Removal or Acquittal? President Trump's Trial in the Senate

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In December 2019, the United States House of Representatives voted to impeach President Donald Trump. This is the third impeachment of a sitting U.S. President after Johnson and Clinton. As a part of their continuing conversation series, we are excited to host John Malcolm and John Yoo to discuss the ongoing Senate trial, the debate over witnesses, comparisons to previous Senate trials, and more. 

Featuring: 

John G. Malcolm, Vice President, Institute for Constitutional Government, Director of the Meese Center for Legal & Judicial Studies and Senior Legal Fellow, The Heritage Foundation

Prof. John C. Yoo, Emanuel S. Heller Professor of Law, University of California at Berkeley School of Law

 

 

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Event Transcript

Operator:  Welcome to The Federalist Society's Practice Group Podcast. The following podcast, hosted by The Federalist Society's Practice Groups, was recorded on Monday, February 3, 2020, during a live teleforum conference call held exclusively for Federalist Society member        

 

Wesley Hodges:  Welcome to The Federalist Society's teleforum conference call. This morning's call is titled, "Removal or Acquittal? President Trump's Trial in the Senate." My name is Wesley Hodges, and I am the Associate Director of Practice Groups at The Federalist Society.

 

      As always, please note that all expressions of opinion are those of the experts on today's call.

 

      Today we are very fortunate to have with us Mr. John G. Malcolm, who is the Vice President of the Institute for Constitutional Government, Director of the Meese Center for Legal and Judicial Studies, and Senior Legal Fellow, all at The Heritage Foundation. Also with us is Professor John C. Yoo, who is the Emanuel S. Heller Professor of Law at the University of California at Berkeley School of Law.

 

This is the fourth part of an ongoing series with John and John, and we encourage you to check out their previous recordings on our website. After our speakers have their remarks, we will have time for your questions. So please keep them in mind, we'll get to them at the end of the call.

 

Thank you very much for sharing with us today. Professor Yoo, I believe the floor is yours to begin.

 

Prof. John C. Yoo:  Wesley, thank you very much and thanks to The Federalist Society for hosting John and I in what we hope is our last podcast on impeachment, but you never know.

 

      So John and I thought with the vote coming up on Wednesday that we would take up some of the issues that have been resolved on the floor of the Senate, make some judgments about who did well, who lost, and talk about the future of impeachment and the effect on the 2020 elections.  

 

      So as we record this podcast on Monday with the final vote coming in two days on whether to convict or acquit President Trump of two articles of impeachment, we just, I think, passed what many thought would be the crucial vote last week, which was on whether to call witnesses. The Senate defeated the motion to call witnesses with two Republican senators, Senator Mitt Romney from Utah and Senator Susan Collins from Maine, joining the Democrats to call John Bolton, the former National Security Advisor. Though, but I have to say a friend and co-author of mine, although we've not talked about his book or I might have been subpoenaed to appear in the Senate.

 

      But the vote was whether to call John in order to hear his thoughts about and his testimony about whether President Trump actually did demand a quid pro quo from Ukraine, an investigation of the Bidens in exchange for the release of about $400 million in foreign aid.

 

      So John, do you think -- John Malcolm, do you think that the Senate properly decided to reject the motion for witnesses or do you think that Republicans or the Senate as a body made a mistake in not calling John Bolton?

 

John G. Malcolm:  No, I think it was the right decision to make for a variety of reasons, in addition to the fact that they said look, we don’t want to use -- the Senate is supposed to be for the trial, not a continuation of the investigation. If you had wanted to pursue these witnesses, John Bolton, Mick Mulvaney, others, Don McGahn, you should have done that in the House. You should have issued those subpoenas, not withdrawn them, which is what they did for Charles Kupperman, who was Bolton's deputy. And you should've let the court system play itself out. And if you were in a real hurry to get this done for political reasons, that's your fault and not ours.

 

      And I think there was also a certain sense that the Democrats are trying to pick and choose. So they wouldn't let the Republicans call any of the witnesses whom they wanted before the House Intelligence Committee, such as Hunter Biden. They wouldn't let the President play any kind of a meaningful role in terms of being present for a lot of these witnesses when they held closed-door sessions to asking any questions on cross examination during any of these hearings, and that it's one of those things where the Democrats are crying about a lack of due process for the failure to call these witnesses. But the Republicans are saying well, the way you wanted is due process for me but not for thee.

 

      I think that the other thing in the back of their minds was that if they had called John Bolton, the President would clearly have asserted executive privilege. This would have been fought out in the courts, and this impeachment process would have dragged on for weeks, if not months. And depending on what Bolton said, there were going to be other witnesses called and that this was just never going to end. So I think they made the right call by saying enough is enough. You just didn’t prove your case.

 

Prof. John C. Yoo:  Well, back when the impeachment proceedings started in October, I actually wrote a piece predicting something like this outcome. And my argument was this: that the more that Republicans in the Senate felt that the House investigation was procedurally defective, in terms of lack of due process or unduly narrow or rushed, that it would create an incentive for them—again, Republicans in the Senate—to do something like what they're doing now, which I think of as a 12(b)(6) motion, or summary judgment motion, and to essentially cut off the investigation to the facts.

 

Even assume, as Senator Lamar Alexander said, that the facts were proven, that President Trump very well may have held up aid and asked for an investigation but just said, "But based on the fact before us, we don't see any conduct that rises to the level of the constitutional standard treason, bribery, or other high crimes and misdemeanors for which removal from office is justified."

 

      So in that piece, I had urged the House, actually, to take its time to have a bipartisan investigation to allow full due process for President Trump, because if they didn't, they almost, it seemed to me, guarantee they would lose in the Senate. And I think that's what happened.

 

On the other hand, I thought that President Trump -- and this will share my attitude, we discussed before, John, about the Mueller investigation. Well, my attitude was President Trump in the White House should let Bolton testify. It didn't seem to me that actually Bolton was going to testify that there was a quid pro quo that would make any difference. Those were the facts I think that a lot of the senators believe are true. And what you're seeing is that the senators think even if the facts are true, we don't need to remove a president from office during an election year.

