Inside Impeachment

Episode Notes

Transcript

Lawyer 2 Lawyer: – Law News and Legal Topics

Inside Impeachment

10/18/2019

 

[Music]

 

Frank O. Bowman III: The president’s people talk about, well, there’s no quid pro quo. Well, first of all it doesn’t have to be. And the second of the whole their plaintiff was and indeed not only to be on the phone call but as weeks going along it becomes clearer and clearer that it wasn’t just Mr. Trump speaking off-the-cuff, but in fact this phone call was burning larger effort to put direct pressure on Ukraine and its President.

 

Gene Healy: There’s a lot in the call summary that the White House released. There is a lot in whenever President Trump goes before an open mind, it’s not really the case of what did the President know and when did he know it, a lot of the information is there already.

 

[Music]

 

Intro: Welcome to the award-winning podcast, Lawyer 2 Lawyer, with J. Craig Williams and Robert Ambrogi, bringing you the latest legal news and observations with the leading experts in the legal profession. You are listening to Legal Talk Network.

 

[Music]

 

1. Craig Williams: Welcome to Lawyer 2 Lawyer on the Legal Talk Network. I am Craig Williams coming to you from a sunny Southern California, the vivid of fire on this side.

 

I write a legal blog called May It Please The Court, I have a book out titled ‘The Sled’ and ‘How to Get Sued’.

 

Well, before we introduce today’s topic, we’d like to take this time to welcome and thank our sponsors Clio and Blue J Legal.

 

Clio is a cloud-based practice management software and they are having their annual Clio Cloud Conference in San Diego on October 21^st and 22^nd. Also, check out their new podcast called Matters now on the Legal Talk Network or your favorite podcasting app.

 

And Blue J Legal; Blue J Legal’s AI-Powered Foresight platforms accurately predict court outcomes and accelerate case research by using factors instead of keywords. You can learn more at bluejlegal.com.

 

On September 24^th 2019 House Speaker Nancy Pelosi initiated an impeachment inquiry against President Donald Trump. The inquiry began after a whistleblower report alleged that along with other top administrative officials and personal associates, the President had abused the power of his office by pressuring leaders of foreign nations, most notably the Ukraine, to advance his own political interests.

 

Unsurprisingly that White House and its allies have been vocally opposed to the inquiry and in many cases have sought to impede the investigation with some officials and connected actors refusing to comply with congressional subpoenas. Despite these efforts, Democrats continue to work to build a case of impeachment by gathering evidence through the testimony of various players connected to the whistleblower complaint.

 

Well, today on Lawyer 2 Lawyer we’re going to spotlight impeachment, we will discuss the inquiry, the process, the players, what this means for the Presidency as well as the country itself.

 

To do that we’ve got a great show for you today, our first guest is returning guest, Attorney Frank O. Bowman III. He is Professor of Law at the University of Missouri Law School. Frank spent three years as a Trial Attorney in the Criminal Division in Washington, D.C. In 1995 he served as special counsel to the U.S. Sentencing Commission in Washington, D.C. and he currently teaches Criminal Law, Criminal Sentencing and Impeachable Offenses. He is the author of high crimes and misdemeanors a history of impeachment for the age of Trump put out by Cambridge University Press this year 2019. And welcome back to the show, Frank.

 

Frank O. Bowman III: Nice to be here.

 

1. Craig Williams: And our next guest is Attorney Gene Healy. He’s Vice President at the Cato Institute. His research interests include executive power and the role of the Presidency as well as federalism and overcriminalization. He’s the author of ‘False Idol: Barack Obama and the Continuing Cult of the Presidency’ and another book ‘The Cult of the Presidency: America’s Dangerous Devotion to Executive Power’. He’s also an Editor of ‘Go Directly to Jail: The Criminalization of Almost Everything’ and has written extensively on today’s topic.

 

Well, welcome to the show, Gene.

 

Gene Healy: Thanks for having me on.

 

1. Craig Williams: Well, Gene, let’s start with you kind of always like to start with a background question kind of give us some orientation about our discussion today, let’s talk about the impeachment inquiry, how it got started, whether it needs a vote, whether it doesn’t need a vote, and how it’s going to progress as we go through kind of a quick class and con law?

