Suzanna Sherry and Michael Paulsen discuss opening of the impeachment trial

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Suzanna Sherry, and Michael Paulsen, both constitutional law professors at University of Minnesota, discuss the opening of the impeachment trial in the U.S. Senate.

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(00:00:10) Good morning. Welcome to midday on Minnesota Public Radio. I'm Gary eichten glad you could join us US Senate for only the second time in history will hear arguments today on why the president in this case President Bill Clinton should be removed from office Senate impeachment trial resumes at noon today with prosecutors from the house known as house managers scheduled to begin their presentation of evidence against the president next Tuesday. The president's attorneys will present their side of the case. Now, we'll be providing live coverage of the entire trial or at least as much as the Senate will allow our coverage begins at noon today. And this first our midday were going to preview the trial what's at stake how it will likely be conducted joining us here in the studios University Minnesota constitutional law professor, Michael Paulson. Bring us by phone as University of Minnesota constitutional law professor Suzanna Sherry and we invite you to join our conversation as well great opportunity to get some of your questions answered before the trial actually begins. Give us a call. Our Twin City area number is 6512276 thousand 6512276 thousand outside the Twin Cities. You can reach us toll-free at 1-800-222-8477 6,000 or 1-800 to 42 to 828 morning Professor. Sherry Professor Paulson. Good morning. Good morning. Glad you could join us. First of all Professor Paulson any surprises likely or in what we're going to hear today or is this mostly going to be a rehash of what we heard during the house Judiciary Committee (00:01:47) hearings. Well, I would have to predict it's going to be a lot of the same stuff that we've been hearing for a long time the arguments by this point. I'm both sides. Are pretty much well rehearsed the briefs that have been filed by both sides all say things that are pretty much familiar the Senate by deciding to postpone the decision as to whether to call witnesses has really postponed much of what is likely to be interesting and new and different about this. This will be just a presentation of arguments (00:02:21) Professor Sherry. Do you expect anything new these first few days? No, I agree with Professor Paulson. I think it's going to be probably pretty dry legal arguments about whether the these are impeachable offenses and whether the president ought to be removed and so on and again if we hear from witnesses that that might shed some new light on it but I doubt anything new is going to happen in the next few days. Why didn't the Senate simply say well, okay, we've heard all of this and we'll just take what what's been said so far and read over the documents and then we'll get to the heart of the matter. Well, (00:02:57) basically it was a political decision. I could not agree as to a trial format. And so they agreed to postpone all of the real issues until about a week and a half two weeks from now the procedure that they've ended up adopting is really quite a strange way to run anything that we would call a trial. Basically. Each side is being given three full 8-hour days to make opening arguments. And in the Senate at that point, we'll decide which Witnesses if any it wants to call that's a very odd way to run a trial. It's follows the procedure that they had a first established in the 1860s for the impeachment trial of President Andrew Johnson, but it doesn't seem very well adapted to the modern realities of what it takes to present a case and what would be needed to present the evidence in a systematic (00:03:50) manner. Well, I agree that it's kind of an odd way to run a trial but I think that there's more to it than just politics certainly politics was involved in the decision to put off what to do. Witnesses but I think in giving each Beginning by giving each side several days to present their case rather than just reading the documents. I think that reflects the seriousness of what they are doing if they had said, for example, all right, we know all the evidence will read the documents will give you each an hour to make any further arguments you have and then we're going to vote I think people would have been appalled at that. So I think that while it may not be particularly interesting and I doubt whether the senators or anybody else is going to learn anything in the next few days. I think it is appropriate to give both sides a full several days to present even old arguments just because it is so (00:04:45) important. Well, I will say that it's not going to be interesting. I think this will be fascinating but it is sort of an unusual way to attempt to prove a case. The interesting question is whether at the end of these first six seven. Is a presentation of arguments which may contain some introduction of evidence such as transcripts documentary evidence that have been gathered by independent counsel star, whether at the end of that process the Senate then does hold some sort of a vote as to what would be in effect. What would a lawyer would call summary judgment saying that even on these facts even taking the facts in the light most favorable to the house prosecutors Clinton has committed no impeachable offense. I'd be surprised if that happens though. I wouldn't be astonished. This case has taken more twists and turns and I could have anticipated. (00:05:40) I agree that would be a surprising result. But I think the possibility of it does reinforce why these several days worth of arguments is not just politics and not just a show because essentially the lawyers are currently making the argument the clintons lawyers in particular are making the argument that it doesn't matter what the evidence Those these are not impeachable offenses. If they lose on that then the trial can go forward on this act. Let's focus for just a minute before we get to some callers here on these house prosecutors. Now, we have 13 members of the House of Representatives seems like a pretty unwieldy group to sit around and crafts intricate legal strategy. Is that are these the folks who are actually making these decisions or do they have like attorneys who decide how this is going to work and then they give the thumbs-up