continues. ♪ ♪ [background noises] hello america i'm mark live-in. this is life, liberty and levin with my good friend judge star. >> you were a judge, how long you were you a judge. >> six years. i didn't want to leave. i was asked through the attorney general and new president bush and they said we really need you to come on board so i said no twice, but the third time proved to be

fatal. i love being solicitor general which is why i left judging. >> i'm glad you're not a judge anymore. you be one of a thousand and we never hear from you. it's very important that you're here to give commentary on what's taking place in washington. i've studied this, you've lived this as an independent counsel which was quite different. you had all these rules you had to follow as a matter of federal law and congress came to its senses and said we don't like this and they let it lapse. let's talk about coming to our senses. what's going on in the house of representatives today has never taken place in american history. the manner in which the intelligence committee took over the investigation, the manner in which the investigation occurred, dumping it into the house judiciary committee, let's get testimonies from lawyers and law professors and now we have

nancy pelosi after this vote is taken, this one-sided vote is taken, who holds up the impeachments as under the house rules, the professor lawrence had hold ups you can get mcconnell to do what he can do in the senate. what do you make of all of the. >> it is a nasty lesson in how not to do impeachment. it's an example of raw power being exercised in the constitution, the sole power in the house of representatives, she seized power that i think belonged to the house, all 435, 431 a few absentees, she seized power on september 24. she unilaterally, without a debate in the house, and the house is supposed to be a deliberative body, that's really what the rules are designed for clearly, procee

procedurally decision-making. she exercised power, and i think seized the power of the house and said this is now impeachment inquiry, oh yes, eventually there was a vote, but only after the gu the die was cast and now the house intelligence committee with adam schiff and what in enormously poor judgment in the church of choice of someone to leave the impeachment inquiry. instead of someone like peter, a democrat during nixon, who was respected for his fairness, henry hyde, a republican, jerry who is not simply respected but beloved, on both sides of the aisle, very conservative republican but he believed in our culture of liberty as you well know. instead of someone like that of real dignity and stature, she chose someone who had led

this extravagant ill-founded theory of russian collusion which, by the way was step in saying were going to listen to professor tribe on how this will hold up, now she is intruding into the power of the senate. it is the senate that has the sole power to try impeachments and now she wants to, i gather, condition the sending of the articles over. she's done her work. appoint the impeachment managers and then they present the articles before the worlds greatest body, the senate. she's trying to pose this in a way that the record was inaccurate and i believe it's

woefully inadequate to convict and remove the president from office in the senate. mark: as i stand back and look at this and hear what you are saying, nancy pelosi has burned through the house tradition when it comes to impeachment. not just the presence of judgejudges. we've never seen anything like this before in american history. she burns through any notion of due process. i'm not talking criminal due process, i'm talking post- magna carta where people believe you need if fair hearing and confront your witness. she burns through that. they are in a race to get this done, we've never seen anything like this, and now she's reaching into the senate and saying, now i have some control over what you're going to do over there and if you dismiss this or act quickly, i don't like that so i'm holding back. i don't know if it were me,

i'd like your input. if i mitch mcconnell and the republicans, i have to defend the constitution. i have to defend my institution from the poison that's pouring into my institution from the house of representatives and the democrats. she can't cripple a president and blackmail a senate at the same time. i think mitch mcconnell should do something akin to say you not signing it here, it's knowledge and void. you're not finishing the process. we are part of the process. something like that, do you think? >> i like your null and void, but in essence, there's nothing for us to do. you cannot, just as we cannot, as a senate, impose conditions on what you did. we did not say before you exhibit any articles you must take the following steps, you

must call ambassador or call hunter biden, we didn't do that. we didn't interfere with you and wait called the word comedy, it sounds like comedy, comedy between the branches and she is violating the basic unreal written by essentially saying hey, this is a holdup, this is a stick up. she has no authority to do it and i'm really quite surprised that professor tribe said this is a serious possibility and apparently the democrats, i know there's 30 some democrats were urging her to do this before the vote was even taken on impeachment. let's start saying you need to have the following witnesses. to me, again it's unthinkably and unpardonable he

