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

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Speaker 1: Welcome to Bloomberg Law. I'm June Grosso. Had in this

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Speaker 1: hour an impeachment trial with no witnesses seems likely after

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Speaker 1: Senate Majority Leader Mitch McConnell refuses to negotiate over the

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Speaker 1: terms of the trial. Senate Majority Leader Mitch McConnell said

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Speaker 1: he has the votes to start the impeachment trial without

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Speaker 1: first resolving the issue of whether witnesses will be called,

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Speaker 1: and he's not budging from his position. There will be

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Speaker 1: no haggling with the House over Senate procedure. We will

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Speaker 1: not see it our authority to try this impeach front

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Speaker 1: the House Democrats turn is over. Senate Minority Leader Chuck

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Speaker 1: Schumer says Republicans are afraid of the facts coming out.

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Speaker 1: Large numbers of Republicans have refused to say whether there

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Speaker 1: are four witnesses and documents, and that is why Leader

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Speaker 1: McConnell came down with this, came up with this kick

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Speaker 1: the can down the road theory, try to avoid that question.

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Speaker 1: My guest is former federal prosecutor Robert Minn's a partner

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Speaker 1: McCarter and English Bob does McConnell's position mean there will

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Speaker 1: inevitably be a trial without witnesses. The position that Senator

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Speaker 1: McConnell is taking is that he wants to follow the

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Speaker 1: process that was used by the senator during the Bill

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Speaker 1: Clinton impeachment in in that case, you had all the

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Speaker 1: Senators deciding unanimously that the process would be that both

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Speaker 1: sides would present their cases. In other words, the House Managers,

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Speaker 1: who act as prosecutors, would make the case for impeachment.

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Speaker 1: The president's lawyers would then have an opportunity to respond,

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Speaker 1: and that at that point the Senators would reconvene and

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Speaker 1: decide if additional witnesses needed to be called, which in

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Speaker 1: the case of the Clinton in teachment, additional witnesses were called.

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Speaker 1: So what Senator McConnell is saying is that it's premature

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Speaker 1: to make the decision now. We should follow that same

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Speaker 1: process and make the decision at the conclusion of both sides,

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Speaker 1: the president's lawyers and the House Managers making out their case.

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Speaker 1: At that point, the Senators should get together and decide

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Speaker 1: if witnesses are necessary. But there is a difference between

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Speaker 1: the Clinton impeachment and the Trump impeachment, and that in

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Speaker 1: testimony from every major witness had already been made public

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Speaker 1: by the time the case came to the Senate trial.

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Speaker 1: In this case, President Trump has withheld from Congress evidence

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Speaker 1: as well as the testimony of a dozen witnesses. That's

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Speaker 1: exactly right. The argument that the Democrats are making here

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Speaker 1: is that you cannot compare this impeachment process to the

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Speaker 1: Clinton impeachment process, because they're very different. The Clinton impeachment

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Speaker 1: was based almost entirely on investigation that had already been

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Speaker 1: completed by the Independent Council Ken Star, in which witnesses

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Speaker 1: were deposed and witnesses were questioned. When the case went

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Speaker 1: over to the Senate side, there were really not very

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Speaker 1: many facts that were at issue you, if any at all.

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Speaker 1: It was really a question of how the Senate should

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Speaker 1: appropriately deal with the facts that nobody was really disputing.

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Speaker 1: This case is really the mirror image of that. It's

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Speaker 1: all about the facts, and the Democrats are arguing that

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Speaker 1: they don't have the complete record because a number of

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Speaker 1: key witnesses, including John Bolton, the former National Security Advisor,

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Speaker 1: and Mick Mulvaney, the current Chief of Staff, did not

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Speaker 1: appear on the Intelligence Committee to testify about what went

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Speaker 1: on because they were precluded from doing it by the

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Speaker 1: White House. So the Democrats are arguing that they ought

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Speaker 1: to be called in front of the Senate so that

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Speaker 1: the senators can hear exactly what these witnesses would have

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Speaker 1: said had they been called to testify before the House.

