look, were out of time. so much to say, thank you all, thank you for watching. mark within is up next when the next revolution w televised. >> america, this is life, liberty and levin. we have a great guest, robert gray. how are you. >> i am good. thanks for having me. >> former federal prosecutor, seventh district of new york, you are in private practice now but you have a lot of litigation back then at the highest levels. >> i've tried a lot of cases. >> you're here to resolve the clinton matter, ultimately. >> yes. the important question about what to do once once the

president left office and whether to bring a criminal case. >> you decided no not correct. >> but he had to do certain things in reaction to that. in other words he was held in contempt, he had a pay fees to paula jones and her counsel and things of that sort and most important before he left office he had to issue a statement saying that he understood the testimony he provided was false. >> in that case the independent counsel statute, it was quite different than what's going on today. it had a bout of rules. >> yes. >> can start and his report found that bill clinton had committed felony. >> yes. >> you found he had committed felony. >> obstruction of justice and perjury. >> he essentially confessed to that. >> yes in order to avoid being charged once he left office. >> yes. >> okay, i just want make that clear because people are trying to make comparisons about what's taking place with

president trump. in other words we found crimes were committed and whether there were alternative ways to deal with the conduct short of bringing a criminal case against the president. ultimately my determination was that if the president did all the things you just laid out before he left office that i would exercise my discretion and not prosecute once he did leave office. >> that was the deal. >> it was overshadowed in the eyes of history because it was concluded on the day before he left office which was january 19. there are also people we prosecuted as part of the investigation involving the former secretary of agriculture and later on in

the whitewater investigation which was a period of six months before i took over the office. >> so you're involved in the independent counsel that you investigation, those were significant investigations, i was on the other side of that and i represented former attorney general ed neese. we know a lot of what about these things, i used to say with regard to that i wouldn't wish independent counsel investigation on my worst enemy. i think a lot of people came to the same conclusion which was one of the reasons why, on the bipartisan basis it was allowed to sunset and was not renewed. >> one of the authors of the statute, "varney" frank of massachusetts led the fight to get rid of it and let it lapse because it was mutual assured destruction. >> correct. >> it interfered with the political process. >> let's talk about today. let me set it up this way. we have a speaker the house

who went to the podium when announced but the house of representatives is going to start a formal impeachment inquiry. it's never been done in america's history before. there's always been a vote in the house of representatives that was andrew johnson, richard nixon or bill clinton. this is the first time. the reason for that is you want the full senate of the body politics and you want representatives to be involved in you want to see if there's a stomach in the nation for this. what you do that. >> i'm not sure because you're absolutely right. it's not an insignificant detail, you want to be the action of the people's body, that's what the framers intended if you go back and look at the federalist papers, most prominently alexander hamilton speaks to this question and as you've noted on other occasions, it was a highly debated feature of our system on how to hold a

president accountable and it requires lot of different components but a significant initiating feature of it specifically within the constitution, the idea was yes there acting as a body and it would make it. [inaudible] >> and that's been the historical practice and one that we shouldn't ignore. >> and yet she not only ignored it, she defied it and so she basically is committee chairman doing all this work. it's not been reported to change the rules. when you do that, the minority can participate. they don't get to participate in who subpoenaed or whose deposed or in any of it. republican members of these committees are basically sitting back and waiting to hear announcements on tv like everybody else. >> and by the way that was not the case during the clinton impeachment. there were opportunities for

the minority side to decide on defending the president to be able to participate in that process. i guess we've reached a point in this country where it seems as if it's just simply going to be whoever has majority is willing to decide exclusively what's to be done. there's no input whatsoever from other parties. that's a disappointing thing, not insignificant and if again this is supposed to be the action of the people's elected representatives, it's another example of where we were veering off the track because it then looks to be the will of leadership within the house. >> i'm trying to understand how this is a house impeachment inquiry if half the houses involved in the democrat party is at driving it and it breaks with all tradition.

so the democrat party impeachment inquiry. >> adamczyk we've heard the end of that. i think there will probably likely be, in the coming days, weeks and months, and opportunity for, as a legal matter to make a point in the existing attempts, just the subpoenas thrown all over the place and possibly, not within the lawful oversight function of a particular committee, you are intending this to be with you in your impeachment function but you haven't had a houseboat therefore it's illegitimate. and imagine at some point someone may stand up and raise the flag and say hold on a second period if there's not a houseboat then it's not an appropriate or lawful inquiry. we saw some regard to that when they were trying to get access to grand jury material that is behind the mueller investigation. the case law seems straightforward unless you go to the action the house and

with regard to making a parallel work wise i judicial, that would not be sufficient to overcome those that apply or prohibit jury information that would include the congress. >> let's take down on this. you're saying their separation of power with different branches of government. one committee of one part of congress. >> is not a branch of government. >> that branch of government cannot force an entire other branch of government to then do its will. >> correct and again, that is not an insignificant detail. that's not a detail, that's a concern that animates separation of power which is inherent to our constitutional structure.