 

      I think witnesses might have prolonged things. They might've created more of a circus atmosphere, even if you had the Bidens called, but I don't see how the testimony as to the facts would have made a difference in the trial outcome.

 

John G. Malcolm:  I think that's right. You make a good point that even if Bolton had testified in accordance with what's been leaked to the New York Times that that wouldn't make a difference in the facts as you expressed them which is did he delay the aid? Yes, he did. Did he ask Ukrainians to participate or conduct an investigation to Burisma? Yes, he did.

 

      Where the difference was, one, what was his intent when he did those things? And would they have been justified for legitimate reasons or were they purely for partisan, personal gain? And I think that's where the parties dramatically separated. And I said when these hearings began in the House Intelligence Committee, that I don’t think that anybody's minds are being changed by what's going on, that if you go into this assuming that Donald Trump is just a reckless and outright crooked guy and that everything he does, you know, he has a bad intent. Then, the witnesses who were appearing, it strengthened your opinion.

 

If, on the other hand, you went into this saying look, the President can exercise his Article II powers for all kinds of reasons and that he's trying to drain the swamp and go in a different direction and that he had a legitimate basis for asking all of these questions about should we be giving this much aid to foreign countries in general? Should we be giving this much aid to a country that has a rich history of corruption? Is there a legitimate reason to question what the Ukrainians were doing with respect to Burisma and to question former-Vice President Biden's conduct? If you believe that those were all legitimate things, then you were going to think that the President did nothing wrong or certainly did not commit an impeachable offense.

 

And I think that that divide has remained throughout this entire process, which is why when the House impeached him, you didn't get a single Republican vote to impeach him. You got a couple of crossover Democrats. I think you are likely to see the same thing when the vote—he will be acquitted—takes place at 4:00 on Wednesday.

 

Prof. John C. Yoo:  I agree, John, and I'm glad you raised this question about mixed motives and intention because that brings up the, I think, the question that sort of dominated the oral arguments and the questions from the senators. And that was Alan Dershowitz's claim that a president, in order to be impeached, A) has to commit a crime or what he called something like criminal-like behavior and B) that if the President was undertaking an official act, using his constitutional powers, that Congress could not impeach because that would call on Congress to make the exact judgment that we just described: What was the President's intent?

 

And then, the third claim he made -- and I got to say, Dershowitz did an amazing job, I think, of just dominating the discussion and arguments about impeachment by, I think, leading us down this trail was that a president could even go so far as to use the official powers of the federal government to investigate other potential candidates for the presidency because he said, "That was in the public interest for the nation to know whether Americans running or who might run for the president were in fact corrupt."

 

      What did you think about this? And how's that going to affect the vote on Wednesday afternoon?

 

John G. Malcolm:  When you said before, you want to talk about winners and losers in terms of the trial prosecutors and defense teams, and I certainly think that Professor Dershowitz did a much better job than I was expecting. I actually had fairly low expectations for him. I thought that -- I didn't agree --

 

Prof. John C. Yoo:  Well, we know it's going to be a movie one way or the other.

 

John G. Malcolm:  Yeah, I didn't agree completely with his point, and he sort of backed away from this at the end, that there absolutely has to be a crime proven and that a gross abuse of process would not qualify as an impeachable offense. One, there where very, very few statutory crimes; there was mostly common law crimes at the time that the Constitution was ratified. And in addition to that, I think that if a president did something that was a gross abuse of power in terms of targeting political enemies even if it was not a violation of a statutory crime, that that would be impeachable.

 

      But I agree with him on this point, which is it's much neater and cleaner if there is a crime and that when you start down the gross abuse of process road, it's a bit more of a slippery slope and that you have to be dead clear that somebody did something in office that was either beyond a president's Article II authorities. Or if it was within his Article II authorities, it was crystal clear that this was done for an illegitimate purpose. And I don't think either of those happened here.

 

      In terms of the vote tomorrow, since you alluded to that, I think there's a bit of a -- there's no question as to what the outcome will be. I think people are really looking to see whether they're going to be any crossover votes. So on the Democratic side, you're hearing that maybe Joe Manchin, Doug Jones -- so Joe Manchin was Virginia; Doug Jones, Alabama; Kyrsten Sinema, Arizona. Maybe they'll crossover on one or both of the articles of impeachment.

 

You mentioned before that Susan Collins and Mitt Romney had crossed over in terms of supporting the issue and issuing subpoenas for witnesses. I'd be surprised if either of them crossover and voted to convict the President on either of the articles of impeachment. So I don't think that either article is going to reach even 50 senators, much less 60, 70 needed to convict.

 

Prof. John C. Yoo:  It's funny. I'm with you. I thought Dershowitz way overperformed expectations. And the right word here is not star, but he was certainly the central lawyer in the whole thing. If you were to say Adam Schiff was by far the dominant lawyer in terms of the prosecution or the plaintiff's side, since this really is a civil proceeding, Dershowitz certainly was the central figure in the defense.

 

And I have to say, I think he modulated his presentation for the audience, like a good lawyer should. He wasn't full of outrageous histrionics and dramatics, so people might have been expecting from watching him in the movies or watching him defending OJ Simpson on PBS, many cable TV performances. He was more like the Harvard law professor when he was arguing in the Senate. Very well prepared and methodical, and I thought did a good job.

 

I have to say, though, I think he's wrong on almost all counts. I think if you are a believer in originalism, then you cannot believe that impeachment is only limited to crimes. It's just something that's clearly stated in The Federalist Papers by Alexander Hamilton and, as we've discussed before on previous calls, both of those, that the Founders during the ratification debates regularly talked about things like treaties and bad wars being grounds for impeachment. And those are not crimes, they're just bad judgment or favoritism and partiality to party, region, or self-interest. So I think he's not correct.

