Transcript: Paul Rosenzweig's interview on 'The Investigation' podcast
A transcript of Rosenzweig's interview as it appears in the latest episode.
Paul Rosenzweig, former senior counsel to Kenneth Starr in the Whitewater investigation during the Clinton administration, sat down for an interview for the latest episode of “The Investigation," a new ABC News podcast. A transcript of Rosenzweig's interview as it appears in this episode of the podcast follows here:
ABC NEWS' CHRIS VLASTO: Welcome to "The investigation," I'm Chris Vlasto, senior executive producer here at ABC News. I'm also joined by my co-host, ABC News reporter Katherine Faulders, who covers the White House and Capitol Hill. It's gearing up to be a busy and historic week here in Washington as the Senate impeachment trial of President Trump commences. The president's defense team deepening their bench last week, announcing that former independent counsel Ken Starr and his deputy, Robert Ray, along with constitutional law professor Alan Dershowitz, who actually did the talk show circuit last week, making his case why he thinks this impeachment should not continue and should be dismissed. But joining us now, Paul Rosenzweig, he served as a senior counsel to Ken Starr during the Whitewater investigation. Welcome, Paul.
PAUL ROSENZWEIG: Thanks for having me.
VLASTO: Now, on the eve of a second impeachment in the last 21 years, what are your thoughts about this impeachment in a very general way?
ROSENZWEIG: Well. I think it is likely to be viewed as a watershed moment in American history. I don't say that lightly, but how we approach this each what its ultimate result is and whether or not this impeachment becomes a pure political football or can be resolved in some way that is more solemn and reflective of the seriousness of the allegations being made is something that's going to resonate in American history for the next 30 to 50 years.
VLASTO: And what do you see, though? I mean, do you see we, we actually had a conversation last week the with some of our colleagues were we where we mentioned that Nancy Pelosi and the Republicans are kind of treating this maybe perhaps like a highway bill and not, say, the solemnness of an impeachment of a president. Would you agree?
ROSENZWEIG: Well, I certainly agree with respect to the House Republicans who who have not covered themselves with glory. I think that the lack of. Even the patina of bipartisanship even as to the process involved has radically colored the way in which the American public perceives this impeachment. Perhaps it's asking too much in this time of Trump to seek a more nuanced and balanced view of what's happening. But I tend to agree that the aura around this impeachment is far more reflective of divided government than was even the impeachment of Clinton, which was pretty darn divided.
VLASTO: But that's what I was going to go to because I remember it well. I lived it every day and I always felt like there was extreme partisanship 21 years ago during Clinton. I mean, what do you see are the differences and similarities of of the past impeachment?
ROSENZWEIG: Well, I mean, there there are lots of differences and that you could name. I guess the most obvious is, is that even back then, some people crossed party lines to vote on the articles of impeachment and the Senate wound up coming together one hundred to nothing on its organizing resolution for how it would conduct the hearing and and resolve the impeachment itself. I see no prospect for that in the offing in the current Senate trial. More fundamentally, though, I think the American public is far more polarized and riven than it was in the Clinton impeachment. Maybe it's just that things like the Internet have revealed the divide more starkly than it has been in the past. But I have a sense that even back then, there were people who were dismayed and angry with the president. I remember Joe Lieberman calling for the president's censure and condemning him in no uncertain terms in a way that no Republican senator would speak about Trump today? So maybe something in American culture has changed. Maybe it's broken.
VLASTO: I remember 20 years ago and we we basically knew what the outcome was going to be then as well as we do now. And do you think that's kind of use lessening what impeachment is all about?
ROSENZWEIG: It may be that that impeachment is becoming normalized and will be too routine a part of the American political scene. I certainly hope that's not true. And to be honest with you, I don't feel as though that's what the Trump impeachment is. You might have made an argument about that with respect to Clinton. It's one I wouldn't agree with. But there was at least a reasonable case to be made by the president's defenders. At this point see President Trump's response to the impeachment as completely outside of the box of normal discussion. Right. His seven page response was not all an argument on the merits about the facts. It wasn't even an argument on the merits about the law. It reads like nothing so much as one of my friends said “the scream of a wounded animal, a raging against the tide.” I would have thought that the allegations against the president would have actually merited serious consideration by the Senate and by Republicans in the House. But apparently we are going to reduce impeachment to nothing more than I mean, I think you said it well, a partisan fight over a highway bill and it should be something more.