intrusive. it's yet another abuse of power or attempt at abuse of power. mark: let's talk about these abuse of powers and obstruction of congress. a few short answers, if you will and them will get to the bigger point. obstruction of congress? really? are we talking about the entire congress or the democrats in the house of representatives? senate is part of the congress so it's not even technically accurate to say obstruction of congress. that said, when the president challenges a subpoena for a witness or documents, a former judge and he goes to court to work out this complex dispute, separation of powers between article one and article two and they go to an article three court, how can that be obstruction of justice or obstruction of powers. >> it certainly is not obstruction of justice because

the president was essentially saying, let's go to the article three branch, that is our system and we all know that. they have chosen the house majority has chosen, well, that's gonna take too long and were in a hurry so, i don't think at all that anyone seriously suggesting it's an obstruction of justice other than rhetoric. it shouldn't be viewed as obstruction of congress either unless congress just has come again, unchecked power and a system that so rich with checks and balances as we learned in school. okay we have a disagreement here. what's the disagreement? you want the testimony of the closest advisers to the president and, as a matter of constitutional law, the president has the right to protect those conversation confidentially.

mark: why is that important. >> it's important that the supreme court recognize and in richard nixon's case recognize unanimously that in order for the president to carry on the article to function of serving as our chief magistrate, he has to be able to have the advice, and the confidence of those around him just as a judge has to be able to depend on his or her law clerks, and for that conversation between the judge in a law clerk or between nancy pelosi and her general counsel, that has to remain confidential in order for there to be a full advice to be able to say this is our best judgment, the president gets to protect those proof is present of late. mark: this isn't new, it's not a secret, separation of powers, executive privilege, conflict between the branches, it's gone on with democrats and republicans and so forth and so on.

>> it's gone on since george washington. >> george washington evoked what we call executive privileges. >> to raise it to the level of an impeachable offense, and if they get away with that, where does that leave the country? where does that leave these branches of government, the all-powerful house of representatives and a weakened president question. this is greatly concerning from a constitutional perspective, is it not. >> we used to talk about the imperial presidency but now we can talk about the imperial and imperious house of representatives. this is a chapter in our history that's proving to be a very ugly chapter in our constitutional history and so i hope cooler heads in the future will prevail and we will return to what we call constitutional order. you mentioned magna carta, what we call it is fundamental

fairness. are you preceding away that a fair-minded person who doesn't have a stake in the specific action can say yes, that was fair. i think those norms have been violated as well. i think since september 24 we've had a very ugly and unconstitutional, some would say unconstitutional, certainly as robert would say, an anti- constitutional exercise empowered by the house of representatives and specifically by speaker pelosi. mark: al question you when we return if we have an anti- constitutional act by the majority in the house pushing the result of an impeachment. apart from what nancy pelosi is pulling now, what is the obligation in response to that. does the constitution compel them to hold the trial? do they say what kind of trial must be? when we return i'd like your

input. you can watch me on levintv by giving us a call at 844 levintv. or go online to blaze or go online to blaze tv.com/mark.

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if, as you say, the impeachment process has been anti- constitutional, what are the actual obligations under the constitution of the united states senate. most men hold the trial? can they dismiss it? what are the options. >> the senate has the sole power to try impeachments and the beauty of that wonderfully olympian general languages, all right, were going to set the rules for trial, that can include a motion to dismiss, but then the principal of non- constitution attitude of well, we disagree so here i'm can imagine myself being the world's greatest deliberative body. we think what the house did was either anti- constitutional or

unconstitutional. we have a duty to treat what they did with respect regardless of what we think about the process they used, whether unfair or violation of basic norms in history and tradition, but they've done it. they have to live with that. now we have an obligation to try the case so what do we do? i think what we do is, as a matter of. [inaudible] we listen to what the house managers have to say. we give them a decent opportunity, a full and fair opportunity to present their case, essentially their argument. it's almost as if we have now moved to the stage of arguing before the jurors or the appellate judges because the witnesses have been called on the house side so it's not a perfect analogue with a judicial proceeding, jurors and the judges and so forth,.