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Speaker 1: What's your reaction to John Bolton suddenly saying I will

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Speaker 1: testify if the Senate subpoenas me, unlike his position before

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Speaker 1: the House where he wanted it to play out in

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Speaker 1: the courts with his associate. Well, the Bolton testimony really

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Speaker 1: raises a number of interesting questions that it is a

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Speaker 1: little puzzling us to why his position has changed. When

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Speaker 1: he was initially requested to testify about before the House

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Speaker 1: Intelligence Committee, he said, not only do you have to

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Speaker 1: subpoena me, but then that subpoena has to stand up

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Speaker 1: in court. Now he's saying, if he gets to subpoena,

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Speaker 1: he will show up and will not have to run

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Speaker 1: it through the gallant of the courts before he would appear.

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Speaker 1: But appearing and answering questions are two very different issues.

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Speaker 1: It may be that John Bolton will show up to

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Speaker 1: answer questions, but how many questions I'll answer. We really

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Speaker 1: don't know at this point. What we do know is

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Speaker 1: that his lawyer said back in November that Mr Bolton

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Speaker 1: has many relevant meetings and conversations connected to the Ukraine

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Speaker 1: matter that had not been shared with the House impeachment investigators,

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Speaker 1: and that's why Democrats want to hear from him. But

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Speaker 1: there's still the looming question of executive privilege, because that's

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Speaker 1: a privilege that would apply the conversations between the National

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Speaker 1: Security Advisor and the President on issues of foreign policy.

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Speaker 1: And most importantly, it is a privilege belongs to the President,

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Speaker 1: not to Mr Bolton. So it's possible that even if

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Speaker 1: Mr Bolton is subpoenaed, and even if he appears and testifies,

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Speaker 1: that he may be precluded from answering some of the

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Speaker 1: questions that are put him during the Senate trial. Remember

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Speaker 1: back when President Trump was saying he wanted to have

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Speaker 1: witnesses testify and he wanted to be able to do

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Speaker 1: that in a Senate trial. What do you think changed? Well,

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Speaker 1: I think what's going on here is we are seeing

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Speaker 1: this process being directed by Mick McConnell. He is looking

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Speaker 1: at this through a political lens, not a legal lens,

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Speaker 1: and ultimately The goal of Mick McConnell is to preserve

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Speaker 1: his majority in the Senate. So what he has to

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Speaker 1: be concerned about are the four Republican senators who could

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Speaker 1: cross over and join the Democrats and demand that witnesses

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Speaker 1: appear in the Senate during the trial. It's only four

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Speaker 1: votes that it will require witnesses to appear, It's not

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Speaker 1: the sixty seven that will be required or in order

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Speaker 1: to convict and remove. So he has to look at

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Speaker 1: those four senators and ultimately do the political calculation as

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Speaker 1: to whether or not he can keep them in line

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Speaker 1: without calling witnesses. Coming up on Bloomberg Law will continue

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Speaker 1: this conversation on impeachment. Was Nancy Pelosi out maneuvered? Remember

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Speaker 1: you can listen to all the latest legal topics in

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Speaker 1: the news anytime on our Bloomberg Law podcast. You can

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Speaker 1: find them on iTunes, SoundCloud, or if Bloomberg dot com

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Speaker 1: slash podcast Slash Law. I'm June Grosso and this is Bloomberg.

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Speaker 1: I've been talking about the upcoming impeachment trial with former

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Speaker 1: federal prosecutor Robert Mints, a partner m Carter in English.

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Speaker 1: Senate Minority Leader Chuck Schumer has promised to force a

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Speaker 1: series of votes on calling witnesses and getting additional evidence.

