Robert Ray on whether Nancy Pelosi's handling of the impeachment inquiry could trigger a legal challenge

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Robert Ray on whether Nancy Pelosi's handling of the impeachment inquiry could trigger a legal challenge

Former Whitewater independent counsel Robert Ray joins Mark Levin on 'Life, Liberty & Levin' to discuss House Democrats' handling of the impeachment process.

This is a rush transcript from "Life, Liberty & Levin," October 6, 2019. This copy may not be in its final form and may be updated.

MARK LEVIN, HOST: Hello America, I'm Mark Levin. This is "Life, Liberty & Levin." We have a great guest, Robert Ray. How are you, sir?

ROBERT RAY, FORMER SOUTHERN DISTRICT OF NEW YORK FEDERAL PROSECUTOR: I am.

Well, how are you?

LEVIN: Good.

RAY: Thank you for having me.

LEVIN: It's a pleasure to meet you.

RAY: It's a pleasure.

LEVIN: Former Federal prosecutor of the Southern District of New York, former Whitewater Independent Counsel following Ken Starr, and you're in private practice now. But you have a lot of litigation background at the highest levels.

RAY: I've tried a lot of cases.

LEVIN: You've tried a lot and you had to resolve the Clinton matter, ultimately.

RAY: Yes.

LEVIN: And the --

RAY: The important question about what to do once the President left office and whether to bring a criminal case against him.

LEVIN: And you decided no.

RAY: Correct.

LEVIN: But he did have to do certain things in reaction to that. In other words, he was held in contempt. He had to pay fees to Paula Jones and her counsel and things of that sort.

RAY: And most importantly, before he left office, he had to issue a statement, saying that he understood that the testimony that he provided was false.

LEVIN: And in that case, the Independent Counsel Statute, I don't want to belabor this, it was quite different than what's going on today. It had a lot of rules.

RAY: Yes.

LEVIN: And Ken Starr, in his report had found that Bill Clinton had committed felonies.

RAY: Yes.

LEVIN: You found that he had committed felonies.

RAY: Obstruction of justice and perjury.

LEVIN: And he essentially confessed to it.

RAY: Yes.

LEVIN: In order to avoid being charged once he left office?

RAY: Yes.

LEVIN: Okay. I just want to make that clear, because people are trying to make comparisons with what's taking place here. President Trump was investigated by a Special Cousel.

RAY: In other words, we found that the crimes were committed, the question was --

LEVIN: Actual crimes.

RAY: Under the principles of Federal prosecution, whether there were alternative ways to deal with the conduct short of actually bringing a criminal case against the President, ultimately, my determination was, that if the President did all the things that you just laid out, before he left office, that I would exercise my discretion and not prosecute him once he did leave office. And that was the deal.

It was overshadowed in the eyes of history, because that was concluded on the day before he left office, which was January 19th, and then the day he had left office, of course, was, if you recall, was the whole issue about the Marc Rich pardon.

LEVIN: A whole slew of pardons, because --

RAY: That was one of them. And it also pardons including people that I had prosecuted.

LEVIN: FALN?

RAY: As part of the -- first the Mike Espy investigation involving the former Secretary of Agriculture, and then later on, my time with the Whitewater investigation, which was a period of six months before I took over the office.

LEVIN: So you're a real prosecutor, or were. You were involved in the Independent Counsel Statute investigations, as well as significant investigations.

I was on the other side of that, involving Iran-Contra and I represented former Attorney General Edwin Meese.

RAY: Right.

LEVIN: So we know a little bit about these things.

RAY: Now, I used to say, you know, with regard to that I wouldn't wish an 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 a bipartisan basis, the statute was allowed to sunset and was not renewed.

LEVIN: And one of the authors of the statute, Barney Frank of Massachusetts, led the fight to get rid of it and let it lapse, because it was mutual assured destruction.

RAY: Correct. Well, it interfered with the political process.

LEVIN: It interfered with the political process. Well, let's talk about today. Let me set it up this way. We have a Speaker of the House who went to the podium and announced that the House of Representatives is going to start a formal Impeachment Inquiry. That's never been done in American history before.

RAY: You're right.

