Guests Tom Jipping and Alan Barron discuss the impeachment trial, specifically the issues of witnesses, new evidence, and its constitutionality.
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Tom Jipping is the deputy director of the Edwin Meese III Center for Legal and Judicial Studies...
Attorney Alan Baron’s practice is focused on high-profile cases in the federal enforcement arena and complex civil...
J. Craig Williams is admitted to practice law in Iowa, California, Massachusetts, and Washington. Before attending law...
The impeachment trial of President Donald J. Trump is underway and, as expected, it has come with its share of controversy. On December 18, 2019, President Trump was impeached by the House of Representatives for abuse of power and obstruction of Congress. As of the date of this recording, which is January 29, 2020, the Republicans had uniformly resisted demands to call witnesses and subpoena new evidence not presented in the House investigation.
On today’s Lawyer 2 Lawyer, host Craig Williams is joined by Tom Jipping, the deputy director of the Edwin Meese III Center for Legal and Judicial Studies and a Senior Legal Fellow for the Heritage Foundation and attorney Alan Baron, a special counsel to government entities, as they discuss the impeachment trial, specifically the issues of witnesses, new evidence, its constitutionality, the House managers, the impact of the trial on the presidency, and, of course the potential outcome.
Special thanks to our sponsors, Blue J Legal.
Lawyer 2 Lawyer: Law News and Legal Topics
The Impeachment Trial of President Trump
02/07/2020
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Alan Baron: I don’t quite understand the Republicans’ posture on this. They have the vote. There is no way that 20 senators who are Republicans are going to crossover and find the president guilty. And I don’t understand the strategy. It just makes it look more and more sinister that they are hiding things and knowing full well that they are going to win in the final analysis no matter what.
Tom Jipping: This is about politics and everyone knows why the Democrats would want to put those witnesses on. From the Republican perspective the kind of mischief that they would want to pursue and where it would go from there, if anybody thinks that it would just be two or three people that they would call and then they would be satisfied, I have got some property to sell them.
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Intro Welcome to the award-winning podcast Lawyer 2 Lawyer, with J. Craig Williams, bringing you the latest legal news and observations with the leading experts in the legal profession. You are listening to Legal Talk Network.
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I write a legal blog called May It Please the Court. I have two books out called ‘How to Get Sued’ and ‘The Sled’.
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The Impeachment Trial of President Donald J. Trump is underway and as expected it has come with its share of controversy.
On December 18, 2019 President Trump was impeached by the House of Representatives for abuse of power and obstruction of Congress. As of the date of this recording, which is January 29, 2020, Republicans have uniformly resisted demands to call witnesses and subpoena new evidence not presented in the House’s investigation, but a vote is expected soon.
Today on Lawyer 2 Lawyer we will discuss the Impeachment Trial, specifically the issue of witnesses, new evidence, its constitutionality, the House Managers, the impact of the Trial on the presidency and of course the potential outcome.
And to help us explore this topic we have got two great guests for you today. First up we have Tom Jipping, the Deputy Director of the Edwin Meese III Center for Legal and Judicial Studies and a Senior Legal Fellow for the Heritage Foundation.
Tom joined Heritage in May of 2018 after serving for 15 years on the staff of Senator Orrin Hatch, including several years as his Chief Counsel on the Senate Judiciary Committee.
Welcome to the show Tom.
Tom Jipping: Thank you very much for having me.
As you may remember Judge Kent was impeached by the House of Representatives on June 19, 2009 and then resigned from office on June 30, 2009.
Welcome to the show Alan.
Alan Baron: Thank you. Nice to be here.
Tom Jipping: Well, as you said the House has impeached the President on two counts, abuse of power and obstruction of Congress. There was about a 30-day pause in the process when Speaker of the House Nancy Pelosi declined to hand it off to the Senate so that the Senate Impeachment Trial could begin, but she did do that.
The Trial has begun. Both sides have made their opening presentations and as we are talking today the Senators are asking questions through Chief Justice John Roberts, who is presiding over the Trial, asking questions of either or both sides, that’s going to continue probably for another day. And then the Senate will get into votes and debates about the actual decisions about whether to subpoena additional witnesses or evidence.
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Alan Baron: Well, let’s start with Roberts. He really doesn’t have much in the way of power. He is there pursuant to the Constitution, but his role is very limited. I recall when Chief Justice Rehnquist stepped down from his role in the Clinton Impeachment he was very relieved. He said something like I am glad I can leave here and get back to real work.
So the role of the Chief Justice is pretty limited and any rulings that he makes can be overturned by a majority vote in the Senate, which must be a very weird experience for the Chief Justice of the United States.