 

Where I do think he's right is that in making that judgment, the Senate, of course, has to—as does the House—has to make some kind of judgment about intent, if only because presidents often, as a matter of gathering -- if you're gathering evidence about them, presidents are not going to come right out and say, "Oh, I just did this to benefit myself." So there always is going to be the class of acts, which following the President's constitutional powers, which occasionally could be legitimate but might have a bad ulterior motive to them. That's a question of not just evidence but also judgment by the jurors.

 

You might even call this the same question the Supreme Court faced in the travel ban case in Hawaii v. Trump, where the Court was asked whether it could review the President's real intent, but which the lower courts had all found was biased racially and religious biased animus or whether the courts as they've had in the past had to give a presumption of regularity and constitutionality of the President's executive orders. Remember, the Court said they generally will give up presumption, but then they went ahead and tried to look external signs of the President's intent too.

 

I think that's what the Senate's doing here. You don’t hear senators agreeing with Dershowitz saying we can't look at intent at all. But I think what they're saying is we can't tell. We can't see anything that shows that the intent here was wholly negative, that it was wholly illegitimate.

 

John G. Malcolm:  I think what you said is right. Although, I would note that I think the Chief Justice in the census case backed away a little bit from the “we won't look behind the curtain” approach in the travel ban case. And I also think that Dershowitz perhaps overreached a little bit when you said, "Well, if the President thinks that his being reelected is in the best interest of the country, then that's good enough for him to justify doing anything."

 

      Every politician does what they do because they think that it is in the best interest of the country and that it is going to help their reelection prospects. So Barack Obama will do Obamacare or enter into the Iran deal because he thinks it's in the best interest of the country. He might be right or wrong about that, but he thinks it's in the best interest of country. And also, in the back of his mind, he's talking to his political advisors and saying, "Is this going to help me be reelected, or is this going to help my successor come from the same party so that they don't undo my legacy?"

 

      And there's nothing wrong with that. I do think that if you flip that around and say well, my reelection is in the best interest of the country and therefore, I can do whatever it is I want to, up to and including investigating or announcing an investigation into everybody who was running for the nomination on the other side of the ledger. Perhaps, that goes too far. But I did think that there was at least a colorable case to be made for looking into the activities of Joe Biden when he was Vice President.

 

      You mentioned before about Dershowitz doing really well and I think he did, as I said, but I thought that Pam Bondi laid out that argument very, very well based on objective facts that Hunter Biden and Joe Biden's conduct kind of stunk to high heaven, at least based on the objective data that's out there. Now, the Bidens have tried to portray themselves as pure as new fallen snow, but if you look at a timeline of what happened with respect to Hunter Biden's appointment on to the Burisma Board, and when investigative activities were taken into Burisma and when Joe Biden intervened to insist that Victor Cho can be fired as to the prosecutor general of Ukraine in order to get that billion dollars in loan guarantees released, that objective timeline looks very bad.

 

And I think, in light of that, the President was right to say, "Okay. If we're serious about corruption in Ukraine and possible contributions from U.S. officials, we can look into that." I thought other lawyers for the president to the addition of Pam Bondi did a really good job. I thought Pat Philbin, our former colleague at DOJ, did an excellent job on a lot of these constitutional issues – very even keeled, smart guy. But Jay Sekulow did a fine job. Deputy White House Counsel Mike Purpura and Pat Cipollone, the White House Counsel, I thought did a good job.

 

      On the Democrat side, the two who dominated were Adam Schiff and Hakeem Jeffries, and they're being lauded on the left as rising stars. I don’t think there's any question that Adam Schiff has his eyes on replacing Dianne Feinstein when she retires from the Senate. And I noticed that even though he ran unopposed in his very safe district in 2018, that the last quarter he raised over $2.5 million. So obviously, the folks on the left really, really liked the job that Adam Schiff was doing, and he's got war chest of over $8 million. So he's going to be a force to be reckoned with on the left.

 

Prof. John C. Yoo:  Yeah, I agree with your general read on it. My main disagreement with Alan's argument that if -- it would essentially have found that the Watergate break-in was generally okay.

 

John G. Malcolm:  Right.

 

Prof. John C. Yoo:  Or -- right? Because you're investigating potential future candidates for the presidency. Or that deputy eye surveillances -- yeah.

 

John G. Malcolm:  Yeah. And it will help my reelection effort, really, in the country. Yeah.

 

Prof. John C. Yoo:  Or the surveillance of Martin Luther King by John F. Kennedy and Lyndon Johnson. So you could -- that's the problem with Alan's argument. If anything the president does within his constitutional powers combined with this very broad definition of what's in the national interest, it has no limiting principles, I'm sure.

 

      But, anyway, so I agree with your read. Although, I think you mentioned every single person on the president's team.

 

John G. Malcolm:  There were a few. I didn't mention Ken Starr or Robert Ray. There were a few I left off.

 

Prof. John C. Yoo:  I was going to ask you to pick one. Oh, okay. Now, you got to pick one. So --

 

John G. Malcolm:  I got about two-thirds of them in there.

 

Prof. John C. Yoo:  Yeah, I think in terms of the who did well, who did poorly, I think I agree with you that Adam Schiff was clearly the best lawyer on the House side. Whether he made wise calls in terms of how he conducted the House investigations is one question, but he did a pretty good job. I think Nadler did a terrible job. Essentially, when he claimed that senators should be voted to acquit were conspiring with the President in a cover up were just -- went too far.

 

John G. Malcolm:  Right.

 

Prof. John C. Yoo:  And I think at times, you saw some of their House management too far and their rhetoric. But I think the defense side was an easier side to argue because, as we were talking about, I think the law's on their side, and the facts were not clear. And I'm starting to think, even though I'm sitting here criticizing Dershowitz's substantive arguments, as a matter of being a lawyer, I think he did really well.

 

I think I agree that Pat Philbin did very well. You could tell that he was the guy that knew the record. Every time there was some technical question or question about the facts, he was the guy that the defense team relied on, especially in the late hours with the question sessions from the senators. You could tell he was the guy who was the substance guy, and that's sort of been my experience. I worked with Pat in the Justice Department. That was my experience with him in all those years.