>> let me ask you about that. the way i see this is the senates under obligation to protect the senate and uphold the institution and the constitution. if you have another body who's conducting itself in an anticonstitutional way, why would you then entertainment, doesn't not give it, is it not then the mob or the rogue behavior in the house that leaches into the united states senate, and isn't the senate in its role under our constitution as it was debated at the constitutional convention, madison was worried about house. it was to protect us from the house so they have an elaborate trial system, the other two thirds majority, just in case the house was out

of control. the house is out of control so unless the nation and the senate and the chief justice now go through this entire long process or can they say what you do is unconstitutional, were not playing along. >> i think they have the raw power to do that. it can. they can say, if you have, but this is a very if, a broad consensus that what they had done is that they had run amok, it was the runaway house violating constitutional norms, let's just say there was a suggestion that the house intelligence committee in a bipartisan fashion had decided to water board the witnesses. what would the senate do under that extreme set of circumstances?

it might very well say we are not going to give credence to torture in the house of representatives down in the dotchin. were just not going to do that. i think it has the raw power to do it. under the circumstances that were confronting here, i come back to this unwritten rule. were going to respect the result and were going to now decide how, under all the circumstances to treat it. the majority leader has said the record is very thin. i agree with that. what we heard in the debate leading up to the articles is that the record is overwhelming. it's essentially jamie, congressman from maryland who stood in during the house rules committee earlier in that preceding and said it's essentially, the record is so conclusive and uncontroverted. well, that's your judgment but that's the judgment of the prosecutor. the senate could very well say you've gotta be kidding me and

by the way, your wanting additional witnesses, i'm sorry you can't have it both ways. we call it intellectual incoherence or just your flat wrong. you're so inconsistent out of one's fattier mouth you're saying x and another side you're saying why. you can't be right both times. it's uncontroverted, it's overwhelming and we need more witnesses. mark: he really wants 44 witnesses if he can get him. he figures one will lead to the next but he left a few names out. why doesn't schumer want to hear from the whistleblower or hunter biden? and of course, will never call adam schiff but he would be the perfect witness so there certain witnesses they want and certainly don't want, but your point is, i want to make sure i'm right, you had your shot at the investigation. the senate doesn't have to fill your gaps with additional

people and if it's so overwhelming as you keep telling the american people on every form that you're in then let's make a judgment on the fact. is that what you're saying. >> that's exactly what i'm saying. you chose you wanted to hear from the investor. the deputy assistant, the secretary of state can't. do we need to hear from them again and then why do we need to hear from them again. they testified in closed hearing and in open hearing and we again have heard time and time again, it including on the floor of the house of representatives time and again we've got all the evidence we need. that's the end. we call that a confession or a statement,. [inaudible] does it suggest to you this was a result oriented and partisan, that i only want to

hear from witnesses that i think can help us? i have a message for those calling for witnesses who you think will be favorable. be careful what you ask for. witnesses frequently come with witnesses frequently come with surprises. ♪ ♪ ♪

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live from america's news headquarters a tragic start to one of the busiest travel days of the year. you are looking at a 69 car

pileup in york county virginia. numerous injuries reported there, a couple of them said to be life-threatening. the chain reaction crash happened this morning on i 64 near williamsburg. a portion of the highly remains closed tonight. investigators think fog and ice might be to blame. in las vegas investigators are looking for they because of what's been caused as one of the worst fires and that city's history. six people killed, another 13 injured. an apartment building in the downtown area where residents say there was no heat in the building so they were using their stoves to stay warm. that fire broke out just before dawn. firefighters report the building fire alarms might not have been working. now back to life, liberty, and live-in. t counsel statute, what is or were the