>> i hear these democrat saying if you don't give us the information that's another basis for impeachment. >> that's an abuse of process argument which is the weakest basis to initiate in impeachment proceeding because if those are to get to an address, our constitutional structure emma it's really not anything close to being a high crime or misdemeanor or treason or bribery or the things we are supposed to be focused on if were actually conducting a lawfully constitutional impeachment inquiry. >> one of the other things. [inaudible] it's particularly interesting, the reason there's a trial in the senate, the senate was chosen by the state legislature is because we can have a president who's answerable to the house. if by a simple majority the house of representatives can continue to accuse the president of violating that,

then the president is captive of the house of representatives. so when people say what's your take on this, this is truly a political process, no it's not. we just cited the constitution. it doesn't say this is purely applicable process. it doesn't say you can impeach for whatever you want. when george mason said impeachment should be with other things, madison got up and said what does that mean. that could mean anything. and the president is captive of the house of representatives. >> the other way of saying that as you've heard cortez essentially say on the basis of impeachment is that the president has deviated from democratic norms which is pretty much a modern way of saying the same thing, no the remedy for that administration or deviation from democratic norms is guess what, and election. that's how we deal with who you want your president to

be. we wait until, we wait your turn until the next election and the people decide who the president is. impeachment is not supposed to be, the presidents always subject to impeachment throughout his presidential term, the framers made impeachment a very high bar on purpose, and you're right it's not exclusively a political process, it's also a constitutional process with all kinds of protections built in. a simple majority vote in the house but of the entire house, and it requires a two thirds vote in the senate to remove. it's an important feature meaning it's very hard to do. what does that signal in our modern system it requires bipartisan support in order to remove the president. and not an insignificant or token amount of bipartisan support, a lot of bipartisan support.

>> that vote, if it were recorded would reflect that which would mean that what it would signal to the country, which i think is what the speaker is trying to avoid is that it would signal that it was essentially a partisan effort. she doesn't want people to see that. >> we've talked about this now, how this process has been treated historically. in order to drive this effort by the democrat party, the republicans are cut out at the front-end and there cut out during the investigation part of it. separation of powers is being trampled on with subpoenas and so forth. i want to ask another part of this that i view as very unjust. the so-called whistleblower, as of today we don't know who it is we probably should know who it is, as of today we have their complaint and we have the transcript which is better than the complaint.

>> it's better than a whistleblower, to be honest. if the principal purpose of the whistleblower tilt was to blow the whistle on a presidential conversation, it's just common sense that once you've got the conversation, i'm not saying you don't have need of the whistleblower, but the whistleblower is largely superfluous. when we come back i want to pursue this. now what we are hearing in the meeting with democrats and some republicans is keep the identity secret. excuse me, this man i want to know all about this man. this man is trying to bring down the president of the united states. he's no more noble than any other citizen. i want to pursue this because this is kind of a bizarre debate that's taking place. a decent element don't forget, most week nights you can watch me on levintv. give us a call 844 levintv. or go to blaze tv.com/mark and don't forget this rate book. i'm to give you this book

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by the way there's a lot of talk, the whistleblower statute prevents the identity of the whistleblower, isn't there a bigger principle than that. >> again we just talked about the fact that were in a constitutional process here, although the act of impeachment is not actually the same thing as a judicial proceeding, it shares many of the same components. we always come a particular with regard to important matters have due process on the pillars of our constitutional structure and the bill of rights. one of the things that comes readily to mind by any lawyer and including someone who's been a defense lawyer is wait a second, if were going to be in a proceeding where the consequences are potentially removal from office, the president enjoys, obviously as

he suggested, confrontation rights, and that doesn't allow for hiding behind anonymity and it certainly doesn't preclude full and extensive cross examination of the basis of the whistleblower's complaint. >> in many ways it seems choreographed to me. they bring out the so-called whistleblower, they bring this person out, they know more than you and i about the information they're collecting. the republicans have no idea what's been going on, it's been handled by one party and one party staff. not only do they know about it behind the screen, but they've had a heads up even before the whistleblower complaint was filed. >> let's just go back most recently to the kavanaugh confirmation hearings, if you want an example of the democratic party being

involved in the heads up about what was coming. [inaudible] and if this is an orchestrated hit which some people suggest it may be, i'm not leveling accusations, i've just lived long enough to know, be careful that things don't always appear were actually come in fact the way they appear those are legitimate concerns. i think the other side should have a full and fair opportunity to explore it even in the context of whatever ring right now which is an impeachment inquiry that's one-sided and there's very little role for republicans to play. >> you read this complaint. >> i have. >> to think a cia operative with a background in ukraine wrote that by himself. >> i don't and i think most people have concluded there was help, meaning legal help. my question is if there's legal help there's a coordinated legal help.