 

Gene Healy: Well, I don’t think it needs a vote. The Constitution says very little about procedures in the house other than that the house has the sole power of impeachment and that it gets to make its own rules. So there’s another argument about whether speaker Pelosi should genuflect towards past practice and have a formal vote to authorize an inquiry, which has been done in the past, but there’s nothing in the Constitution that requires that, and it’s certainly not a valid excuse for resisting congressional subpoenas.

 

(00:05:12)

 

1. Craig Williams: Frank, let’s talk about basically the concept of treason itself, can you tell us what is treason, asking a foreign government to investigate a political rival treason or an impeachable crime?

 

Frank O. Bowman III: It’s certainly impeachable regardless of whether it’s crime which impeachable conduct does not require a crime, but let’s start with now your first part of your question which has to do with treason. Of course what you’re referring to is the fact that in the Constitution it says that the President, the Vice President and other Civil Law Officers shall be impeachable only for treason, ivory or other high crimes and misdemeanors.

 

The first time item on that list treason is certainly a crime, it’s the only crime that is actually defined in the Constitution itself. The treason is extraordinarily narrowly defined in the Constitution, it’s defined effectively as giving aid and comfort to the enemy in a time of war, deliberately declared war and therefore treason prosecutions in general are very rare and certainly nothing that we know about with respect to Mr. Trump fits that definition, but that’s really beside the point because the bulk of impeachment regardless of the type of official in American practice have been for high crimes and misdemeanors, an Old English term of art and high crimes and misdemeanors first thing to remember about is it doesn’t mean what you think it means.

 

It does not require that the impeached official have committed any indictable crime at all rather how close a misdemeanor is, it just describes when it was put into the Constitution, it was put into the Constitution because it was a phrase that the British Parliament accused for a very long time to describe the kinds of things that Parliament had impeached people for. And it remains a very general term to refer to a variety of kinds of bad conduct primarily or a primary kind of bad conduct that’s impeachable as abuse power, whether or not the abusive power is criminal is really besides a point. So, yes, I think what Mr. Trump has done with respect to Ukraine is an impeachable offense, it is high crime and misdemeanor, but it’s not treason and it need not be an indictable crime.

 

1. Craig Williams: Well, Gene, let’s talk about America’s dangerous devotion to executive power and that perfect telephone call. Is it perfect because he says it is?

 

Gene Healy: Well, you listen to some of the spin about that call from the President and his allies, they seem to have set the bar so high that unless there is an explicit quid pro quo, I will do this for you if you do that for me, then it’s perfect and there’s no misconduct in that phone call, but actually that phone call particularly is the context around that phone call emerges. The call summary itself looks bad enough. Let’s stipulate it. Presidents have many reasons to withhold foreign aid, this carrot and a stick for the foreign policy interests of the United States.

 

So if that call was asking for a better trade deal with Ukraine or something of that nature and that was a possible reason for the holdup of military aid that Congress had approved then we could talk about whether that’s legitimate, but one thing is clear it’s not in the foreign policy interest of the United States to dig up dirt on President Trump’s political enemies, what that call reminds me of and the motivation that it seems to be clearly behind the request to reopen it into — an open investigation into Joe Biden and his son it reminds me of the infamous enemies’ list memo from John Dean, White House Counsel under Nixon where they talk — he talks about using the available federal machinery to screw our political enemies. The screwing Donald Trump’s political enemies is kind of foreign policy interest to the United States and if he’s using the power of the office to advance that as it seems clear he was, then yes, I agree with Frank that that is pretty clearly an impeachable offense.

 

(00:10:08)

 

1. Craig Williams: Well, Frank, let’s talk about that. There’s strategies on both sides, both camps are using, we’ve heard it a perfect telephone call and all we’re doing is looking for the facts. We have history on our side in this case and what can we learn from history with this? I mean, this isn’t the first time we’ve seen impeachment?

 

Frank O. Bowman III: Well, of course not, although impeachments of American presidents are very rare up to this point in American history. They have really only been three very serious attempts to impeach President, Andrew Johnson in 1868, President Richard Nixon in 1970s, and of course, Bill Clinton in the 1990s. But one thing that I think we can say about even presidential impeachments is that abuse of power is universally conceded to be an impeachable offense.

 

The analogy to President Nixon is really quite close. Nixon was charged in three articles of impeachment. The first was formally about obstruction, the second was abuse of power, and the third, interestingly enough, given current circumstances was for actually refusing to respond properly to House Judiciary Committee subpoenas.

