Impeachment Trial With No Witnesses

we learning anything new or is it repetition? So far from day one and what we've seen of day two of the questioning, um, what we've seen really are what I would characterize as friendly questions in the sense that the Republican senators are posing questions to the president's legal team, the Democratic senators are posing questions to the House managers

I'm all of whom are Democrats. And the point of the question seems to be provide an opportunity for rebuttal for each side, that is, to reiterate their main points and address points that were made by the opposite side.

And in that respect, they actually remind me more of the kinds of questions you might see it an appellate argument caused by judges who want to actually make a point to their fellow judges on the panel to win them over, as opposed to the questions you might see at a jury trial from jurors, where the questions usually reflect questions that are actually on the jurors mind that they need answers to before they can get comfortable reaching

a verdict. This seems much more rehearsed and coordinated and with an aim to allowing the lawyers to make particular points that the lawyers want to make, as opposed to addressing what's really on the mind of the people asking the questions. Why it doesn't the Democratic Senator ask a tough question of the defense team, why don't they get some of those questions that we hear them talking about when they come out of the chamber. So that's a

really interesting question. I've been thinking about it as well, and I think the best answer I can come up with is that they don't want to provide the opportunity for the opposing side to answer the question in a way that is beneficial to the side answering the question.

It's similar to when you're a lawyer at a trial and you you don't ask a question you don't know the answer to, and you don't ask an open ended question to a hostile witness that allows the witness to give an explanation that really destroys the point you want to make. So I think that's what's going on. It's a very strategic calculation. And I said again, I think it reflects the political nature of this process and how

different it is from a regular trial. There was one question from Senator Rand Paul of Kentucky that Chief Justice John Roberts refused to read. He said, the presiding officer declines to read the question as submitted, and this was a question about the whistleblower. That was something that Roberts has not done before. Yes, as I understand it, the reason not to read the question allowed was because it

may have named the whistleblower. So that's obviously a controversial, perhaps unlawful thing to do, to name the whistleblower who's entitled to anonymity. And so I think it's understandable that Justice Roberts would have paused, certainly, and then decided not to read the question. And I would imagine that there are conversations going on behind closed doors about the appropriate way perhaps to honor the spirit of the question without

in public naming this person. Well, it's always seemed odd to me that many Republicans have pushed to have the name of the whistleblower, even at this late stage where it doesn't seem to make any difference who the whistleblower was. It is striking that there would be any discussion at this point about the whistleblower. But I think it's in line with some of the arguments and the lawyers and

the questions both yesterday and today today. Already there's been a couple questions about the process and the rules surrounding the issuance of subpoenas in the House, suggesting that those subpoenas by the House as part of the first oversight and then the impeachment inquiries were illegitimate um and perhaps then to set up the argument that all the evidence and testimony that then flowed from the issuance of those

subpoenas should somehow be disregarded. Um. So I find it puzzling some of the subjects that the suspended is spending time on. So I would put in that category some of these sort of attacks on the process and the issuance of subpoenas in the House, and also the whistleblower complained. Does it seem as if Trump lawyer Alan Dershowitz has gone beyond what he argued that these charges against President Trump, even if true, don't rise to the level of impeachment.

He told senators that presidents could not be impeached for legal actions they believe we're in the public interest. Where does that come from? I'm not sure where Professor Dershowitz came up with the precise language and contours of the argument that he made. It certainly isn't something that's born out of the Constitution or any laws. I think he was really trying to make a logical argument, but he didn't do it well, frankly, because it's so extreme that

it can be rebutted quite handily. I think the better argument, and perhaps the one that he meant to make but went too far sort of in the moment. I think the better argument is that on the facts presented, even if senators come to the conclusion that what the president did was wrong or reprehensible, that it doesn't rise to

the level of an impeachable offense. And that's an argument that is one I expected, frankly, the lawyers representing the president to spend more time on because it doesn't require them to get bogged down in the facts. It doesn't require calling more witnesses, because if you accept as true for purposes of argument, that the allegations in the articles of impeachment are true, you can still argue, but it

doesn't rise to the level of what requires impeachment. And you, ladies and gentlemen of the Senate it are the ultimate arbiters of what rises to that level. Your decision can't be overturned by a court. It's your decision, and you're accountable at the ballot box. But you're not going to be overturned on this legal question of what's an impeachable offense by any other court of law. I've been talking to Jessica rob professor at Cardozo Law School, about the

impeachment trial of President Donald Trump. So, Jessica, the question of witnesses has dogged this trial, and at the beginning of the week it seemed as if there might be enough Senators to vote for witnesses, but that seems to have changed. Have you seen anything during the last few days of questions that would indicate why the senators might not want to hear from witnesses. I don't know what's happening UM in private conversations behind the senators closed doors, UM,

and among the senators along these lines. I imagine that this argument we were just discussing about, UM, even if you accept the facts as alleged as true, still it doesn't rise to the level of an impeachable offense, or you shouldn't vote to convict him here. UM. That that would be the argument that might cause senators to vote not to call additional witnesses. And so perhaps that is

UM what senators are thinking about. But of course they're all kinds of political considerations that may be dominant here as opposed to what I just laid out, which is more of a legal analysis. It may be a political calculus that they need to move on and carry out other business in the Senate and that their constituents are tired of hearing them debating impeachments. It may be a political calculus having to do with support from the President.

