Brian Lehrer: This is Impeachment, a Daily podcast from WNYC. I'm Brian Lehrer. It's Thursday, December 12th. No matter how the impeachment of Donald Trump turns out, today gives the world an example of open debate in a democracy. In many countries, the head of state under scrutiny could just bring it all to a halt, but here for hour after hour, and maybe we can pause for a moment, even as inflamed as all sides are, and just admire that Democrats and Republicans have gone back and forth debating the evidence and debating the constitutional standards around the two articles of impeachment that the committee majority has proposed, abuse of power and obstruction of Congress in advance of their historic vote. We will play a few excerpts now from each side and talk about where we are and where we're going with WNYC's Ilya Marritz and law professor Deborah Pearlstein, who specializes in constitutional democracy. We'll also touch on some breaking legal news about Lev Parnas, that indicted Rudy Giuliani associate who could yet spill the beans on even more of the Trump Giuliani Ukraine scheme. First to the Judiciary Committee. One of the topics of debate today has been whether abuse of power and obstruction of Congress are even impeachable offenses.

The Republicans proposed amendment to remove Article 1 entirely. That's the abuse of power article of impeachment. Here is Republican Congressman Louie Gohmert of Texas this morning making a case that several other Republicans have also been making, no impeachable offenses because no crimes.

Congressman Louie Gohmert: No one on the other side is willing to acknowledge the fraud that brought us here, nor the fact that so many people here have been screaming about the president's crimes. We're even hearing today like we just did. Oh yes, there were crimes. Well, then why aren't they in this impeachment document? It's because they don't exist.

Brian Lehrer: That's Republican Louie Gohmert with the argument in a nutshell about whether abuse of power is even an impeachable offense. Here's the Democratic chairman of the committee, Jerrold Nadler of New York on abuse of power from his point of view, from his opening statement last night.

Jerrold Nadler: The highest of high crimes is abuse of power. It occurs when a president uses his official powers to serve his own personal selfish interests at the expense of the public good. To the founding generation that had fought a king and won our freedom, it was a specific, well defined offense.

Brian Lehrer: Are these alleged acts by the president even impeachable? That's one recurring theme from both sides in this two part session. It began last night. It's continuing today. Another big one is about the evidence itself. Democrats keep saying the facts are not in dispute. Republicans acting as many defense attorneys would, are packaging the facts in the most favorable way to their client. Here is a prime example. It's Congressman Jim Jordan of Ohio on what the timeline shows with respect to whether Ukraine was shaken down.

Congressman Jim Jordan: Democrats say there's some scheme to have an announcement made by President Zelensky to get a phone call with the president to get a meeting with the president and to get the aid released. When did the announcement happen? They got the call on July 25th. They got the meeting on September 25th. They got the money on September 11th. There was never an announcement from the Ukrainians to do an investigation. You can keep saying all this stuff and all the points of this happened, this happened, didn't happen, not the facts.

Brian Lehrer: Congressman Jim Jordan on the facts, according to him. Democrats argue that so much more than what he just laid out happened with so many witnesses and text messages proving the pressure. Here's one 30 second example from the testimony of Trump's former Russia adviser, Fiona Hill after a meeting with Ukrainians and White House officials on July 10th, Trump's national security adviser, John Bolton, gave Hill a specific instruction.

Speaker 5: What was that specific instruction?

Fiona Hill: Specific instruction was that I had to go to the lawyers, to John Eisenberg, our senior counsel for the National Security Council, to basically say, you tell Eisenberg, Ambassador Bolton told me that I am not part of this-- Whatever drug deal that Mulvaney and Sunderland are cooking up.

Speaker 5: What did you understand him to mean by the drug deal that Mulvaney and Sondland were cooking up?

Fiona Hill: I took it to mean investigations for a meeting.

Speaker 5: Did you go speak to the lawyers?

Fiona Hill: I certainly did.

Brian Lehrer: That's Fiona Hill on November 21st. Joining us right now are WNYC's Ilya Marritz, co-host of the WNYC and ProPublica Podcast Trump Inc., and Deborah Pearlstein, a Cardozo University law professor. She specializes in constitutional democracy and human rights. Professor Pearlstein, welcome to WNYC.

