Are We Learning from Senators’ Impeachment Questions?

Brad Moss, a partner at Mark Zad. So there's talk that John Bolton may be called, and now the White House has issued a formal threat to Bolton to keep him from publishing his book. How will that affect his being called as a witness. Yes, so we're in a bit of uncharted territory here. So to be clear, the letter that was sent by the White House to Mr Bolton, that reviewed the letter, it's up on Twitter at this point,

is not what I would considue as a threat. It's actually I think been blowed a little bit out of portion. This is somewhat standard correspondence that is issued when a manuscript is undergoing classification. Review. The original version was submitted on December by Mr Bolton's attorney to the National Security Council. This has been following up saying we've already done a preliminary review. We've already found some classified information, so there's

clearly to the stuff we're gonna require redactions on. The review is ongoing. In the interim, you are not permitted to publish anything until we give you final approval on a version of this manuscript. Generally speaking, these kind of letters are you know, generally really viewed any kind of

you know, threatening context. The reason it's been to view that way here is because it's being issued in the middle of it an impeachment saga in which John Bolton is obviously a material fact with us, so it's taken on a life of its own. The President can classify anything he wants, can he? So? Can he classify the book after it's already been written? Yes, so he could classify the president if he wanted to determine the entirety

of this book is classified. However, if that were to be what was done, if the White House were to issue a final determination saying the President relying upon his inherent article to authority has deemed your entire book to

be classified. Then under existing case law, John Bolton would have the right to bring a First Amendment lawsuit challenging the legality and a proprietary propriety of that classification determination, and then the d o J in that lawsuit would have to submit something from the President in which he states publicly on the record that he is invoking his article to authority to classify everything, in which case it

becomes a political liability for the president. But from a legal standpoint, he could quote unquote win because at that point that there's nothing to overrule the president's classification determination. It becomes a question of whether or not they'd be willing to put that in writing and submit it to the court. Explain how that's different from the presidents saying several times recently that you know he's going to exercise

executive privilege if Bolton wants to testify. Yes, So this is a common misunderstanding that not only the presidents having, but many people having executive privilege is a shield, it's not a sword. So if someone who is a current to form of government official has been subpoena to testify and the the information they're going to testify about is implicating executive privilege. They can refuse to testify in reliance upon the fact that the president has the ability to

invoke executive privilege. But if that person wants to testify anyway, the president has no ability to stop them, because again, it is only a shield for them to rely upon if they want it, is not a sword the president can use to restrain them to censor their First Amendment communications. Now, obviously, if they're an existing government employee, there's all other manner of reasons why they wouldn't be allowed to testify anyway, and they wouldn't want to they risk losing their job.

But if they're a former employee like John Bolton, there is nothing the president can do, for example, to censor unclassified information that might implicate executive privilege. That's in Bolton's book. He has no ability under the law to do that. He can only sensor classified information. Looking at the way things are going, and I know that Mitch McConnell said he didn't have the votes to stop witnesses, but that could also be a ploy on his part. How likely

are we to hear from witnesses? It's really tough to assassinate. I mean, I saw the same reports from Leader McConnell, and I take it with the same grain. Assaut I think you do. I think a lot of this somewhat posturing.

It's an indication that the votes likely to be close, whatever it is, but that there's several members, most likely Susan Collins, Senator Murkowski, Senator Romney, and maybe Senator Alexander who were on the fence at the moment who were uncomfortable with how this has gone forward and might want to hear from witnesses such as John Bolton, and so McConnell let that leak to kind of put pressure on those senators to try to bring in some public pressure

to get them to back off. But I don't think we're going to truly know one way or the other how that vote is going to play out until we have the vote itself. Does it seem to you as if John Bolton may really want to testify now because of this onslaught of attacks on him on his credibility.

I think originally the reason John Bolton, you know, wanted to get this book out so quickly was he didn't want his own professional reputation that he's built up over decades, and his potential book sales to be tainted or stained by the idea that he held back relevant information to

impeachment just to sell books. That was probably his original impetis to move so quickly now with the various attacks coming at him, I'm sure part of the reason he's probably even more so willing to testify is to basically say, look, I tried to do this the proper way. You guys can't handle it. The president's threatening me, the media is threatening me. If I'm called to testify, I'll testify. And he's basically saying, you don't control me. I'm a private citizen.

I'll say whatever I want, so long as I don't expose classified information. I've been talking to Brad Moss about the latest phase of the impeachment trial, sixteen full hours of questions from the senators. So, broadly speaking, do you expect to hear any new arguments, any new information during this period? Not really so A lot of what I you know, starting to see this with some of the initial questions, A lot of this is uh political theater

right now. Some of these questions when he saw I think with Senator Mike Lee, who had a question of isn't it the president's prerogative to decide how to conduct foreign policy? Which was an easy, layup, softball question to the president's lawyers. Some of that's just for the TV, some of that's just a political theater and you know,

talking points. Um, there will be some relevant questions. There was an interesting question from Senator Rick Scott of Florida asking the extent to which, uh, you know, the House and Patriot Managers have the equivalent of Brady requirements to to divulge exculpatory information that could exonerate the president as part of their presentation. It's an interesting question. I think. I don't think, as far as I'm concerned, they don't have that obligation, but it was a valid legal question

