Law professor: Trump could also have been impeached for war crimes, assassinations and corruption

Democratic lawmakers are continuing to lay out their case for removing the president from office in the final day of opening arguments by Democrats in the historic impeachment trial of President Trump. Republicans will begin their opening arguments on Saturday. The Senate trial comes a month after the House impeached Trump for withholding congressionally approved military aid to Ukraine as part of an effort to pressure the Ukrainian president to investigate Trump’s political rival, Democratic presidential candidate Joe Biden. On Thursday, House impeachment manager Jerrold Nadler made the case that a president can be impeached for noncriminal activity. During another part of Thursday’s proceedings, House impeachment manager Congressmember Sylvia Garcia relied on polls by Fox News to make the case that President Trump decided to target Joe Biden after polls showed the former vice president could beat Trump in 2020. For more on the impeachment trial, we’re joined by Marjorie Cohn, professor emerita at Thomas Jefferson School of Law and the former president of the National Lawyers Guild. Her most recent book is “Drones and Targeted Killing: Legal, Moral, and Geopolitical Issues.”

This is a rush transcript. Copy may not be in its final form.

AMY GOODMAN: We turn now to the historic impeachment trial of President Donald J. Trump. Democratic lawmakers are continuing to lay out their case for removing the president from office. Today marks the final day of a 24-hour opening argument by the Democrats. Republicans begin their opening arguments Saturday. The Senate impeachment trial comes a month after the House impeached Trump for withholding congressionally approved military aid to Ukraine as part of an effort to pressure the Ukrainian president to investigate Trump’s political rival, Democratic presidential candidate Joe Biden. On Thursday, House impeachment manager Jerrold Nadler made the case that a president can be impeached for noncriminal activity.

REP. JERROLD NADLER: No one anticipated that a president would stoop to this misconduct, and Congress has passed no specific law to make this behavior a crime. Yet this is precisely the kind of abuse that the Framers had in mind when they wrote the impeachment clause and when they charged Congress with determining when the president’s conduct was so clearly wrong, so definitely beyond the pale, so threatening to the constitutional order as to require his removal.

AMY GOODMAN: During his presentation, Judiciary chair in the House Jerrold Nadler relied in part on past statements made by key supporters of President Trump.

REP. JERROLD NADLER: And I might say the same thing of then-House manager Lindsey Graham, who, in President Clinton’s trial, flatly rejected the notion that impeachable offenses are limited to violations of established law. Here is what he said.

REP. LINDSEY GRAHAM: What’s a high crime? How about if an important person hurt somebody of low means? It’s not very scholarly, but I think it’s the truth. I think that’s what they meant by high crimes. Doesn’t even have to be a crime.

REP. JERROLD NADLER: In Attorney General Barr’s view, as expressed about 18 months ago, presidents cannot be indicted or criminally investigated, but that’s OK, because they can be impeached. That’s the safeguard. And in an impeachment, Attorney General Barr added, the “President is answerable for any abuses of discretion” and may be held “accountable under law for his misdeeds in office.”

AMY GOODMAN: Senator Lindsey Graham reportedly left the Senate chamber shortly before Congressman Nadler played the clip of him from Bill Clinton’s impeachment trial in 1999. During another part of Thursday’s proceedings, House impeachment manager Congresswoman Sylvia Garcia relied on polls by Fox News to make the case that President Trump decided to target Joe Biden after polls showed the former vice president could beat Trump in 2020.

REP. SYLVIA GARCIA: It wasn’t until Biden began beating him in the polls that he called for the investigation. The president asked Ukraine for this investigation for one reason and one reason only: because he knew he would — it would be damaging to an opponent who was consistently beating him in the polls, and therefore it could help him get re-elected in 2020. President Trump had the motive, he had the opportunity and the means, to commit this abuse of power. … If we allow this gross abuse of power to continue, this president would have free rein — free rein — to abuse his control of U.S. foreign policy for personal interests. And so would any other future president. And then this president and all presidents become above the law.

AMY GOODMAN: House Intelligence chair, House manager Adam Schiff — he’s the lead House impeachment manager — ended the long day of oral arguments.

REP. ADAM SCHIFF: It doesn’t matter how good the Constitution is. It doesn’t matter how brilliant the Framers were. It doesn’t matter how good or bad our advocacy in this trial is. It doesn’t matter how well written the oath of impartiality is. If right doesn’t matter, we’re lost. If the truth doesn’t matter, we’re lost. The Framers couldn’t protect us from ourselves, if right and truth don’t matter. And you know that what he did was not right.