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Speaker 1: So our Democrats hoping that putting Senate Republicans on the

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Speaker 1: record might be intimidating or convincing for some of the

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Speaker 1: senators who are going to have some difficult re election campaigns. Yes,

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Speaker 1: what we're seeing here is just as Mick McConnell is

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Speaker 1: playing out his hands through political leverage, the Democrats through

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Speaker 1: Nancy Pelosi are doing the same thing, and through Chuck

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Speaker 1: Humor doing exactly the same thing. They are putting as

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Speaker 1: much pressure as they can on Republicans to try to

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Speaker 1: make this look like a cover up if they don't

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Speaker 1: call witnesses. They are going to try to argue that

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Speaker 1: it's clear that John Bolton has relevant evidence that he's

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Speaker 1: a potentially explosive witness who has direct knowledge of the

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Speaker 1: President's actions and conversations regarding Ukraine that could fill in

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Speaker 1: the blanks of some of the narrative in their impeachment case.

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Speaker 1: And the risk that Republicans run here is if ultimately

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Speaker 1: it's decided that John Balton does not testify and subsequently

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Speaker 1: in his book or in some other interview or information

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Speaker 1: leaks out, it turns out that Bolton did have information

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Speaker 1: that was directly relevant to the impeachment process. That's something

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Speaker 1: that Republicans have to be concerned about, Bob. The Democrats

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Speaker 1: strategy during the House impeachment process was not to call

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Speaker 1: witnesses like John Bolton and Chief of Staff Mick mulvaghey,

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Speaker 1: that we're not going to appear voluntarily or even under subpoena,

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Speaker 1: not to force a court battle over those witnesses. Does

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Speaker 1: it look now as if that strategy didn't work, because

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Speaker 1: the needle hasn't moved on impeachment for the public and

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Speaker 1: there may be no witness testimony in the Senate. Well,

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Speaker 1: that's a great question, because clearly what the Democrats were

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Speaker 1: doing was playing to public opinion here, trying to sway

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Speaker 1: public opinion without having to call those additional witnesses, which

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Speaker 1: would have caused the process to be long and drawn out.

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Speaker 1: And I think the calculation was made that the public

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Speaker 1: just might lose interest in this process, and that Democrats

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Speaker 1: felt that they had enough evidence with the recorded conversation

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Speaker 1: or the transcript I should say, of the conversation that

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Speaker 1: the President had with the President of Ukraine, and it

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Speaker 1: was other evidence and other testimony that they did get

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Speaker 1: from witnesses who were willing to appear. That didn't necessarily

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Speaker 1: play out, I think exactly as Democrats had hoped, since

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Speaker 1: public opinion does not seem to have been swayed by

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Speaker 1: that testimony. And now they're trying to gather more evidence,

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Speaker 1: get some more momentum by putting pressure on the Republicans

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Speaker 1: to call additional witnesses, and John Bolton has now thrown

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Speaker 1: a live grenade into that mix by saying that is

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Speaker 1: subpoenaed he will appear. Nancy Pelosi chose to withhold the

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Speaker 1: articles of impeachment, not to send them over to the Senate.

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Speaker 1: But was she outmaneuvered, not just by Mitch McConnell perhaps,

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Speaker 1: but by events. We've had the military strike against Iran's

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Speaker 1: general that has taken the place of impeachment in the headlines.

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Speaker 1: So did her maneuver work or fail well? I think

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Speaker 1: Nancy Pelosi recognized that the only leverage she had in

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Speaker 1: all of this was to try to shame the Republicans

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Speaker 1: into committing to call witnesses before the articles and impeachment

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Speaker 1: were handed over to the Senate. She knew that she

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Speaker 1: could only play out that string for so long, and

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Speaker 1: even though those two articles have not yet been delivered,

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Speaker 1: she's going to have to do it within the next

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Speaker 1: couple of days. The time has really run out on that.

