Final Stages of the Trump Impeachment Trial

On Friday, Minority Leader Chuck Schumer sought to clear up one uncertainty that's hung over the trial, whether Chief Justice John Roberts, the trial's presiding officer, would cast a vote to break a tie. Here's Robert's response. If the members of this body, elected by the people and accountable to them, divide equally on a motion, the normal rule is that

the motion fails. I think it would be inappropriate for me, an unelected official from a different branch of government, to assert the power to change that result so that the motion would succeed. My guest is Frank Bowman, professor with the University of Zuri and an expert on impeachment. His latest book is High Crimes and Misdemeanors, A History of Impeachment for the Age of Trump. The Chief Justice said it would be inappropriate for him to break any tie

votes in a sent impeachment trial. What's your take on his refusal to do that. I understand it from a perspective, I mean, one, he does not want to get himself as sort of the representative of the Supreme Court in the middle of this ugly partisan fight um and breaking a tie on particularly on these issues would certainly be perceived as doing so. Equally important is the sort of

pragmatic calculation here. He's going to want to, I think, husband his moral authority or the institutional authority for for occasions when it might matter, and you know, to break a tie on a question of say, witnesses in this case, if that had come up. I mean, Roberts is a

smart guy. He can count. He knows that there's no way that President Trump is ever going to be removed, he recognizes, frankly, having listened to all the evidence that the case against Trump is overwhelming on the facts already,

nobody except Trump's most ardent partisans believes otherwise. In fact, one of the things you heard at the end from a number of sort of sheepish Republican senators was, in effect, oh well, okay, we don't need to hear more evidence, because actually the case has already proven an additional evidence isn't going to prove it anymore, and which is of course the truth, right, I mean, that's the state of the evidence. So back to Roberts. Roberts knows that he

knows the evidence is powerful against the president. Then he knows that additional evidence, whether it's Bolton or anything else, is not going to change the political calculus. You're not going to get twenty Republican senators to vote the guy out. And so that being so, for what purpose would he

expend his moral and institutional capital? One can imagine a circumstance where h Justice believe that the president in the office was deeply dangerous to the country, and I saw in front of him a trial where the outcome remained in doubt and hinged perhaps on the production of some additional evidence. And you can imagine therefore a Chief Justice who would be willing to step in and and make

judgments about the propriety of introducing that additional events. But Roberts is looking out at a landscape where he knows the result is completely baked in. Why should he expend the courts capital his personal capital in a feudal gesture through where I land on that. I just also want to go through some of the Republican senators some of their excuses. Some people might call it reasoning, other people

might call it for not voting for witnesses. Senator Marco Rubio, Republican from Florida, said, just because actions meet a standard of impeachment does not mean it is in the best interest of the country to remove a president from office. If actions meet a standard of impeachment, should a president then be impeached and convicted? Well, I mean this this raises a tricky point. I mean it's sort of an echo of the Clinton affair. In the end, Democrats rationale

for quitting Clinton. Indeed, the rationality I think some Republicans who voted for acquittal was it it Clinton had done bad things, he'd committed indeed one or more felonies, but that the gravity of what he had done didn't require his removal. Indeed, the you know, the best interests of the country suggests that he shouldn't be removed. I think that Rubio is making a somewhat inelegant version of the same argument now, and really this is just sort of

a terminological quibble. I mean, I would say, as somebody who spends time thinking about impeachment, that if you, as a senator, conclude that the president has committed an impeachable offense, that necessarily requires that you vote to impeach and remove him. But you know, you can also recognize that the whole notion of what's at least a convictable offense, it's not only about the president's conduct, but it's also about the

welfare of the country. And I think it's entirely within the sentis purview to conclude that even though a president has done improper things, bad things on a single occasion, that the gravity of those bad things, when weighed against the other good things he's doing for the country, pushes in the direction of a quittal. That's why this is a political process. That's why, in large measure, the Framers gave the decision to the political branches. And I disagree

with you Senator Rubio's assessment here. I think not only did the president do it, but the kinds of things he did here are of such gravity that it's hard to see how you can honestly conclude that a he did it and be it's not serious enough to remove him. But that's at least closer to intellectual honesty than, you know, than the president's lawyers or you know, the vast majority of the commentators on Fox News and frankly a number of the other Senators who were walking around saying, well,

he didn't actually do anything wrong, that's rubbish. Of course he did. I mean, he did wrong. It was plainly proven. And the question really is does that warrant removal or not? And you know, I think it does. I think any senator with you know, any interest in the Constitution, the preservation of frankly, the checks and balances, any interest in, you know, ensuring that the presidents he doesn't essentially become a kingship, ought to vote to convict and remove this president.