or (00:06:28) thumbs-down. I'm afraid Gary that it really is the the congressman themselves making the decision. I agree that if 13-member prosecution team is quite unwieldly. I don't know how they are going to do that effectively and from news accounts. What they've done is basically chop up the presentation. So we'll the speech by hide will have a speech by seson Brenner will have a speech by candidate each going to be addressing different aspects of the case. I would think that if this were something like A more conventional trial what you would want to do is put up Congressman Roden and Congressman Hutchison both who have served as actual prosecutors and maybe have them assisted by a team of persons. But I think the trial would be much more effectively conducted by the Republican side. If they only had two or three principal prosecutors (00:07:22) effectively more effectively, I agree from a point of law, but after all this is not an ordinary trial and I think one of the things we're going to hear is not just a presentation a lawyer Lee presentation of the arguments and the evidence. I think we're going to hear a lot of political rhetoric as well as from both sides. And so I think that having 13 of them or however many there are is is not going to be as disruptive as it would be in an ordinary prosecution. Now we've heard to about the unusual role that the Senators will be playing here (00:07:57) their jurors their (00:07:58) kind of Me judges. It's a it's a hybrid. That's kind of unlike anything else presumably the Senators will weigh the facts in a kind of pure way. But is it also legitimate then for members of the Senate to consider this from a purely political partisan Viewpoint? He's our guy he's our Democrat president and by golly we don't want him kicked out or conversely. He is the Democrat. We want him out. I think that's dangerous for either side to do that. I think that this should be a question. I wouldn't call it pure law because the question of what's an impeachable offense has to have some interpretation of the constitution in there and a and attention to consequences whether he is convicted or not convicted but I think that if this if the Senators decide that they're simply going to vote on whether Approve of the president or his party or his conduct whether in this matter or generally we are moving much closer to a parliamentary system where the legislature gets to control the executive gets to throw the executive out anytime it wants and I think that that's a dangerous (00:09:18) move. I agree entirely that in that sense of pure politics in the form of you know, we like the president. We're going to stick by him. No matter what we're reason for a vote for acquittal that would be in my view a violation of the Senators oath (00:09:34) Mike. Do you agree that if a Republican senator were to say I don't care whether he's committed committed impeachable offenses. I don't like his politics. Absolutely that would also violate their own right a republican (00:09:45) who favors impeachment but thinks that that no impeachable offense has actually been committed I think would be violating his or her oath to serve as a faithful witness. I am concerned though that in the end. It's going to break down fairly closely on. Political party lines and that bespeaks partisanship at least on one side or the other or both. Oh, yes. (00:10:08) And what should the American people make of that? Then that the Senators did in fact weigh all the evidence and come to a vote of their conscience and it just coincidentally turned out that virtually all the Democrats voted one way and all the Republicans voted the other or should they conclude that this in fact was nothing more than an exercise in political power one way or the other. I think it's pretty close to that ladder. If it comes down on a partisan vote one of the reasons, I think that the framers put in the two-thirds requirement was to guard against a you know, he must be convicted by two-thirds vote what the one of the reasons the framers put that in was to guard against a political Witch Hunt a political trial and conviction. And so I think 2/3 is certainly enough to convict but I think most Senators should think about whether they should vote to acquit unless there is a much higher majority. That is I think one of the things that would guard against politics would be to say unless I substantial number of people agree that that he has committed impeachable offenses. Maybe we ought not to do this because it will look cynical and look political and basically turn people off the entire (00:11:27) process. I think the interesting question though is Which side will be held at fault if that's let's say this breaks down on a 55 45 55 Republicans voted to convict 45 Democrats voting to acquit. You can accuse either side of partisanship. I would think however that the the greater fault would lie on the facts of this case with the Democratic party. In fact, it is mildly astonishing to me that the Party would be committing the equivalent of moral suicide by saying that this type of conduct perjury obstruction of justice systematic lying before grand jury for an extended periods of months lying to the American public does not constitute impeachable offenses warranting removal. They had gained the party the Democratic party had kind of gained the moral High Ground during the Watergate years by making exactly those sorts of arguments of the Republicans are making now and I think that they might forfeit that over the Long Haul if they vote along party lines to acquit. I think over the long haul this is more political downside for the Democrats to for a split on party lines. So in the short term the opinion polls say that American people generally prefer to keep Clinton and (00:12:52) office, but I think you two problems with your argument is that most of the American public seems to agree with the Democratic party's This at least at the moment and I'm not sure what would change their mind if the Senate if the Senate acquits and the other problem I think is that you're overstating what the Democratic argument is. It is not that lying to the American people and lying under oath is not an impeachable offense. I think it's much more contextual argument that lying to the American people and lying under oath in this context. That is about sex where it started with a civil suit would really is A Private Matter to start with that. That's not the kind of