With regard to the House Managers, I have worked closely with Chairman Schiff, who is the lead House Manager, and I worked with him on two impeachments, they were judicial impeachments. He is a very, very bright guy; Stanford, Harvard Law School, very serious guy, very focused and I think from my observation he has taken a leading role in this and done a very good job.
I am not as familiar with the Republicans. I think they have in my view at least a tough row to hoe. They are doing the best they can with what they have to work with, but I think both sides have worked very hard. They have obviously put in tremendous amount of work and they have done a good job for their respective sides.
Tom Jipping: Well, the mixture of lawyers that he has is, as you just suggested, both — some of the lawyers from the White House Counsel’s Office, Pat Cipollone, who is the White House Counsel, Mr. Philbin is the Deputy White House Counsel and then a few from the outside, Jay Sekulow, who has been in the role of the President’s personal lawyer for some time and then people like former US Circuit Judge Ken Starr, former Harvard Law Professor Alan Dershowitz to address some of the broader constitutional issues, those that are not specific to the articles of impeachment that we have here.
So it’s a mixture of they are all very good lawyers, but lawyers who are able to address different parts of the picture of the narrative that the President’s team wants to produce.
Alan and I actually have a connection because one of the impeachments that he worked on for US District Judge Thomas Porteous, I was the Deputy Chief Counsel of the Impeachment Trial Committee that actually did the trial for that impeachment.
And so the team that they have together I think is an interesting one and I am learning some even though I have been involved in impeachment trials before.
Alan Baron: Well, of course the House goes first. I mean they have in a sense the burden. You know what’s interesting is that in one of the impeachments I have tried, one of the issues that came up before the Senate is what is the burden of proof in an impeachment trial and the Senate struggled with it, and then they came back and said, and I think people will find this kind of interesting, there is no set burden of proof. It’s not beyond a reasonable doubt. It’s not a bare majority of the evidence, the weight of the evidence.
They said in effect it’s up to each senator to decide for himself or herself the burden that they want to utilize in making their decision, which I think would kind of surprise most people, but it gives you an indication of how different this is from a normal court case.
Robert’s role, as I said before, is very limited. There is not much he can do and if he does anything it can be overruled.
Tom Jipping: Well, impartiality is one of those words that means different things in different contexts. I think the oath that they take to do impartial justice is a symbolic step on both sides. I think at least in this impeachment process certainly most Democratic senators had already said whether they thought the President was guilty or not or what they believed he had done. Republican senators had already, at least some of them, had already said that they thought he should be acquitted and so on and so forth.
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So the oath of impartiality cannot mean that senators have literally no opinion about this, that they are coming at this with a blank slate. So kind of what Alan was referring to a minute ago, it’s a different idea than what you are looking for with jurors in a criminal case.
And the Senate’s role in an impeachment trial is kind of a combination of jury and judge. Alan is correct that since the Constitution gives the sole power to try impeachments to the Senate, the Senate ultimately has authority to decide these different issues about witnesses and evidence and this kind of thing.
So I think like the burden of proof, each senator is responsible for what he or she views as an impartial approach to this. And I am sure there is different understanding of that from one senator to the next.
Alan Baron: And also if I may interject, I think that it’s very important for people to understand that yes, this has the trappings of a legal process, but in the final analysis it is a political process. The founders, the founding fathers frequently allude to that and as we go through this you can see that it is not a typical judicial proceeding, this is very much a political proceeding.
Alan Baron: There was a lot of struggle about that. They didn’t know where when they were trying to figure out which way to go, the question, should it be in the Supreme Court, and there was a lot of back and forth among the founding fathers as to where it ought to go, and eventually they decided that they would leave it in the Congress but break it down into two parts, the House having the sole power to impeach, the Senate having the sole power to try an impeachment.
All things considered, it has worked quite well over the centuries. We are really talking about centuries. There have been eight convictions in the Senate, all of them were US judges, I don’t know that they were all district judges, but they were all judges. And it’s a cumbersome process but it works, it does work and I think however it’s a good thing we don’t have to invoke it very often, but it does work.
Tom Jipping: Well, I would agree with that. It is kind of a strange provision or part of the Constitution, it’s a process that the founders deemed necessary, but we would certainly hope it would never have to be used because there wouldn’t be such misconduct in our public officials.
The founders during the Constitutional Convention, they were really focused on it as a check on the President and yet as Alan mentioned most of the impeachments and all of the impeachment convictions in our history have been of judges. So that’s kind of — but the founders did view it as a check on the President. And I think since our system of government is based on elections and the authority of the people to choose their own leaders that this certainly wasn’t intended to be used like a political weapon, as a way of just battling a President that was opposed for various reasons.
And I think the split between the House and the Senate kind of parallels the idea of both are involved in the legislative process too. You don’t have all of the power to do something like this just in one place. And I think that that’s consistent with the overall kind of division separation of power checks and balances that exist in the rest of our system.