>> correct, and why would we think that because so much of the russia collusion so-called investigation was coordinated with the democrat and cora needed up the top level of the fbi. >> is all too convenient because it wasn't that long ago that it was obvious that the mueller investigation had wound down a conclusion that meant that it was dead and all the sudden this pops up out of the woodwork. >> and it pops out of the woodwork at a strange time. it pops out when the attorney from connecticut digging into this whole so-called russia collusion spectacle and he's also digging into the ukraine part. >> yes, the former attorney general said that was in his purview in the second thing all at about that is he signaled as early as is confirmation hearing that he was concerned about those, took it seriously, intended to have a certain measure of independence involved by

having a separate u.s. attorney look into it and there wasn't any question about conflict or anything of that nature and he intended to pursue it with the backing of the president with the backing. [inaudible] so that they had full access of all relevan relevant information. that was all done upfront and publicly disclosed. anybody who contends there something improper there doesn't understand the way our process works. the attorney general signaled that his confirmation hearing that he was going down this road and he took it seriously and was going to get answers and get to the bottom of this which i fully expect he will. >> the press acts like they are bombshells. >> they're not bombshells. turns out australia contacted us, other countries that the attorney general is asking the president of the united states to make contact.

>> you shouldn't equate asking for an investigation with, what you're really doing is your digging dirt. investigations go wherever they go. if people deserve to be held to account as a result of what that investigation uncovers, including even in an election year, that's the obligation of the department of justice to pursue that. a great believer and defender of the departments legitimate function, and it doesn't mean that just because there's political consequences that are attached to an investigation that you just throw up your hands and say well, if it involves joe biden we can't look into that, that would be improper because it might potentially interfere with an election. baloney. what it does mean is that you don't have any impact on the political process. that's why you don't have surprises. i had an active investigation

with the whitewater investigation involving hillary clinton in an election year. there were issues about her in the senate where there is going to be impact as a result of the conclusion with the whitewater investigation. ultimately we chose not to prosecute in that area, but i also had a requirement to issue a final report where we had much to say about her conduct. i just made sure i did so with sufficient time for the electorate to absorb it. on one hand, do nothing that would improperly impact her campaign, but on the other had an obligation to disclose the results of the investigation and the fact that we uncover so that was delivered to the voters manatt after the election but before so they could evaluate that in the electoral process. that was never an argument done and it shouldn't be now. don't look into it. if you call for investigation you're just trying to do that because you want to damage the

former vice president electoral prospect. that's not the issue. >> and will get right to that >> and will get right to that as soon as we come back. yeah, that's half the fun of a new house. seeing what people left behind in the attic. well, saving on homeowners insurance with geico's help was pretty fun too. ahhhh, it's a tiny dancer. they left a ton of stuff up here. welp, enjoy your house. nope. no thank you. geico could help you save on homeowners and renters insurance. pi've had nineteen surgeries.l geico could help you save on homeowners i'm 100% permanently disabled from the military and after i went in to aspen dental it was just like night and day. they told me they were gonna take some x-rays, she said "and it's gonna be no charge to you". i'm not used to getting that type of service. my name is robert chackley and my rank for the military was retired sergeant major.

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the white house press secretary who says president trump and turkish president erdogan spoke sunday. the white house says u.s. troops will not support or be involved in the operation. turkey has lock been threatening an attack on kurdish held regions in syria, a group backed by the u.s. for some time. former president jimmy carter reassuring everyone he's feeling fine after falling in his georgia home. both the former president and his wife say they are excited to continue their latest habitat for humanity project. levin. >> let's get back to this impeachment clause. nancy pelosi has low pressers and others said the president committed crimes.

