker 1: think it was terrible judgment and I think it was

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Speaker 1: a huge mistake. And I've said so many times, but

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Speaker 1: I don't think the benefit Trump received the political uh

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Speaker 1: impact of investigation that doesn't trigger the the the impeachment

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Speaker 1: requirement for our constitution. So you are in the minority

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Speaker 1: of constitutional stars, which minority, which is probably why Durst

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Speaker 1: had to quote me. There was anyone else to quote.

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Speaker 1: But hey, look, I know I know my I know

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Speaker 1: my audience. Right. No, I think I think I'm in

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Speaker 1: the minority positions. But I will tell you that I've

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Speaker 1: been getting a quite large number of attorneys who agree

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Speaker 1: with me, but who perhaps keep your mouth shut because

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Speaker 1: it's not a very popular thing to do. Defending President

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Speaker 1: Trump is never popular thing in most quarters. Um, I

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Speaker 1: don't even defend President Trump. I think his actions were uh,

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Speaker 1: quite inappropriate. He shouldn't have done it. But that's a

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Speaker 1: decision for the ballot box, not one for the impeachment trial. Now,

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Speaker 1: one of the questions, which has always been the question,

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Speaker 1: is witnesses, and we have the manuscript of former National

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Speaker 1: Security advisor John Bolton's upcoming book. Today, Trump attorney Jay

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Speaker 1: Sekulo urged the Senate to ignore the leaks about Bolton's book, saying, quote,

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Speaker 1: you cannot impeach a president on an unsourced allegation. Well,

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Speaker 1: doesn't that lead then to the answer, why not call

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Speaker 1: him as a witness then? Right? The timing of this

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Speaker 1: Bolton bolt of lightning in my card is very convenient.

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Speaker 1: The manuscript was released right at the start of the

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Speaker 1: President's case, a couple of days before votes will be

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Speaker 1: held on whether witnesses should be called. You know, June,

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Speaker 1: I can't tell you if we'll have witnesses called or not.

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Speaker 1: What I probably will tell you is nothing will change.

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Speaker 1: I think Bolton will more or less tell you what

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Speaker 1: the House managers have been accusing the President of I'm

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Speaker 1: not sure that changes any votes for my position. I've

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Speaker 1: assued him the House managers are right on the facts,

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Speaker 1: and I've assumed the President maybe order to withhold the

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Speaker 1: money in exchange for the investigation the Biden's I just

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Speaker 1: assumed those are the facts. Even what Bolton saying it's

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Speaker 1: true wouldn't really affect how the situation. So now the

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Speaker 1: next phase is sixteen total hours of senators questions from

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Speaker 1: both sides. What kind of questions do you expect to

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Speaker 1: hear or what the questions would be beneficial? Well, you know,

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Speaker 1: I think I think we'll have I don't think the

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Speaker 1: questions we are useful. I think that this case isn't

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Speaker 1: litigated to death. I don't know that there are any

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Speaker 1: there's anything left to discuss unless they're new witnesses that

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Speaker 1: can give new information. Um In terms of what the

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Speaker 1: senators will ask, I think the Republicans last questions about

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Speaker 1: Hunter Biden, the last question about Joe Biden. They'll ask

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Speaker 1: Adam Schiff about why he talked to the whistleblower, whether

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Speaker 1: he talked to the whistleblower. UM. I think there'll be

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Speaker 1: you Republicans trying to make political points. Um, what are

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Speaker 1: the Democratic senators going to ask? They'll probably ask stuff

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Speaker 1: Joe Biden. I'm sorry about John Bolton, They'll ask about

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Speaker 1: mc mulvaney. I don't think the questions were particularly useful,

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Speaker 1: but you know that that's they're prerogative to ask these questions.

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Speaker 1: Do you think there should be witnesses? I'm mixed, and

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Speaker 1: let me let me speak out loud for a minute. UM.

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Speaker 1: I think that the House would have been a good

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Speaker 1: place of witnesses. UM. I think the House would have

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Speaker 1: been the appropriate form to develop a record which they

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Speaker 1: can be considered in the Senate. But of course the

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Speaker 1: witnesses refused to pacify for the House that they couldn't

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Speaker 1: do it. They did not issue subpoenas and tried to

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Speaker 1: enforce them in court. They could have, but they chose

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Speaker 1: not to. UM. But there's nothing preventing witnesses from being

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Speaker 1: called in the Senate. I don't know that the information

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Speaker 1: will help resolve anything, So I'm I'm kind of mixed

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Speaker 1: on the on the question of um. Uh witnesses. I

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Speaker 1: go back and forth, so former Obama administration, Supreme Court

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Speaker 1: advocate Neil Katia, Georgetown University law professor Joshua Geltzer, and

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Speaker 1: Mickey Edwards, a former Republican senator from Oklahoma, wrote an

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Speaker 1: op ed in The New York Times saying that the

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Speaker 1: Chief Justice can do more than just have a ceremonial role.

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Speaker 1: That he can issue subpoenas on his own authority, and

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Speaker 1: he could break the fifty fifty tie among senators. First

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Speaker 1: of all, can he do that? Probably? Um, we do

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Speaker 1: have one president. We've only had two presidential impeachments which

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Speaker 1: the Chief Justice presides. But in eighteen eight uh Andrew Johnson,

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Speaker 1: the president was impeached and we had a peachment trial.