thing. We ought to impeach a president for not that it's impossible and not that if the circumstances were somewhat different lying under oath wouldn't constitute an impeachable offense or even lying to the American people, but just that in the context of this case it it should not be an impeachable offense, especially given that the grand jury was almost was almost a trap. That is he had perhaps slide in the Civil deposition and But the house decided not to impeach for that lying and yet they did decide to impeach because of the grand jury. (00:14:08) I agree with your perception Suzanne of the way the public understands this to be framed. I think the Democrats and President Clinton's lawyers have done an effective job of trying to recast this issue not as lying under oath generally, but in these specific circumstances would try to create an exception. What I'm concerned about is a general precedent. That would be set by this whereby we excuse conduct which is otherwise regarded as impeachable because of the present snapshot popularity of the incumbent president and we set a precedent ratcheting down the standards of conduct to which the chief law enforcement officer of the nation is to be held. I think the the office of the presidency is much more important than any personal office holder and I think over time Time sacrificing that principle will hurt the Democrats on the point of the Clinton going into the grand jury. I had exactly the opposite perception. I was I remember this last summer. I was up at a resort in northern Minnesota, but we turned on the TV what would Clinton say? He's had eight months to think about this eight months what he finally come clean. How would he do it? And he went in and I think this is probably the worst thing is, you know, this was no longer a UPS. Somebody caught me on something and I said something wrong and now I have to cover myself by the time he gets to the grand jury in August of 1998. He's had eight months to think about it and the core of the article first article of impeachment is it he walked into the grand jury knowing the truth and went ahead and lied again. (00:15:54) Well everybody. Has done something they're ashamed us. But not everybody has lied under oath well, but given the opportunity. First of all, they would probably lie under oath and second. I disagree with that. Remember first of all still claims. He didn't lie he evaded. He didn't tell the complete truth. He tried not to answer whenever he couldn't didn't have to answer fully and so on and the other thing is remember he thought that the entire grand jury was illegitimate that is there given the context of the potential perjury the first time in a civil suit, which had been dismissed in which his statement was ultimately held not to be material. No prosecutor would ever convene a grand jury to investigate that and so in some sense star was using the fortuity of the civil suit as a way to trap Clinton into trying into lying again. All right. Well, let me let me let me interrupt here. We're getting a nice preview. I think of the arguments were going to hear. Assumably will here in the Senate and I want to get to some callers here who have have their own questions. We're looking ahead to the resumption today of the Senate impeachment trial coverage here on Minnesota Public Radio begins at noon. When the Senate reconvenes on tap for today the beginning of the house presentation on why the US House believes that President Bill Clinton should be removed from office. And of course, we'll have live coverage joining us this hour as we get ready for the trial to University Minnesota constitutional law professors, Michael Paulson and Suzanna Sherry and we invite you to join our conversation as well. If you've got some questions something in your mind that's doesn't make any sense. You want to get something cleared up before the trial begins. Give us a call six five. One two, two seven six thousand 6512276 thousand if you're calling from outside the Twin Cities one eight hundred two, four two two eight two eight pack. Go ahead place. (00:17:56) Oops. (00:17:57) Now, you can go ahead. Sorry about that. You're on the air the president was impeached by the house. And if so, why why is the impeachment in doubt? In other words the can't the Senate concludes the impeachment. I hope not but I mean is that the way that conceivably a good work? Why what is impeachment mean if he can be impeached and remain in office there's has he been impeached or not has been impeached. It's actually the Constitution sets out a two-step process the house impeaches which is sort of like an indictment or an accusation or a charge and then the Senate conducts a trial to decide whether to convict or acquit. So the house has impeached him. He has been impeached but he will not be removed from office unless he's convicted now if the Senate says these crimes Do not rise to the level of high crimes and misdemeanors does that in any way affect the fact that he has been officially impeached because it would seem like on the one hand the house is decided. He should be impeached on the other hand. The Senate says well, no, these are not impeachable offenses (00:19:12) does not affect whether or not he's been impeached. He has been impeached. This is the first elected president of the United States ever to be impeached by the Full House of Representatives. And nothing the Senate does will stop that fact from going down in the historical record. The Senate can vote to acquit basically and not remove him from office that really requires a two-thirds vote to remove him from office and I believe that they and I think Suzanne agrees with me on this that they can employ any ground they want to as a basis for quitting they could say no he didn't do it. He didn't do what he's accused of. I think that's probably unlikely more of the votes will say, alright, he probably Ed what he's accused of but we don't think that this Rises to the level of an impeachable offense or if it rises to the level of an impeachable offense. It is a high crime or misdemeanor. We simply do not want to convict him. (00:20:12) It would be inappropriate right Peter whatever (00:20:15) circumstance right? We think it does (00:20:18) once impeached always impeached but just because you're in Peach doesn't mean you have to leave yet. I understand that they have already covered up. There's an Andrew Johnson Memorial or some little public display in Washington about