the president has to be held to account. then they cite benjamin franklin keeping in republic and they cite very little else. if the president committed some crimes that i'm not aware of. >> i think you are right, the democrats like to talk about abuse of power and they want to skip over, it is not just impeachment of abusive power in a vacuum. or abuse of the public trust. it's only a certain category that qualifies would to be the most serious you can imagine. treason, bribery or other high crimes and misdemeanors. that means that the impeachment clause is not divorced from the necessity to show that a crime was committed. and then it's only a certain

category of crimes based on historical practice that we would be sufficient to remove the president from office based upon impeachment history that we've had for 240 years. it has got to be both. my shorthand way of looking at this, well-founded articles of impeachment would have to demonstrate that there has been the commission of treason, bribery or other crime in this demeanor. as well as an abusive crime. >> they will not tell me what crimes. >> i rattle them off before, it's not treason, last time i checked ukraine as an ally. it is not that one. treason is ridiculous. that is surface for all about five seconds. then, there is bribery but it does not apply to foreign government officials as a bribery statue would be construed. it is not that one.

so the president is torsion would require differentothe qui. there is snow showing of a quid pro quo in that conversation. yes, there is a discussion of abiding investigation and yes during the course of a conversation, foreign aid is mentioned but the notion would be a requirement of showing more. you have to show that one was given for the other and what was given in exchange for that benefit. the fourth one which is department of justice did consider through the office of legal counsel you think it would be resolved. and without any interference by

the attorney general. his argument that bill barr should've accused himself is ridiculous. the question was, could be considered an illegal foreign campaign contribution. the answer is no, it's hard to see how asking for an investigation is a conference of a thing of value. then it cannot constitute an illegal campaign contribution. those with only four things i can think of. no treason, no bribery, no extortion, no illegal campaign contribution. therefore no crime. his joe biden above law? >> no. >> is his son above the law? >> no. >> i annoyed you. >> not that we have seen publicly reported. >> if you're going to conduct an impeachment inquiry, you will keep bringing up fighting think because it is mentioned once in the transcript, should you be

submitting the vias what they know and what the president of the united states might mention their names and passing? >> it would seem a legitimate defense, your view would be different when it? as a rational ordinary american citizen if there is ultimately found to be a basis behind a biden or son investigation. what your view be different if the investigation is legitimate and uncovers potential illegal activity? it doesn't look like we're digging up dirt on joe biden and his son. it would seem a logical defense to say wait a second, it's where the president is pushing towards having somebody look at it about whether or not any crimes were

committed. >> didn't joe biden say he was involved in the prosecutor for whatever reason, he was bragging and didn't he confess to blackmail? i told him we are going to withhold the money if you don't fire the prosecutor. forget about his son or anything else. per was applied and he basically said if you don't believe me pick up the phone and call president obama because they put a hold on the money. >> that's kinda what the democrats are accusing the president of. >> file different anybody can parse between the two situations, this will they claim is different because this potentially benefits the president of the united states in his electoral prospects. >> any investigation at higher level has an impact on the political process. i listen to the argument in my head and all i can think about is the partner experience.

we conduct investigations, high-profile investigations but under potentially have on a process. it is not a reason to not investigate, invite professionals one that should be made with care. we totally trust the attorney general to conduct investigations in the public interest with care that would not have an adverse on the political process. that is equal justice under the law. >> do not forget most nights you can watch me on th lobe in tv, o to 844-levintv. give us a call there. or go to place tv.com/mark. and don't forget on freedom of the press. ♪ fact is, every insurance company hopes you drive safely. but allstate actually helps you drive safely...

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you raise an interesting point. people saying the president was interfering with a and election. i don't see that in the least. it raises an interesting question. we will impeach a president based on interest based on my interpretation in your interpretation. it is more than that. >> the contention is, at the end of the day was there any investigation abiding that was commenced? no. >> did the president feel any pressure from ukraine? no, no. >> did this have any impact on the political process? no. the money promised get released. yes. what are we talking about? >> nothing.

>> we are talking about what was in the president said, what he was thinking. it's a same argument made to obstruction of justice in connection with the mother investigation. >> he did not actually obstruct justice, but we knew what he was thinking. we knew what he was trying to do. it was only because people around him stopped him from his instincts and therefore we are going to find that a criminal offense was committed as a result of what the president was thinking. are you kidding me. that is where we have gotten. but the other point you mention interfering with an election, that's the projection of the left are mentioning out of the transcript. joe biden calls ukrainian government, use appointment and he brags on video, fire the guy or you will not get the billion dollars. and he says within six hours they fired the guy. people are saying he do that to protect his son.