 

But in every case the essence of what Nixon was alleged to have done was over a period of time and in different ways he used either the powers of federal law enforcement and intelligence and security services or in some cases privately hired people. He had nested in the White House the so-called plumbers to either A, get dirt on or punish his political enemies or B, try to cover up the fact that he had done that.

 

Now the analogy between that and Mr. Trump is pretty exact. The only difference being that Mr. Trump is using his powers in foreign policy and military policy, but more specifically his commander-in-chief power relative to military affairs and his power as effectively the principal diplomat of the United States, to do exactly the same thing.

 

I mean, as Gene says, he is trying to get dirt on a political enemy and critically he’s not just talking to any country, he’s certainly not talking to a country that is in any way in a position of tyranny with him or with the United States. Really there is mentioning, there is reminding that people aren’t aware of where Ukraine is and what its situation is. This is a country that of course was formerly a part of the Soviet Union. When Soviet Union fell, Ukraine became independent, and since then Russia has been persistently trying to get Ukraine back into its orbit or perhaps even annexed it wholly and bringing it back into a greater in fact Russian empire.

 

The Ukrainians have had part of their territory absolutely annexed in form of the Crimea and they are consistently fighting a low-grade but very real war on the Eastern part of their country supported by the Russians. In short, the independence of Ukraine is very tenuous both politically and territorially and its continued independence depends critically on the support of United States and NATO and Western Allies that support takes economic forms, it takes military forms, it takes diplomatic forms.

 

And what Mr. Trump said in that famous phone call is really pretty explicit. He goes in his typical sort of word-salad way, he talks about how all the wonderful things the United States does for the Ukraine but then he says, but it’s not reciprocal. In other words you’re not giving us enough and the thing he wants in reciprocity but he wants is a favor and that favor is investigation into a couple of things including Mr. Biden.

 

So as Gene points out the President’s people talk about, well, there’s no quid pro quo. Well, first of all, it doesn’t have to be, and the second of all 00:14:29 and indeed not only do we have the phone call, but as the weeks are going along, it becomes clearer and clearer that it wasn’t just Mr. Trump speaking off-the-cuff, but in fact this phone call was for the larger effort to put direct pressure on Ukraine and its President to help Mr. Trump get dirt on his enemies, and that’s completely impermissible to the abuse of power and it’s impeachable.

 

Gene Healy: I think there are parallels with at least two of the three articles of impeachment that the House Judiciary passed in the summer of the 1974 against Richard Nixon.

 

(00:15:06)

 

Article II as Frank mentioned about Abuse of Power, I think there’s a close parallel there. And Article III about contempt of Congress and obstruction of an impeachment inquiry, and in fact in the policy the President or the White House Counsel announced earlier this week or was it last week of blanket non-cooperation is actually more obstructive than what the policy Richard Nixon pursued and was impeached by the House Judiciary Committee for.

 

I mean, Article III against Nixon the charges are that selective and duplicitous compliance with congressional subpoenas and I think it’s not until the very end that Nixon decided not to cooperate any further, but at least initially it was partial and selective compliance with the congressional subpoenas in an impeachment inquiry.

 

President Trump through his White House Counsel has announced upfront that there’s not going to be any compliance. Now it doesn’t seem to be working out that way in part, because not everyone that has been called to testify is willing to put themselves on the line for him, but its policy is a blanket stonewall, which is more extreme than the conduct that Article III, the Nixon impeachment, was based on and that helped drive President Nixon out of office.

 

1. Craig Williams: It’s definitely something we’d like to talk about when come back from our break, but before we move on to our next segment, we’re going to take a quick break to hear a message from our sponsors. We’ll be right back.

 

[Music]

 

Predict legal outcomes with Blue J Legal’s foresight platforms. Using AI to analyze thousands of cases at administrative rulings, Blue J Legal can predict with 90% accuracy on average, how a judge would likely rule in your case? Plus, you can research by factors and outcomes to find the relevant cases in seconds. Stay ahead of the curve and learn more at bluejlegal.com.