Alan Baron: That’s a good question. And the answer is essentially that the Senate is the final arbiter. One of the other impeachment cases that I handled, Federal Judge named Walter Nixon, it’s funny how certain names seem to show up in the impeachment context, but this was Walter Nixon, not Richard, and he was tried, he was convicted in the Senate and he was removed from office, but the trial was held before so-called Rule 11 Committee.
The Senate found that — when they had the full Senate there ostensibly to try these cases, this is background, and in the 1930s is when it became a real problem, they decided this is just not working.
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So they adopted a so-called Rule 11 which basically sets up a committee of 12 senators, six from each party and they take the evidence. They listen to the witnesses, question the witnesses and then they do not decide the case, they then write up what they have received in evidence from both sides and then report back to the full Senate which meets behind closed doors and reaches its conclusion. They come out and each Senator stands in his and her place and they go through the role and decide guilty or not guilty.
So that’s the process that really — they decided to use with regard to lower officials. I don’t know what they would do with the Vice President, I don’t know whether they’d feel they needed to have the full Senate sit on that or not, certainly with regard to a President the full Senate sits.
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So, Tom, let’s turn to you and then kind of see where you shake out on the witnesses.
Tom Jipping: Well, the decision about witnesses obviously the House subpoenaed certain witnesses to testify from the Trump administration. The Trump administration refused to allow them to testify. One big point that’s been made repeatedly by the President’s legal teams that the House did not seek to enforce those subpoenas. The ordinary process for an investigating committee if they issue subpoenas that aren’t honored is to go to court and enforce the subpoenas. They didn’t do that, instead they turned the refusal to comply with a subpoena into an impeachable offense.
In my view that’s probably the most unusual and kind of transparent of the two articles. It’s not a serious approach to witnesses to issue a subpoena that probably no president would simply obey and then turn that refusal into an impeachable offense. But over in the Senate side then the witnesses that Democrats want are those witnesses that didn’t testify in the House. So you’re in a position where the House could have pursued those witnesses but didn’t and now Democrats want the Senate to go ahead and do that.
The Senate is going to take up this issue in two steps. One is a step that was not in the rules for the Clinton impeachment trial, and that is, first deciding whether the consideration of calling witnesses will be in order at all, and if that would pass then the whole issue of witnesses would simply disappear.
If they get to the second step it would be deciding whether to issue subpoenas for individual witnesses and the majority has a couple of different strategies for defeating that effort. But I think that question of why did this house not pursue the very witnesses that they now want the Senate to call? It is a very significant one during this trial.
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Tom Jipping: No, I mean he was impeached for his actions in relation to the House and I do think that if they were to testify, it would sort of further show what I think is something like the absurdity of that count. But the House chose to say you didn’t do what we wanted you to do and so we’re going to impeach you for it.
That impeachment has been done and the Senate is either going to convict or acquit on that count.
So assuming that we’re going to call witnesses and assuming that we call — do you expect Bolton and Parnas to be called?
Tom Jipping: I think Lev Parnas is kind of a shadowy secondary fringe figure in this narrative. I mean I think — I don’t know whether he’s out of jail, but he’s somebody who worked for Rudy Giuliani and had some kind of role in Ukraine at some point but so he — I think he’s a real fringe kind of a character here.
John Bolton obviously is a major one. His manuscript which caused a big uproar recently, at least at the time that we’re talking about this is being reviewed by the National Security Council which apparently has indicated that it includes classified information. So there’s a lot of controversy about just what that book is, what the motivation is behind it, but I suspect that if John Bolton is subpoenaed to testify, it’ll be because of the position that he had in The White House during these events and I don’t think that the controversy over the book will necessarily change that.
Tom Jipping: Well, I think that I think the real interest of those who would want to call witnesses is having them do so publicly. But remember, under the rules, the way witnesses are handled is that if a witness is subpoenaed, and of course, the subpoenas that would be issued to these witnesses could be resisted by the administration in the very same way that they were on the House side, which would mean possible a court intervention.
But under the rules, if they are subpoenaed to testify, they must first be deposed by both sides and only after that those depositions would the Senate decide whether they would testify in person or whether as in the Clinton impeachment trial portions of their taped depositions would be played.
So it’s not simply issue a subpoena and boom, the next day that person is sitting there in the well of the Senate spilling their guts.
Alan Baron: I heard the argument that when people who have been subpoenaed or people who have been requested refused to show up that the democrats should have gone to court and it’s interesting that the Republicans are arguing in a case that’s pending in court exactly the opposite, that is that the court doesn’t have any jurisdiction to hear the issue of whether a witness has to show up.