AMY GOODMAN: To talk more about the impeachment trial of President Trump, we go to San Diego, California, where we’re joined by Marjorie Cohn, professor emerita at Thomas Jefferson School of Law. She’s the former president of the National Lawyers Guild. Her most recent book, Drones and Targeted Killing: Legal, Moral, and Geopolitical Issues.

Welcome to Democracy Now!, Marjorie Cohn. Start off by assessing the Democrats’ case so far for the removal of President Trump.

MARJORIE COHN: Well, yes, Amy. The Democratic managers, the House managers, have laid out a meticulous case for abuse of power and obstruction of Congress. And many of these Republican senators who are listening, who have to sit in their chairs for eight hours a day without talking, without using cellphones, are a captive audience. And many of them have never heard this before. They didn’t follow the case that was made in the House. And this case is so powerful and so deep that Schiff said at the end — Adam Schiff said at the end, “You know he’s guilty. The question is: Will you remove him?”

Now, these senators, the Republicans, have walked in lockstep with Donald Trump. They are what Frank Rich would call Vichy Republicans, Vichy being the government in France, in Nazi-occupied France, who were doing Hitler’s bidding. They walk in lockstep with him, and there is almost no chance that they’re not going to acquit him. But what Adam Schiff was trying to get across was, they are going to be on the wrong side of history, because what Donald Trump does — and he does this consistently — is to put his own personal interest ahead of the national interest. And that’s something that they all have to grapple with.

Now, one of the things that they focused on yesterday was to refute the allegations that the Bidens did something wrong and therefore there was merit in Trump’s, basically, demand that Zelensky, the president of Ukraine, investigate what they did with the Burisma company. And what the Democrats were trying to do is to take the wind out of the sails of the Republican case by bringing it up first. And what the Republicans have said now — and this is the defense team, Donald Trump’s defense team — is that, “Well, now that they’ve opened the door, now that the managers have opened the door, we’re going to make that probably a focus” of their defense.

Now, what they did in the House was to focus mainly on process, whereas the managers, the Democrats, focused on the facts and laid out this roadmap to prove abuse of power and obstruction of Congress. What the Republicans did was to focus on process: “Donald Trump was denied due process” — which he wasn’t. He was invited to come and didn’t participate. Many process arguments. It’s unclear to me, Amy, how the Republicans, how the defense, Donald Trump’s defense, is going to take up two or three days — and they’ve said now it’s probably going to be two days — in addition to meeting the Biden — talking about the Biden issue, because they’re going to really harp on that. It’s not clear what they’re going to do. They’re going to harp on process.

But the thing that’s really important about this is not so much that — he’s not going to be found guilty. There’s no doubt about that. The American people are watching. They’re following this. And just like during Watergate, when people were riveted to the television, that is going to be reflected, I believe, in the election. The polls are already showing that people, the majority of American people, think he should be removed. A huge majority think he did something unethical. And a sizable majority think he did something illegal. So, this is really, really important, even though ultimately he won’t be removed.

AMY GOODMAN: And if he is found guilty, is he automatically removed?

MARJORIE COHN: The Constitution provides that the Senate is to determine his guilt and removal. So it’s really part of the same thing, and therefore — and this is what Adam Schiff was trying to get at — even though all or most of the Republicans know in their heart of hearts that he’s guilty, they don’t think he should be removed. And so, therefore, they will probably, in all probability, vote not guilty. But, yes, conviction means removal. That’s not going to happen.

AMY GOODMAN: You said that the senators have to sit there for eight hours. In fact, that’s not what’s happening. Is that right? I mean, to be very clear, the Republicans are controlling the frame of the TV image. It’s no longer, you know, C-SPAN on the floor of the Senate or the House, so you can’t see what’s actually happening behind the scenes. But you have Tennessee Republican Senator Blackburn. She’s got books that she’s reading. You have Thom Tillis. I believe he got up and he went into the press gallery to hang out there for a while. And, of course, Lindsey Graham, when Congressmember Nadler played the clip of him saying exactly the opposite of what he’s saying now, that it has to be a crime that President Trump has committed, according to the criminal code, saying the opposite during Clinton’s trial, he reportedly was not in the Senate chamber.