 

[Music]

 

Bob Ambrogi: Imagine what you could do with an extra eight hours per week. That’s how much time legal professionals save with Clio, the world’s leading practice management software. With intuitive time-tracking, billing and matter management, Clio streamlines everything you do to run your practice, from intake to invoice. Try Clio for free and get a 10% discount for your first six months when you sign up at their website clio.com with a Code L2L10.

 

[Music]

 

1. Craig Williams: And welcome back to Lawyer 2 Lawyer. I’m Craig Williams and with us today is returning guest Attorney Frank O. Bowman III, Professor of Law at the University of Missouri School of Law, and Attorney Gene Healy, a Vice President at the Cato Institute.

 

Right before the break we were talking about what I’m just going to classify as alternative political realities. It seems like when we hear political people speak in Congress, we’ve got two ways of looking at things. President Trump didn’t do anything wrong, and President Trump did something wrong that was impeachable, how can these people, Frank, see these things so differently?

 

Frank O. Bowman III: I don’t think that they do see them differently. At least I honestly don’t think that most of the people that are speaking on Mr. Trump’s behalf believe much of any of what they say. Certainly those people who were paid to represent him as lawyers it’s got to make the best case they can. But I don’t really credit the notion that anybody believes that there was for example, there wasn’t a quid pro quo here or believes and it’s perfectly all right for a President of the United States to leverage the vast power of the United States against an endangered country in order to get dirt on his political enemies.

 

I don’t believe that they believe that. But, I mean, there certainly are alternative political realities here and they’re created I think by — let’s put it as nicely as possible, political timidity, on the part of a good number of folks who at least in public support Mr. Trump and that timidity of course is exacerbated or may be caused by a media environment in which a lot of the facts that are emerging about Mr. Trump’s activities either are simply not being reported to a certain segment of the population or are being categorized as lies or deep state conspiracies or heaven knows what. But I don’t think the people in Congress who are talking about this believe much of anything, of what they are saying and what’s particularly notable actually about remarks from Republicans in Congress is the lack of them.

 

(00:20:11)

 

It seems to me that most of the folks who might be expected to come out vociferously and defend this administration have been notably silent.

 

1. Craig Williams: Well, Gene, where do we — we have Sandlin coming out and we have been kind of getting daily bombshells from Congress in these private hearings. You mentioned that there was a no quid pro quo tweet. Sandlin is expected to testify; that was dictated by the President. How is that going to play?

 

Gene Healy: Well, we will see. What I think is interesting about this is it took quite a long time from the beginning of congressional and special prosecutor investigations in the Nixon case for the truth to emerge. They talked about the — in the language of Watergate, you have a lot of these terms that have entered our political parlance that are usually terms about concealment.

 

They talked about the limited modified hangout, and while it’s certainly true that President Trump has adopted this policy of stonewalling, there is this other element where whenever he goes in front of a microphone, he is almost indicting himself.

 

A week or so ago when he — I think it was about 30 seconds after he talked about all the levers that the President has to hammer China on trade, he adds, and I think China should investigate the Bidens and the Ukraine should.

 

So I think there is a lot in the call summary that the White House released. There is a lot in whenever President Trump goes before an open mic. It’s not really the case of, what did the President know and when did he know it; a lot of the information is there already. People can make their judgments about it, and it seems to me that the House leadership would like to move this along, so as not to be in the middle of an impeachment inquiry, in the middle of a Senate trial just months before a presidential election.

 

I think the Sandlin testimony and testimony from other officials this week has filled out the picture quite a bit, but the picture was already fairly complete as of about two weeks ago. So maybe we will learn more, but we already know a good bit of the story.

 

1. Craig Williams: Well Frank, we have just a few minutes left in our discussion today, so I would like to give you the opportunity to wrap up and get your final thoughts along with give you a chance to put out your contact information. So here you go.

 

Yeah, how do you summarize this, I mean there is a million things that are going on all swirling around at the same time. I mean will we be headed toward impeachment, where we get a House that votes and then we are going to see a trial? Do you think Trump is going to turn around and say okay, I have had enough, I am going to step out of this? I mean are we going to see an art of the deal negotiation to walk away like Nixon did?

 

Frank O. Bowman III: No. I think it seems clear to me that there is not only going to be articles of impeachment emerging from the Judiciary Committee at some point, but also that the full House will vote on them and moreover, it seems extraordinarily likely that they won’t approve some articles of impeachment against Mr. Trump.

