This is Bloomberg Law with June Grassoe from Bloomberg Radio. On this vote, the eyes are two thirty two. The names are one nine seven. The resolution is adopted without objection. The motion to reconsider is laid upon the table, and with that vote, President Donald Trump became the only president in our country's history to be impeached for a second time.
Ten Republicans joined their Democratic colleagues for the vote, making Trump's impeachment bipartisan Article of Impeachment exhibited by the House of Representatives of the United States of America and the name of itself and of the people of the United States of America against Donald John Trump, President of the United States of America, and maintenance and support of its impeachment against him for high crimes and misdemeanors. Article one,
Incitement of insurrection. Trump was impeached on a single charge of incitement of insurrection for his on the right by his supporters that left five dead and the Capitol ransacked, and his second impeachment trial will be the first ever to take place after a president leaves office, creating a novel legal question that Trump might use in his defense.
Joining me is an expert on impeachment law Frank Bowman of a University of Missouri law school, looking at the Constitution itself, did the Framers intend to allow a president to be tried for impeachment after his term ends. Well, let's be honest here, I don't think the Framers anticipated every possible contingency. We often think that they were sort of superhuman and that they're in the blazing Philadelphia summer heat and thought through all the possible outcomes. And I
don't think they did. But I think we can say some things about not too much even what they specifically intended, but what the structure of the Constitution pretty plainly suggests. First, the point of the impeachment remedy is dual. The primary purpose is to ensure that if a presidents qualifies himself in some way through really horrible personal conduct or shows that he is the danger to the republic through his public behavior, that he can be removed short of an
actual election. The Framers debated about that. Some of them thought all Galian elections enough, but the majority said no, we need some other remedies. So that certainly is the primary point of impeachment, but it's not the only one.
They were deeply steeped in the learning about the classical republics, about the Greek democracies, about the Roman republic, and one of the lessons that they drew from their focus on classicism was concerned that democracies and republics are vulnerable to the wild demagogues when they talk about it all the time, Concerned that such a person would arise and represent continuing danger to the republic. And I think it is that concern as much as any other single thing that led
them to include the disqualification. But the Framers recognized that a sufficiently dangerous person, a person with sufficiently autocratic tendency, is a person with sufficiently strong following, a person with sufficient lack of scruple could close an ongoing danger even though you're moved in from office. And that's why they put in the disqualification remedies, not punishment profile access. It's trying to make sure this person never troubles the republic again.
And it would be a very strange notion to have a constitutional provision with that objective that could be thwarted simply because either the impeached person just resigned really fast before he could be impeached, or tried alternatively in this Trump's case, that he reserved the worst of his behavior until a period shortly enough before his departure from office
that you couldn't try. And I think it's pretty clear if you look at the structure the constitution the purpose of the framers that trying him after he leaves office is entirely consistent with what they had in mind. Of course, there's never been a situation like this before. But are there other cases in our history that would support the Senate's power to put Trump on trial even after his
term ends. Yes, there have been precedent for this. Indeed, the very first impeachment that ever happened very early on sev sevent ninety eight. William Blunt was a Tennessee senator and land speculator who engaged in the scheme essentially to transfer parts of them Spanish Florida and the Louisiana territory to the British. Word got out about that, and when it got back to Washington, the House immediately impeached him,
and shortly thereafter the Senate expelled him. But then, of course there was a matter of impeachment, and they went on to try him later on. Now he was acquitted. In the end, it's generally believed that the reason for his acquittal had nothing to do with the timing of the impeachment or the trial, but with the Senate decision that it had no jurisdiction over a editor. That is to say, senators are not the civil officers who are
covered by the Constitution's impeachment provisions. So we have a precise example of exactly this timing, and we have a somewhat even more pronounced one in the impeachment of Secretary of War Belknap during the Grand Administration in the eighteen seventies, where Belknap, the Secretary of Wars, corrupt and he sold an Indian agent position for money was found out and it was clear that he was about to be impeached.
He went over to the White House and immediately resigned and the hope of forestalling impeachment, but the House empeached him anyway, went over to trial in the Senate, and although again he managed to escape conviction, the Senate explicitly considered the question of whether or not it retained jurisdiction over him for trial, and it voted by a material majority that it did have jurisdiction over him, even though
he impeached him after he left office entirely. There are some scholars who argue that the Senate can't tried Trump after he leaves office, So this might be left up to the Supreme Court. But would the court even consider this? Well, there you ask me to read Supreme Court key leaves, and that's more important to read their minds, and and that's probably beyond my power. But let's put it in some procedural context. When might a court try to intervene?
Or when might Mr Trump ask a court to intervene? There are two possibilities. One, he could try to take an injunction in federal district court, presumably in the District of Columbia before the Senate trial, asking the drudge to
prevent or to order the Senate not to proceed. And I suspect the Senate, you know that they're not going to probably feel obliged to do much in response to a district court judge order, And in theories such an order, could you feel with the Supreme Court, I very very very much doubt that any district court would even entertain such a lawsuit or certainly have the presumption to try to enjoin the Senate impeachment trial of the president or former.
