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Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every

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Speaker 1: day we bring you insight an analysis into the most

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Speaker 1: important legal news of the day. You can find more

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Speaker 1: episodes of the Bloomberg Law Podcast on Apple Podcasts, SoundCloud,

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Speaker 1: and on Bloomberg dot com slash podcasts. The House Intelligence

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Speaker 1: Committee is compiling a report from seventeen closed door depositions

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Speaker 1: and five public hearings that will begin to outline whether

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Speaker 1: President Donald Trump engaged in treason, bribery, or high crimes

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Speaker 1: and misdemeanors by withholding nearly four hundred million dollars in

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Speaker 1: foreign aid to pressure Ukraine for an investigation into his

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Speaker 1: political rival. That report will be delivered to the Judiciary

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Speaker 1: Committee when Congress resumes. According to Committee Chair Adam Schiff,

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Speaker 1: the Judiciary Committee has already scheduled impeachment hearings for December four.

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Speaker 1: In the meantime, a DC federal judge has issued an

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Speaker 1: opinion ordering former White House Counsel Don McGann to appear

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Speaker 1: before the House to testify under a subpoena, an opinion

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Speaker 1: that could there on other witnesses in the impeachment inquiry.

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Speaker 1: Here's House Intelligence Committee member Democrat Mike Quigley. I think

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Speaker 1: it's a message to all the witnesses who are obstructed

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Speaker 1: and the White House for telling them not to appear,

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Speaker 1: it's time to show up. Joining me as former federal

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Speaker 1: prosecutor Robert Mann's a partner at mcarter and English Bob.

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Speaker 1: This was a thorough opinion that not only quoted from

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Speaker 1: case law, but also from the federalist papers. Tell us

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Speaker 1: about it. In response to the Trump administration sweeping claimed

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Speaker 1: that top presidential advisors are absolutely immune from being compelled

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Speaker 1: to talk about their official duties, Judge Jackson issued one

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Speaker 1: page opinion, a very thorough opinion in which she used

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Speaker 1: some very strong language, saying no one is above the law.

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Speaker 1: Presidents are not kings to really get issuing a stern

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Speaker 1: rebuke to the administration saying that these witnesses have to

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Speaker 1: come before Congress and they have to testify. The judgment

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Speaker 1: so far as to say that the same reasoning would

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Speaker 1: apply to national security advisors, and then former National Secure

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Speaker 1: Advisor John Bolton's attorney said this didn't apply to him,

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Speaker 1: does it? Well? Mr Balton's attorney has been trying to

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Speaker 1: draw a distinction between his client, who deals with national

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Speaker 1: security issues, and Don McGann, who was White House counsel,

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Speaker 1: saying there's an issue there because national security issues deserve

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Speaker 1: a higher degree of privilege. The judge here seemed to

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Speaker 1: go out of her way to say that it really

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Speaker 1: didn't matter whether it was a domestic issue or a

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Speaker 1: foreign policy issue, that her ruling would be broad enough

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Speaker 1: to say that all of those witnesses had to at

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Speaker 1: least show up in front of Congress and appear to

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Speaker 1: answer their questions. So this ruling doesn't necessarily mean that

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Speaker 1: President Trump's claims of executive privilege will be ignored. No,

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Speaker 1: the only issue that was before the court here is

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Speaker 1: whether or not these witnesses could ignore these subpoenas altogether,

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Speaker 1: or whether they had to appear to answer questions. What

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Speaker 1: it does not address, what it leaves unanswered are what

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Speaker 1: questions those witnesses will have to answer. They will still

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Speaker 1: be able to assert executive privilege, And even though Congress

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Speaker 1: ultimately wins this issue and forces them to appear, it's

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Speaker 1: entirely unclear as to how many questions they'll answer, to

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Speaker 1: what extent illistort executive privilege, And it's possible that this

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Speaker 1: issue will wind up back in the courts again, and

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Speaker 1: of course the Justice Department will appeal this decision. Now

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Speaker 1: McGann's testimony relates to the Mueller report, If the House

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Speaker 1: calls him to testify, will they lose what was a

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Speaker 1: laser like focus on the Ukraine issue and perhaps muddy

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Speaker 1: the waters. Even though the House originally subpoena Don McGan

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Speaker 1: to testify regarding the Mueller inquiry, it's not at all

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Speaker 1: clear that that would be the limit of his testimony.

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Speaker 1: If he's actually called to testify before the House. I

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Speaker 1: believe that the House would question him not only on

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Speaker 1: the Mueller investigation, but on other conversations he may have

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Speaker 1: had regarding the Ukraine issue, if in fact he has

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Speaker 1: any information regarding that. So I don't think it would

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Speaker 1: be limited to that issue. I think it would be

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Speaker 1: broader than that. But more importantly, this is simply the

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Speaker 1: test case that has made its way to the courts

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Speaker 1: that applies also arguably to John Bolton, to mc mulvady,

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Speaker 1: and to others who have been subpoena in connection with

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Speaker 1: the Ukraine investigation. The argument that the House would make

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Speaker 1: is that all of these people have to come in

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Speaker 1: and at least show up to testify that the sweeping

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Speaker 1: immunity claim that the Trump administration has attempted to assert

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Speaker 1: over all top presidential advisors is simply too broad and

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Speaker 1: they have to show up and answer questions. White House

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Speaker 1: policy has been one of blanket opposition to anyone from

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Speaker 1: the White House testifying or providing documents for the impeachment inquiry.

