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CNN Live Event/Special

Trump Impeachment Trial; Trump's Legal Team Presents Defense Case; Impeachment Attorney Starr Speaks. Aired 1:30-2p ET

Aired January 27, 2020 - 13:30   ET



STARR: As Sir William McKay (ph) recently remarked, impeachment in Britain is dead, yet here at home, in the world's longest-standing constitutional republic, instead of a once-in-a-century phenomenon, which it had been, presidential impeachment has become a weapon to be wielded against one's political opponent.

In her thoughtful Wall Street Journal op-ed a week ago Saturday, Peggy Noonan wrote this: "Impeachment has now been normalized. It won't be a once-in-a-generation act but an every-administration act. Democrats will regret it when Republicans are handing out the pens." The pens of the signing ceremony.

And when we look back down the corridors of time, we see that for almost our first century as a constitutional republic, the sword of presidential impeachment remained sheathed.

Had there been controversial presidents? Oh yes, indeed. Think of John Adams and the Alien and Sedition Acts. Think of Andrew Jackson and Henry Clay. Were partisan passions occasionally inflamed during that first century? Of course. And less (ph) there be any doubt, the early congresses full well know how to summon impeachment to the floor, including against a member of this body; Senator William Blount of Tennessee. During the Jefferson administration, the unsuccessful impeachment of Justice Samuel Chase, a surly and partial jurist, who was none the less acquitted by this chamber, became an early landmark in maintaining the treasured independence of our federal judiciary.

It took the national convulsion of the civil war, assassination of Mr. Lincoln, and the counter reconstruction measures aggressively pursued by Mr. Lincoln's successor Andrew Johnson to bring about the nations very first presidential impeachment. Famously, of course, your predecessors in this high court of impeachment acquitted the unpopular and controversial Johnson, but only by a virtue of senators of the party of Lincoln breaking ranks.

It was over a century later that the nation returned to the tumultuous world of Presidential Impeachment necessitated by the rank criminality of the Nixon administration. In light of the rapidly unfolding facts, including uncovered by the Senates Select Committee an overwhelmingly bipartisan vote of 410 to 4. The House of Representatives authorized an impeachment inquiry. And in 1974 the House Judiciary Committee after lengthy hearings voted again in a bipartisan manner to impeach the President of the United States.

Importantly, President Nixon's on party was slowly but in execrably moving toward favoring the removal of their chosen leader from the nation's highest office who had just won re-election by a landslide. It bears emphasis for this high court; this was the first presidential impeachment in over 100 years. It also bears emphasis, it was powerfully bipartisan and it wasn't just the vote to authorize the impeachment inquiry. Indeed, the House Judiciary Chair Peter Rodino of New Jersey was insistent that to be accepted by the American People, the process had to be bipartisan.

[13:35:00] Like war, impeachment is hell. Or at least presidential impeachment is hell. Those of us who lived through the Clinton impeachment, including members of this body full well understand that a presidential impeachment is tantamount to domestic war albeit (ph) thankfully protected by our beloved First Amendment, a war of words in a war of ideas. But it's filled with acrimony and it divides the country like nothing else. Those of us who lived through the Clinton impeachment understand that in a deep and personal way.

Now, in contrast, wisely and judiciously conducted, unlike the United Kingdom, impeachment remains a vital and appropriate tool in our country, to serve as a check with respect to the federal judiciary.

After all, in the Constitution's brilliant structural design, federal judges know, as this body full well knows from its daily work, a pivotally important feature: independence from politics, exactly what Alexander Hamilton was talking about in Federalist 78 during (ph) -- the Constitution's term -- "good behavior." In practical effect, life tenure.

Impeachment is thus a very important protection for We the People against what could be serious Article III wrongdoing within that branch. And so it is that when you count (ph), of the 63 impeachment inquiries authorized by the House of Representatives over our history, only eight have actually been convicted in this high court, and removed from office. And each and every one has been a federal judge.

This history leads me to reflect on the nature of your weighty responsibilities, here in this high court, as judges in the context of presidential impeachment. The fourth presidential impeachment -- I'm counting the Nixon proceedings -- in our nation's history, but the third over the past half century.

And I respectfully submit that the Senate, in its wisdom, would do well in its deliberations to guide the nation -- in this world's greatest deliberative body -- to return to our country's traditions when presidential impeachment was truly a measure of last resort.

Members of this body can help and end this very proceeding, restore our constitutional and historical traditions. Above all, by returning to the text of the Constitution itself. It can do so by its example, here in these proceedings, in weaving the tapestry of what can rightly be called the common law of presidential impeachment. That's what courts do, they weave the common law. There are indications within the constitutional text -- I'll come to our history -- that this fundamental question is appropriate to be asked -- you're familiar with the arguments -- was there a crime or other violation of established law alleged?

So let's turn to the text. Throughout the Constitution's description of impeachment, the text speaks always -- always, without exception -- in terms of crimes. It begins, of course, with treason, the greatest of crimes against the state and against We the People, but so misused as a bludgeon in parliamentary experience as to lead the founders to actually define the term in the Constitution itself.

