body would get the call all the shots. announcer: explore our nation's cast on american history tv, every weekend on c-span 3. host: we continue the conversation on impeachment and the whistleblower complaint against president trump. -- paul the senior counsel during the whitewater investigation. .ou worked for ken starr do you see any legal similarities between that investigation and the investigation against president trump? as it is being conducted by the intelligence committee? a differentnk it is kettle of fish that present its own level of issues. at the highest level, the legal question of what constitutes a high crime and misdemeanor and what are congress' investigative

authorities, that does not change. but there is a significant difference in the nature of two levels ats on least. the first is that the congress in the clinton investigation really did not conduct any independent investigation of its own. it relied almost exclusively on the input of the independent counsel, ken starr. that was not necessarily inappropriate. he had spent over a year investigating the lewin ski y matter. the lewinsk by contrast, there has not been a real outside investigation at least of the trump-ukraine allegations, so that gives congress a real job to do in uncovering what they think might or might not turn out to be impeachable. host: let me ask about the

whistleblower himself. a piece in "the atlantic ran over the weekend -- "the atlantic" ran over the weekend. small details that help to confirm his credibility. explain that. well, in evaluating a witness, you want to understand other or not what they are telling you it is true, whether or not they are biased, whether their recollection is good. one of the best ways in my experience of doing that is for the witness to tell you something you do not know, and no external way of knowing, and then go out and confirm it. that is like when the murderer suspect tells you i was wearing blue shoes at the time and nobody has seen the video that shows lou shoes. case, whenewinsky's she said she was in the white

house with president clinton and their encounter was interrupted when he took a phone call from somebody. she could not remember his name exactly, but she said it was something like -- then we got the records of the white house phone calls, and at the moment she said she was there, the president had taken a call from a man named alfonso fanjul. democratic donor, a sugar manufacturer in florida. she could not reasonably have known other than the fact that she was there, and that proved her information was valid. whistleblower,he his complaint described the nature of the president's call with the president of ukraine, including many of the details and describe the fact that the memorandum of the conversation had been moved from the regular

white house server to a code word protected server, and he described those things before they became publicly known. again, just like the lewinsk it in advance of it becoming public, demonstrating that he had inside knowledge. host: he also in that complaint offered a statement of information that he is reporting secondhand, or he is not the original source of that information. do you find that credible? guest: most of our lives are built on secondhand information. if i tell you that the nets won nats wont -- that the in theght and the guy stands told me he had a single, that tells you that the single was hit last night. we accept that. we do not accept it in courts of law because a defendant is entitled to confront his accuser when he is charged with a crime.

but we do accept it to start an investigation, to issue a search warrant, to develop a grounds for opening an impeachment inquiry. so the idea that the secondhand information is somehow not to be trusted is just a false construct. host: paul rosenzweig is with us, he was on the whitewater investigation. we are talking about the impeachment inquiry and the complaint -- the whistleblower complaint against president trump. our republican line is 202-748-8001. democrats, 202-748-8000. other calls, 202-748-8002. caller: i had a couple questions regarding the eagle case aspects of this. the first one being, -- the legal case aspects of this. the first one being, i understand there can be

ambiguity in the ordering of the statement and the transcript and that occurred, so it might be difficult to pin down some legal aspects of wrongdoing there. i know the intelligence agencies are governed by various things about collection on u.s. citizens. i was wondering first, if the president is governed by the sum of those same restrictions, and if there is any lawbreaking there with a foreign nation to do that investigation. and second, if it goes beyond investigation, is there a possibility of any witness harassment with the points that have been made toward the whistleblower? guest: let me take the second of those first. we have a whistleblower protection act that is explicitly intended to protect whistleblowers from harassment and from discovering confidentiality. so when the president says he is trying to discover the identity of the whistleblower, he is actually contravening the legal