The more likely possibility would be if, frankly, if not that likely, given the composition of the Senate, he were to be tried and convicted, My guess is that he would try to bring that up to a court, generally starting again in the district court, and try to claim that the Constitution doesn't permit such trial, and the courts
might or might not even entertain the question. It might simply decide that it's nonjsticiable, as we said, or that even if they consider it the first instant, that it's really a separation of powers kinds of question, a political question, and that particularly sends the Constitution so very plainly places the impeachment remedy in the purview of Congress, that they're going to give immense deference to the Senates interpretation of its part of the impeachment role. So, yeah, it's possible
the courts could get into this. One doesn't like to predict that kind of thing. My bet, if I had to bet, would be that such a challenge would be unsuccessful. Thanks Frank. That's Frank Bowman at the University of Missouri Law School. Stephen Bryer has been a justice on the Supreme Court for twenty six years, and at eighty two years old, Brier is the oldest member of the Court.
Now that Democrats have won control of the U. S. Senate, it will be easier for President elect Joe Biden to fulfill his campaign promise of appointing the first black woman to a Supreme Court seat, and so progressives are putting pressure on Brian to retire now and following the footsteps of Justice is Byron White and David Suitor, who gave the last two Democratic presidents a Supreme Court seat to
fill in their first year in office. Joining me as constitutional law professor Stephen Vladdock, a professor at the University of Texas School of Law. Are Democrats now in the seat that Republicans have been in for four years? As far as judicial nominations, I think the tables certainly have turned. I don't think it's quite the same, just because you know, I don't think there's ever been quite the same effort
on the part of Democrats to prioritize the judgeships. Indicial conversation is Republicans and also we haven't had the lead up. I mean, one of the familes that really made the Trump im axo dramatic was that Senate and Georgy leader McConnell had been remarkably successful in denying open seats. The President Obama said that when Trump came to office, there
are already a number of agencies to fill. I think for President elect is soon to be President Biden, that's gonna be more question of how many judges who are currently active now we'll take senior status because there's a democratic president and at least nominal democratic control of the Senate. Why is the DC Circuit seat that Judge Garland is leaving to become Attorney General. Why is that being eyed as a potential springboard for a future Supreme Court justice. Well,
I think because it has been in the past. I mean, you know, we have Justice Kavanaugh was a DC Circuit judge. Chief Justice Roberts was a DC Circuit judge. Justice Ginsburg was a DC Circuit judge. Justice Thomas was a DC Circuit judge. I mean, this is historically the stepping stone to the Supreme Court. You know, most folks call it
the second highest court in the land. And so I think the idea is that whoever President Biden puts in that seat, it's probably gonna be at the very top of his shortlist for filling the next week that opens on the Supreme Court. President like Biden hasn't even been sworn into office yet, and there are already people calling for Justice Stephen Bryan to retire. In fact, as soon as it was clear that the Democrats had won the
Georgia election, why the rush. Well, I think given what happened with Jesfice Ginsberg and Jeffice Start, I think that tempers are understandably short, and that there's a very real concern that opportunities shouldn't be passed up when it comes to, you know, a chance or Justice Brier to be replaced by someone who's younger, someone who shares his progressive news.
Perhaps maybe it's more progressive, and so I think the concern is that even though Jesfice prior might look at the current political climate and say, well, I can wait a bit, I can wait at least until next year, you know, a fifty fifty cent and is no guarantee. I mean, all it takes is one set of circumstances where a seat opens up in a state with the republic looking governor, and all of a sudden the Senate
could kill faster Republican control. So for folks who have viewed the Supreme Court as this critical political prize, now is the moment for Justice Prior, who you know, we should say, I mean, has been on the Court for nearly three decades, has been a federal judge for over four decades. You know, now is the time for him to step aside and let someone younger come along. He's in the same situation that the late Ruth Vader Ginsburg was in, and that after all his years on the bench,
he's just become the leader of the liberal justices. Is that a pull for him as it was for RBG? And I think only Justice Prior could answer that. But you know, just looking at this from the outside, one of the remarkable things that you know, came late to Justice Ginsworth in her career was the power and at least a handful of cases to actually assign the majority opinion.
You know, it's hard to imagine when Justice Bryor is going to have that power because the liberal block of which he's now the senior member, has once you're justice in it, and the only way that it's one imagined that the progressives are going to be able to create five four majorities in the court going forward is to bring in the Chief Justice along with them. So I suggest there are a number of considerations, and it made him Justice Friars calculation. I just think that's probably pretty
low on the list. There's been a lot of reporting about President Barack Obama setting up a lunch with RBG to mention retirement, which obviously failed to convince her. Is maneuvering to get a justice to retire a thing that's often done. I think it depends on what we mean by maneuver. I think there's always a you know, very very sort of informal back channel avenue of communication between justices and white houses that are sympathetic to their political views.