him. And one of the things it said was that he was the only president ever impeached and they have now covered up that word only and it will I assume have to be sandblasted off call the engravers because he is no longer the only President I certainly agree with Mike that they can acquit for any reason but I don't want to leave the listeners with the impression that we That will necessarily know the reason they will vote on whether to convict or acquit. They will not necessarily say why that brings us to another Point here. There's quite a bit of talk about whether or not the deliberations of the senate for that matter, even the vote of the Senators should be open and public (00:21:15) right? My understanding is an under present procedures again going back a hundred and thirty-odd years. The Senate is not required to hold a public vote. I disagree with that. I think this is a proceeding of enormous consequence to the Future moral and political health of the nation that it's a very important no matter which way you view it that this will be a extremely important for the future in terms of the standard that is set for the conduct of presidents of the United States in the Judgment of the United States Senate. I think it would be inappropriate for them not to make their deliberations public not to make their votes public and not to give full Nations of their reasonings we need we need to know why they decide whatever it is. They decide I'm very suspicious of closed or backroom dealings. I'm afraid that's exactly the sort of thing that could lead to some sort of a deal that doesn't really address the Constitutional and National issues on the (00:22:16) merits. What do you think Professor Sherry? I actually agree with Mike on this one. I think I don't know which side it will help or hurt. But I think it is a matter of enough significance that I'd like to see it in public. Now remember though, these are just Senate rules. This is not a constitutional requirement. The current Senate rules have the trial public and the vote private, but those could be (00:22:39) changed by the Senate can do whatever it wants Akshay her a question, (00:22:42) please first off a comment how delightful that professors at. The University are disagreeing on the air. I say that in all sincerity, I happen to be one of you and room With my department. I have one one observation and a question for you. First something that jiggle my memory when you were talking about it earlier if Senator votes to impeach for political rather than legal reasons and they would be violating their oath. We have five Republican congressman who did precisely that they voted to excuse me. Someone Senators vote to convict. We had five Republican Republican congressmen who voted to impeach and then turn around wrote a letter to I believe it was Trent Lott saying, please please don't do whatever we said you should do in the Articles of impeachment so that that struck me as interesting II. The question I have is I think from the legal standpoint everything hinges on the definition of what is high. We've been parsing lot of words recently based on my reading of the Constitution treason. Bribery and other high crimes and misdemeanors now interestingly enough. There's it did would such between other and high is emitted. My understanding is a high crime and misdemeanor is something that is that threatens the Republic. However, I've heard folks like Congressman Barr and bunch of pink letter writers to the to the letters to the editor page talk about a high crime being something that is committed by somebody in high office. What is the what is the truth of that? What and I'll be happy to take your response of the are okay brief comments and we're going to catch up on some news headlines. (00:24:37) OK on the vote of the five House Republicans. That was a little bit confusing what they did is they voted to impeach but then sent a letter to the Senate say we recommend censure that is not inconsistent with them thinking that this is impeachable offenses, but they're just sort of Gratuitously expressing their opinion as to what the appropriate punishment should be as to the definition of high crimes and misdemeanors. It is not a term that has a specific concrete determinate meaning what it is. Is it commits to the Judgment in the first instance of the House of Representatives and in the second instance the Senate the Judgment as to whether this conduct is of sufficient seriousness as to Warrant the impeachment and removal of the president and that gives them a broad birth. I think certainly perjury obstruction of justice Falls within the parameters of those terms. (00:25:28) Well, I agree that there's no fixed meaning but I think that when the framers adopted at they had some ideas in mind some expectations and the use of it up until that time had generally meant political crimes crimes that do subvert the country or subvert the Constitution or the balance of powers. Certainly they can expand it beyond that. But I think that that was what was originally meant I find it ironic, of course that representative bar is one of the people who is Saying that he ought to be impeached for lying under oath since its beginning to look like perhaps bar himself. Did that where a Join This Hour by University of Minnesota constitutional law professors Michael Paulson and Suzanna Sherry getting ready for the start of the Senate impeachment trial for the resumption of the trial that said noon today. You can expect to we'll have live coverage here on Minnesota Public Radio, of course starting at noon probably going for about 8 hours. And of course, we'll have live coverage throughout the trial or as much as the Senate will allow that's coming up at noon again, if you'd like to join our conversation this our 6512276 thousand outside the Twin Cities one eight hundred two, four two two eight two eight. (00:26:37) Hi, this is Michael Phelps invite you to join me at the State Theater on Saturday, January 23rd for a live broadcast of what do you know, you'll enjoy all of Minnesota news. That isn't the what do you know quiz Jazz by the wedding? No, Trio and a special appearance by announcer Jim. The body Packard tickets are available at the State Theater box office or by calling Ticketmaster at 612989. 