LEVIN: There's always been a vote at the House of Representatives. There was Andrew Johnson, Richard Nixon and Bill Clinton. This is the first time and the reason for that is you want the full some of the body politic to be involved, and you want representatives to be involved and you want to see if there's a stomach in the nation for this. Why didn't she do that?

RAY: I'm not sure. Because you're absolutely right, I mean, it's not an insignificant detail. You want it 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. I think as you have noted, on other occasions, it was a highly debated feature of our constitutional system about how to hold particularly a President accountable, and it requires a lot of different components, but a significant initiating feature of it, although it's nowhere you know, specifically within the Constitution.

The idea was, yes, the people's elected representatives acting as a body would make a determination to commence impeachment proceedings. And that's been the historical practice, and one that we shouldn't ignore.

LEVIN: And yet, she not only ignored it, she defied it. And so she basically has six Committee Chairmen doing all this work. They also -- what's not been reported also is they changed the rules. When you do that, the minority can't participate.

They don't get to participate in who is subpoenaed. They don't get to participate in who is deposed. They don't get to participate in any of it.

So we have Republican members of these committees who are basically sitting back and waiting to hear announcements on TV like everybody else.

RAY: And by the way, that was not the case during the Clinton impeachment.

LEVIN: Tell us.

RAY: Well, I mean, there were opportunities for the minority side to or the side on, you know, defending the President in order to weigh in to be able to participate in that process.

And I guess we've reached a point in this country where it seems as if it's just simply going to be, whoever has the majority is going to decide exclusively what to be done. There's no input whatsoever from the other party.

So you know, 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're veering off the track here, because it then looks to be just simply the will of leadership within the House of Representatives.

LEVIN: I am trying understand how this is a House Impeachment Inquiry if half the House isn't involved and the Democratic Party is driving it. And it breaks with all tradition of past presidential impeachments. It's a Democratic Party Impeachment Inquiry.

RAY: I don't think we've heard the end of that, though, because I think there will probably likely be in the coming days, weeks and months an opportunity for -- as a legal matter -- to make the point in resisting attempts.

You know, just these subpoenas, like thrown all over the place, and also possibly with regard to request a testimony to say, listen, this is not within the lawful oversight function of a particular committee. You are intending this to be within your impeachment function, but you haven't had a House vote. So therefore, it's illegitimate.

And I imagine at some point, someone may, you know, stand up and raise the flag to say, hey, hold on a second. If there's not a House vote, then it's not an appropriate or lawful inquiry.

We saw some noises with regard to that when the Democrats were trying to get access to the grand jury material that is behind the Mueller investigation.

And the case law seems quite clear that unless you ultimately can point to the action of the entire House, both with regard to separation of powers concerns, and also with regard to attempting to make a parallel argument that a judicial, or a quasi-judicial proceeding is underway, that that would not be sufficient to overcome the prescriptions that otherwise apply that prohibit release of grand jury information, you know, to third parties, which would include obviously, the Congress.

LEVIN: Let's dig down on this a little bit. Basically, what you're saying is there's separation of powers, these different branches of government.

RAY: Right.

LEVIN: One committee, one part of Congress --

RAY: It's not a branch of government.

LEVIN: It is not a branch of government, and cannot force an entire another branch of government to bend to its will.

RAY: Correct. And which, and again, that is not an insignificant detail.

That's not a detail. That's a concern that animates separation of powers, which is inherent and endemic to our constitutional structure.

LEVIN: Well, I hear these Committee Chairmen, these Democrats saying, and if you don't give us the information, that's another basis for impeachment.

RAY: That's an abuse of process argument, which of course, is the weakest basis to initiate an impeachment proceeding because of those process arguments that get to -- and address our constitutional structure. That's really not anything close to being a high crime or misdemeanor, or treason or bribery are the things that we're supposed to be focused on if we're actually conducting a lawfully constituted Impeachment Inquiry.

LEVIN: One of the other things the framers were concerned about that Nancy Pelosi never cites, Madison in particular did mention this is that the reason there's a trial in the Senate -- because back then, the Senate, obviously, was chosen by the state legislature -- is because we can't have a President who is answerable to the House.

He is answerable to the people who voted for him.

