>> ALL ELECTED OFFICIALS TO SOME EXTENT HAVE IN MIND HOW
THEIR CONDUCT, HOW THEIR
DECISIONS, THEIR POLICY
DECISIONS WILL AA EXPECT THE
NEXT ELECTION -- AFFECT THE NEXT
ELECTION.
ELECTION. TO SAY NOW IF YOU HAVE A PART
MOTIVE THAT’S FOR YOUR PERSONAL
ELECTORAL GAIN, THAT THAT’S
SOMEHOW GOING TO BECOME AN
OFFENSE, IT DOESN’T MAKE ANY
SENSE AND IT’S TOTALLY
UNWORKABLE AND CAN’T BE A BASIS
FOR REMOVING A PRESIDENT FROM
OFFICE.
OFFICE. PAUL: THE TRUMP LEGAL TEAM
REJECTING HOUSE IMPEACHMENT
MANAGER’S CLAIMS THAT THE
PRESIDENT CAN BE IMPEACHED
BECAUSE DEMOCRATS THINK HIS
MOTIVES WERE CORRUPT.
LET’S BRING IN JAMES TRUSTEE, AN
ATTORNEY AND FORMER JUSTICE
DEPARTMENT PROSECUTOR.
DEPARTMENT PROSECUTOR. THANKS FOR COMING IN AGAIN I
APPRECIATE IT.
APPRECIATE IT. >> SURE THING.
PAUL: THE HOUSE MANAGER’S CASE
IS THE SENATE WAS OBLIGED TO
CALL WITNESSES THAT THE HOUSE
REFUSED TO CALL AND SUBPOENA.
WHAT DO YOU MAKE OF THAT
ARGUMENT?
ARGUMENT? >> WELL, WE KNOW HOW IT TURNED
OUT AND THE BOTTOM LINE IS, IT’S
NOT REALLY SET UP TO BE A MODEL
OF LIKE A GRAND JURY PROCEEDING
FOLLOWED BY A TRIAL.
THESE ARE NOT REALLY JURORS,
THESE ARE 100 JUDGES SITTING IN
REVIEW.
REVIEW. SO I DON’T THINK YOU CAN SQUARE
THE NOTION THAT THERE’S A NEED
FOR NEW WITNESSES OR AT LEAST
YOU CAN’T SAY WHAT THAT IT’S A
FULLPROOF WINNER AT ANY POINT
BECAUSE YOU’RE SUPPOSED TO HAVE
A RECORD AND THE RECORD HAS TO
CLOSE AT SOME POINT.
I THINK THAT WAS A VERY NICE
POINT THAT WAS BEING MADE BY
DEPUTY COUNSEL FOR THE WHITE
HOUSE THAT YOU’VE GOT TO AT SOME
POINT A CLOSED RECORD, YOU CAN’T
HAVE SURPRISE AFTER SURPRISE BY
WAY OF POTENTIAL WITNESS
TESTIMONY.
TESTIMONY. PAUL: THE HOUSE SAID WE
COULDN’T CALL WITNESSES,
SUBPOENA MANY THEM, BECAUSE THE
PRESIDENT HAD DEMANDED TOTAL
RESISTANCE AND, THEREFORE, WE
COULDN’T -- AND HE CLAIMED
EXECUTIVE PRIVILEGE AND WE
DIDN’T WANT TO FIGHT THAT OUT
LEALLEGALLY IN COURT BECAUSE IT
WOULD TAKE TOO LONG BECAUSE
THEREFORE WE MUST IMPEACH HIM
FOR OBSTRUCTION OF CONGRESS.
>> RIGHT.
>> RIGHT. PAUL: THAT I’VE NEVER FOUND A
CREDIBLE ARGUMENT.
CREDIBLE ARGUMENT. BUT WHAT ABOUT IT?
IS THE PRESIDENT OBLIGED TO SORT
OF SAY, YOU KNOW, CONGRESS SAYS
-- CAN DEFINE WHAT EXECUTIVE
PRIVILEGE IS?
PRIVILEGE IS? >> WELL, LOOK, HERE’S THE BOTTOM
LINE.