5151 (00:27:01) programming on NPR is supported by change Masters Incorporated individualized leadership communication coaching for courageous Executives choosing to master change information available. Greta Cunningham joins us now with an update on news headlines credit. Good morning, Gary and of course, you're a topic the president Senate impeachment trial is the big story today house prosecutors are getting ready to start laying out their evidence against President Clinton during his son an impeachment trial which gets underway in about half an hour earlier today house prosecutors submitted their response to a trial. Adam that came yesterday from Clinton's defense lawyers. The prosecutors say that the question of credibility that were raised in the Clinton memorandum can best be resolved by hearing testimony from live Witnesses who can be cross-examined. The White House says house impeachment managers are trying to subvert the bipartisan rules for President Clinton's trial in the Senate, press secretary. Joe Lockhart points to attempts by the managers to contact potential Witnesses, including Monica Lewinsky and Kathleen Willey Lockhart also is upset over Chief prosecutor Henry hides talk of calling President Clinton to testify at the trial Lockhart says Clinton already has testified for more than four hours before the grand jury house aides report Lewinsky's lawyers turned down a request to discuss possible testimony, but a spokesman says she still could be compelled to testify under a subpoena in Regional news a new study said it would cost Minnesota about 190 million dollars a year to reduce Elementary class sizes to Seventeen students. That's the target proposed by Governor Ventura. He would like to see class. As is reduced at least for the third grade American Crystal sugar reportedly is planning to cut payments to add sugar beet Growers for last year's crop a grower in the co-op's Crookston factory district says the cut probably reflects the deterioration of sugar be piles do to warm temperatures during November and early December Crystal's 1998 sugar beet crop totaled more than 10 million tons of Beats the forecast for Minnesota today calls for Cloudy Skies Statewide high temperatures from the single digits and the teens above zero tonight. We'll have Cloudy Skies Statewide with lows ranging from 0 to 10 above still some snow falling around the region Rochester reports. No and a tube of light snow and a table of in Duluth Fargo reports sunshine today and eight above zero and in the Twin Cities light snow falling 11 above with a wind chill index of minus 13 and Gary. That's a look at news headlines. Thank you Greta and again a reminder the historic Senate impeachment trial resumes at noon today live coverage here on Minnesota Public Radio this hour to get Before the trial we're talking with the University Minnesota constitutional law professors Suzanna, Sherry and Michael Paulson lots of callers on the line with lots of questions about this trial Cathy. Go ahead, please. I hear many people even many Democrats saying yes, the president (00:29:56) lied before the grand jury, but I'm just curious as to (00:29:59) exactly which statements he made that are alleged to be perjurious high hapless and let me answer that does the house at any point this came up during the house deliberations as to whether to (00:30:11) impeach you're not at (00:30:12) any point during the trial does the house have to say well now these following statements are the ones we believe to be to mount (00:30:20) a perjury or can they deal with it in (00:30:23) a broader broader sense as they did during the house (00:30:26) deliberations they can deal with it in a broader sense though. What I expect will happen is they will give an itemized list. Now. I'm not going to try to rehearse all of the points of the asserted lies, but there's quite a package of them ranging from his assertions before a grand jury. That he did not engage in any how to say this on a family radio station a little the day inappropriate physical. I'm inappropriate physical contact of the described nature and I think it's concerned about those details details, which will be probably necessary in order to establish. The fact of perjury that is leading a lot of the Senators to not want this to be public because this is not appropriate daytime viewing though. I've seen some Daytime television shows which suggested it really isn't below the standards usually employed. But this goes back to a point that Susanna was talking about earlier Clinton still says that he's not lying that he hasn't been lying. Now. I know of very few people who actually believe that but to the extent he continues to make that defense in other words that the charge is not true. That's going to require some sort of weighing of The credibility of the witnesses and the evidence and I think that is going to lead or at least should lead to the presentation of that evidence at some point. There was a White House discussion that maybe they would be willing to stipulate to some of these facts but apparently they've backed off from that because I do not want to concede that the president lied before the grand (00:32:09) jury. I agree that they that the house managers probably will on end up having to given an itemized list. They won't be required to but I think they will because I think it would be pretty hard to prove a case without saying well here are the lies the problem of course is that this is the hardest kind of Lie to prove. It's basically a he said she said kind of kind of thing some of them are even just whether one of the questions he was asked I believe in the grand jury was whether he had lied in the deposition and that is sort of even one removed from He Said She Said So, I think it is the reason most prosecutors don't bring perjury charges in this sort of From stance is exactly because it will turn entirely on The credibility of the witnesses if he said they didn't engage in these kinds of activities and she says they did it's hard to know who to believe now the house wants to call witnesses. The president doesn't at this point, at least that's what everybody is saying after the opening presentations. The house will ask to submit a list of witnesses and so on so forth in the Senate will vote as to whether or not these witnesses will be (00:33:21) heard do they do they get get a chance to pick and choose? (00:33:26) Let's say the house presents a list of 10 people that they want to hear from does the senate get to decide. Well, we'll hear from the first five but the other five are not interested in or do they have to take the whole (00:33:36) list. I'm not sure if this and the Senate again can do whatever it wants. It can change its own rules, but my understanding is that they will consider each witness on its own and vote as to each one of them whether they Hear them it could be that they will strike some sort of compromise and attempt to vote up or down on a slate on a package. I think the most likely outcome is it will be some sort of negotiated agreed list as two witnesses if indeed Witnesses are to be called (00:34:05) can Witnesses say no not interested. I'm going to take the Fifth Amendment not going to (00:34:10) testify I don't think so. I think once you are subpoenaed you can be subpoenaed as with any other proceeding they are required to (00:34:15) appear they were required to appear but I think they can claim the fifth unless they are given immunity because that that they might in fact that some of the witnesses might in fact be (00:34:24) prosecuted. Well, there's a there's an interesting point here that have thought about I was a federal prosecutor and you there is a grant of immunity in there a lot of issues of when you can take the Fifth Amendment but one of them that might be very applicable here is that you cannot take the Fifth Amendment and refused to discuss things when you have waived that amendment in sworn testimony before I think therefore that they could call President Clinton and require him to appear unless there's some constitutional separation of powers basis for him refusing to appear before the Senate the he is voluntarily quote voluntarily unquote appeared before the grand jury before and I do not believe he is a Fifth Amendment right not to appear before the Senate one thing would be interesting is what if they did call him and Grant him use immunity what's referred to as use immunity as opposed to transactional immunity. That is we cannot use any of your words against you in a subsequent criminal proceeding. I think that would be a very effective tactic on a part of the house to see whether Clinton would come and whether he would to the Judgment of the senators in the nation. I don't I you know continue to stick to his story which just about nobody believes. (00:35:40) I don't think they're going to call him. I think you're absolutely right that he may well have waved his at least may have waived his Fifth Amendment privilege and I don't For sure whether there is a is a constitutional privilege that hasn't been decided but I think that it would cause a constitutional crisis that is I don't think that the Senators want to force the issue of whether the Senate can subpoena the president in his own impeachment trial and I think there are still some open questions with regard to the other witnesses as well in terms of exactly what it was they waved and whether they had immunity and so on so there could be some very interesting legal questions if they call witnesses that the thing to stress. Of course, is that what what Mike started out with which is they can do anything they want they can decide that they're going to have no Witnesses they can decide that they're going to approve Witnesses, but then they're going to approve them one at a time or they can do a slate they can do anything. They want in the latest I heard is their first one in decide whether to hear any Witnesses at all, and then they will vote on each witness individually. Well your question, please yes. Thanks for taking my call. I'm a little I'm still Fused if the one of the professor's mentions the framers of the Constitution had set this to be a political process not a civil court action. That's not a situation where we'll have the parties brought into a civil court then it appears to me. We need the politics involved and it's not a black-and-white issue and yet he seems to be framing it as though it is it simply he lied or didn't lie and therefore would create the Judgment the second guess the second thing would be couldn't one argue. In fact that that the president was actually performing his duties by my misleading about this sexual Affair to really protect the the the country in the government to in fact what we had just experienced over the last 12 months and I'll just those are two areas. I'm just confused on and I throw them out for just for your judgment. Thank (00:37:47) you. I take it that's Directed to me, I'm on the last point. The president was performing his duties by lying to the public for eight months. And then before a grand jury, I just don't think that's a reasonable position at all. If the president was concerned about the damage that this would do to the country. He would have come right out and said look, I made a mistake. This was wrong. I admit it. I was blindsided at my deposition. I lied that was wrong. I hereby recant. In fact, there's a procedure you have 30 days to correct your deposition and that happened. I have no doubt but that he would not be standing before the Senate now impeached as to what it means really? Yes and one strong indicator of that is that a separate article of impeachment was founded solely on his impeach his his perjury in a civil deposition Persian civil discourse deposition. That was Article number two, which was rejected by the house. I think if Clinton had to come clean At any point prior to his grand jury testimony on August 17th. He would not be in this position today. I (00:38:54) like people calling for his impeachment before the star investigation ever started on (00:38:59) Lewinsky there were but I do not think it would have succeeded. I think that what put them over was the Clinton, you know, they were all these warnings on the TV talk shows always Senators coming up when he goes before the grand. Jury. Senator hatch said he'd better not lie again, you know, if you come clean now and you tell us all this we will forgive you. I mean the Olive Branch was extended. I don't think they could have sustained the political will to impeach a very popular personally popular president had he any point in those seven months corrected his mistakes. So I don't think that he was performing his duties by engaging in a systematic. Well, it's really a (00:39:42) cover-up. Well, I disagree with you on whether he would have been where he is now had he corrected his But I certainly agree that he was not performing his duties and misleading the country and I think actually the other question is somewhat more important bill was suggesting that this is not a civil court action and