RAY: Right.

LEVIN: And if by a simple majority, the House of Representatives can continue to accuse the President of violating the Constitution, violating the -- then a President is basically the captive of the House of Representatives.

So when people say -- I'm interested in your take on this -- this is purely a political process. No, it's not. You just cited the Constitution. It doesn't say this is purely a political process. It doesn't say you can impeach for whatever you want.

When George Mason said impeachment should be for, among other things, maladministration. Madison got up and said, well, what does that mean?

That can mean anything. And then the President is captive to the House of Representatives.

RAY: The modern way of saying that is you've heard Ocasio-Cortez essentially say, well, 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, maladministration.

No, the remedy for maladministration or deviation from democratic norms is, guess what? An election. That's how we deal with who do you want your President to be? We wait until -- you wait your turn until the next time election, and the people decide who the President is.

This impeachment is not supposed to be while the President is always subject to impeachment throughout his presidential term, the framers made impeachment a very high bar on purpose.

And you are right. It is 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, right?

And it requires a two thirds vote in the Senate to remove -- an important feature, meaning it's very hard to do. What does that signal in our modern system? What that signals is that it requires bipartisan support in order to remove a President.

And not an insignificant or token amount of bipartisan support, a lot of bipartisan support.

LEVIN: And that's why she didn't have that front vote because there's no bipartisan support.

RAY: Right. And 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 it would signal that it was essentially a partisan effort. And she doesn't want people to see that, but we are where we are.

LEVIN: Now, when we come back -- we've talked about this now, how this process has been turned on its head historically, in order to drive this effort by the Democratic Party, so the Republicans are cut out at the at the front end, and they're cut out during the investigative part of it.

Now, separation of powers is being trampled upon with some of these subpoenas and so forth. But I want to ask you another part of this that I view as very unjust, a so-called whistleblower.

As of today, we don't know who it is, and we're told we should know who it is. As of today, we have their complaint. But we have the transcript, which is better than the complaint. You're a lawyer --

RAY: Well, it's better than a whistleblower, to be honest. I mean, if the principal purpose of the whistleblower was to blow the whistle on a presidential conversation, I mean, it just is commonsense that once you've got the conversation, I'm not saying you don't have need of the whistleblower, but the whistleblower is --

LEVIN: Superfluous.

RAY: It is largely superfluous.

LEVIN: When we come back, I want to pursue this because now what we're hearing is - in the media and the Democrats and some Republican says, keep the identity secret. Excuse me. This man, I want to know about this man.

This man is trying to bring down a President of the United States. He's no more noble than any other citizen. I want to pursue this with you because this is kind of a bizarre debate that's taking place.

Ladies and gentlemen, don't forget, most weeknights, you can watch me on Levin TV, Levin TV. Give us a call at 844-LEVIN-TV, 844-LEVIN-TV, or go to blazetv.com/mark; blazetv.com/mark.

And don't forget this great book, "Unfreedom of the Press." I'm going to give you this book after the show.

RAY: I would be pleased not only to receive it, but read it.

LEVIN: Thank you. "Unfreedom of the Press." We'll be right back.

(COMMERCIAL BREAK)

LEVIN: Robert Ray, there's a lot of talk. Media is pushing this.

Democrats, some Republicans, you know, the Whistleblower Statute prevents the identity of the whistleblower. Isn't there a bigger principle here than that?

RAY: Again, we've just talked about the fact that we're 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, right? We always, in this country, particularly with regard to important matters, have due process. One of the sort of pillars of our constitutional structure contained in the in the Bill of Rights.

So, you know, one of the things that comes readily to mind by any lawyer, and including someone who has been a defense lawyer is, wait a second, you know, if we're going to be in a proceeding where the consequences are potentially the 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, right?

LEVIN: In many ways, it seems choreographed to me. They're going to bring out this, I say, so-called whistleblower. They're going to bring this person out when Schiff decides they're going to bring him out.

They know more than you and I know about the information they're collecting, how they're going to spin it. The Republicans have no idea what's going on. It's being handled by one party, and one party staff.