So I take the whole argument with a big grain of salt, but it just seems to me that the issue of witnesses, I don’t quite understand the Republicans’ posture on this because they have the votes. There is no way that 20 senators who are Republicans are going to cross over and find the president guilty.
So they’re going to “win the case”. So why are they being so resistant to putting on the testimony, there shouldn’t be any real big surprises because a lot of the stuff has already come out and I don’t understand the strategy. It just makes it look more-and-more sinister that they are hiding things and knowing, oh well, but they are going to win in the final analysis no matter what, certainly no matter on the basis of whatever any of these witnesses could say.
So I don’t quite understand the Republican strategy from a PR point of view and a lot of this is PR, political PR, I think it looks terrible from the Republican side. They’re trying to hide something even though they’re going to win.
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Tom Jipping: I think the answer to that is obviously there is — PR management is a growth industry in Washington but I think the answer to that is that both sides everyone knows what Democrats would want to do with those witnesses if they could get them before the Senate, everybody knows.
It’s not simply a matter of winning the case. As Alan pointed out, this is a political process and there’s only certain parallels to an actual criminal proceeding in a real court. This is about politics and everyone knows why the Democrats would want to put those witnesses on and from the Republican perspective, the kind of mischief that they would want to pursue and where it would go from there if anybody thinks that it would just be two or three people that they would call and then they’d be satisfied. I’ve got some property to sell them.
So that’s the answer to that. The objective is not simply to “win the case”, everybody’s known from the beginning the president will be acquitted, it’s to minimize the potential for other consequences and other sorts of political as I say mischief at least from the Republican perspective.
But, the things I’d like you to talk about or just that mischief, I mean, let’s give a prediction here about how this trial is going to affect the election and how it’s going to affect the presidency as you wrap up.
Alan, let’s turn to you first?
Alan Baron: My view is this. I think that what Trump is charged with this collusion and this effort to get Ukraine to interfere in our election and holding up the — for nearly $400 million in aid that had been authorized by the Congress, I think what is involved here is far worse, far more serious than anything that was involved in the investigation of Richard Nixon, which was essentially a domestic issue and certainly the impeachment of Bill Clinton, which was certainly not admirable conduct but didn’t have anything to do with the national interest or our allies who are confronting the Russians.
So I think this is an extremely serious case and I think the president will come out of this because I think we all recognize that the president is highly likely to be acquitted, I think it’s very, very dangerous. Does it now mean that the president can engage in these kinds of relationships with foreign governments to help in domestic affairs?
Does it mean that the president can basically stiff congressional investigation into his own conduct? These are very serious issues. I know some people think the Article II is more serious than Article I.
And so I think we are in very, very dangerous territory and we’ll have to see how it all shakes out in the long run, but in the short run, it’s very dangerous.
Tom Jipping: Well, the president was impeached for a very specific reason and that is that he supposedly solicited interference in this year’s election. There’s no evidence for that. We’ve heard it said 10,000 times, the president’s critics want us to sort of fill in the blank by the sort of speculation that they’ve offered or by saying, well, it’s not A or B so it’s got to be that, but there’s no evidence for that.
In fact, there are legitimate reasons for the actions that the president took towards Ukraine and when there’s no evidence for the corrupt motive that you’re alleging but there are legitimate alternative explanations that simply does not rise to an impeachable offense.
And as to the Article II, this is not a matter of the president simply stiffing Congress. The House issued subpoenas that I don’t believe any president would just automatically honor the founders by separating powers expected each branch to be resisting the demands of the other, which is why the House’s failure to get this sorted out in court is so glaring, and in the absence of doing that when they take just an all-or-nothing, when we say jump you ask how high sort of approach to another branch, that’s what’s dangerous, turning what is essentially the expected operation of the separation of powers into an impeachable offense trying to remove the president, that is what is dangerous.
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So, we will see how it will play out. I think the trial will be shorter than probably most of the sought going into it but I think people who have been paying attention to it perhaps have learned a little more about this kind of obscure part of our system.
And I think people — I hope that people return to the idea that in this country the people have authority to choose their own leaders. We should not be turning to impeachment to interfere with that process for essentially political reasons.
As to a contact information the Heritage Foundation is at heritage.org. You can easily find a lot of what we’ve published on impeachment and what I’ve written. I’m also on twitter at @TomJipping and I post there on this issue as well and I appreciate the opportunity to discuss these matters.
So if you’d like 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’m Craig Williams. Thanks for listening. Join us next time for another great legal topic. When you want legal, think Lawyer 2 Lawyer.
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| Published: | February 7, 2020 |
| Podcast: | Lawyer 2 Lawyer |
| Category: | News & Current Events |
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Lawyer 2 Lawyer |
Lawyer 2 Lawyer is a legal affairs podcast covering contemporary and relevant issues in the news with a legal perspective.