clearly it's not and that therefore it should be about more than simply whether he committed perjury or not. I think it is about more and I think both sides are recognizing that it is about more than that. It is about whether committing perjury in these circumstances is in fact an impeachable offense and whether even if it is he ought to be impeached so that's where the I would hate to call it politics. I would rather call it political (00:40:27) judgment. It's pop was political in the sense in which Alexander Hamilton use the words in that the impeachment proceeding does not result in judicial punishment or incarceration. It is exacts a political penalty. You lose your office. You lose your ability to hold (00:40:44) future office may lose the ability to hold future office. That's not (00:40:46) required. Right, right. The Senate has the Question whether to add that further penalty, (00:40:50) we are getting ready for live coverage of today's Senate impeachment trial coverage begins at noon today right before the trial. We're talking this hour with the University Minnesota constitutional law professors, Michael Paulson and Suzanna Sherry. And again, if you have a question something you'd like to clear up give us a call six five. One two, two seven six thousand outside the Twin Cities one eight hundred two four two two eight 286512276 thousand 1-800 to for 22828. We move into Uncharted Territory in the US Senate and interesting see how it all plays out. Barrier question, please thank you. I'm good morning. I've got actually two points one is a morning when the professor's mention something about lying to the American people and I'm assuming that's not an impeachable offense in above itself. And my second point is something I've never quite understood his back in the Nixon era Nixon had forged them documents for his taxes. And pretty much, you know admitted to lying on those documents and yet that was something that the house committee decided not to look at at that time. And I never understood what the difference is then between that tax episode and Clinton is lying in this in this episode. I think you've pretty much hit the nail on the head here that that is exactly why I would limit High crimes and misdemeanors to public or political crimes the house decided in the Nixon era that his private foibles his private even illegalities of lying on his taxes was not the kind of thing for which impeachment is an appropriate offense. I mean an appropriate response that instead he perhaps should have been indicted and punished criminally the same way any one of us would be if we lied on our taxes on the other hand. I think you're not quite right when you're saying that an impeachable. That lying to the American people is not an impeachable offense. Certainly lying to the American people about something in some way that would subvert the Constitution lying to them for example about whether you were going behind the back of Congress and doing something like selling arms and sending the proceeds to to country that you supported that kind of lying to the American people. I think would be an impeachable offense. Although it's not indictable. It's not a criminal offense to do that. But I think it would be a peach apple and that shows exactly where Clinton's offenses lie. They are in the Nixon category the private category like cheating on your taxes rather than the public category of lying to Congress and the American people about the conduct of the (00:43:39) office. Oh I disagree quite strongly with Susanna on a couple of points. I think the Nixon era does set some very important precedents Nixon. President Nixon was not impeached on the tax fraud and I think basically because they had him dead to rights and so many other things and have felt like piling on whether you could impeach someone for private tax fraud. I think it's been established fairly clearly most recently by the impeachment and removal from Office of Judge Claiborne who was removed for precisely for those offenses in 1989. Judge Walter Nixon was impeached and convicted for lying to a Federal grand. Jury. I agree with Suzanne on one point that lying to the American people can constitute an impeachable offense if it is serious and important Suzanne is phrases whether it's subverts the Constitution and I guess I have a broader understanding of what our constitutional process encompasses than she does. I think it would not only mean lying to Congress. I think it would be lying in a court of law. I think the judicial system is an integral part. Our system of constitutional government and perjury and obstruction of justice in a court is a very serious assault and one of the most important institutions of our constitution. That's why in my judgment these sorts of Lies do warranty impeachment and removal notwithstanding the present popularity of Mister Clinton David your question, please (00:45:10) thank you have a question on the oath of office in upholding the Constitution which agree relating to the rule of law for instance as commander in chief for the West Point Honor Code. So the cadet does not lie cheat steal or tolerate those who do similarly. He's the honorary Chief Scout and boy scouts law starts off with a scout is trustworthy Ten. Commandments say Do not bear false witness or dinner lie. And the whole Constitution is based on a pulling the rule of law. So it's when you think a comment on that aspect of what constitutes upholding his oath of office to uphold the Constitution or violating that class Sherry. Well, I'm not exactly sure of the relevance of for example The Ten Commandments given that our constitution is explicitly does not allow this the sort of religious basis for Public public acts but tries to separate church and state but in terms of upholding the Constitution, I think that means performing his duties in such a way as to follow the Constitution now, certainly, he should not be lying under oath, but I think the question is not whether he violated his oath of office, but whether he has committed an act that is impeachable and certainly perjury can constitute an impeachable offense and when judge Nixon was impeached for perjury, he was essentially impeached for lying to a grand jury that was investigating him for fixing cases and taking bribes, which is a little bit different than lying about whether you've had whether you've had sexual relations with somebody so I think that the point of the oath of office and