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Speaker 1: Does presides over by Sam and Chase, the Chief Justice

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Speaker 1: at the time. On a couple occasions, I think two occasions,

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Speaker 1: chief Justice broke ties, and the Senate seemed to accept

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Speaker 1: that because generally the presiding officer can break any ties

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Speaker 1: in the body. I don't know that Roberts would. If

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Speaker 1: there's a fifties tie, he could, or he could simply

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Speaker 1: say I declined to vote, in which case the motion

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Speaker 1: is defeated. So I I let me take a step

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Speaker 1: back and respond to the op ed you mentioned. I

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Speaker 1: think it's almost a fantasy to people think John Roberts

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Speaker 1: will save this trial. UM. He does not want to

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Speaker 1: do anything. He wants to just move things along. Roberts's

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Speaker 1: boss was named Chief Justice Rank List as we clerk

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Speaker 1: for back in the day. Rank was presided at the

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Speaker 1: Clinton impeachment trial, and Rank was said of his job,

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Speaker 1: I did nothing at all. I did it particularly well.

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Speaker 1: I think Roberts us is off the same fashion. Just

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Speaker 1: move things along and don't get involved in controversial decisions.

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Speaker 1: I think that's that's where Roberts will come down in

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Speaker 1: this what's your general take on what you've seen so

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Speaker 1: far of the impeachment. I think the House I think

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Speaker 1: the house managers have done a very good job. I

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Speaker 1: don't say that lightly because I don't agree with their charge.

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Speaker 1: I think Adam Schiff has been, for the most part,

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Speaker 1: an excellent attorney. I think he's really made a compelling

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Speaker 1: case why people should vote against Donald Trump. I don't

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Speaker 1: think he's made the case of why should removed them office,

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Speaker 1: but this is a great statement of why you should

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Speaker 1: vote for another candidate. UM. I think there, the presidents

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Speaker 1: lawyers have had a different function. Um. Their role has

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Speaker 1: not been too necessarily make legal arguments. Their role has

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Speaker 1: been to tarnish and taint this proceeding as is sort

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Speaker 1: of political hoaxes, witch hunt. I think they've done that

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Speaker 1: effectively as well. On both sides are playing to their basis.

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Speaker 1: I mean, even if they're the timing June, the president

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Speaker 1: had all day Saturday to make arguments, as Laurier made

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Speaker 1: two hours of arguments why ratings are dead on Saturday

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Speaker 1: and said they waited for Monday, And in fact Derschwitz

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Speaker 1: came up prime time a PM due to make his argument.

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Speaker 1: That's when he announced my uh uh um that that

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Speaker 1: that's when he announced my art. Also, I mean there

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Speaker 1: are probably tens of millions of people watching him talking

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Speaker 1: about myself, which is sort of surreal. But I think

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Speaker 1: they've been uh leading this process in a political fashion,

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Speaker 1: and that's probably the best way to accomplish it. I

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Speaker 1: think that's what they're best thing, that's what they're trying

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Speaker 1: to do, and they accomplished it. Let me ask you

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Speaker 1: something about Dershowitz. In particular, he taught criminal law and

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Speaker 1: he was a famous criminal defense attorney. Now he's presenting

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Speaker 1: himself as a constitutional law scholar. I mean, the weight

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Speaker 1: of authority is against him. Well as for Dershwitz being

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Speaker 1: a criminal professor teaches criminal procedure, which is very constitutionalist oriented. UM.

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Speaker 1: But I think I think more importantly, scholars are allowed

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Speaker 1: to change their minds. UM. They can revisit questions, and

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Speaker 1: I think people can reasonly disagree. Most people think I'm wrong,

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Speaker 1: most people think I'm dead wrong. I've gotten awful emails

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Speaker 1: and awful tweets from lots of law professors, and I

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Speaker 1: respect their opinions, but I hold a different one UM

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Speaker 1: in terms of the specifics. Dershowitz In the nineteen and

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Speaker 1: he's made a statement that wasn't really relevant. Clinton was

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Speaker 1: charged with perjury and an obstruction of justice those who

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Speaker 1: established crimes at the time, it was irrelevant whether or

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Speaker 1: not you need to charge a crime because it was

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Speaker 1: a crime. Only now with Trump, for the first time,

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Speaker 1: we have a situation where the presidents being charged with

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Speaker 1: this sort of nebulous abuse of power claim, and that

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Speaker 1: led to shorts to investigate. UM. He's a bit of

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Speaker 1: a heterodox. He takes different positions and different elements. I

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Speaker 1: think at bottom he's a civil libertarian, so I I

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Speaker 1: don't begrudge him, I don't fault him. I think he

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Speaker 1: made a decision. I don't agree with him on this

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Speaker 1: specific but I don't think he's unqualified and he made

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Speaker 1: his case well. I think he represents the president of

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Speaker 1: the plumb Thanks Josh. That's Josh Blackman, professor with the

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Speaker 1: South Texas College of Law.