protections that the law has granted to whistleblowers it -- to whistleblowers. and assuredly, when his supporters offer a bounty to do so, they are trying to uncover theidentity of whistleblower. the precise reason is we want to encourage whistleblowers to come forward to report about things they think might be going wrong in our government, and we want to afford them the mantle of anonymity and obscurity going forward. as for the first question, asking a foreign government to spy on american citizens, as seems to have been the case here, and whether or not that violates u.s. law -- there is a good argument it does, but that is quite unclear because it has never actually been tested in court or anything. that where the intelligence community itself to be responsible for listening to

the communications of a u.s. citizen like hunter biden, that would be a violation of the -- against intelligence collection against a person. so the argument, the president cannot ask a foreign government to do indirectly. host: according to the times of called donald trump boris johnson to -- he personally contacted boris johnson to ask for help if he tried to discredit the mother investigation that the mueller investigation. guest: as well as in australia. when the president asked attorney general barr to look into it, he said i hope that barr will look into the ukraine, look at australia. it is not terribly surprising that he would call the leaders of those nations, get them to as ain what he perceives

legitimate inquiry into the charges against him. the real ground of the problem is that there is not much ground for the investigation. host: let's hear from sean and columbus, ohio, on the independent line. caller: gentlemen, how are we doing today? my biggest problem i think is with the checks and balances that were set up hundreds of years ago. there is kind of a loophole when it comes to the president. in past years, the president was only seen as a puppet, did not have much power, but i think what we have learned with trump, the president has a lot of power , between the doj, irs, all the little different divisions he gets to a point to kind of said his narrative. so when the dni it's the report saying the whistleblower did this, why did he take that report to the llc, the white house counsel?

guest: those are great questions. you point out something that the incidence of the last couple of years have truly demonstrated, which is that the framers thought of congress as a strong and vibrant check on executive authority. back when they were writing up the constitution, james madison was quite confident and assured everybody not to worry, we would never have a bad man as president, and if we did, congress would assuredly use its impeachment authority and oversight authority to check that power. the problem is that congress seems to have stepped back from its investigative authority for a number of years, and the president has figured out that in fact congress' enforcement authority is really a bit of a paper tiger. they do not have the power of arrest. they have to go to court to get documents. they are not as strong as

madison thought they were, at least not today. as for the dni, he explained that he was looking to the llc for an opinion about executive privilege. i do not find that persuasive, but he was in a really difficult position. a subordinate official with information about an urgent concern relating to his boss, i sort of feel for him a little bit. he is not even the full-time dni, he is the acting director of national intelligence. as he said in his testimony, he is still using his gps to figure out where the office is. acting dni maguire a bit of a break on this. host: let's hear from jane in olympia, washington, on the republican line. caller: i am concerned that this is a set up by democrats to distract from criminal activity which is about to be exposed by

thearr and durham regarding hillary clinton paying for the dossier. thisactually questioning whole thing, and i am an independent voter. i voted for obama. host: she is talking about the investigation going on, the origins of the mueller investigation. do you know anything about that? guest: i know what has been in the public. i know that trump's former advisor says the theory had been completely debunked. it was fully laid out in the mueller report, an explanation for the steel dossier. i also know that the steel almost no role in the opening of the investigation of russian influence because that began before the dossier was even created. i understand the caller's concerns because i am sure that that is chamber of news

yelling this fact into the ecosphere echoes in her world, but the truth of the matter is that there seems to be almost no credible evidence that this is the case. host: let me ask you about your former colleague, ken starr. the headline in "the examiner" -- "trump showed poor judgment but that is not a crime." he was on fox last week and i want to give you a chance to hear that and let you respond. >> i say that because impeachment is doomed to fail given what we know. obviously the facts are flowing in. in the history of the country, obviously presidential efforts to impeach do not work. that we know. but gets what -- but guess what, of the 62 impeachment resultedgs, eight have in convictions. this is not going to result in a

conviction, so why are we on the impeachment train? we should be on the oversight calling it --t and quit calling it impeachment, especially since there is something profoundly wrong under our constitution to call it impeachment, that we are on a formal impeachment inquiry. no, with all due respect, until the house of representatives vote as a body to conduct an impeachment inquiry or investigation, there is simply action by committee that has been sanctioned by the speaker. it sounds like a structural point, but we live by structure and a constitutional -- iswhat they are doing now leaving it to a half a dozen committees, largely the judiciary committee, to get the ball rolling. to get it toange move toward what you say?