upholding the Constitution is that it does separate public duties from from private transgressions, but one of (00:47:13) his public duties is that the president is the chief law enforcement officer of the United States and for the chief law enforcement officer of the United States, the one who appoints the Attorney General oversees the enforcement of the laws Nations judges to be engaged in perjury and obstruction of justice, I think is a violation of his who's oath the the collar raises a more General point to and sense and that The president is only being held to the standard that we expect a Boy Scout Troop leaders. When I was a former Federal prosecutor, we swear an oath very similar to that of the president. If a law enforcement officer, if a police officer, if it prosecutor engaged in this sort of conduct, even if it were just lying in a civil discourse deposition, even if it weren't a relatively inconsequential matter, they would be summarily dismissed a military officer who engaged in this would be court-martialed people are prosecuted for perjury. It is as Susanna noted earlier notoriously difficult crime to establish proof of but surprisingly based on the evidence in the star report here is about as clear a case of proof of perjury as you could find. I think that the president's role as chief law enforcement officer means that we should hold him not to a lower standard but to a higher standard and that his public duties in office require us to require him to Here to the law in all (00:48:41) respects. I think that that is expecting too much of any of our leaders and I think that this is a trend that were beginning to see The Fallout from in the fact that that various house members are stepping down and are being accused of of indiscretions 40 years ago. Now, I'm not not pointing to the hypocrisy. Although it's clearly there. I don't think any of this is any of our business we're expecting we're turning into Puritans. We are expecting our leaders to do things and behave in ways that we do not all of us do the best we can all of us have probably done something that we are ashamed of and would rather not make public and I don't think that our leaders ought to be held to a higher standard and the president is being held to a higher standard in the sense that if he had been a private person. He never would have gone before the grand jury first. Grand jury would not have been investigating perjury in a civil suit based on he said/she said and second if by some reason a vindictive prosecutor had convened a grand jury and had subpoenaed a private Bill Clinton to testify he simply would have taken the fifth and that would have been the end of it. So, he's already being put in a position that no private person would be put in. (00:50:05) Well, I absolutely very strongly disagree. I think that this is exactly the type of offense for which any public servant any law enforcement officer would be brought before a grand jury and charges would be pursued to the comment that you know, we expecting too much from our leaders to expect basic attributes of honesty and integrity gee I hope that's not true. I hope that we hold our office holders to a high (00:50:30) standard. What do you think Bob Barr should step down now that now that it's at least probable that he lied under (00:50:35) oath. I'm not familiar with that allegation. I thought that At that he refused to answer questions under oath, but I haven't been following that in particular because the fact that some of the prosecutors or individuals or other reports Republican Congressman may have gained engaged in improper conduct does not excuse the (00:50:55) president. I'm not asking to whether you want to excuse the president. I'm asking whether he should immediately stepped down. (00:51:00) Well, I think I would take very seriously in considering whether I would vote for someone whether they had publicly lion I would take that as a strong indicator of their character in other respects. And if that means that there are a lot of people in Congress who we should not return to office then I'm all for (00:51:20) that. I think that's exactly the key to the whole thing. I agree with you 100% that we should exercise our individual judgment and decide whether a particular lie is such a an indication of character or a character flaw that we ought not to vote for that person, but it ought to be left in the hands of The individual (00:51:40) voters but nobody else has been charged with lying under oath in a sworn proceeding. I don't understand that that charge has been made about Congressman Barr. It certainly wasn't with respect to any (00:51:51) other we are we're out of time here but a great discussion folks and it should be I think we could all agree that it will be an interesting trial. It should be certainly will be an historic. Thanks so much for joining us and of course live coverage of the senate senate impeachment trial coming up here momentarily on Minnesota Public Radio our guests this hour as we get ready for today's coverage University of Minnesota constitutional law professors, Michael Paulson and Suzanna Sherry. And again thanks to all of you who've been with us. This hour do stay tuned now live coverage coming up in just about one minute programming an MPR is supported by schwate Abel guests and sieben trial lawyers representing accident victims throughout Minnesota for over 25 years on the At our program schedule as you might expect is going to be a little different because of the Senate impeachment trial the trial is expected to run today for about eight hours. All Things Considered normally comes along a course at about three o'clock. What we're going to do is carry the trial and then all things considered will be on later this evening. So stay tuned. (00:53:06) Hi, this is Chris Roberts after the Senate trial of President Clinton concludes for the day join us for a late addition of all things considered all things considered a little later than normal. I'm Minnesota Public Radio Canada wfm (00:53:18) 91.1 You're listening to Minnesota Public Radio. We have some light snow. It's 11 degrees above zero. The windchill is 13 below at Cana wfm 91.1 Minneapolis. And st. Paul we could look for light snow through the afternoon with a high right around 15 degrees cloudy tonight with a low five to 10 above cloudy tomorrow with a high temperature in the mid to Upper 20s. It's 12 noon.


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