 

The really interesting issue is actually how broad or how narrow this might be. There is certainly one school of thought that it should be limited related to the Ukraine affair, because the facts as Gene says are actually pretty loud and clear and are becoming clearer by the day. The wrongfulness of what he did is really not debatable by anyone who is not already enthralled with the man and therefore, it’s a nice clear case.

 

On the other hand, there is an argument to be made for trying to draft articles of impeachment that fit this particular incident into a broader picture, wrapping in perhaps elements of Mueller, the Mueller investigation, perhaps speaking more about of Mr. Trump’s foreign policy misadventures and so forth and so on, which of course the House is going to take, a simple or a more complex case remains to be seen, but that there will be articles of impeachment and that the House will almost certainly approve them I think is no longer really in doubt.

 

The real question is, simply whether or not the case becomes sufficiently compelling and Mr. Trump’s political supporter 00:24:50 sufficiently for, that some number of Republicans in the Senate get to see that he is a political liability or simply see their duty as people sworn to uphold the Constitution to find that he committed impeachable offenses, that’s where the uncertainty is, and as they say time will tell.

 

(00:25:15)

 

1. Craig Williams: Gene, are we going to see Chief Justice Roberts sitting at the head of the Senate and conducting a trial after this impeachment occurs?

 

Gene Healy: Well, if so, I hope he doesn’t use the yellow stripes on the robe that Chief Justice Rehnquist did 20 years ago.

 

I guess my final thoughts would be, I think we should be less anxious and angsty about impeachment than we two typically are. I do think that the framers would probably have been surprised at how few serious efforts there have been at presidential impeachments over 230 years, and while none of them were eager to see very frequent presidential impeachment, Hamilton in the most prescient thing he ever said, predicted that they would agitate the passions of the whole community.

 

I don’t think the view that impeachment is a constitutional doomsday device and an automatic constitutional crisis is one that they would have embraced or that we should embrace. I think we should welcome this process. It’s not the end of the world that every generation or so we remind the President that he serves at the pleasure of the rest of us and remind ourselves that we have this constitutional process for judging his conduct.

 

So I think we should not look at this process as a constitutional crisis; we should look at it as the Constitution working in the way that it’s intended to work.

 

1. Craig Williams: Great. And I will give you the opportunity to mention your books and your contact information if you would like.

 

Gene Healy: You can visit the Cato Institute website at www.cato.org and if you like, you can follow me @GeneHealy on Twitter.

 

1. Craig Williams: Great. And Frank.

 

Frank O. Bowman III: And I am Frank Bowman and I teach at the University of Missouri School of Law. You can read some of my stuff about impeachment on my blog, which is called Impeachable Offenses, and you can find it at impeachableoffenses.net. And of course I have recently written a book on the subject entitled ‘High Crimes and Misdemeanors: A History of Impeachment for the Age of Trump’, available both online and one hopes at a brick and mortar bookstore near you.

 

1. Craig Williams: And listeners can reach out to you on your websites?

 

Frank O. Bowman III: Yeah, they can reach me through the blog or they can reach me through email, which is [email protected].

 

1. Craig Williams: Great. Well, thank you both for being on our program. We would like to thank Frank O. Bowman, Professor of Law at the University of Missouri School of Law and attorney Gene Healy, Vice President of The Cato Institute for joining us today and talking about impeachment.

 

And it looks like we have reached the end of our program, and if you liked what you heard today, please rate us in Apple Podcasts, Google Podcasts or your favorite podcasting app.

 

You can also visit us at legaltalknetwork.com, where you can leave a comment on today’s show and sign up for our newsletter.

 

I am Craig Williams. Thanks for listening. Join us next time for another great legal topic. Remember, when you want legal, think Lawyer 2 Lawyer.

 

[Music]

 

Outro: Thanks for listening to Lawyer 2 Lawyer, produced by the broadcast professionals at Legal Talk Network. Join J. Craig Williams and Robert Ambrogi for their next podcast, covering the latest legal topic.

 

Subscribe to the RSS feed on legaltalknetwork.com or in iTunes.

 

The views expressed by the participants of this program are their own, and do not represent the views of, nor are they endorsed by Legal Talk Network, its officers, directors, employees, agents, representatives, shareholders, and subsidiaries. None of the content should be considered legal advice. As always, consult a lawyer.

 

[Music]

Continue Reading