MARJORIE COHN: Yes, that’s true. There were a handful of senators who were not there, who were coming and going. But the bulk of them are listening to, if not all of it, most of it. They just can’t get away from it. They are not allowed to have cellphones, which is probably really difficult for them. And, yes, they do get up and leave and come back, and we’re not seeing that, but most of them are hearing most of this very airtight case, really.

AMY GOODMAN: Can you talk about exactly what President Trump has been impeached for, these two articles of impeachment? And if you think — I mean, just look at the title of your book, Drones and Targeted Killing: Legal, Moral, and Geopolitical Issues. You have long focused on the issue of war crimes and U.S. presidents guilty of them. The narrow framing of this impeachment?

MARJORIE COHN: Yes. Well, Nancy Pelosi resisted for many, many months mounting impeachment, an impeachment proceeding in the House. And there are many different grounds that he could have been impeached for: violation of the emoluments clause, corruption and war crimes, as you said, most recently killing Soleimani in violation of the U.N. Charter, in violation of the War Powers Resolution. But when the whistleblower complaint came out and it became so clear what Trump had done with strong-arming Zelensky to mount — not to mount investigations necessarily, but to announce that he was mounting investigations into Trump’s political rival, Joe Biden and this discredited theory that Ukraine had meddled in the 2016 election, Nancy Pelosi understood that this was an airtight case. It was narrow. It was clear. People could get their brains around it.

And so we have these two articles of impeachment. Abuse of power and quid pro quo, this for that, dirt for dollars — I think is one of the phrases that we hear — that Trump really believed that because we’ve been so good to Ukraine, Ukraine owes us. He really does not understand how foreign policy works. It’s all about making a business deal, making himself look good. So, this dirt for dollars — in other words, if Zelensky, the president of Ukraine, announced an investigation against the Bidens, that would tarnish Biden, who was leading him in the polls at that time, and help Trump’s re-election. Patently illegal, a patent abuse of power. And then the second article of impeachment is obstruction of Congress. And in an unprecedented move — no president ever before has done this, a president facing impeachment, even judges facing impeachment, haven’t totally stonewalled the House of Representatives, not producing one document in response to subpoenas, forbidding all officials of the executive branch from testifying. And this is a direct violation of the Constitution’s command that the House of Representatives shall have the sole power of impeachment. That means it’s not up to the president to decide whether he’s going to cooperate with it.

And now, of course, we move to the Senate trial. We have moved to the Senate trial. And the first day of the trial was filled with pretrial motions, 11 motions, by the House managers for the testimony of four witnesses and the production of documents from a number of government agencies. Two of those witnesses are John Bolton and Mick Mulvaney. Mick Mulvaney said very incriminating things about the president, admitting the quid pro quo. And John Bolton, who left on bad terms, left the White House on bad terms, he says he’s prepared to testify if he’s subpoenaed. Now, Trump is very, very threatened by Bolton’s testimony. And, you know, what Trump thinks comes right out in his tweets. There’s no guessing what he’s thinking. And most recently he said he doesn’t want Bolton to testify because “Bolton knows how I feel about these matters,” and it’s a national security threat. And he said, “We didn’t leave on the best of terms.” And he’s terrified about what Bolton will say.

Now, In the pretrial motions, the Republicans, to a person, walked in lockstep with Trump in tabling the whole issue of whether or not witnesses would be allowed, these four witnesses or any witnesses, and whether documents could be subpoenaed, until after six days of argument, opening arguments, by the two parties, by the House managers and by the defense, and 16 hours of questioning by the senators. It’s like in Alice in Wonderland: first the trial, then the evidence. So we have the opening statements, and then we have the questions by senators. And then, are we going to have evidence? Looks like we may not. Looks like they may prevent witnesses from testifying, although they have made noises about wanting one of the Bidens to testify, to bolster this spurious theory that they did something wrong. The Bidens have been completely exonerated by everybody who has examined what happened during this time in Ukraine, when Joe Biden was acting as vice president consistent with American policy — very, very different from what Trump is accused of.