differences between what you did and what congress did back then and what's being done today to president trump. >> there's a reliance under the statute on an independent officer, call him special counsel to go gather the information, assess the information, to come to a judgment as to whether the statutory standard had been reached and that is the record set level of information of evidence that meant we needed to, as we unanimously did on my staff it was my ultimate judgment, that we needed to refer the language of the statute. >> so you were required under the statute, if there was a matter that reached a certain level to refer to the house. >> yes, and while the statute was not very specific at all, nor the legislative history as

to what does it mean to refer this information, we felt there needed to be, given history and tradition and common sense, a full report and we needed to prove our case and what was the case, the case was president clinton had committed perjury, had obstructed justice and ironically, in count 11 of our reports congress, we contended he abused the power of the presidency including, are you ready for this? the invocation of executive privilege in a totally frivolous way and people can go back. >> didn't they call it presidential privilege or something like that. >> a protected function. >> that's what what. >> the palace guard, which they see th the president killing someone, they can't say anything.

it's ridiculous. [inaudible] president clinton had a game plan and it was very effective. stall, four corner offense as we used to say and pound the prosecutor, turn the country against the prosecutor and against the whole process before it gets to the house impeachment. the politics were different but what the house had in contrast to hear was a very comprehensive report. it's called the starr report. they could go through it and then they could look at all the evidence was all there. we had to hire a u-haul truck to send it up. they had the opportunity to go through it and determine if were going to release this information to the public and so forth. what happened here was the cart was way before the horse. first of all there was no special counsel or investigation. there was no staff

investigation. there was no equivalent or counterpart for the senate select committee on watergate which was so effective in doing what, not in the kind of speech a finding that has gone on here for the past three months, but actually finding fax. the select committee could have been volunteer. all were very concerned about, the ukraine phone call, let's form a committee to explore this in them will determine if we can get to testimony of the people and administration, et cetera. none of that was done. let's just send it to the house intelligence committee, to adam schiff, let him use his judgment, the majority judgment and then will have some public hearings and along the way we will have a houseboat. the process was so orderly under the leadership as speaker and there was not this multiple committee staff, the

impeachment consistent with tradition and clinton was put into the hands of the house committee of the judiciary. he of course, the judiciary committee barely held any hearings other than the four professors. >> your report as you point out listed specific crimes attached to the criminal code. this is what you are required to do. this report that they laid out against the president of the united states, first of all fascinating, they finish the hearing on a thursday or friday and all the sudden 700 pages shows up so they were working very hard over the weekend apparently. but when you go through it, they throw in words like bribery, they throw those words in because they know they need to throw those words in. if they show no bribery, not under any criminal statute or english common law which is what the constitutional language is based on, nothing which i guess goes back to your point, they need more witnesses, but this

impeachment, i can't even sometimes get my hands around exactly what he's being impeached for. he didn't tell the ukrainians to interfere with an election. they can talk about whether they liked the phone call or not, they can talk about bribery all they want. when you look at the bare bones of the constitutional language in the history, we have never seen anything like this before. >> nothing close. take the abuse of power, article one and then lay that alongside the abuse of power article and the three prong mix of impeachment, a fair-minded person when he or she reads the nixon abuse of power, oh my word they say this guy's got to go. if this is true and it largely was, he's got to go. you read this and it essentially is rhetoric. it's characterization and i would say this is one person's

reading. it's a very unfair characterization of the transcript itself and then it is a particular interpretation of the facts that followed while ignoring exculpatory facts. that was one of the strange things to me about the long report very briefly. the long report, in terms of the evidence opposed to the rhetoric and history and the tribute to the founding fathers, we welcome that, we hoped this would be the new order of the ages. we want to know what the founding fathers thought. they emphasize ambassador gordon sunderland. i listen to it and i read it. his testimony at the end of the day was muffled and tended to be exculpatory. who did they largely ignore? the most respected person who testified in the whole group of witnesses and not the master kurt volker.

everyone said his integrity is impeccable. he even said, and i'm arguing the facts here it was entirely appropriate for the announcement of beginning an investigation, totally appropriate. why? because ukrainians had previously promised to investigate corruption that had not lived up to it. had not lived up to it. we'll be right back. motor? nope. not motor? it's pronounced "motaur." for those who were born to ride, there's progressive.