LINE. WE DON’T LIKE THE THOUGHT OF
KIND OF BLANKET REJECTIONS
COMING FROM THE WHITE HOUSE.
I WILL NEVER COOPERATE.
BUT NOBODY FORCED HIS HAND.
AT THE END OF THE DAY IF YOU’RE
TRYING TO HAVE A SUBPOENA AND
CREATE AN ISSUE AND FIGHT OVER
THINGS LIKE EXECUTIVE PRIVILEGE,
YOU’VE GOT TO GO FORMAL.
YOU’VE GOT TO INVOLVE THE
JUDICIAL BRANCH AND THEY
SPECIFICALLY HE CHOSE NOT TO DO
THAT.
THAT. THEY EITHER DIDN’T SUBPOENA
WITNESSES OR WITHDREW WITNESSES
SAYING WE WANT TO BE DONE BY
CHRISTMAS, WE CAN’T HAVE THIS
FIGHT.
FIGHT. ILAWYERS FIGHT OVER PROCESS,
MOTIONS TO QUASH, ASSERTION OF
PRIVILEGE, WE DIDN’T HAVE AN
OPPORTUNITY TO DO THAT IN THIS
CASE BECAUSE DEMOCRATS CHOSE TO
KEEP IT FROM GOING FORMAL, TO
KEEP IT FROM GOING TO COURT.
IT’S AN UNCLEAN HAND SITUATION.
IF YOU DO THAT, YOU HAVE TO LIVE
WITH THE CONSEQUENCES OF NOT
ESTABLISHING ANY SORT OF
OBSTRUCTION.
OBSTRUCTION. PAUL: LET’S ASSUME THAT THE
HOUSE HAD DECIDED TO SUBPOENA
JOHN BOLTON AND JOHN BOLTON’S
ATTORNEY, CHUCK COOPER HAS BEEN
WAVING HIS HAND SAYING SUBPOENA,
SUBPOENA.
SUBPOENA. LET’S ASSUME THEY DID, WHAT
WOULD HAVE HAPPENED?
WOULD THEY HAVE LOST ON BOLTON
OR MULVANEY OR WOULD THEY HAVE
WON?
WON? >> I THINK IT’S A MIXED BAG.
USUALLY EXECUTIVE PRIVILEGE THEY
TRY TO WORK OUT BEHIND CLOSED
DOORS, MAYBE DO A VIDEOTAPED
DEPOSITION AND AGREE OR DISAGREE
ON WHAT SHOULD BE ALLOWED TO BE
PART OF THE PUBLIC RECORD.
I THINK THE INTERESTING WRINKLE
IS JUSTICE ROBERTS, WHETHER
ROBERTS WOULD HAVE TAKEN AN
ACTIVE ROLE IN DEALING WITH
ISSUES OF EXECUTIVE PRIVILEGE ON
THE FLY.
THE FLY. I THINK BASED ON HOW HE ANSWERED
THE QUESTION ABOUT BEING A TIE
BREAKING VOTE THAT HE PROBABLY
WOULDN’T.
WOULDN’T. ONCE AGAIN, THE DEMOCRATS ARE
LOOKING AT A SITUATION WHERE IF
THEY TRIED TO FIGHT THIS FIGHT,
BUTT BOLTON ON THE STAND, IT’S
NOT HIS PRIVILEGE TO ASSERT,
IT’S THE WHITE HOUSE’S, IF THAT
PRIVILEGE IS ASSERTED, YOU LOSE
L TIME.
L TIME. PAUL: THE CHIEF JUSTICE
PRESIDES OVER IMPEACHMENT AS A
PRESIDER, HE’S NOT THERE AS AN
ARTICLE THREE JUDGE, LITIGATING
CASES IN CONTROVERSY.
THE EXECUTIVE PRIVILEGE CLAIMS
ARE LITIGATED OUTSIDE IN THE
APPELLATE COURT AND ULTIMATELY
THE SUPREME COURT.
>> I THINK HE WOULD HAVE STUCK
WITH THAT PROCESS IF THAT’S HOW
IT WENT OUT.
WE HAD THIS SIREN SONG WHERE
PEOPLE WERE SAYING HERE’S A
CHIEF JUSTICE RIGHT HERE, BUT HE
REALIZES THE ROLE IS TO BE MORE
PASSIVE.