 

      So let's turn to one last question. Who's up? Who's down? Who won, McConnell or Pelosi? John.

 

John G. Malcolm:  Well, I got a few other items I want to touch on after that. But I -- look, I think McConnell won, and Pelosi's peak at the vote on witnesses, I think, will demonstrate that. But there's going to be their messaging going forward. So ultimately, who wins in the court of public opinion remains to be seen. But I think McConnell did this very well. He herded cats, and he had to keep his side together. And I think he did a really, really good job at that.

 

      And Nancy Pelosi is now getting very upset. I think their -- so the Republican message is going to be this is always a partisan witch hunt, and they've always been out to get Trump. And Pelosi immediately came out with well, there isn't going to be an acquittal because there was never a trial. There were no witnesses in that trial, which leads one to believe well, where were all those videotapes coming from and deposition transcripts coming from? Those were all witnesses. There were many of those, so that's not exactly true.

 

And of course, there will be an acquittal. If she's going to mark down that he has been forever branded in history as having been impeached and she's handing out celebratory pens when she's signing over the referral, then history will also remark that he was not only acquitted but that there wasn't even a majority for any of either count of the articles of impeachment. Even Clinton, I think, got at least one of them had at least 50 votes to convict.

 

      So we'll see how their message is going. And you're even getting people going even more nuts. Of course, we will be doing more of these in the future because this is only the first time that President Trump has been impeached. I'm assuming if he gets reelected, we may have a series. We have season of impeachments, season 2. You're getting people like Michael Gerhardt, who's this North Carolina professor who wrote a book on impeachment, testified before the House Judiciary Committee. He's already coming out and saying that all of the lawyers who represented the President in this impeachment proceeding should have ethics complaints filed against them with their respective bars because they clearly lied during the --

 

Prof. John C. Yoo:  Really?

 

John G. Malcolm:  -- during the trial. Yes. I think that the left has lost its collective minds at the moment. I'm sure that they will get them back, and we'll be off for the election. And that, of course, leads to a big question about where we go from here. How is this going to affect the Biden campaign? How is this going to play out with the public?

 

      The immediate thing, of course, is whether or not the President is going to say anything about this in his State of the Union address on Tuesday. In 1999, Bill Clinton said nothing. I am not taking bets that Donald Trump is going to do the same. I expect he will have a lot to say about the impeachment proceedings when he speaks on Tuesday night.

 

      And what hearings we're going to get. This literally is not going to end. So the House -- I'll bet you the House is now going to try to go and get Mulvaney and McGahn and Bolton. And I think that Lindsey Graham in the Senate Judiciary Committee, he's going to do an investigation on Burisma and the Bidens, and he's going to try to get the whistleblower to testify. He's going to talk about FISA abuse. And lurking in the wings is the Connecticut U.S. Attorney, John Durham, and what it is he's going to do with all of this.

 

      So there's just a lot more to come after Wednesday's vote.

 

Prof. John C. Yoo:  Well, one is tempted after watching the Super Bowl over the weekend to compare Nancy Pelosi with her San Francisco 49ers, who came out of the impeachment, a moment of jubilation, as we said, with the pens and the celebration and a huge media support. And then, by the end, the other side won. It's just like, somehow, the Kansas City Chiefs pulled it out with five minutes to go in the fourth quarter.

 

      I turned around and all of a sudden, the ‘9ers were up to ten points with eight minutes to go, and all of a sudden, they lost. But actually, I think it's worse than that, and it's -- a part of what you say there, John, is that I think Pelosi made a mistake and could've gone another path. And it's a path you just described.

 

      If you had really wanted to do, I think, damage to the Trump presidency, legitimately, what the House should've done is not gone with impeachment but just continued oversight hearings, normal oversight hearings. Look at all the material that you could've brought forth in House investigations. But it's coming to light now, all this stuff about Bolton and his book. All the sudden interest in Mulvaney, Pompeo, it could've had a continuous set of hearings that would've run all the way to the election.

 

I think that would've been far more damaging than this course, which is to start impeachment hearings where you know that you're never going to get 20 Republican senators to switch sides and convict no matter what you climbed. And now President Trump is going to run around saying he's been cleared, that he's been acquitted, and have a reasonable argument to try to resist any further oversight hearings that fall into this subject matter. So I gave you the question who won, who lost? I think McConnell won, and Pelosi lost.

 

      Pelosi originally had the right view, which was we shouldn't do this impeachment unless we have bipartisan support and it's widely supported in the country. She changed her mind, and I think she had the right view in the beginning.

 

      What does this mean for impeachment? This is interesting, John, that the other second question you raised was that I do think you're going to see more impeachments in the future because seeing what we've seen now, Houses that are run by parties in opposition to the President can start impeachment proceedings. They don't even need to finish them. They may even do them where they know they can't get a conviction in the Senate. But it allows you -- they would, you might think, almost see the real results in November. It might be is this a permanent historical stain on the record of that president? Or it might sufficiently weaken him or her over a general election.

 

      And then the effect on the election, the last thing you mentioned, it's hard to tell. The President's approval ratings are pretty much unchanged since before the impeachment proceedings started. Not like with Clinton where Clinton actually went up. But Trump's approval ratings are roughly the same. And impeachment was a big waste of time from the Democratic perspective because they didn't really do the President any damage.

 

      John, any last thoughts before we turn it over to questions, and --

 

John G. Malcom:  Yeah, just a couple. So one is you talked about impeachment becoming a new normal, and that may well be so. And tying into your previous point -- my previous point about when you start looking at what the President's intent was when he's exercising legitimate Article II powers, the opposite party always thinks that the President acts with evil intent. And so if you end up having a president who does something controversial and the House is controlled by the party of the opposite political party, there's going to be a temptation to say well, what he did may have fallen within his Article II powers, but he had a bad purpose when he did it, and, therefore, we are going to impeach.

