WEBVTT - Judge Rules Former White House Counsel Must Testify

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<v Speaker 1>Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every

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<v Speaker 1>day we bring you insight an analysis into the most

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<v Speaker 1>important legal news of the day. You can find more

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<v Speaker 1>episodes of the Bloomberg Law Podcast on Apple Podcasts, SoundCloud,

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<v Speaker 1>and on Bloomberg dot com slash podcasts. The House Intelligence

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<v Speaker 1>Committee is compiling a report from seventeen closed door depositions

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<v Speaker 1>and five public hearings that will begin to outline whether

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<v Speaker 1>President Donald Trump engaged in treason, bribery, or high crimes

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<v Speaker 1>and misdemeanors by withholding nearly four hundred million dollars in

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<v Speaker 1>foreign aid to pressure Ukraine for an investigation into his

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<v Speaker 1>political rival. That report will be delivered to the Judiciary

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<v Speaker 1>Committee when Congress resumes. According to Committee Chair Adam Schiff,

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<v Speaker 1>the Judiciary Committee has already scheduled impeachment hearings for December four.

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<v Speaker 1>In the meantime, a DC federal judge has issued an

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<v Speaker 1>opinion ordering former White House Counsel Don McGann to appear

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<v Speaker 1>before the House to testify under a subpoena, an opinion

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<v Speaker 1>that could there on other witnesses in the impeachment inquiry.

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<v Speaker 1>Here's House Intelligence Committee member Democrat Mike Quigley. I think

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<v Speaker 1>it's a message to all the witnesses who are obstructed

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<v Speaker 1>and the White House for telling them not to appear,

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<v Speaker 1>it's time to show up. Joining me as former federal

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<v Speaker 1>prosecutor Robert Mann's a partner at mcarter and English Bob.

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<v Speaker 1>This was a thorough opinion that not only quoted from

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<v Speaker 1>case law, but also from the federalist papers. Tell us

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<v Speaker 1>about it. In response to the Trump administration sweeping claimed

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<v Speaker 1>that top presidential advisors are absolutely immune from being compelled

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<v Speaker 1>to talk about their official duties, Judge Jackson issued one

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<v Speaker 1>page opinion, a very thorough opinion in which she used

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<v Speaker 1>some very strong language, saying no one is above the law.

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<v Speaker 1>Presidents are not kings to really get issuing a stern

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<v Speaker 1>rebuke to the administration saying that these witnesses have to

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<v Speaker 1>come before Congress and they have to testify. The judgment

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<v Speaker 1>so far as to say that the same reasoning would

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<v Speaker 1>apply to national security advisors, and then former National Secure

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

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<v Speaker 1>does it? Well? Mr Balton's attorney has been trying to

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<v Speaker 1>draw a distinction between his client, who deals with national

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<v Speaker 1>security issues, and Don McGann, who was White House counsel,

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<v Speaker 1>saying there's an issue there because national security issues deserve

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<v Speaker 1>a higher degree of privilege. The judge here seemed to

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<v Speaker 1>go out of her way to say that it really

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<v Speaker 1>didn't matter whether it was a domestic issue or a

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<v Speaker 1>foreign policy issue, that her ruling would be broad enough

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<v Speaker 1>to say that all of those witnesses had to at

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<v Speaker 1>least show up in front of Congress and appear to

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<v Speaker 1>answer their questions. So this ruling doesn't necessarily mean that

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

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<v Speaker 1>the only issue that was before the court here is

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<v Speaker 1>whether or not these witnesses could ignore these subpoenas altogether,

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<v Speaker 1>or whether they had to appear to answer questions. What

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<v Speaker 1>it does not address, what it leaves unanswered are what

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<v Speaker 1>questions those witnesses will have to answer. They will still

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<v Speaker 1>be able to assert executive privilege, And even though Congress

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<v Speaker 1>ultimately wins this issue and forces them to appear, it's

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<v Speaker 1>entirely unclear as to how many questions they'll answer, to

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<v Speaker 1>what extent illistort executive privilege, And it's possible that this

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<v Speaker 1>issue will wind up back in the courts again, and

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<v Speaker 1>of course the Justice Department will appeal this decision. Now

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<v Speaker 1>McGann's testimony relates to the Mueller report, If the House

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<v Speaker 1>calls him to testify, will they lose what was a

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<v Speaker 1>laser like focus on the Ukraine issue and perhaps muddy

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<v Speaker 1>the waters. Even though the House originally subpoena Don McGan

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<v Speaker 1>to testify regarding the Mueller inquiry, it's not at all

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<v Speaker 1>clear that that would be the limit of his testimony.

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<v Speaker 1>If he's actually called to testify before the House. I

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<v Speaker 1>believe that the House would question him not only on

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<v Speaker 1>the Mueller investigation, but on other conversations he may have

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<v Speaker 1>had regarding the Ukraine issue, if in fact he has

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<v Speaker 1>any information regarding that. So I don't think it would

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<v Speaker 1>be limited to that issue. I think it would be

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<v Speaker 1>broader than that. But more importantly, this is simply the

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<v Speaker 1>test case that has made its way to the courts

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<v Speaker 1>that applies also arguably to John Bolton, to mc mulvady,

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<v Speaker 1>and to others who have been subpoena in connection with

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<v Speaker 1>the Ukraine investigation. The argument that the House would make

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<v Speaker 1>is that all of these people have to come in

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<v Speaker 1>and at least show up to testify that the sweeping

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<v Speaker 1>immunity claim that the Trump administration has attempted to assert

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<v Speaker 1>over all top presidential advisors is simply too broad and

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<v Speaker 1>they have to show up and answer questions. White House

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<v Speaker 1>policy has been one of blanket opposition to anyone from

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<v Speaker 1>the White House testifying or providing documents for the impeachment inquiry.