i would also argue, he knew he wanted to run for president one day two. he's the vice president. >> it has the impact on that political process. >> what about that? >> i was trying to say before, if the shoe is on the right foot, it comes back around. i think the best place to be on the issue is understanding just because things have an impact on the political process does not mean what you are about as something improper. we live in a political -- people used to say, you're going to conduct your investigation as a person who is a professional career prosecutor without regard to the political process. are you kidding me. anything that i do is part of

the political process once you have a job like that. it is not necessarily going to have impact. the point is we put people in these positions including the attorney general, special counsel and independent counsel mode ever it may be because exercise reasonable judgment understanding were in a political process and the idea is to not do anything improper. >> this whole argument is a little strange. the timing of what the democrats are doing is for maximum political impact. this is the first effort like this where you have an election coming up with the people of the united states can make the decision rather than the democrats in the house. >> it will not be too much longer we will be within a year of an election. that is by definition being within an election year. and we are not far -- were already in the midst of a presidential debate and will be in primary by february.

look at the timing, the end of the mueller investigation, what are the democrats concerned about, about the release of inspector general horowitz report from the justice department regarding the visor report in the russia investigation and whether any improper interference run by president obama justice department. and whether or not the origins of the steel dossier and what was not disclosed with the fisa report and the word application which led to what became the mueller investigation. that is all going to come out. the other shoe is going to drop. there is going to be an avalanche of information that is coming. like a lot of things in politics, the best defense is a good offense and that is what is happening. i'm hopeful that the in the market people will be smart to see the motivation lying in informed judgments about what is really happening here. but one way or another, while this is going on, the investigation that is ongoing

with the u.s. attorney in connecticut will continue, the attorney general will continue his efforts to gather information about the origin of the russia and ukraine investigation and there will be answers that will come in consequences that will flow format. and now that these allegations which regard to the vice president and the vice president son has surface, one way or another we will get to the bottom of that as well. even if it means getting to the bottom in the political process. and all the while we will suffer through, it appears in impeachment proceeding in the house which does not appear to have foundation under the law meaning no treason, bribery or high crime and misdemeanor. and potentially further proceedings in the united states senate. >> we'll be right back.

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>> let's say this gets out of the house and go to the senate what should they do? >> understand the most important thing that the senate does what the majority of what the senators want to happen in the

conduct of the proceeding. the first thing has happened during the clinton impeachment. there will be a motion to dismiss. which will go to the chief justice and is likely a majority of whether or not that motion is granted. it may be short-circuited -- is certainly an option. that present difficulty for a third of the senate is up for reelection every two years. that might present issues with certain senators. and it might be a well-funded motion. and if there is not a basis either on abuse of the public trust or significantly whether there is a crime committed, i think it's a legitimate motion

to bring forward in the majority will decide at any time during the process whether or not to terminate the proceedings and one way would be by virtue of granting. the investigation is not the way it can be done. we don't work for nancy pelosi and so it is come to the senate, we will take it and we will end up. there has to be a process like we have talked about and an appropriate process. but not unlimited process. and if you truly believe it is not a well anchored impeachment referral to the senate, it seems to me that that is for consideration of our early termination. in one of the vehicles to do this would be to consider a motion to dismiss. you said they tried that with clinton in the senate? it was not quite the same parallel.

the president's party has a majority which is not true about the clinton impeachment. yes, the senate will decide, not the chief justice. this is when he had a procedural ruling to make. when the democrats had the clinton case, they said please limit the trail for the issues raised in the court and not on of the impeachment, the chief justice said, that is not my job. this is not a court. you are in charge of what you want to consider and not consider. we'll be right back. great weather, great friends. you just saved a bunch of money by switching your boat insurance to geico. it was easy. folks, can it get any better than this?

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>> how do you think the path has come to this? there has been a rush to judgment, i suppose if you take a long view at this, somewhat understandable in the benefit of being in the middle of all of us

that you understand that the democrats feel a sense of urgency and on the one hand i suspect they want to proceed because they are being pushed by their progressive base to actually impeach and on the other hand they know if they go to quickly, the public will turn against them. they are caught right now and in the electoral calendar and fast approaching being in one year of an election and on the other hand there being pushed by the progressive in the media of course are falling into this trap, rather too quickly but understandably so you see what is happening. >> is seems that the media is leading the charge on this. they get a little hit on the readings and as i read in my book a lot of people in the

media have similar mindsets that when you look at the media, there's a lot of people in the media who used to serve in the administration and vice versa, when you watch the sunday shows and you want republicans on there and people from the trust administration or people who disagree with the democrats, their brutalized infighting, the things that we discussed tonight are very important in terms of process and how the constitution works and so on. you hear almost none of that. what i tried to do, i weigh in on both sides and make myself available in the so-called liberal media and outside of

that to be available to comment on this. it's very difficult to do when you see what is happening in this process. i'm one of the few people who has made an attempt to have a rational conversation in that debate. it is going to be very difficult to continue to do that. >> it's been a pleasure to be with you. see you next time on