Deborah Pearlstein: Thanks so much for having me.

Brian Lehrer: Hi, Ilya. How are you?

Ilya Marritz: Hey, Brian.

Brian Lehrer: Where do we start? How about on this debate in the first pair of clips, Professor Pearlstein, on whether abuse of power should even be seen as an impeachable offense. What did you think as you were hearing that exchange?

Deborah Pearlstein: This is an exchange that came out of and really belonged in the panel in which the constitutional law professors were appearing. There the professors were reasonably uniform in recognizing that it doesn't have to be a crime. That is to say, an impeachable offense doesn't have to be a crime as currently embodied in the federal criminal code as enacted by Congress. The existing criminal laws didn't exist when the framers wrote the Constitution. Indeed, crimes as such weren't what the framers had in mind when they put impeachment into the Constitution.

What they were thinking about with the impeachment remedy were serious offenses against the public trust. That is certain things that only the president and other senior officials could do that abused their authority. In other words, the idea of abuse of power is sort of the definition of an impeachable offense. The other crimes or so called high crimes in that list are treason, bribery and high crimes and misdemeanors. If you look at that list altogether, treason and bribery are similar. They're betrayals of the public trust, they're betrayals of the national interest. That's exactly what the facts underlying the article of impeachment allege here.

Brian Lehrer: Why isn't bribery in these articles of impeachment? Bribery is in the Constitution, as Professor Pearlstein was just reminding us, and as an impeachable offense, Democrats had been using that word politically the last few weeks to describe what Trump did with Ukraine. I'll give you a meeting in military aid if you announce these investigations. Bribery, many Democrats have said, but it's not in the articles. Professor Pearlstein, you have a take on that?

Deborah Pearlstein: I guess a couple of things to say. First, while the name of the article, Article 1 is called Abuse of power, if you read the-- It's not that long. If you read the description of what the President did, it really lays out exactly and is written in the language of the elements of the bribery statute that exists under federal criminal law. The President did scheme or course of conduct that included soliciting the government of Ukraine to announce investigations that would benefit his reelection, it talks about the exchange for something of public acts of significant value in exchange for his personal political benefit, and he did it for corrupt purposes.

All of that language that is in the article is really language that one could have and I suspect did lift directly from the criminal statute. The reason, and indeed I think Representative Swalwell at one point who's a former federal prosecutor, walked through the actual elements of the federal bribery crime and said this meets them all. I think the reason they didn't sort of call the article bribery is probably several fold. One is there really is a different standard for what's impeachable and what's a criminal offense?

I think, exactly, to avoid the confusion that what this is is a criminal prosecution of the president, the drafters of the articles decided not to call it bribery, lest there be some confusion between what bribery means in the text of the Constitution, that is the impeachment clause, and what bribery means in the language of the separate federal criminal statute that has its own body of case law and so forth attached. In other words, this was supposed to be, and I think is a cleaner case. It's at the core of what the impeachment power is supposed to be about.

Even though, as Representative Swalwell said, if they took this to court if the current Department of Justice took the position that the president was indictable and they say he is not, if they took this to court, you could charge it with bribery, but impeachment is about abuse of power. It's about abuse of office and abuse of the public trust. That's why the language is written as it is here.

Brian Lehrer: Ilya, how about the other set of clips that we played? The Republican Congressman Jim Jordan saying, look, nothing really happened here. There was a phone call, yes, sure, on July 25, and there was a short hold on military aid, but that aid got released pretty quick and Zelensky never announced any investigations. So meh versus all these clips of testimony that I could have played, I used the one from Fiona Hill as an example of people saying, yes, this happened, even if it was just for that period of time.

Ilya Marritz: We had Jim Sensenbrenner, another Republican congressman, also invoking President Zelensky, who has on a couple of occasions now denied that he perceived there to be a shakedown happening here and basically saying, well, the Ukrainians say it wasn't so.

Brian Lehrer: This was a big thing in the hearing this morning. I guess not a hearing anymore. It's a debate. The Republicans accusing the Democrats of calling Zelensky a liar. Here's the guy you say is the big victim of all this, but you're calling him a liar because you say when he says he hasn't been shaken down by Trump, you don't believe him.