 

      With respect to the election, I do think the President's approval numbers, while still below 50 percent—Rasmussen has him around 50 percent—they have ticked up some through this process, and I think they've ticked up particularly in swing states.

 

And I would add this, which is to say the Democratic base, I think, was clearly energized before this impeachment effort began. And I think there was more of a we're content not being energized on the Republican side. I don't think that is the case anymore. I think that this impeachment effort has now energized the Republican base, and they are as energized as the Democrats. Whether they will maintain that through next November and what that's going to mean in terms of the results remains to be seen. But I do think that the Democrats kicked the hornets' nest.

 

And then the last thing is it's also unclear to me what impact this is going to have on the Biden campaign. I think he went from being the inevitable nominee to now being the maybe nominee.

 

Prof. John C. Yoo:  That's a good point to close on. So, Wesley, why don't you take it away from here and call on people to your heart's content?

 

Wesley Hodges:  Very good. Well, thank you both for your remarks. Here is our first caller of the day.

 

Don Minegurts (sp):  This is Don Minegurts. Now, I have two questions regarding the vote. The first is what is the question presented? And I ask because a number of senators indicated how important witnesses were in the Senate and then witnesses were not presented. And if I were trying a case to a jury and I told them how important witnesses were and didn't present them, I would instantly lose my case.

 

      So is the vote to convict, as in to find the President guilty, or is it a vote to acquit? Senators don’t have enough evidence to go on, then they should vote at least not guilty, right?

 

      And the second question briefly is don't the senators who are lawyers and are hopefully running against, in their mind, President Trump—that is Klobuchar and Warren—don't they have an obligation to abstain from voting due to a conflict of interest?

 

John G. Malcolm:  So let me jump in and attempt to answer those, Don. This is -- it's a quasi-legal process and largely a political process, and none of these senators are going to recuse themselves. At one point, Marsha Blackburn, I think, suggested that a couple of them should recuse themselves, but nobody's really pushed that. Whether they should or not, they won't. And at this point, I don't think anybody is going to care.

 

      And in terms of this is a binary choice. You convict or acquit. It's not true, in my opinion, to say that there were no witnesses. There were lots of witnesses. There were just no additional witnesses. We heard from Kurt Volker and Gordon Sondland and the ambassador, Marie Yovanovitch. We heard from lots and lots of witnesses, they just aren't going to call anymore.

 

      And they really have two choices, which is to, at this point, since the additional proceedings have been shut down, and that is to acquit or convict. I remember during the Clinton impeachment proceeding, I think it was Grassley, maybe it was Arlen Specter, at one point, tried to vote not proven. And that was the one time where Chief Justice Rehnquist intervened, and he said, "We'll mark that down as acquittal." And it's not a criminal proceeding, but that is the phrase that they use if they were to in fact convict, which, of course, they won't do.

 

They could then move on to a second vote about whether to disqualify the President from holding future federal office. That is not a guarantee. In fact, there’s a very good example of that, which is that Alcee Hastings, who was a former federal judge, was convicted in an impeachment trial and thrown off the bench. They did not take that second vote about whether to bar him from future federal office. And lo and behold, he's now the longest serving congressman from Florida, and he was one of the people that voted to impeach Donald Trump. So that's where we are.

 

Prof. John C. Yoo:  I agree with John on those. The question presented on whether to convict. I'm not sure whether one has a separate vote on whether to disqualify from office too or whether it's just you vote on whether to convict first and then you decide on removal. I wonder if disqualification is a separate vote.

 

      The other thing we shouldn't forget with the second article, which is essentially abuse of --

 

John G. Malcolm:  Obstruction of Con --

 

Prof. John C. Yoo:  -- congressional process, yeah. And that, I think -- I would hope that there would be at least some Democrats who would vote to reject that because seems to me that President Trump raised legitimate executive privileged claims, especially when it came to discussions with people like John Bolton. You look at the Nixon Watergate tapes case on privilege, and it says that privilege is at its height involving discussions between the President and his aids about national security and law enforcement and diplomatic affairs.

 

      So you would've thought that at least in that respect, President Trump had very strong grounds for privilege. And so to impeach a president for exercising legitimate constitutional concerns, which are of value to all future presidents regardless of party, seems a just an illegitimate article.

 

      On the second one there, it's kind of funny. I think that, yeah, if you were to treat the senators as if they were just jurors, and you could say, oh, people should recuse themselves. But they're not just a jury, they're also the court. They can't just sit back and listen, but they also had to vote on whether to have witnesses. They can overrule Chief Justice Roberts on any of his rulings as well.

 

      And Hamilton, in The Federalist Papers, quite clearly talked about the pros and cons of having a political body in charge of impeachment. And part of the reason why he wanted that is because he thought putting impeachment in the courts would terribly corrupt the courts with the kind of politics that we already are seeing in this impeachment. And so I think the Framers' decision to locate the impeachment process in Congress and removing it from the courts where it had been originally in some initial drafts of the Constitution, was a recognition that you would have this kind of mixture of law and politics and that it was better to keep it in a political body.

 

And then -- but to put it in the Senate, which hopefully is less immediately subject to majoritarian wins like the House and to kick the removal vote up to a two-thirds requirement to really make sure that even though it's a political body, that the removal of a president doesn't occur because of partisan agendas and does represent a high consensus.

 

John G. Malcolm:  Yeah. I just want to add one thing which is that Joe Manchin and Doug Jones have already sort of telegraphed that they are likely to vote not guilty on Article II. I'll be curious whether others join them and also what they do with respect to the first article. But I think there will be at least under Article II obstruction of Congress, there will be some crossover vote.

 

Wesley Hodges:  Well, very good. Next caller, you are up.

 

Caller 2:  Hi, I was hoping that you could talk a little bit more about the procedure. I've just been mystified as how this almost feels more like an arbitration than any kind of CREW procedure with oversights. And I've been amused also that the Chief Justice of the Supreme Court is really just acting as kind of the secretary of the chambers and can be overruled by a majority of people, which is pretty frightening in the political context.