PASSIVE. THE WRINKLE TO ALL THAT IS HE
WOULDN’T ASK THAT QUESTION OF
SENATOR PAUL.
SENATOR PAUL. THAT WAS A GATE KEEPER FUNCTION.
HE WAS REFUSING TO LET THE
QUESTION ABOUT THE
WHISTLEBLOWER’S IDENTITY BE READ
OUT LOUD.
OUT LOUD. THAT WAS A MOMENT OF ACTIVISM
THAT WE DIDN’T SEE WITH
REHNQUIST DURING THE CLINTON.
PAUL: ONE OF THE OTHER THINGS
THAT PUZZLES ME IS THE IDEA THAT
THE HOUSE MANAGERS, THEY OUT PUT
TOGETHER AN ARTICLE OF
IMPEACHMENT ON YOU ABUSE OF
POWER BUT THEY DIDN’T LIST ANIES
SPECIFIC CRIMES, THEY DIDN’T SAY
THERE WAS A BRIBERY VIOLATION,
DIDN’T SAY IT WAS AN EXTORTION
HERE BUT THEN OUTSIDE OF THE
ARTICLE ITSELF, THEY CLAIMED ALL
OF THOSE THINGS.
SO WHY DIDN’T THEY INCLUDE
SPECIFIC VIOLATIONS OF LAW IN
THE ARTICLE?
THE ARTICLE? >> I THINK THE ANSWER IS BECAUSE
THERE WERE NOT SPECIFIC
VIOLATIONS OF LAW.
AND DOJ, NONPOLITICAL PEOPLE
WITH DOJ REACHED THAT CONCLUSION
EARLY ON, THAT’S KIND OF
FORGETEN OR DISMISSED AS BEING
PART OF THE GUARD FOR TRUMP.
THE REALITY IS, YOU HEARD EARLY
IN THE PROCESS DEMOCRATS OBJECT
THE HOUSE KIND OF STUMBLING
AROUND, SAYING WELL, MAYBE IT’S
BRIBERY, MAYBE IT’S EXTORTION.
AND YOU JUST DON’T HAVE IT.
YOU CAN’T HAVE A BRIBERY OR
EXTORTION WHERE THE VICTIM
DOESN’T KNOW HE’S BEING BRIBED
OR EXTORTED.
OR EXTORTED. SO I THINK THEY WENT VAGUE AND
THAT LOWERS THE STANDARD, THAT’S
THE KIND OF THING THAT IS EASIER
TO PROVE THAT HE’S A BAD GUY AS
OPPOSED TO HE VIOLATED A FEDERAL
STATUTE AND THE REPUBLICAN TEAM
WAS ALL OVER THAT.
THAT’S REALLY WHY WE’RE AT THIS
SUMMARY JUDGMENT POINT WHERE
THEY’RE GOING TO SAY EVEN IF WE
ACCEPT THESE KIND OF HALF BAKED
PROCEEDINGS FROM THE HOUSE, IT’S
NOT ADDING UP SUFFICIENTLY TO
ESTABLISH AN IMPEACHABLE OFFENSE
AS A MATTER OF LAW.
THAT LENDS ITSELF TO NO
WITNESSES AND DISMISSAL.
PAUL: DO YOU THINK THE LEGAL
DEBATE LOWERS THE BAR ON FUTURE
IMPEACHMENTS.
IMPEACHMENTS. >> THE DEBATE DOESN’T BUT
ARTICLES DO WOULD BE MY
POSITION.
POSITION. THAT SECOND ARTICLE IS A
HORRIBLE PRECEDENT THAT IF YOU
RESIST A COMPLETELY ONE-SIDED
PROCESS, ADMINISTERED BY ADAM
SCHIFF WHO IS SPLITTING HIS TIME
ANNOUNCING GUILT BEFORE THE
INVESTIGATION WAS DONE AND
PUTTING ON WITNESSES WITH
INADMISSIBLE HEARSAY FOR A
NORMAL TRIAL, IF THAT’S THE BASE
IS FOR OBSTRUCTION, THEN WE’VE
GOT A BAD PRECEDENT AND A SHIFT