Bribery, an iniquitous form of moral and legal corruption and the basis of so many of the 63 impeachment proceedings over the course of our history. Again, almost all of them against judges.

And then the mysterious terms, "other high crimes and misdemeanors." Once again, the language is employing the language of crimes. The Constitution is speaking to us in terms of crimes.


Each of those references, when you count them -- count seven, count eight -- supports the conclusion that impeachments should be evaluated in terms of offenses against established law.

But especially with respect to the presidency, where the Constitution requires the chief justice of the United States -- and not a political officer, no matter how honest, no matter how impartial -- to preside at trial. Guided by history, the framers made a deliberate and wise choice to cabin, to constrain, to limit the power of impeachment.

And so it was, on the very eve of the impeachment of President Andrew Johnson. The eminent scholar and dean of the Columbia Law School, Theodore Dwight, wrote this: The weight of authority is that no impeachment will lie except for a true crime, a breach of the law which would be the subject of indictment.

I'm not making that argument, I'm noting what he is saying. He didn't over-argue the case, he said "the weight of authority," the weight of authority.

And so this issue is a weighty one. Has the House of Representatives -- with all due respect -- in these two articles of impeachment, charged a crime or violation of established law or not? This is -- I don't over-argue -- an appropriate and weighty consideration for the Senate, but especially -- as I'm trying to emphasize -- in the case not of a federal judge, but of the president.

Courts consider prudential factors, and there is a huge prudential factor that this trial is occurring in an election year, when We the People, in a matter of months, will go to the polls.

In developing the common law of presidential impeachment, this threshold factor, consistent with the Constitutional text, consistent with the nation's history and presidential impeachments, as I'll seek to demonstrate, serves as a clarifying and stabilizing element. It increases predictability.

To do what? To reduce the profound danger that a presidential impeachment will be dominated by partisan considerations, precisely the evil that the framers warned about.

And so, to history. History bears out the point. The nation's most recent experience, the Clinton impeachment, even though severely and roundly criticized, charged crimes. These were crimes proven, and the crucible of the House of Representatives' debate beyond any reasonable observer's doubt.

So, too, the Nixon impeachment. The articles charged crimes. What about Article 2 in Nixon, which is sometimes referred to as "abuse of power". Was that the abuse of power article, the precursor to Article 1 that is before this court? Not at all. When one returns to Article 2 in Nixon, approved by a bipartisan House Judiciary Committee, Article 2 of Nixon sets forth a deeply troubling story of numerous crimes -- not one, not two -- numerous crimes carried out at the direction of the president himself.

And so the appropriate question: Were crimes alleged in the articles in the common law of presidential impeachment? In Nixon, yes. In Clinton, yes. Here, no; a factor to be considered as the judges and the high court come, as you will, individually to your judgement.

[13:45:00] Even in the political cauldron of the Andrew Johnson impeachment, Article 11 charged a violation of the controversial Tenure of Office Act -- you're familiar with it -- and that act warned expressly the Oval Office that its violation would constitute a high misdemeanor, employing the very language of constitutionally- cognizable crimes.

This history represents, and I believe, may it please the court, it embodies the common law of presidential impeachment. These are facts gleaned from the constitutional text and from the gloss of the nation's history, and under this view, the commission of an alleged crime or violation of established law can appropriately be considered, again, a weighty and an important consideration and element of an historically-supportable presidential impeachment.

Will law professors agree with this? No, but with all due respect to the academy, this is not an academic gathering. We are in court. We're not just in court; with all due respect to the chief justice and the Supreme Court of the United States, we're in democracy's ultimate court.

And the better constitutional answer to the question is provided by a rigorous and faithful examination of the constitutional text, and then looking faithfully and respectfully to our history.

The very divisive Clinton impeachment demonstrates that while highly relevant, the commission of a crime is by no means sufficient to warrant the removal of our duly-elected president. Why? This body knows. We appoint judges, and you confirm them, and they're there for life. Not presidents, and the presidency is unique. The presidency stands alone in our constitutional framework. Before he became the chief justice of the United States, John Marshall, then sitting as a member of the people's House, made a speech on the floor of the House, and there, he said this: "The president is the sole organ of the nation and its external relations, and its sole representative with foreign nations." If that sounds like hyperbole, it has been embraced over decades by the Supreme Court of the United States by justices appointed by many different presidents.

The presidency is unique. There's no other system quite like ours, and it has served us well.

And so as to the presidency, impeachment and removal not only overturns a national election and perhaps profoundly affects an upcoming election; in the words of Yale's Akhil Amar, "It entails a risk" -- and these are Akhil's words, Professor Amar's words -- "grave disruption of the government." Professor Amar penned those words in connection with the Clinton impeachment: "grave disruption of the government." Regardless of what the president has done, grave disruption.

We will all agree that the presidents, under the text of the Constitution and its amendments, are to serve out their term, absent a genuine national consensus reflected by the two-thirds majority requirement of this court, that the president must go away -- two thirds. In politics and in impeachment, that's called a landslide.