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<v Speaker 1>How does that compare to the way Presidents Clinton and

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<v Speaker 1>Nixon handled their opposition to impeachment investigations. Well, the two

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<v Speaker 1>prior impeachment proceedings were very different. In the case of

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<v Speaker 1>the Nixon impeachment proceeding, those issues were ultimately decided by

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<v Speaker 1>the court, and was when the Supreme Court decided that

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<v Speaker 1>the tapes had to be turned over. That was really

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<v Speaker 1>the turning point for Nixon. And remember, Nixon never was

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<v Speaker 1>actually impeached by the House of Representatives. The Judiciary Committee

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<v Speaker 1>had voted articles of impeachment, but he resigned before the

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<v Speaker 1>House voted on those articles, and of course there never

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<v Speaker 1>was a Senate trial. In the case of the Bill

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<v Speaker 1>Clinton impeachment, again very different than the facts we have here,

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<v Speaker 1>because in that case you had Kenneth Star, the Independent Council,

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<v Speaker 1>who essentially did all of the investigation for the House.

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<v Speaker 1>All of those interviews were conducted privately, depositions were conducted

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<v Speaker 1>out of the public view, and then this report was

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<v Speaker 1>packaged up and handed to the House Republicans, and that

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<v Speaker 1>really was the basis for the articles of impeachment here

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<v Speaker 1>in this instance, House Democrats have had to do all

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<v Speaker 1>of the investigations themselves, some of which occurred behind closed

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<v Speaker 1>doors by Intelligent Committee investigations, depositions and documents, and belover

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<v Speaker 1>into public hearings. Bob, turning to those two weeks of

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<v Speaker 1>public hearings, what stood out to you? I think what

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<v Speaker 1>was most riveting in the testimony was that you saw

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<v Speaker 1>a series of civil servants and career diplomats who came

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<v Speaker 1>in and painted a fairly consistent picture of what they

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<v Speaker 1>believed had gone on. And really what it came down

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<v Speaker 1>to was these various witnesses, many of them who had

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<v Speaker 1>spent many years in public service, warning the House Intelligence

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<v Speaker 1>Committee that they were disturbed by what they believed was

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<v Speaker 1>this pursuit of an investigation into the Bidens, which they

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<v Speaker 1>thought undermined US foreign policy and wasn't in fact rooted

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<v Speaker 1>in a sincere effort to crack down on correction or

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<v Speaker 1>criminal activity in the Ukraine. According to officials familiar with

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<v Speaker 1>committee plans, the three articles of impeachment that they would

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<v Speaker 1>be considering include bribery, abuse of power, and obstruction of Congress.

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<v Speaker 1>Did you see foundation for those articles from the hearings?

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<v Speaker 1>I think there has been evidence that has been brought

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<v Speaker 1>before the Intel Agents Committee which could form the basis

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<v Speaker 1>of at least three articles of impeachment bribery, abuse of power,

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<v Speaker 1>and obstruction of Congress. But it's important to remember that

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<v Speaker 1>this is fundamentally a political process rather than a legal one.

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<v Speaker 1>There is no definition for what constitutes an impeachable offense.

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<v Speaker 1>So really what an impeachable offense is is whatever the

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<v Speaker 1>House of Representatives decide it is. And then when it

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<v Speaker 1>shifts over to a trial in the Senate, should the

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<v Speaker 1>House of Representative vote articles of impeachment. That process is

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<v Speaker 1>left entirely to the Senate in terms of how they

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<v Speaker 1>would like that process to proceed. So this is really

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<v Speaker 1>a fundamentally political process where the House can decide what

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<v Speaker 1>constitutes an impeachable offense, and the House can decide how

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<v Speaker 1>to run the process that ultimately leads to the voting

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<v Speaker 1>of articles of impeachment, and then it shifts over to

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<v Speaker 1>the Senate, where they can decide how that process will run,

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<v Speaker 1>how long the trial will run, how many witnesses will appear,

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<v Speaker 1>and really control um what they expect to have happened

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<v Speaker 1>uh in that house, in that proceeding. So this is

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<v Speaker 1>really going to be a process that unless we see

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<v Speaker 1>a major shift in the politics of how the public

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<v Speaker 1>is viewing this process, it is really a foreordained process

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<v Speaker 1>where it is very likely the Democrats will vote the

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<v Speaker 1>articles of impeachment and equally likely that there will be

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<v Speaker 1>no conviction in the Senate, which is controlled by the Republicans.

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<v Speaker 1>Thanks Bob, that's Robert Mints of mcarter and English. Thanks

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<v Speaker 1>for listening to the Bloomberg Law Podcast. You can subscribe

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<v Speaker 1>and listen to the show on Apple podcast, SoundCloud, and

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<v Speaker 1>on Bloomberg dot com slash podcast. I'm June Brosso. This

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<v Speaker 1>is Bloomberg