AMY GOODMAN: Well, let me stick with the Bidens for a minute. I want to read from today’s New York Times, the front page. “Joseph R. Biden Jr. called an octogenarian voter a 'damn liar' and challenged him to a push-up contest. He dismissed a heckler as an 'idiot.' He commanded the news media to focus on President Trump instead of the overseas business dealings of his son, Hunter Biden, demanding of one reporter, 'Ask the right question!' … For Mr. Biden, the stream of questions about his son touches on a vulnerability for his candidacy and presents a fine line for him to navigate. … At issue is an unsubstantiated theory pushed by Mr. Trump that Mr. Biden took action in Ukraine as vice president in order to help his son, who at the time held a lucrative position as a board member of Burisma Holdings, a Ukrainian energy company.”

So, I mean, let’s talk about this for a minute. You know, some have speculated this is a real crisis, the impeachment trial, at this time, because, you know, four senators can’t be out on the campaign trail, the leading senators in the Senate, Senator Sanders and Senator Elizabeth Warren, so Biden is out there along with Buttigieg in Iowa at this key moment. But it could also be a liability for Biden, as he is now open to questions from both Iowans and reporters about what actually happened, not necessarily about what Vice President Biden did. But what about his son, Hunter Biden, on the board of Burisma? If you can talk about what the accusations are and also, significantly, this whole issue of reciprocal witnesses, the idea that the Republicans could call Hunter Biden to testify? Clearly, Biden is getting very nervous about this, too.

MARJORIE COHN: He is, Amy. And yes, this could cut both ways. People will be very defensive of Biden and say, you know, he’s being unfairly attacked, he’s been cleared, he didn’t do anything wrong. And on the other hand, some people will think, “Well, where there’s smoke, there’s fire.” And this doesn’t look good. Biden, Joe Biden, was vice president at the same time that Hunter Biden was on the board of Burisma, this very, very lucrative position. But Biden was vice president at the time, and he — consistent with the Obama administration’s policy, he was pressuring Ukraine to get rid of a corrupt prosecutor, because the U.S. policy was to oppose corruption in Ukraine. And so, really, in that context, Biden did not do anything wrong. However, that doesn’t mean that the fact that he is in this position — was in this position, and his son was on the board of Burisma, is going to raise some questions. Where there’s smoke, there’s fire. There will be people who will not support Biden for that reason. On the other hand, he may well benefit from being on the defensive by Donald Trump.

Now, if there are witnesses allowed at all — and I highly doubt it — I can’t imagine that the Republicans would not push to subpoena one or both of the Bidens. And then it’s going to become a mini trial, a trial within a trial, where it’s going to focus on what Biden did or didn’t do. Did he do something improper? Was Trump justified in asking Zelensky to mount an investigation of Joe Biden? And so, I think this is going to be very interesting. And certainly, the Republicans, Trump’s defense, are going to go deeply into the appearance of impropriety with Biden and his son. It remains to be seen whether one or both of the Bidens will actually be called to testify, and whether any witnesses, for that matter, will be called to testify.

AMY GOODMAN: And, very quickly, this whole issue that Republicans are raising, if the witness issue is going to be — this impeachment trial could go on for months, because it will go to court. Now, interestingly, the chief justice of the Supreme Court, John Roberts, is right in the room. He’s presiding over this trial. So, where does he weigh in on this? And is this true?

MARJORIE COHN: I don’t see this being hung up in the courts. I think it will be resolved in the Senate. Chief Justice John Roberts is in a very, very delicate position. I’m sure he would rather be anywhere than where he is, presiding over this Senate trial, which the Constitution provides for. And he really doesn’t have much power. One of the amendments that the House managers proposed in their pretrial motions was to allow Chief Justice John Roberts to determine whether any prospective witness’s testimony would be relevant to the issues. And the Republicans voted that down. Now, even if they had allowed that to happen and he had served that function, any ruling that John Roberts makes could be overruled by 51 senators. So, it’s really kind of a ceremonial role that he plays. He is not going to take an active role. He’s going to follow what Chief Justice Rehnquist did during the Clinton impeachment trial and really call balls and strikes, for the first time, which is what Roberts promised to do during his confirmation hearings as Supreme Court justice. And, of course, that is not the case at all.

AMY GOODMAN: Marjorie Cohn, I want to thank you for being with us, professor emerita at Thomas Jefferson School of Law, former president of the National Lawyers Guild, deputy secretary general of the International Association of Democratic Lawyers, member of the advisory board of Veterans for Peace. Her most recent book, Drones and Targeted Killing: Legal, Moral, and Geopolitical Issues.

When we come back, what the International Court of Justice said about the Rohingya. And then, Moms 4 Housing, a major victory in Oakland, California. Stay with us.