Here I respectfully submit to the court that all fair-minded persons will surely agree: There is no national consensus. We might wish for one, but there isn't. To the contrary, for the first time in America's modern history not a single House member of the president's party supported either of the two articles of impeachment -- not one, not in committee, not on the House floor, and that pivotal fact puts in bold relief the Peter Rodino principle -- call it the Rodino Rule: Impeachment must be bipartisan in nature.

Again, sitting as a court, this body should signal to the nation the return to our traditions: bipartisan impeachments. What's the alternative? Will the president be king? Due oversight, the tradition of oversight, an enormous check on presidential power throughout our history, and it continues available today.

In Iran Contra, no impeachment was undertaken. The speaker of the House, a Democrat, Jim Wright from Texas, from Fort Worth where the West begins, knew better. He said no, but as befits the age of impeachment, a House resolution to impeach President Ronald Reagan was introduced. It was filed. And the effort to impeach President Reagan was supported by a leading law professor, who's name you would well recognize and you will hear again this evening, from Professor Dershowitz. I'll leave it to him to identify. The learned professor.

But the Speaker of the people's House, echoing Peter Rodino, said no. So, I respectfully submit (ph) that the Senate should close this chapter, this idiosyncratic chapter on this increasingly disruptive act, this era, this age of resort the Constitution's ultimate Democratic weapon for the presidency.

Let the people decide.

There was a great justice who sat for 30 years, Justice John Harlan, in the mid-century of the 20th Century, and in a law suit involving a very basic question, can citizens who's rights have clearly been violated by federal law enforcement agencies and agent bring an action for damages? But Congress has not so provided no law that gave the wounded citizen a right to redress through damages.

And Justice Harlan, he had a magnificent concurring opinion in Bivens versus six unnamed federal agents, suggested that courts, here you are, should take into consideration in reaching it's judgment, their judgment, what he called factors counseling restraint.

He was somewhat reluctant to say that we, the Supreme Court, should grant this right, but we should create it when Congress has enacted, and Congress could have acted, but is hadn't.

But he reluctantly came to the conclusion that the Constitution itself empowered the federal courts to create this right for our injured citizens. To give them redress, not just an injunctive relief, but damages, money recovery for violations of their Constitutional rights. Factors counseling restraint, and he addressed them. And he came to the viewing, was so honest and said, I came to the case with a different view, but I changed my mind.

And voted in favor of the Bivens family having redress against the federal agents who had violated their rights. Judging in it's most impartial and elegant sense.


I'm going to draw from Justice Harlan's matrix of factors counseling restraint and simply identify these. I think there may be others. The Articles do not charge a crime for violation of a established law, I'm suggesting it's a relevant factor. I think it's a weighty factor, when we come to presidential impeachment, not judicial impeachment.

Secondly, the articles come to you with no bipartisan support. They come to you as a violation of what I'm dubbing, the Rodino rule.

And third, as I will now discuss, the pivotally important issue of process. The second Article of Impeachment, obstruction of Congress. This court is very familiar with United States versus Nixon. It's unanimity in recognizing the president's profound interest in confidentiality, regardless of the world view or philosophy of the justice, the justices were unanimous.

This isn't just a contrivance, it's built into the very nature of our Constitutional order. So, let me comment briefly. This Constitutionally based recognition of executive privilege and then companion privileges, the deliberative process privilege, the immunity of close presidential advisors from being summoned to testify, these are all firmly established in our law.

If there is a dispute between the people's House and the President of the United States over the availability of documents or witnesses and there is in each and every administration, then go to court. It really is as simple as that, I don't need to belabor the point.

But here's the point I'd like to emphasis, frequently the Justice Department advises the President of the United States, that the protection of the presidency calls -- whatever the president might want to do is a political matter, is an a combination and a spirit of commodity to protect privileged conversations and communications. I've heard it, in my two tours of duty of the Justice Department, don't release the documents Mr. President. If you do, you're injuring the presidency.

Go to court.

We've heard concerns about the length of time that the litigation might take. Those of us who have litigated know that sometimes litigation does take longer than we would like. Justice delayed is justice denied, we can all agree with that.

But our history, Churchill's maxim, study history. Our history tells us that's not necessarily so. Take by way of example the Pentagon paper's case. Orders issued preventing and sanctioning a gross violation of the First Amendment's guarantee of Freedom of the Press. And order issued out of the district court, June 15, 1971. That order was reversed in an opinion by the Supreme Court of the United States two weeks later. June 15.

The House of Representatives could have followed that well trodden path. It could have sought expedition. The Ebert Court (ph) (inaudible) Courthouse is six blocks down. The judges are there, they're all very able, they're hardworking people of integrity. Follow the path, follow the path of the law. Go to court. There would have been at least one problem had the House seen fit to go to court and remain in court. The issue is before you.

But among other flaws, the Office of Legal Counsel determined, and I've read the opinion and I believe it's correct, that with all respect, all House subpoenaed issued prior to adoption of the House Resolution 660, which for the -