>> if there is any court fight, a federal judge or a court of appeals, the supreme court knows, this is the action of the people's house, not of the speaker saying i hereby smile on what these different oversight committees are doing. it would also have the practical effect of centralizing the inquiry as opposed to this balkanized approach that seems to be getting underway in the house judiciary committee come as we saw, in the clinton inquiry years ago. host: that is former whitewater counsel ken starr. paul rosenzweig, your thoughts? guest: well, it is very difficult for me because -- and he is an old and dear friend. i worked for him. i think he was deeply and unfairly maligned by president clinton at the time. i continue to believe that the actions he took, that i took while working with him in investigating president clinton were proper and appropriate.

that having been said, most of what he just said is unfortunately not really persuasive, and in some cases wrong. for example, the house rules do not require a vote of impeachment. so his structural point is in error. the house has in fact proceeded without a formal vote of impeachment. it is many of the judges that have been impeached. he is correct that there have been 63 impeachments and only eight impeachment -- eight convictions per that is because many resign. that is a meeting -- eight convictions. that is because many resign. most notably, if the standard is that there shouldn't -- that you shouldn't proceed with an impeachment inquiry unless you are certain there could be a conviction, that calls into question why he and i recommended impeachment in the

instance of bill clinton, since there was almost no likelihood that there would be a conviction ? quite to the contrary, i think impeachment by itself is a useful function. by putting on the record the view of presidential conduct, and the pluses or minuses of conviction in the end, which, by the way, i don't think president trump's acquittal is a foregone conclusion. it depends very much on what has shown up ahead of time. that is useful. inonderful piece appeared "the atlantic" three month ago about how the process of impeachment is itself a performance of american values in the public severe. -- in the public sphere. host: let's hear from jeff, republicans line. caller: thanks a lot for c-span

p thanks a lot for your response to what ken starr had to say. that was very informative. i completely agree it is not very convincing unless you say how many people are still sticking around after impeachment, not how many were actually impeached. my original question was that you can say what the criteria is for high crimes and misdemeanors. my understanding is that is different than committing a crime. whether that is well-established, and whether you are willing to say whether you think at least based on the evidence now whether what he has done could be considered that. another quick question is, whether giuliani and trump will be able to hide under attorney-client privilege. thanks very much. host: thanks, jeff. guest: those are great questions. i will take them in order. high crimes and misdemeanors is a standard that the u.s. constitution derives from british practice.

so it goes back a couple hundred years. if you want to dive into it, a law professor out of missouri 250-300-pagelong book that will tell you what you need to know about it. the bottom line is this. there are some crimes that are not impeachable. ink of a drunk driving infants -- a drunk driving offense. nobody would take a president out because of that. there are crimes that are impeachable, obstruction of justice, perjury. then there are also crimes that take on a more abusive authority, political character to it. is themple, there example that george mason, the debates onted during the constitution. a president who misused his pardon of power to pardon all his friends and protect himself from criminal prosecution. nobody would say that issuing ae problem -- the pardon was

crime, but mason said it was an abusive authority unless a high crime or misdemeanor. gerald ford said a high crime or misdemeanor is whatever the house committee says it is, but that is probably a little too strong. on the attorney general -- on the attorney-client privilege issue, through the giuliani, there are several aspects to this. the first is that giuliani said on tv that when he went to the ukraine, he was not acting as a lawyer, he was acting as an advocate for the president's policy. to even begin to consider an attorney-client privilege, it is not just that you were talking to an attorney. i am an attorney right now, in our discussion is not under the attorney-client privilege because i am not here as your attorney, bill. that is the first piece. the second piece is that the attorney-client privilege only