 

      I've also tried to imagine what in the world the House was thinking, if they thought this was a like a preliminary hearing where they only had to present one side of the evidence and could simply by process railroad things through. So I don't understand the procedure, and I'm hoping you could give us more on that.

 

Prof. John C. Yoo:  Sure. You're completely right to observe that this is not a normal legal process or procedure like anything we regularly see. It's not like a criminal case, of course. There's no real -- I was going to say no real trial judge who is separate from the jury. There is no real evidentiary rulings. There were, of course, no witnesses. A jury, made mostly of senators, were asking questions. All right? So it really -- and it wasn't really, I mean, it's closer to a civil action, which is what impeachment is.

 

      Again, the Founders wanted impeachment not to be criminal in nature and, in fact, talked about this criminal process if the president had committed crimes coming into play after the president was removed from office first, then impeachment. But you also don't have all the full features of a civil trial, either, for example, just take the question of witnesses. You would think in any normal proceeding, both the prosecution and defense could call witnesses who are relevant and neither side did.

 

      And you're quite right about the position of Chief Justice Roberts. Although I think a lot of it is because of Chief Justice Roberts's own incentives, which is to try to make sure he and the Court were not an issue and so to keep as low a profile as possible.

 

      I will point out that in the past, there was a similar -- it was not impeachment, but there was a similar proceeding during the Jefferson administration during the Aaron Burr treason trial, which was presided over by Chief Justice Marshall as a trial judge, interestingly. And in that case, Marshall was quite different than Roberts was here. Marshall issued a lot of very significant opinions about evidence, about [inaudible 39:07] of treason, about executive privilege. Actually, Marshall issued subpoenas to the White House to try to get documents and perhaps even testimony from President Jefferson.

 

And that trial resulted in acquittal, though, because I think Marshall did set the standard for treason appropriately high and it couldn't be proved in that case. So I think part of what you saw, and here, I see John has to say, is we had a lot of workings of political incentives. And I think in this kind of impeachment case, the Chief Justice doesn't have a political incentive to play a strong role.

 

      And the Senate, I argued earlier, would not have a very strong political incentive to open up the rules, to have a full-blown trial, especially when the outcome is not in doubt. And so, I think the only person who really loses out of it is, perhaps, the institution of the presidency because it does, maybe, have the effect of making impeachment too easy in the future.

 

John G. Malcolm:  So a couple of things. I hadn't really thought about Chief Justice Marshall and the impeachment trial of Aaron Burr. I wonder how much the fact that Thomas Jefferson and the Chief Justice, their interests were aligned and that Thomas Jefferson was desperate to have Aaron Burr removed. He ended up being acquitted but remove how much of that played in terms of his cooperation.

 

      I agree with you on everything about Chief Justice Roberts. So one, the Constitution makes it clear that while the House has the sole power to impeach, it's the Senate, not the Chief Justice, the Senate who has the sole power to try impeachments. And I also think it's kind of important to remember why the Chief Justice is there in the first place. And I would say it's primarily for two reasons. One, because this is a President who has been impeached. It's to add a certain solemnity and seriousness to the occasion.

 

But probably even more importantly, normally, the presiding officer in the Senate is either the Vice President or the President pro tempore. And I think the Framers thought entirely correctly so that there would be something unseemly about having an impeachment trial presided over by somebody who was in line to become President of the United States if the President were convicted and removed. That would be a pretty clear conflict of interest on it. So they said, well, we've got to pick somebody. Let's go with the Chief Justice, which makes perfect sense.

 

And John is right that this Chief Justice in particular had no interest in being involved politically in any way shape or form. Not only did he bristle from a question from Senator Elizabeth Warren about what an acquittal would mean or no witnesses would mean in terms of the legitimacy of how people would view the Supreme Court and the Chief Justice, but when this debate was going on about whether to call other witnesses and there was some thought that three Republican senators, not the two who ended up switching -- flipping over, three would flip over, which would've created a 50/50 tie, whether the Chief Justice was going to break that tie.

 

And the Chief Justice made it very clear before that debate even began, he was not going to be casting a deciding vote. And if it ended up being a 50/50 vote, the motion was going to fail on the basis of a tie vote. So he had -- as Chief Justice Rehnquist said after the Clinton impeachment trial when describing his performance, he said, "I did very little, and I did it very well." And I think that that's exactly what Chief Justice Roberts wants to do here.

 

Wesley Hodges:  Very good. Next caller, you are up.

 

John Nargiso (sp):  Hi, this is John Nargiso. So there were two arguments that the President's counsel didn't bring up that I thought I would've brought up. Again, I'm not a litigator. So the first is you have a president who gives plenty of evidence that he works on gut versus thought, and there's scientific evidence that your gut decisions are sometimes even better than thinking things through. So my first question is why wasn't it brought up that he deserves the presumption that this is a president who works on gut reaction and is justified in calling corruption investigations if he has a belief that there's something there?

 

      And the second part of that question is there was no showing that, in the record that I saw, that a corruption investigation would actually harm either party because you have to assume that the market is inefficient and people can't discern between a legitimate investigation, an actual one than a fake one. So why not attack the fact that hey, the House hasn't shown a correlation between corruption investigations and actual election interference. And the assumption underlying that is that you need an efficient market where people will believe things that aren't true.

 

      And so I felt those two points -- and maybe there were strategic reasons for not arguing them, but I was curious what you thought.

 

John G. Malcolm:  I'm not sure I understand you second point. And certainly, this wasn't an antitrust trial, so I'm not so sure that deciding whether corruption investigations are successful or not and whether they actually interfere with elections would be a particularly winning point.

 

And then with respect to your first point about this president often acting on his gut rather than -- and react rather than thinking things through, that may well be true. Certainly, if one were to peruse the President's Twitter feed, one would come away with that impression. But I'm not so sure that a defense of, "Hey, what do you expect? The President's a loose cannon," would be all that effective, at least in my opinion.