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Speaker 1: Has she actually gained any upper hand by putting a

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Speaker 1: focus on that issue and by making a look like

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Speaker 1: Republicans are not willing to call witnesses. I'm not sure

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Speaker 1: it really worked out, because even the four swing Republicans

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Speaker 1: that would be needed in order to get the fifty

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Speaker 1: one votes required to call witnesses have all stayed with

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Speaker 1: Mix McConnell and I've all said that they would agree

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Speaker 1: to a process by which they would allow House managers

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Speaker 1: to present their case, allow the president's lawyers to present

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Speaker 1: their defense, and then at that point make a decision

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Speaker 1: about whether additional witnesses were necessary. So tell us what

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Speaker 1: the first part of the will look like. Well, what

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Speaker 1: we know right now is that Mick McConnell is going

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Speaker 1: to likely put a process together that will be along

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Speaker 1: party lines strictly, with all of the Republicans agreeing to

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Speaker 1: delay the question about calling witnesses, and so what we

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Speaker 1: will see are essentially opening statements. It's the opportunity for

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Speaker 1: the house managers who essentially act like prosecutors to make

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Speaker 1: up the case before the Senate as to why the

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Speaker 1: Senators should vote to convicted remove the president based upon

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Speaker 1: the evidence that they have already gathered in the House

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Speaker 1: Intelligence Committee. And at the same time, the president's lawyers

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Speaker 1: will have an opportunity to present their side of the

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Speaker 1: case as to why the articles of impeachment are inadequate

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Speaker 1: on their face, and presumably will argue that it's not

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Speaker 1: necessary to call any additional witnesses, that they want to

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Speaker 1: simply dismiss the case. At the conclusion of these opening statements,

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Speaker 1: senators will have an opportunity to ask questions, and at

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Speaker 1: that point they will cauc us a end and will

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Speaker 1: raise the question of who they would want to call

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Speaker 1: as additional witnesses, and then will ultimately be up to

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Speaker 1: that vote. A simple majority can require witnesses to be called,

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Speaker 1: but if they're Democrats, don't get four Republicans to come over,

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Speaker 1: then there will be no witnesses. And so, with the

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Speaker 1: power that Mitch McConnell has over the Senate Republicans, what's

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Speaker 1: the most likely outcome here dismissal after opening arguments? Well, certainly,

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Speaker 1: if you're Mick McConnell, You don't like the idea of

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Speaker 1: calling a witness that you don't know what they're gonna say.

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Speaker 1: In the Clinton case, all of the witnesses that were called,

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Speaker 1: every single one of them that were called on the

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Speaker 1: Senate side, had already previously testified before the House Committee,

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Speaker 1: so there was nothing new there. There were no surprises.

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Speaker 1: Mitch McConnell is not gonna want a witness like a

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Speaker 1: John Bolton or a mcmulvaney to show up and testify

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Speaker 1: in a Senate trial when they have not gone on

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Speaker 1: the record previously, and particularly with John Bolton, nobody knows

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Speaker 1: exactly what he's gonna say. So he didn't do everything

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Speaker 1: he can to persuade those four senators that additional witnesses

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Speaker 1: are not necessary. But at the same time, Mick McConnell's

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Speaker 1: ultimate goal here is to preserve his Senate majority, and

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Speaker 1: he has to be mindful of the fact that there

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Speaker 1: are four senators out there, perhaps even a number more

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Speaker 1: than that, who are going to be in potentially tight races,

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Speaker 1: and they do run the risk of being criticized for

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Speaker 1: not allowing additional witnesses who might well shed additional facts

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Speaker 1: and provide additional evidence on some of these key questions,

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Speaker 1: to at least give them the opportunity to testify so

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Speaker 1: that senators could have the full picture. And that's the

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Speaker 1: balancing act that he's going to have to walk. And

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Speaker 1: I think, as if with any politician, he's doing what

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Speaker 1: is the shrewd move, which is to delay that decision

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Speaker 1: and see where the public mind is at at the

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Speaker 1: conclusion of these opening statements, to see whether there's any

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Speaker 1: momentum that has been built to call additional witnesses or

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Speaker 1: whether the public had simply pirate of the whole process

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Speaker 1: and is willing to allow Republicans to shut it down

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Speaker 1: at the conclusion of the case at that point without

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Speaker 1: ever calling a single witness to testify. Thanks Bob. That's

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Speaker 1: Robert Men's, a partner at McCarter and English. Yeah. Yeah,