protects the confidential communications from your client. so if bill were my client and he told me a secret, i could not be forced to disclose it outside. it is not attorney-client privilege if i interact with a ukrainian foreign national and tell him what the president said or tell him that i am investigating hunter biden or anything like that. the third piece of this, which is appropriate, is that if the advice from your client is to help the client commit a climb -- a crime in the future, there is something called the crime exception which eviscerates the attorney-client privilege, which means you cannot use an attorney 's advice to commit a crime. on at least three grounds, it is quite unlikely that giuliani has a claim. that having been said, he is going to assert it. the house will have to go to court to try and get him to testify. s expedite the court

it, giuliani will drag out his refusal to appear for weeks, months, once again demonstrating that congress' enforcement authority has unfortunately become a bit toothless. host: from new jersey, independent line. caller: good morning. -- sideways.s with adam schiff, he sits up there and is in charge of this impeachment that really is not an impeachment yet. and he makes a parody. is this serious? you talk about echo chambers. i would guess that your echo chamber is different than mine. -- what if his echoes go across the media and people believe what he said, which was not truthful at all? you were counseled to what thank you.-

host: are you talking about our guest, paul rosenzweig? was partwas not -- i of the council group that investigated bill linton -- bill clinton under the independent counsel law, which is now no longer law in the united states. host: how long did you serve in the whitewater investigation? guest: i started in 1997 before monica lewinsky was even a dream in people's minds, and i finished -- i left the office in 2000. i continued outside as a consultant to help write the final reports, the last bit of work i did for the independent counsel's office was probably in 2001 or 2002. called to you ever testify on impeachment matters? guest: know, the only one called

to testify was ken starr. host: republican line, go ahead. cannot hear you. i think you are listening to the radio. it is tough to hear your cell phone there. we have to let you go. sorry about that. new orleans, derek, on our democrats line. caller: hi there. relates to the impeachment inquiry, i am wondering if you think that the senate will ofually act on their part impeachment if the house does make a decision, or whatever they do fine. right now there is a lot of discussion about that. i wonder if you think the senate will take their step if it comes to it. guest: that is a really good question. there has been some speculation that the senate would ignore the impeachment. majority leader mcconnell spoke to that a couple of days ago and he said very clearly that he

would follow the rules and bring the impeachment up before the senate. it is not a constitutional requirement, but there is a senate rules requirement that says that is happening and he will follow those rules. this is where your point becomes a little more salient peer he said how long we stay on the matter, how long we spend discussing it, that is a different question. he would bring it up, but he may very well try and spend only a little bit of time and deal with it summarily. so the real question going forward for the senate is going to be whether or not he has the vote to actually short-circuit the impeachment inquiry once it is started, and that means asking questions like will moderate republicans like susan collins, who is up for reelection, vote to short-circuit the impeachment inquiry. will people who have said that they are troubled like mitt romney do that?

i am sort of guessing, and this is just a total gas -- a total gas, i'm guessing they won't feel comfortable with too short a process. when andrew johnson was impeached, they spent two months on his trial. were not going to get two months, but it is possible we won't get two minutes either. host: they could choose to block it or table it? guest: once mcconnell brings it up, his motion could be to summarily dispose of it and acquit the president. i he gets 51 votes for that, imagine he can achieve that by overruling the parliamentarian and changing the rules just as they did with judges and the nuclear option a couple years ago. it.'s got a raw sense to

he's going to be making a much more nuanced political judgment when the time, spaced on whatever evidence there is that comes forth. host: 15 more minutes with our guest. served in theg clinton impeachment inquiry. you are currently national security and senior fellow at the art street institute. guest: we are a relatively new think tank. we call ourselves a center-right think tank. markets,ne is free real solutions. we like free markets to work but when they don't we like real solutions to make them work better.