ABC NEWS' KATHERINE FAULDERS: I know you guys were touching on this a little bit, but what we're hearing from Republicans up here on Capitol Hill is that this is the Clinton impeachment model. We want to do it the same way. House Democrats, Democrats are saying this isn't anything like the Clinton impeachment model because we're in an unprecedented time. The administration has been blocking documents. They won't allow witnesses. Where do you come down on that particular argument?
ROSENZWEIG: I don't think that the comparison to the Clinton model is very apt at all. The Clinton impeachment came after a nine month criminal investigation at which, during which every assertion of executive privilege was eventually overcome and all of the documents questioned by the independent counsel Starr were received by him and reviewed and put into his report. Bill Clinton himself testified before the grand jury and even went so far as to give DNA evidence. So when Starr produced his report and gave it to Congress, he essentially gave them a completed package and the facts were not really terribly in dispute. Today, by contrast, the House investigation was stymied at every turn by President Trump, who has turned over almost no documentation at all, who tried to stop every witness from testifying, who did not testify himself and refused to do so, both to Muller and to the Congress. And so we are in a different place now where additional factual development is necessary. And that is and ought to be the province of the Senate. The comparison, I think, is kind of apples to clouds.
FAULDERS: So you talk about the additional factual developments here. So, again, there is obviously some witnesses. John Bolton has said that if he is subpoenaed, he'll come testify. He's a central player in this. But but the other thing that I think is going to be interesting to see play out up here is that new evidence that's coming in from that Giuliani associate Lev Parnas, who's sharing this with the House Intelligence Committee, who is releasing it on a rolling basis as they get it from him. Now, Republicans, as you know, don't want this evidence, and at least sources are indicating from the White House side of it that they will attempt to block this new evidence now. Explain to us kind of how this works. Should that evidence be included if there's more evidence that comes out during the trial? Should that be taken into account or should it just be that evidence that came out before those articles were formally transmitted from the House to the Senate side?
ROSENZWEIG: Well, that's never been the case in any other impeachment. I don't know why we would restrict ourselves to the cold record of the House now. Every other impeachment that's ever happened in history has had witnesses and new evidence. There were, I was going back and reviewing the Andrew Johnson trial from 100 years ago, and there were over a dozen fact witnesses called to testify at by the Senate. You know, plus, I mean, it just doesn't make sense logically what we're going to ignore new evidence? I what if tomorrow, you know, a smoking gun, bit of evidence that has was a tape recording of the president saying, yeah, I did it and I don't care and I'm gonna do it again no matter what. If that came out, would the Senate seriously consider ignoring it? I just don't see that. That's a nonsense argument.
VLASTO: But don't you think, though, the Democrats should of subpoenaed these people in the House and that way? Yes, it would have taken some time, but we would get to the truth then. Don't you think that was a maybe a calculated mistake?
ROSENZWEIG: I would have wanted them to try and fight the subpoenas more quickly, but the courts were not being very, very helpful. The courts have still not ruled on the on the House Ways and Means Committee's request for Trump's tax records. And in some ways, the the the courts bear as much blame for the place that we're in as anybody else. It would have been much better for the president's frivolous claims of privilege to have been overruled by the courts expeditiously. Unfortunately, you know that just didn't happen. And if you really are serious about waiting around for that, that in effect disables the house altogether because they work on a two year cycle and, you know, they started pretty promptly. Maybe they could have started in March instead of in in May with the first investigations. The whistleblower didn't come in until September and they were done by December. So that's pretty darn quick, given what they could work with. A fight over the whistleblowers allegations and the testimony of John Bolton would not have been resolved before the end of middle of this coming year on the eve of the election.
VLASTO: But let me ask you, you also brought up Andrew Johnson. And over the weekend, Alan Dershowitz was on this week and he is making the argument for Trump, although he is. He has said repeatedly, a Hillary Clinton supporter and he brought up Andrew Johnson. Let's listen to him right now.