Ilya Marritz: I mean, and with all due respect, that really ignores some pretty stark geopolitical realities. One, President Zelensky is newly arrived in office. He's a novice president with no prior political experience to the country he's the head of. Isn't Britain or China or Saudi Arabia. It's Ukraine, which is right next to Russia and caught in a war, in an ongoing war with Russia. We, the United States are their major patron, and President Zelensky has to walk a pretty narrow line to-- Is trying to walk a narrow line to avoid angering either side in Washington.

I'd say he's doing his best, but my goodness, I would not take a denial by Zelensky as the reason that that's not happening. Jim Jordan's argument is also interesting, saying that the announcement never happened. That's true, but one of the things that we learned in the Intelligence Committee portion of this whole proceeding is that there was a plan to make an announcement of prosecutions. It was going to happen in mid-September. It was going to happen at this conference in Kyiv. I believe it was going to happen on CNN and in connection with an interview by Fareed Zakaria and that the whole thing was called off because of the whistleblower complaint.

It's true. I guess you could argue that the alleged quid pro quo here never fully went through, but my understanding is that the law says here that even an attempted quid pro quo could be impeachable. Even an attempt to try to wrest information for personal political benefit could be an abuse of power.

Brian Lehrer: Here's another interesting exchange from earlier today. Democratic Congresswoman Pramila Jayapal of Washington State challenging the Republicans who try to normalize even what the president is accused of doing.

Congresswoman Pramila Jayapal: Forget about President Trump. Will any one of my colleagues on the other side say that it is an abuse of power to condition aid, to condition aid on official acts? Forget about President Trump.

Speaker 7: We do it.

Congresswoman Pramila Jayapal: Forget about President Trump. Is any one of my colleagues willing to say that it is ever okay for a president of the United States of America to invite foreign interference in our elections? Not a single one of you has said that so far.

Brian Lehrer: Here is Republican John Ratcliffe of Texas a little later on answering that question as he sees it.

John Ratcliffe: Is it ever okay to invite a foreign government to become involved in an election involving a political opponent? The answer is yes, it better be. We do it all the time. Have you that quickly forgotten how the Trump-Russia investigation proceeded? The Obama administration asked Great Britain and Italy and Australia and other countries to assist in its investigation of a person who was a political opponent from the opposite party. I keep hearing over and over again, you can't investigate political opponents.

Brian Lehrer: Congressman John Ratcliffe of Texas. Professor Pearlstein, that exchange between the two of them, does that become a fine line like when a US administration can ask another government for help with an investigation?

Deborah Pearlstein: Right. So I think this is a really critical exchange. A couple of things to say about this. Number one, it really captures a lot of what's going on in the hearing overall. The Democrats have a very sort of simple and straightforward case to make. It turns on a few factual allegations. The president solicited foreign interference in the election. He effectively sought collusion from another government. He solicited a bribe and then he ordered the unlawful withholding of military aid to Ukraine.

The Republicans are talking about a lot of facts. They're talking about whether Biden's son was a drug dealer and they're talking about whether Zelensky knew, and they were talking about whether Ukraine eventually got the money, but none of those facts are relevant to the actual allegations in the articles of impeachment. In other words, you could grant the Republicans all of those things as true and still conclude the Democrats' allegations are exactly right. With respect to this argument about, sure, it's fine. Because he's really been the only member of Congress who's been willing to say that.

He's missing I think the critical difference there. What's going on in all of those other cases when the US Department of Justice asks our friends in Britain or our friends in other countries to help us with an ongoing criminal investigation of our own, we have launched our own criminal investigation. We, the United States and the Department of Justice. We are working through those channels, through those law enforcement, through those independent from politics law enforcement channels to enforce our own laws.

Here if what really was at the heart of the President's interest was a belief that an American had committed some sort of a crime or engaged in some sort of a corrupt act, you would have imagined that either he would have called a press conference and had his Justice Department do it, or that the Justice Department itself would have concluded that we should launch some sort investigation, but that's not what happened.