 

Prof. John C. Yoo:  Yeah, let me address both claims. So I think your first argument is interesting. I think the President's defense team could've pressed this harder by saying -- and you heard them say look, we had an interest in investigating corruption. That was legitimate grounds for the quit pro quo. I think the way to have said that was when President Trump undeniably said, "Please, investigate the Bidens," he wasn't really fixated on the Bidens but that that was just a way, on a spur of the moment, or so you say by his gut. The words he used when he meant corruption because that's, in his mind, the leading example of the kind of corruption they're seeming to claim. And he is an older guy, and he is -- sort of goes by instinct.

 

      I'm not so sure whether I like the idea that instinct does better over time than rational thought and consideration, but you could just say look, this was just a shorthand he used. Now, the reason I think it's a good question why the President's lawyers didn't press that is because their argument was just that. I mean, they followed on the facts the President's argument that nothing happened. It was a perfect phone call, and I just don't think that was true. I don't think it was a perfect phone call, and something did happen. But they took this harder line that, essentially, there were no facts here that would justify even an investigation.

 

So I think that's why you [inaudible 46.03] -- and your second point, it's a very interesting point. And I think some of that goes to some of the arguments you are hearing about why senators can vote to acquit here based on the consequences. So your point is well, even if Ukraine had done a corruption investigation, would it make any difference to American policy? I think that's wrapped up in this larger point that you did hear the President's defense lawyers make that. Actually, U.S. policy towards Ukraine became more supportive of that nation under the Trump administration than had been under the Obama administration.

 

And to me, that means—and this again shows, I think, in part why this is a different kind of proceeding, as the last question pointed out—and I think this is valid, is that I think when the senators are voting to remove a president, they should be looking at the consequences of the President's decision, not just his mental state because I think the constitutional text says you remove a president for treason, bribery, or, and the keyword is other, high crimes and misdemeanors. That, to me, means that the high crimes and misdemeanors have to be similarly serious, similarly damaging to the country as treason and bribery. That's a hard case to make out if the actual consequences of President Trump's policy is actually to be a better ally to Ukraine than we were before.

 

Wesley Hodges:  Very good. Let's go to our next caller.

 

Paul Caminar (sp):  Paul Caminar here. You made an interesting point about the vote, whether the vote to impeach and remove is two different votes or one. And that raises the issue of whether if the senators do think that maybe something was done wrong here and may be even impeachable, that the punishment of removal from office is too severe and whether that in effect is kind of a jury nullification, which has a rich historical history where jurists thought that the punishment of the crime was too severe.

 

      And I've got a second question real quick. And that is the Democrats keep citing the GAO report that there was a violation of the Impoundment Control Act. And I'm surprised that nobody on the President's team said that this was not a finding by the Comptroller General who heads the GAO, but it was just an opinion written and signed by their general counsel and in fact was opposed strenuously by the general counsel of OMB. So it really wasn't a decision by the Comptroller General. So those are the two points I wanted to raise.

 

John G. Malcolm:  So one, I think that actually, I think there is a separate vote. Well, I think that once you get a conviction, removal is automatic and that there is a separate vote about whether to bar somebody from a future office. If they wanted to send a signal that this was bad conduct but shouldn't result in removal, what I think they would do, and they tried to do for Clinton, but it didn't happen, would be to censure him, to pass a resolution of censure, which would only require a majority vote.

 

      As to the GAO opinion, I think two things. I think the President's lawyers didn't raise it because the House managers didn't raise it. It was just an opinion, and they didn't think it was particularly well-reasoned, though OMB had responded to it. And even if the GAO opinion that the President violated the Impoundment Control Act was correct, it's still not a criminal offense of any kind. So I think it came out too late, was too disconnected from the heart of anybody's argument, and so they just didn't bother with it, but I'm prognosticating there.

 

Paul Caminar:  Well, they did mention, John, several times in their presentation that he violated the Impoundment Control Act by this ruling of the independent body to GAO. But it wasn't an opinion of the GAO; it was the opinion just of their general counsel. But I hear your point.

 

John G. Malcolm:  I don't think anybody really cares about it. It's not a criminal offense. --

 

Paul Caminar:  Oh, that's true.

 

John G. Malcolm:  -- OMB came out and said, "We issued all of this before the end of the fiscal year." And it's too far off field, in my opinion.

 

Prof. John C. Yoo:  Well, I think on the first point, it is true that one thing that has come up before—and this goes all the way back to Andrew Jackson—is that the Constitution only talks about impeachment and disqualification from office. And so what do you do if you're Congress and you disapprove of some presidential action, but it just doesn't rise to that level?  And so you had your call -- with Jackson, Congress created the idea of censure, and that also came up with the Clinton impeachment.

 

      Now, you could say, and some people said, well, that's a too easy a way out, and the Constitution doesn’t create any kind of disapproval mechanism short of impeachment. And so dangling that kind of option in front of people allows their Congress to avoid its constitutional responsibilities. I think you make a good point on that that what you’re going to have is people who think in the Senate that it's just not removing a president from office. And if they're faced with this choice of this extreme punishment of removal or doing nothing, they're just going to -- they have to do nothing. But that shouldn't be read, as in a jury nullification, it shouldn't be read as approval of what the President did.

 

      And that's the point I think I was trying to make earlier. This is a case, though, where the President -- I'm sorry, where Pelosi made a mistake because the way you do express disapproval with a president, at least consistent with what the Founders thought, is that you engage in political conduct with him and you conduct oversight hearings and you refuse to pass his legislative agenda and you cut funding for his priorities and you pass your own bills. And I think Pelosi led, unfortunately, led the Democrats down this, I think, far less effective route of going for failed impeachment.

 

John G. Malcolm:  And the House could've passed its own resolution of censure and not gone down the impeachment road. And they wouldn't have even had to have gotten the approval of the Senate. They could've just said the House passes this resolution censuring the President, but they didn’t' go down that road.

 

Wesley Hodges:  Next caller, you are up.