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get help right away if you have swelling of your face, mouth, and tongue, or trouble breathing. don't stop your asthma treatments unless your doctor tells you to. tell your doctor if you have a parasitic infection or your asthma worsens. headache and sore throat may occur. haven't you missed enough? ask an asthma specialist about fasenra. if you can't afford your medication, astrazeneca may be able to help. judge starr, what to make of the fact that not one of the so-called moderate democrats voted against impeachment? one of them split, the fellow from maine, to who had voted against in the first place, but all the rest of them down the line. do you think they will be punished for that next election? what you make of that.

>> it's like a scene from phantom of the opera masquerade. politicians know how to masquerade. what do i need to do to get elected and now i'm in washington, here's what i make of it. the dynamic had to be so powerful within that caucus, the democratic caucus, the pressure, are you on the side, you can imagine the rhetoric, the constitution? do you want this to be a monarchy? do you want to bring back king george the third? do you like this president? i can imagine the conversation got to be such that, do you want to switch parties? one of our guys is going to switch parties. vote your conscience. >> as i sit here and think about president trump and the court orders and so forth that have come through, can you think of a single federal court order that he hasn't complied with. >> no. the answer is no event can you think of a single federal

statute that he has personally violated. >> i know of none. i've not made a study of it. >> i think we would know by now. >> there is a free press. mark: kind of, but there is a 700 page report so do you know of any provision of the constitution? i'm not talking about. [inaudible] he hasn't violated the constitution. he hasn't violated federal law, he hasn't violated a court order, isn't that really what the impeachment clauses therefore? your conducting yourself in a lawless way so you need to be removed. >> i do think there is a place for abuse of power. >> but what is abuse of power. >> abuse of power is not the expansive open ended view of

one of the professors who gave a really elegant articulation to abuse of power for the president's personal interest. oh my goodness, think about. from basic political science to presidential power, the president was also the head of his political party so when the president is making decisions mindful of politics including his own reelection, he's abusing his power, it's just so expansive as to be meaningless, but the other thing, and missus the fig leaf, you kept hearing this, as the debate unfolded and got more heated, he, the president used his power in a way that compromise the national security of the united states and i viewed that as utterly extravagant but i think there's been a sense of convincing ourselves, attributing good faith to the 31 democrats who not all of them have voted but maybe it

was masquerade and they weren't so moderate after all. >> as a former prosecutor, former federal judge with many high positions, you look at a pattern of conduct, right? you can look at specific conduct but a pattern of conduct. a pattern of conduct by this house under the democrats has been to seek and destroy. they have issued scores of subpoenas of the president's private finances, tax returns, his bank records, his past businesses and have had nothing to do with their oversight function. they've issued subpoenas relating to issues that would never be raised for the president of the united states in the past then they're the ones that demand that the president turned them over. they have looked for any reason and manageable to impeach him. we did this russia collusion

thing for two years, special counsel came up with all you how you will you will you you will not disagreeing wih you. the way i characterize it, i think it's been impeachment and surgical rationale and that's what in my faith tradition i would say, it's really unpardonable it's a sin to try to impeach someone, and i want to make one other point

in terms of these very intrusive subpoenas in family finances and so forth, those are what i call bill of attainment. >> what is that where the legislature is trying to punish one person as opposed to legislating in general. >> that is one thing it's so unconstitutional that it's one of the very few foods that the founding fathers who been talking about that you can't pass an x factor law and you cannot do this to single out mark levin and here's the punishment were going to weed out to him. this sounds in the nature, a lot of the subpoenas found in the nature of this without an appropriate legislative function, and that's fancy way of saying the court may say to the house committees doing this, you have no business doing this, sort of shame on