Brian Lehrer: Right. He wanted the announcements so that he could look exonerated for anything that happened in 2016 and pin Joe Biden to the mat for 2020. They would make this distinction, professor, and that is that they've really asked for the announcement of two separate investigations. One of the Bidens which is forward-looking to a potential opponent in 2020, the other of Ukraine's involvement in 2016's election, I think many Republicans would argue is really different. The Republicans make the case that there is a formal investigation by the US Justice Department taking place into whether the Russia investigation was legitimately begun.

We know from the news of this week that there is a disagreement between Inspector General Michael Horowitz whose investigation was just released and concluded that the Russia investigation was launched without a political agenda in 2016. We also know that Attorney General William Barr disagrees and has a separate investigation looking to answer the same question. The Republicans ask, isn't an attorney general investigation, that is an official US Government investigation different from asking for cooperation with Rudy Giuliani on a strictly political agenda?

Deborah Pearlstein: Well, so there were a lot of different things in there. I want to distinguish a couple of different ongoing investigations. The inspector general report we just had released a couple of days ago was about the launching of the investigation into Russia right back during the Obama administration. The inspector general concluded that there was no political bias in the launching of that investigation and that that investigation was properly predicated. There were other issues with the FBI's conduct of that investigation, but the launching of that investigation was not the problem.

In any case, that wasn't an investigation of Ukraine or the Bidens or anything having to do with those issues. It was really about Russian intervention in the election. To the extent the president and his allies have this, and the president, I think primarily just the president has this ongoing sense that maybe it was Ukraine that was really involved in the 2016 election. There has been conclusion after conclusion, including by the Republican-led Senate committee that investigated that, that it wasn't Ukraine that was interfering in the election.

There is no serious ongoing investigation of that. That didn't happen. It's not that there's a one side or the other side. We've now established through all credible channels that we can that it wasn't Ukraine who was interfering in the election. It's really the president's insistence that that's still a thing. That is why we're talking about that.

Brian Lehrer: Let's take a phone call. Kiji Oke in Brooklyn, you're on WNYC. Thank you so much for calling in. Hi.

Kiji Oke: Thank you, sir. Trump's children, why are the Democrats not linking Trump's children to all the things he has been doing?

Brian Lehrer: It's a great point, and I mean, we could say, Ilya, that it's hilarious that Donald Trump is throwing stones, living in a glass house of their kids benefiting from his political power.

Ilya Marritz: I think the apex of that was a few weeks ago when Donald Trump Jr. Went on cable TV and said, I wish my name were-- I'm paraphrasing, "I wish my name were Hunter Biden and I could go around the world and make money." Because if you follow what the Trump kids have been doing as we do on the Trump Inc. Podcast. That's what they do. That's what we have followed them do. They are trying to boost the fortunes of the Trump Organization, which runs hotels and resorts around the world.

While Donald Trump has not divested as president, it has come up a little bit in the hearings. I think the most topical way it came up was in the Marie Yovanovitch hearings where she was asked about a tweet by Donald Trump Jr. That basically said she's a terrible ambassador, she should go. She was asked about that and she said, yes, that made it really hard to do my job, absent a statement of support from the State Department, which never came. While the kids are not, you are correct caller mentioned in the articles of impeachment, there has been some scrutiny of the role that the Trump kids are playing here.

Brian Lehrer: Deborah Pearlstein, Ilya Marritz, thanks a lot.

Ilya Marritz: Thanks, Brian.

Brian Lehrer: We've been inviting listeners who think President Trump should be removed from office to write their own article of impeachment and record it on our voicemail the last few weeks. Now we'll flip the script. For those of you who think Trump should not be impeached, it's your turn. Write out a short but organized argument against removing him from office. To see how to submit it, you can go to the website impeachmentpodcast.org and click on the tab that says articles of impeachment.

Or you can just write your organized argument and call it into this voicemail line 844-745-8255 and leave a voicemail, 844-745-8255 or go to impeachmentpodcast.org. Impeachment: A Daily Podcast, is excerpted from my live daily radio show, which we also invite you to listen to. It's The Brian Lehrer Show, 10 AM to noon Eastern Time, streaming live then at wnyc.org. See you tomorrow.

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