to ask. Uh. Senator Ronnie's going to have several questions, especially about John Bolton, especially about Rudy Giuliani and what exactly the President was tasking him with to do in Ukraine. UM. So there's for the individuals who truly are still kind of on the fence where she washed you about how they're going to proceed. I expect to see some decent questions out of them for everybody else the hardcore you know partisans amongst in the Senate, you're gonna see just politicized,

you know questions. Let's look back at the arguments and compare the strength of the House arguments with the strength of the defense. So I think the House put on what would be viewed as a very methodical, very well presented case if this were a normal criminal prosecution in a court of law. Um, they walked through it step by step from the entire chronology, piece by piece, with texts,

with video. Let's started with the transcripts of calls, with memoranda, with witness testimony, and they get They gave you a plus B plus C equals the required result of the conviction, and that would have worked great if it was a court of law. The president's legal team did what they would what you would expect them to do, given that this is a political court, not a court of law, but a court of politics in the context of impeachment.

And they argued a lot of peripheral facts that would have been viewed as irrelevant by enlarged an actual court case. But would you can bring up here. They talked about the FBI surveillance a card to page they talked about Mueller, they talked about the Steel dossier, things that have nothing to do with this case but which serve as great

political theater. Main crux of their legal defense basically became justification, which was the President had a reasonable basis to believe Hunter Biden's activities were corrupt, possibly criminal, and that's why he did what he did. In terms of trying to get the Ukrainians to launch an investigation, they did through a lot about a Hunter Biden, and again that was largely for public consumption, because there is no dj investigation

of Hunter Biden. There's no indictment of Hunter Biden. But the justification they were trying to put up was this was how Donald Trump was trying to get to the truth. He's not the most taxful man, but that's not required under the law. And what do you make of some of the Republicans saying, you know, we want to make a deal John Bolton for Hunter Biden. Why would they even say that they can just call whoever they want, Well,

they don't want to have any witnesses. The reason they're the reason they were proposing this deal isn't so much about a worried about the Democrats they were worried about people like, you know, like Senators Romney and Barkowski and Collins, who might want to look into some of the facts that the rest of the Republican caucus is really trying

to avoid getting into. And so to try to head off that potential issue, they were trying to throw up this idea of a deal of Okay, we'll let you have John Bolton, but then we want to bring in Hunter Biden, and so they could get their entire caucus on board with that as well. It was, you know, a political you know, trial balloon. It didn't really go very well. I'm not quite sure how that would play out. But if they have one witness, I have a feeling

we're gonna have multiple witnesses. Let's talk a little bit about Trump attorney Alan Dershowitz's argument, because though it's definitely a minority view of you know, what's necessary for high crimes and misdemeanors, it does give some kind of cover to Republicans who want to say, well, even if that's true, this doesn't rise to the level of high crimes and misdemeanor. Yeah, so what Alan Derschwitz has put forward and music putting

forward an argument like this for years. It's his very you know, controversial but well established expansive view of presidential authority. He has largely decided that impeachment that very little, if anything, will ever qualify as an impeachable offense outside of actual treason, and it would be virtually impossible to ever get to

that point as far as he's concerned. You know, the way, the kind of the legal argument he set forth on a constitutional standpoint is assumed that this was all entirely a scheme to utilize to start to extort the Ukrainians, to launch a frivolous, uh and unnecessary investigation into the Bidens in order to get the foreign aid that we

were supposed to. That conversai a lotted under Elan Derschwitz is analysis of the Constitution and the appeachment articles that's permissible under the president's authority, and it's non impeachable offense. If the president works to just let the Ukrainians right, let the Russians take Alaska today and not do anything in response. As far as Alan Dersho was is concerned, that's not an impeachable offense. There's very little he views as ever rising to the level of what qualifies as

impeachable and that justifies removal. It's an extremely expansive view of presidential authority. It's not the first time someone's put forth something like this, but it's concerning in this day and age to see that argument still put forward on the Florida sidate. So, even at this point, where there may be witnesses called, the general consensus is that it won't make a difference. That the House Democrats will never get the number of votes needed to actually kick President

Trump out of office. So Nancy Pelosi and the Democrats, were they wrong to put the nation through this? No, so I think it was the right thing to do from a constitutional obligation standpoint. But you still pursue it. You still conducted only to make clear that the Congress will not just be subjugated to the presidency and will not allow it to act without political and without political consequences.

The fact that this is almost certainly going to result in an acquittal is ultimately neither here nor there, because the House it did its job to determine what it viewed as impeachable, and the Senate is going to do its job and decide whether or not to acquit, and if the Senate chooses to acquit, that's the Senate's prerogative and the decision is ultimately left to the voters of

what to do with it. But the two branches of Congress did their job to fully, you know, explore the matter and decide how they wanted to act from a constitutional standpoint. Thanks Brad, that's Brad Mass, her partner in Mark's Thanks for listening to the Bloomberg Law Podcast. You can subscribe and listen to the show on Apple podcast, SoundCloud, and on Bloomberg dot com slash podcast. I'm June Brasso. This is Bloomberg Dependent dat