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Speaker 1: How does that compare to the way Presidents Clinton and

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Speaker 1: Nixon handled their opposition to impeachment investigations. Well, the two

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Speaker 1: prior impeachment proceedings were very different. In the case of

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Speaker 1: the Nixon impeachment proceeding, those issues were ultimately decided by

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Speaker 1: the court, and was when the Supreme Court decided that

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Speaker 1: the tapes had to be turned over. That was really

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Speaker 1: the turning point for Nixon. And remember, Nixon never was

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Speaker 1: actually impeached by the House of Representatives. The Judiciary Committee

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Speaker 1: had voted articles of impeachment, but he resigned before the

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Speaker 1: House voted on those articles, and of course there never

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Speaker 1: was a Senate trial. In the case of the Bill

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Speaker 1: Clinton impeachment, again very different than the facts we have here,

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Speaker 1: because in that case you had Kenneth Star, the Independent Council,

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Speaker 1: who essentially did all of the investigation for the House.

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Speaker 1: All of those interviews were conducted privately, depositions were conducted

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Speaker 1: out of the public view, and then this report was

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Speaker 1: packaged up and handed to the House Republicans, and that

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Speaker 1: really was the basis for the articles of impeachment here

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Speaker 1: in this instance, House Democrats have had to do all

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Speaker 1: of the investigations themselves, some of which occurred behind closed

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Speaker 1: doors by Intelligent Committee investigations, depositions and documents, and belover

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Speaker 1: into public hearings. Bob, turning to those two weeks of

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Speaker 1: public hearings, what stood out to you? I think what

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Speaker 1: was most riveting in the testimony was that you saw

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Speaker 1: a series of civil servants and career diplomats who came

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Speaker 1: in and painted a fairly consistent picture of what they

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Speaker 1: believed had gone on. And really what it came down

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Speaker 1: to was these various witnesses, many of them who had

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Speaker 1: spent many years in public service, warning the House Intelligence

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Speaker 1: Committee that they were disturbed by what they believed was

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Speaker 1: this pursuit of an investigation into the Bidens, which they

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Speaker 1: thought undermined US foreign policy and wasn't in fact rooted

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Speaker 1: in a sincere effort to crack down on correction or

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Speaker 1: criminal activity in the Ukraine. According to officials familiar with

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Speaker 1: committee plans, the three articles of impeachment that they would

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Speaker 1: be considering include bribery, abuse of power, and obstruction of Congress.

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Speaker 1: Did you see foundation for those articles from the hearings?

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Speaker 1: I think there has been evidence that has been brought

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Speaker 1: before the Intel Agents Committee which could form the basis

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Speaker 1: of at least three articles of impeachment bribery, abuse of power,

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Speaker 1: and obstruction of Congress. But it's important to remember that

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Speaker 1: this is fundamentally a political process rather than a legal one.

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Speaker 1: There is no definition for what constitutes an impeachable offense.

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Speaker 1: So really what an impeachable offense is is whatever the

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Speaker 1: House of Representatives decide it is. And then when it

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Speaker 1: shifts over to a trial in the Senate, should the

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Speaker 1: House of Representative vote articles of impeachment. That process is

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Speaker 1: left entirely to the Senate in terms of how they

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Speaker 1: would like that process to proceed. So this is really

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Speaker 1: a fundamentally political process where the House can decide what

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Speaker 1: constitutes an impeachable offense, and the House can decide how

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Speaker 1: to run the process that ultimately leads to the voting

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Speaker 1: of articles of impeachment, and then it shifts over to

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Speaker 1: the Senate, where they can decide how that process will run,

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Speaker 1: how long the trial will run, how many witnesses will appear,

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Speaker 1: and really control um what they expect to have happened

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Speaker 1: uh in that house, in that proceeding. So this is

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Speaker 1: really going to be a process that unless we see

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Speaker 1: a major shift in the politics of how the public

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Speaker 1: is viewing this process, it is really a foreordained process

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Speaker 1: where it is very likely the Democrats will vote the

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Speaker 1: articles of impeachment and equally likely that there will be

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Speaker 1: no conviction in the Senate, which is controlled by the Republicans.

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Speaker 1: Thanks Bob, that's Robert Mints of mcarter and English. Thanks

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Speaker 1: for listening to the Bloomberg Law Podcast. You can subscribe

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Speaker 1: and listen to the show on Apple podcast, SoundCloud, and

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Speaker 1: on Bloomberg dot com slash podcast. I'm June Brosso. This

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Speaker 1: is Bloomberg