You know, I think the lunch between President Obama and then Justin Skinford was probably about as close as we've come to any kind of direct contact. And even there, you know, all reports suggests that you never asked her to resign, that you know, it never came up directly. But I mean, jun the reality is Sesis Friar is
a very davvy guy. I don't think he needs to be told that a vacancy on the Supreme Court in the jest to fill his seat would be a huge priority and potentially a huge boon to the Biden administration. I thinks this is just a question of his own calculus and his own analysis of what the best time in this for him. Some might say that Justice Kennedy was maneuvered to leave the Court by promises made to him about his replacement by the Trump administration. Might that
happen here as well? There are allegations about what Kennedy was told and what he might even have communicated to the Trump White House that I don't know if ever been substantiated. I doubt that your I think sessis Friar. You know, is the kind of person, the kind of jurist who's not going to have incredibly strong views about particular people as his successor, as opposed to just who
should be choosing that successor under what circumstances. And I think, especially in this context, you know where cousin Biden, with a basiccy on the Supreme Court would have a chance to add a real measure of adversity to the Court in a way that his predecessor hasn't I suspected from Justice Briar's perspective, he's probably willing to just give the new administration event has it's out on this. Let's talk about some of the people who have been discussed as
potential Supreme Court nominees. Biden has said that he will nominate a black woman to the Court, and one of the names that comes up all the time, and at the top of the list maybe is Judge Katangi Brown Jackson. She's a former Briar clerk. Actually tell us a little bit about her. Yeah, I mean Judge Jackson, I think is a very highly regarded federal district judge in Washington's
She's been on the bench since the administration. Of the folks who have practiced before her, her colleagues, they all seek very highly occur I think one of the thoughts actually is that with Merrick Garlands potentially leaving his seat to become the Attorney General, you know, one possibility is actually to nominate Judge Jackson to the DC Circuit first, until and unless there's a Supreme Court vacancy, just so
that she can further developed her appellate chops. But you know, I think she's one of the people that she's at the top of the shortlist seconds for a very good reason. She's highly regarded, she's incredibly smart, she has written some pretty impressive opinions in her time on the Digital Court. So I think that's why a lot of folks are paying attention to her. That is similar to what happened with Judge any Coney Barrett. They put her on the
Seventh Circuit. Well, I think, I mean, they've done this a lot. I mean, so Justice Suitter was on the First Circuit for a short period of time before he was nominated. Justice Thomas was on the DC Circuit for a short period time. Chief Justice Roberts was on the CC circuits for a four period time before he was nominated.
I think there's just this mentality, for better or for worse, that one of the easiest ways to sort of defeat experience objections in the Supreme Court confirmation process is to have nominated to have at least some period of time of experience as federal circuit judges, because at least in
some superficial ways, the jobs aren't all that different. I guess how to say, I mean, I'm one of those who doesn't think that being a Circuit judge is or should be a we represented doing with Supreme Court justice, but at least of late that's increasingly become the norm. Another name being floated is California Supreme Court Justice Leandre Krueger, and her name is also being floated as Solicitor General.
What do we know about her? Yeah, I mean I think you know, similar vein as um that Jackson esfics. Krueger has private government experience, She's been in the executive branch, and she has some really really impressive credentials. Her work on the California Supreme Court has been highly regarded. Um, and you have the added the added value of a little more geographical and experiential diversity, you know, having a
state Supreme Court justice not into the Supreme Court. It's been a while since that happened, Um, having a California on the court. You know, that's this Kennedy's departure left the court for rest um of anyone from the nation's biggest state. So, you know, I think this is why most discussions of President Biden's first Supreme Court nominee end up with Katangi Brown Actulyandre Krueger, because they're just so you know, because such compelling candidates on their own, Have
you heard any other names being floated? Those? You know, those are the two you hear most often. Um, you know, I think there are some there are the sort of the wilder names that I think are not realistic, Like folks who says, maybe Michelle Obama could beyond the Supreme Court or State April. But at the end of the day, I think this is really probably a two horse race,
at least for now. So looking at the court and the way the way it is right now, do you think it's a good idea for Justice prior to retire? And I'm not sure. I don't know what what to do with a good idea. I mean, I I think I think Jessice Friar is gonna be under a lot of pressure to set aside in favor of, you know,
a younger dominative and for good reason. And I think, you know, there are a lot of folks who look at you know, the sort of the the unfortunate date of Justice Ginsburg um as a lesson to be avoided,
um as an example not to repeat. And so, you know, I think there's gonna be a lot of pressure on Justice Frior and I think, you know, given where we are, might make a lot of sense um for you know, President Biden to be able to put a nominee on the Supreme Court sooner as than later, since we have no idea what's going to happen to the Senate either in the month or even in the terms. Thanks for
being on the Bloomberg Law Show, Steve. That's constitutional law professor Stephen Vladdock of the University of Texas Law School. I just want to note that Justice Brier himself has not given any indication of when he wants to retire. That's it for this edition of the Bloomberg Law Show. Remember you can always get the latest legal news on our Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify, and at www dot Bloomberg dot com slash podcast slash Law.
I'm juven Grosso. Thanks so much for listening. Please tune into The Bloomberg Laws Show every weeknight at ten pm Eastern right here on Bloomberg Radio. Muted. The student descripen of Jo