I don't know. Let's say, during the vote for witnesses, it comes down to can Chief Justice John Roberts break that tie. Yes, he is the presiding officer of the Senate in the context of the impeachment trial of the press event of the United States, and so in that role he has the authority to break a tie if there's a fifty fifty tie, much as the Vice President of the United States would during normal proceedings of the

Senate when there is a fifty fifty tie. So it is an intriguing thought experiment to imagine that there is a vote, perhaps on Friday, about even calling any additional witnesses or calling for any additional documents as a general matter, And what if the Senate is split fifty fifty would Chief Justice Robert be casting the deciding vote on that general vote about any additional witnesses or documents, which then if that were carried by fifty one votes and were

followed by specific votes on calling specific witnesses or calling for specific documents. So, for example, a motion to call John Bolton as a witness, how would Chief Justice Roberts vote if required to break a fifty fifty tie on that specific motion. So, again, he does have the authority, as I understand it, Whether will actually get to that point or not is another is another question. Speaking of John Bolton, since the revelations about his manuscript have come out.

Now you've seen that the National Security Agency sent him a letter saying that his book contains classified material. What

happens next. So there's one process for getting pre publication approval um from the national security agencies for this kind of book, and that has a route that would require, I think as the next step for he and his lawyers UM and publishers to attempt to negotiate with the national security agencies over what's in the book, what they deem to be classified, what perhaps could be taken out to satisfy them, And that would be sort of a process um that they would undertake, uh, sort of on

the sidelines, if you will. If that breaks down, there is the possibility that he could go to court, I suppose, um, but I would imagine that he would try to avoid that. But that's there as a fallback. But then we have the separate tracts of interest for the ongoing trial of executive privilege, which is really separate from this pre publication review of the book that is going on right now.

If people have already testified about some of the things that are in the book, that kind of material that's already out in the public domain, can it still be claimed that that's classified or that that's subject to executive privilege. So I'm not going to speak to whether it can

be deemed classified, because that's a separate analysis. But on the executive privilege, the fact that much of this information is already out in the public domain really weakens the claim that it is still covered by executive privilege because one of the factors that is taken into account and determining um whether something is protected by executive privileg which is the ongoing need that the executive has to keep

it secret. And once something is out there in the public domain, it's hard to make a good argument that there's an ongoing need for secrecy because it's not secret anymore. The executive privilege is a qualified privilege as opposed to an absolute privilege, and so it can yield and does yield when the need for things to remain secret that over which executive privilege has been asserted has dissipated um and when there is a very strong need for the

disclosure of the information. And so in the context of the Senate impeachment trial that's going on, right now, there is a very very strong case to be made that the Senate has a need to hear from John Bolton about his communications with the President, the substance of which

essentially are already out in the public domain. And the need is great precisely because of some of the arguments that the president lawyers have made about the lack of wrecked evidence of the President's intent and of his actions. Even and John Bolton's testimony, it would seem could go precisely to those areas as to which both parties are essentially agreeing there is a vacuum of other direct evidence.

The President has said many times that he might have to exert executive privilege over matters, but he's never actually done that, and we've seen, as I mentioned, testimony, so as he waived the privilege, so arguably he has um That's another reason why I think a claim for executive privilege to prevent John Bolton from answering questions in a Senate trial about his conversations with the President about Ukraine would be a weak claim of executive privilege because, as

I said, one of the things courts taken too account in evaluating claims of executive privilege is the ongoing need to keep the information secret. And so we could characterize what the president has done, UM by himself tweeting and talking about conversations with Bolton and about these matters, we could say he's waived the privilege. Um, we could say, uh, that he has right talking about it also just made it weaker, and he claimed that he has it, that

the privilege needs to be kept secret. UM. These are different ways of sort of talking about the same concept, which is that, um, it's no longer a credible claim that he needs to keep those conversations with John Boltan secrets as a matter of national security or protecting the internal deliberations of the president. Thanks for being on Bloomberg Lage. Jessica. That's Jessica Roth, a professor at Cardoza Law School.