Alan Dershowitz on ABC's "This Week": Well, it's the same position that was successfully argued by former Justice Benjamin Curtis in the trial of Andrew Johnson. Andrew Johnson was impeached in part for non-criminal conduct. And Curtis, who is the dissenting judge in the Dred Scott case and one of the most eminent jurists in American history, made the argument that has been called absurdist, namely, that when you read the text of the Constitution: bribery, treason, bribery or other high crimes and misdemeanors, other really means that crimes and misdemeanors must be of a kin- akin to treason and bribery. And he argued very successfully winning the case that you needed proof of an actual crime. It needn't be a statutory crime, but it has to be criminal behavior, criminal in nature. And the allegations in the Johnson case were much akin to the allegations here. Abusive conduct, obstructive conduct, and that lost. So I have a limited role in the case. I'm only in the case “of counsel” on the constitutional criteria for impeachment. I'm not involved in the strategic decisions about witnesses or facts. But I will make a strong argument that Justice Curtis was correct and the Congress was wrong in impeaching for these two articles.
Trump's conduct 'does not rise to the level of an impeachable offense': Dershowitz
VLASTO: And what do you make of this, Paul? His argument?
ROSENZWEIG: It's really hard to take Professor Dershowitz seriously, I'm sorry. But, what he what he's saying is essentially nonsense. If you read the record of the framing of the Constitution, the entire thrust of what the founders were opposed to was abuses of power. At the time they passed the impeachment clause, there were no federal crimes. So because that the first statute that adopted them was passed afterwards. President Nixon was, the articles of impeachment against him and involved abuses of power. Ken Starr, his co-counsel, recommended impeachment of Bill Clinton for abuses of power. Justice Curtis made that argument. There is no proof that that's why the senators voted to acquit. Indeed, if you want to be realistic about it, probably the best evidence is that one of the senators was bribed to change his vote. But let's leave that aside and give him the credit for what it was due. They may very well just thought that it was not worth disrupting the nation for that dispute. But they did not say that no abuse of power could ever be an impeachable offense. And indeed, you know, the historical record is abundantly clear that to anybody who's listening, who wants to read more about it, I recommend Frank Bowman's excellent book, “High Crimes and Misdemeanors,” that reviews the history of this, going back to the English parliamentary precedents on impeachment, none of which ever said anything like what Professor Dershowitz has said.
FAULDERS: Paul, I've been skimming through this White House trial brief that they released Monday ahead of ahead of the trial resuming. And it's it's interesting. They say there's a header that they say it would have been appropriate for President Trump to ask President Zelinsky about the Biden Burisma affair. They lay out the series of facts. But but they also in their formal trial brief, they don't really deny that the president pressured Ukraine to announce these investigations, but then also reference those witnesses in depositions who said there wasn't pressure Just this strategy, and from you working with them, you know, Ken Starr closely and knowing him, well, what do you think will be their strategy here?
ROSENZWEIG: Oh, I think their strategy is is very simple: to move as fast as they can because they know they have the votes. Avoid as much evidence as possible. Don't engage on the facts because the facts don't really support them. Give the give the senators a patina of law to hide behind, like the Dershowitz argument we were just talking about, and move as rapidly as possible to avoid as much evidence coming out as possible to avoid the embarrassment of voting to acquit on conduct that none of them would support if it had been conducted by a Democrat.
VLASTO: You know Ken Starr, why do you think Ken starts doing this?
ROSENZWEIG: I really couldn't speculate. You'd have to ask Ken that. I find I don't see his current position is consistent with the arguments he made about Clinton. So so I assume he's changed his mind.
FAULDERS: You don't think we're going to see witnesses in their right like John Bolton, even though he said he's going to come? Do you see that happening? I know stranger things have happened and you could have some of these senators vote to haul in these witnesses. But, you know, how do you see that playing out?
ROSENZWEIG: My guess is that the Republicans will hold tight, that they will vote in lockstep, that the president there will be no witnesses and the president will be acquitted. My guess is that they wind up paying a price for that in the elections. I think Senator Gardner is going to lose. Senator Collins is probably going to lose. We'll see. I mean, but, you know, that prediction is worth what you paid for it.
VLASTO: Well, listen, I think that's a perfect way to end. And that was actually very fascinating. Thank you very much.
ROSENZWEIG: My pleasure.
VLASTO: We'll be right back with our chief White House correspondent Jon Karl, and he'll tell us what he's hearing from the president and his defense team.