But I mean, Rubio is at least close sertain intellectual honesty than some of his his colleagues. One thing that has remained clear throughout this is that there won't be the votes to convict President Trump. So what implications does that have for future impeachments or for future attempts to reign in a president That I think very much depends on a number of things, and one of them is

the outcoming outcome of the election. Um remember, of course, that the Framers basically devised two mechanisms for removal of a president who is misbehaving or is underperforming, and one of them is impeachment, of course, but the other's elections. They originally thought about not having impeachments at all because they thought elect Some of them thought elections would be enough, but of course they decided elections might not be enough.

But they understood that there also was a relationship between the two. And if Trump escapes conviction in this case, given all the evidence, frankly, given the incredible efforts on the part of the members of his party to conceal the full extent of it, and then manages to win the election anyway, that I think is profoundly troublesome, to the mildest word I can come up with, because not only in the short term will he, I think, feel

more or less unbound to completely ignore Congress altogether. But it creates a precedent going forward that we should all be very very wary of. If, on the other hand, um, you know, the President and his party go down to a resounding defeat, then the impeachment will be viewed differently.

Eachment will be viewed as one mechanism by which wrongdoing by the president is exposed uh and by which, even if his party protects him, the public has an opportunity to find out what wrong has been done and to respond electorally. Um. I I think we should all be very very afraid here. Unless one is already bound heart and soul to Donald Trump. The consequences of this acquittal

followed by re election are very frightening. Indeed, when we look at the three times that presidents have been impeached, does it show that the Framers set the bar too high to require a two thirds vote in the Senate? You know? In retrospect, I kind of think so. I think we ought to. I think we ought to. Uh. I think we ought to be able to remove presidents

a little more easily. Maybe not on a you know, on a straight up majority but vote, but certainly you the modern era presidents could use a good deal more accountability, of a good deal more personal and institutional humility. And one of the problems that with this whole imperial presidency that we've created over the last century or so is that not only have we given presidents this fast almost

inconceivable personal power. But we've come to think of them as being you know, once we elect them, is somehow are there being indispensable, almost godlike, Um, that they somehow they're embody the executive branch in some almost mystical sense, and that to remove them is you know, a cataclysmic calamity. It's not right, among other things. Um, you know, we now, you know, elect people on a ticket one of the people.

Many people don't realize that when the Framers actually created impeachment, the original mechanism for choosing president vice president was that the presidency went to the person who had the most electoral votes, and the vice presidency went to the person who at the second most, which led in the third election to having you know, John Adams be president and his biggest adversary, Thomas Jefferson, be vice president, to predictable results. And if we now had that rule, the vice president

obi Hillary Clinton. Obviously it didn't work very well, so they changed it early on the end of the constitution so that presidents and vice presidents were run together. But that being so, all all impeachment means is that we lose the individual at the top of the presidential ticket. And we get the person whom the president chose um to be his second in command or her second in command, which is hardly a cataclysm, and we really ought to be much more ready to dispense with the services of

any particular person. Really, the the world does not end if we do that, and the democracy would undoubtedly be healthier if we had something a little closer to a parliamentary system, not exactly what they have where they can get rid of the prime ministers, something with a vote or no confidence in Parliament. Something a little closer to that wouldn't be a bad idea, But then let's be realistic. To fix to fix that problem would require an amendment

of the Constitution, and that's, you know, pretty inconceivable. On Sunday, Adam Schiff, the Leader of the House Managers, said about the Bolton information, whether in testimony for before the House, in Bolton's book or in another form, the truth will come out. But should the House of Representatives now be calling Bolton to testify? You know, I'm I'm kind of

of two minds on that. I think it, I think it's useful, I think the I think it will be useful for the House to continue to UM employ its oversight power two explore misbehavior by the president and the administration. That's what they're there for, in part I mean is to is to be check and on on the executive and a vigilant overseer of what goes on there. So

I think they should do that. On the other hand, what I think Democrats should certainly avoid doing is obsessing over what is now or will be on Wednesday, you know, a lost battle. UM. If all of this impeachment business is to mean anything from the point of view, not just of Democrats, but from the point of view of preserving you know, constitutional government, Donald Trump has to be

defeated in November. That will be the event that would validate all of this and would represent an affirmation that the constitution can work in that presidents will not be king. I think if Democrats come obsessed with trying to relitigate UM this this particular impeachment for month after month after month into the summer, they are doing themselves in the country a disservice. They've got to focus on other issues that concerned the country or perhaps even other areas of

wrongdoing by Mr Trump. That's fine, but in my view, they need to get to the business at hand, which is, you know, choosing an appropriate presidential candidate, appropriate were running mate, and focus on turning this man out of office through elections. Thanks for being on Bloomberg Law. That's Professor Frank Bowman of the University of Missouri School of Law. His book is High Crimes and Misdemeanors, A History of Impeachment for the Age of Trump. Thanks for listening to the Bloomberg

Law podcast. You can subscribe and listen to the show on Apple Podcasts, SoundCloud, and on bloomberg dot com slash podcast. I'm June Brasso. This is Bloomberg, Drunk the t Lent and Duck the Bill.