host: secretary mike pompeo confirming today he was on the call between president trump and the ukrainian president. the secretary of state is in italy. the news conference was asking why he is preventing some of the depositions of state department employees. here is his response. [video clip] >> was i on the phone call? i know precisely what the american policy is with respect to the ukraine. it has been remarkably consistent. we will continue to drive those set of outcomes. were focusedr team on, taking down the threat that russia poses in the ukraine, it was about helping the ukrainians corruption with

outside the government and to help this new government build a successful and thriving economy. it is what state department officials that i have had the privilege to lead have engaged in as well and will continue to do even while this noise is going on. what doul rosenzweig, you think of the secretary's stance on this issue? guest: his letter to congress that he would not let people appear because congress was bullying them. i have lots of witnesses who are demanded to testify in front of congress and grand juries and i 'm going to use that excuse fro m now on. you can't call my witness because it is bullying. the executive branch has a way to stop inquiry. it is executive privilege. he just said i don't want to play. congress' enforcement authority

is weak so maybe he will get away with it. i have heard at least two of the people he wants to stop from appearing have agreed to appear anyway. since they no longer work for him, he can't stop them. let's hear from robert on the democrats line. trump ishat if donald the whistleblower and he already because he was getting cold feet on the election? guest: that is an interesting theory. i don't know who the fall guy would be. host: by all accounts it does seem to be that there is an actual person. they were perhaps a cia employee. guest: i think it is quite clearly a real person. i think that person has sought anonymity and i would want to

respect it until he or she decides to forgo it. host: how does the committee ensure privacy? guest: it's going to be very hard. evidencecan take behind closed doors. they can limit the number of people who are exposed to the witness. they can make sure that almost no staffers know who it is, but most, if not all, of the congressman are going to know. fact,k congress knows the the whole world knows the fact sometime later. aller: i just want to make statement and i will ask your guest a question. my first statement is as an independent i recognize that the two-party system, the duopoly,

is adversely affecting our country. it's like the bloods and the k cryps. you are essentially pitting people against one another. you that i voted for trump and i am voting for him again in 2020. first anduest, foremost, biden is on record for withholding u.s. aid to ukraine in order to get a prosecutor fired that was investigating his son. we have heard that the ukrainians investigated this. ukrainian an ethical government conduct the investigation and let's conduct one in the u.s. if you want to go forward with investigating trump, go for it, but let's investigate biden as

well. there was some monetary gain. i don't know how you can sit here and say. the narrative you put forward is so false and its premise and it is so dam it -- dangerous to this country because you frame it in a way like we are digging up dirt on biden, but we need to impeach trump because he broke the law or violated the constitution. that's the narrative. they're all dirty. they're all corrupt. let's go after them regardless of what party they are affiliated with. parties, the on founders thought that there wouldn't be political parties. they were wrong and within 10 years of the framing of the constitution. the federalists and the democratic republicans. piece for meg a to fix. on the biden issue, i regret to

say that the viewer is factually wrong. it is the case that then vice president biden threatened to the threatid, but was because the prosecutors were inadequately investigating corruption, not because they were doing too much, and that particular prosecutor was not investigating hunter biden's company at all. that was the problem. the reality is that the vice president was trying to do more to root out corruption and not less. i know that is an uncomfortable fact and that listening to that makes the viewer probably unhappy, but its the truth. more to the point, even if all of that were true, it would be utterly inappropriate for the president to withhold military aid to the ukraine in order to get them to reopen the investigation of his political opponent, irrespective of

whether or not his political opponent has done something wrong. randy ins text from wisconsin says if mcconnell lets the impeachment go to a vote, won't that put republicans on the spot? i don't think they want that. guest: that's exactly right and the smart money is that mr. mcconnell will try to avoid that if he can. there are a lot of republicans who will have to own this vote at some point in time. some of them are up for reelection in 2020. some are in states where they might or might not win. i have heard number of democratic operatives say they think it might be a lot closer than the president thinks, the vote count. there is nobody protecting that the president will lose. it's easy to be on the winning side of a 51-49 partisan vote to reject the allegat