you. >> folks, don't forget most week nights you can join me on levintv. give us a call 844 living tv to join up. or go to blaze tv.com/mark. we'll be right if you have moderate to severe psoriasis, little things can be a big deal. that's why there's otezla. otezla is not a cream. it's a pill that treats plaque psoriasis differently. with otezla, 75% clearer skin is achievable. don't use if you're allergic to otezla. it may cause severe diarrhea, nausea, or vomiting. otezla is associated with... ...an increased risk of depression. tell your doctor if you have a history of depression or suicidal thoughts or if these feelings develop. some people taking otezla reported weight loss. your doctor should monitor your weight and may stop treatment. upper respiratory tract infection and headache may occur. tell your doctor about your medicines and if you're pregnant or planning to be. otezla. show more of you.

mark: judge star, a tough question really, how do we unravel all of this? what do you think? >> you can't unravel it's done or in the process of being done so to draw from the great writer from yesteryear, william faulkner, they endured. we have to endure this and then to take a lesson from history, a link of the chords of memory, we have to remember the things have been handled much differently and much better, there are lessons from peter rodino and nixon and henry hyde so we should take a lesson from churchill. study history. i hope that's what the american people will now do. this has been a sorry episode in american history. a very nasty.

of absolute misinterpretation of facts. people could question his judgment and having that phone call, but the idea that this is impeachable is utterly extravagant. it is, as the wall street journal wrote weeks ago, defining impeachment down. we need to redefine or recapture the original meaning of impeachment. >> to think people who conduct themselves in a true radical way, do you think they will read history? are you talking about a next generation of politics. >> i'm looking to the future the house has been seized by those who were determined 19 minutes after the president's inauguration to impeach him. if i may say so, that was a very anti- unconstitutional, all thrown into one. that is abuse of power. we are going to impeach him before he's done anything, excuse me, you are using your power in a very vicious way. whatever you think of him, you don't think well of him, it is

not your business to use power in such an principled way. shame on you. >> to think this is an effort to overthrow the president? >> absolutely. because of this, the ukrainian subchapter fitting into the larger volume of we are going to impeach him, robert mueller crashed and burned, bless his heart, and honorable man in july with his testimony. i think the report itself, there will be russian collusion or if we don't have russian collusion i think this chapter disproved, the first part of his report disproved we don't have that and if it was like man of heaven, here comes ukraine. mark: we'll be right back.

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what exactly is the role of the chief justice in an impeachment trial? >> not much. the chief justice who resided over bill clinton's impeachment reported "after words", i did very little and i did very well. he had one important ruling, senator tom harkin said we are jurors, but can we consider anything outside the record here of this proceeding and the chief justice who happened

to be quite a student of history including he said you are not a juror in the criminal justice sentence. so he will preside and if there is a need for ruling which is possible, he'll rule on that, but he will stay quiet. >> basically the majority has maximum authority. >> exactly right. >> and there's not a lot the chief justice is going to do about it. >> and he certainly is not going to be pining on the evidence. he will simply allow the defense lawyers to do what they're going to do. mark: not how it should be. >> it is. the senators are sitting in ultimate judgment. we get to vote, turn the president out or reelected may get an even more powerful vote. they can remove a president of united states elected by the people. mark: and they never have and

they won't. it's been a great pleasure. thank you. see you next time on life, liberty and levin. >> good evening and welcome to the next revolution. this is the home of positive populism. pro- worker, profamily and pro- community and always pro- america. we will be looking at impeachment from every angle, congressional, legal, political, we've got it all covered. we have a fantastic lineup. lisa booth and sarah carter here for the hour. plus mike brown, one of the senators who would be a juror in any impeachment trial. florida congressman and for my money, the hero of those ridiculous hearing, matt gates and president trump senior legal advisor jenna ellis.