 

Steve Dewey (sp):  Yes, hi. This is Steve Dewey. First of all, thanks very much for your great program, much appreciated. So my question is about abuse of authority not by President Trump but by Adam Schiff. Now, I understand that the Constitution does not provide an impeachment for a member of Congress but does provide for expulsion of a member of Congress. It requires two-thirds vote. So my question is -- first of all, is my understanding correct? And second, can a member of Congress like Adam Schiff -- or what actions can be taken against a member of Congress like Adam Schiff who have abused their authority? I understand that, for example, Judicial Watch is doing investigation on this. Thank you.

 

John G. Malcolm:  I'm not going to go into adopting or not adopting or commenting on whether Adam Schiff has acted in abusive fashion. I'll just comment on your process question. So actually, the very first impeachment was of a senator. And they actually had a trial, because they wanted to show what a bad guy this was. But at the end of the day, they did not hold a vote on whether to convict or acquit. They decided that their own Senate rules would allow them to expel the senator, which they did. And ever since then, the impeachment has not applied to either House members or Senate members.

 

      And one can make an argument that that's what the Constitution calls for. The same impeachment process applies to, I think it's civil officers, which generally means the president, the vice president, or appointed officials and not congressmen. They could vote to expel him or, just like we were discussing, they could vote to censure him, which has also happened. I remember Charlie Rangel. I forget what it was for, but a few years ago, the House voted to censure Congressman Charles Rangel from New York. So they could do the same thing. It's not going to happen, but that's what they could do.

 

Prof. John C. Yoo:  They can ultimately expel somebody if they wanted to, but I have to say, I disagree with the choices that the House managers made in their investigation. I do think it was within constitutional standards just because, at least from a court's perspective, because the Constitution allows the House to run impeachment proceedings however they want, just like it allows the Senate to run a trial however it wants. And I don't think how Schiff conducted the inquiry was outside those norms. But I do think that it was a huge error.

 

I think what Schiff, what he ended up doing to his whole enterprise, I think -- and that's his punishment in a way. I think what Schiff should've done was had a longer, more thorough bipartisan investigation that took its time and waited to hear from the courts about whether Deputy National Security Advisor and ultimately John Bolton and Don McGahn were barred from testifying because of executive privilege rather than rushing forward and trying to get impeachment articles done by December.

 

      And then the other sanctions, as such as there will be, will be if he runs for Senate in California and people can raise these issues for and against him. And I think that's really what the Founders would have wanted, what they would expect, a more political response to any kind of member who may well have abused his powers.

 

John G. Malcolm:  I agree with all that. I do not think that it's going to hurt him politically in California, and I assumed you would feel the same way, John.

 

Prof. John C. Yoo:  Yeah, I kind of do, man. I think if he -- I think you're right. He is going to try to run for the Feinstein seat when it becomes open, one way or the other. And his standing amongst Democrats, I think California's actually quite high right now.

 

John G. Malcolm:  Right.

 

Wesley Hodges:  All right. We are down to the last question for the day. Next caller, you are up.

 

Rebecca Seidel:  Hi, John and John. My name's Rebecca Seidel, and I just wanted to offer a little clarification on process. I actually worked on the Senate Impeachment Trial Committee in 2010 for the impeachment of Judge G. Thomas Porteous. And you did clarify one thing that I think was confused up earlier. Conviction on any one article is automatic removal. With Judge Porteous, there were four articles. Once he was convicted on the first one, they didn't even have to have the other three votes, but they did.

 

      And the other part is the vote that comes after conviction or acquittal is the vote not to disqualify from future federal office, it's the vote of disqualifying from a future office of public trust. So that's kind of a vague term, and that's where everybody kind of looks at Alcee Hastings.

 

      And then one other clarification I wanted to offer on witnesses. When the Democrats keep claiming that every other Senate Impeachment Trial Committee has had witnesses, the disconnect is for anything less than the impeachment of a president, if it's impeachment of a judge, they create a special trial committee in the Senate, the Senate Impeachment Committee on. . . And we did have witnesses, but they were all witnesses that had testified in the House.

 

The only ones I'm not precisely sure about were the bankruptcy experts that the judge put forth as witnesses for his bankruptcy article. But I'm pretty sure that they did, and there was a lot of process before. There was a process in the Fifth Circuit for the judge, and there was the process in the House. But with the Democrats here, we're proposing were new witnesses that had not testified in the House, and I'm not sure that that was clarified in the public press that much. So I just wanted to offer a couple of those clarifications.

 

John G. Malcolm:  Yeah, those are all excellent points, Rebecca. Thank you.

 

Wesley Hodges:  John Yoo, John Malcolm, do you have anything that you'd like to add?

 

John G. Malcolm:  Other than to say it's always a pleasure being on a teleforum with John, and I look forward to doing this again the next time he's impeached.

 

Prof. John C. Yoo:  You mean President Trump, not me.

 

John G. Malcolm:  [Laughter] President Trump. You've been impeached. In Berkeley, they may have their own internal faculty proceeding, but I was thinking about President Trump.

 

Prof. John C. Yoo:  Thank you. Well, I know I'll have a place at The Heritage Foundation now when that happens. Yeah, thank you, everybody. It's been great. And I guess it's my prayer that it’ll be our last podcast, but I hope John and I can return as -- because remember, we originally started out by just talking about the Mueller Report. Remember that thing? And oversight hearings of the Justice Department, I'm sure those won't be over. So I hope we'll be able to return again in the near future. Well, not too near future.

 

Wesley Hodges:  Well, thank you so much, John Yoo and John Malcolm. It has been a privilege to have you for these conversations, and we certainly do want to have you back, in our interest, sooner rather than later, but I'm sure each of you deserves a break. So on behalf of The Federalist Society, I'd like to thank you both for the benefit of your valuable time and expertise. We welcome all listener feedback by email at info@fedsoc.org. Thank you all for joining us today. This call is now adjourned.

 

Operator:  Thank you for listening. We hope you enjoyed this practice group podcast. For materials related to this podcast and other Federalist Society multimedia, please visit The Federalist Society's website at fedsoc.org/multimedia.