RAY: Not only do they know about it behind the screen, that they've had a heads up even before the whistleblower complaint was filed, but if they had any doubts about that, just go back most recently, to the Kavanaugh confirmation hearings if you want an example of the Democratic Party being involved in a heads up about what was coming in order to coordinate their activities.

LEVIN: You mean, Feinstein with the letter and sitting on it?

RAY: Right. And if this is an orchestrated hit, which some people suspect that it may be, and again, I'm not leveling accusations against anybody, I just have lived long enough to know, you know, be careful. The things don't always appear, or are actually, you know, in fact, the way they appear.

Those are legitimate concerns. I think that the other side should have obviously a full and fair opportunity to explore that, even in the context of, you know, whatever we're in right now, which is, you know, an Impeachment Inquiry that's one-sided, and we will have very little role for Republicans to play in the House.

LEVIN: You read this complaint?

RAY: I have.

LEVIN: You think a C.I.A. operative with a background in Ukraine wrote that complaint by himself?

RAY: I don't. I think most people have concluded that there was help -- meaning, legal help, and my question always is, if there was legal help, it was a coordinated legal help, meaning coordinated with the Democratic Party.

LEVIN: Committee.

RAY: Correct.

LEVIN: And why wouldn't we think that? Because so much the Russia collusion, so-called investigation was coordinated with the Democratic Party, and coordinated with the top levels of the F.B.I. who were leaking?

RAY: Well, it's all too convenient also, because it wasn't that long ago that it was obvious that the Mueller investigation had wound down to a conclusion, which meant that it was dead. And then all of a sudden, this just what pops up out of the woodwork.

LEVIN: And it pops up out of the woodwork at a very strange time, doesn't it? It pops up out of the woodwork when we have a U.S. Attorney from Connecticut digging into this whole so-called Russia collusion spectacle.

RAY: Yes.

LEVIN: Any he also is digging into the Ukraine part.

LEVIN: Yes. Michael Mukasey recently has signaled -- the former Attorney General -- that that is well within his purview. And the second thing I'll add about that is that the Attorney General signaled as early as his confirmation hearing that he was concerned about this, took it seriously, intended to have a certain measure of independence involved by having a separate U.S. Attorney looking into this so there wasn't any question about, you know, conflicts or anything of that nature.

And that he fully intended to pursue it with the backing of the President of the United States who would unclassify material along the way so that both the Attorney General and John Durham, the U.S. Attorney in Connecticut had full access to all relevant information.

And by the way that was all done aboveboard, upfront and publicly disclosed. So anybody who contends that there's something improper there doesn't understand the way our process works.

The Attorney General signaled at his confirmation hearing that he was going down this road - that he took it seriously and he was going to get answers and get to the bottom of this, which I fully expect he will.

LEVIN: And yet the press acts like they are bombshells.

RAY: They are not bomb shells.

LEVIN: Australia is contacted, and it turns out Australia contacted us.

Other countries that the Attorney General is asking the President of the United States to give me some entrees so I can make contact with these governments.

RAY: And ultimately, what the President is --

LEVIN: It's benign.

RAY: Right. And, you know, you shouldn't equate asking for an investigation with oh, no, no, no, what you're really doing is you're digging dirt.

You know, look, investigations go wherever they go. If people deserve to be held to account as the result of what that investigation uncovers, including even in an election year, that's the obligation of the Department of Justice to pursue that.

I'm a great believer and defender of the Department's legitimate function and it doesn't mean that just because there are political consequences that are attached to an investigation, that you just throw up your hands and say, Well, you know, if it involves Joe Biden, of course, 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 untoward impact on the political process that's why you don't have things like October surprises, you know, immediately before an election.

And I faced this issue in connection with my, you know, end of the Whitewater investigation. I had an active investigation going on in an election year involving Hillary Clinton.

And there were, you know, issues about her running ultimately for the Senate, where she was successful in New York, where there was going to be necessarily impact as a result of the conclusion of the Whitewater investigation in her Senate campaign.

Ultimately, we chose not to prosecute in that area, but I also had a requirement to issue a final report which we had much to say about her conduct.

I just made sure that I did so with sufficient time for the electorate to absorb it. On the one hand, do nothing that would improperly impact her campaign, but on the other hand, I had an obligation to disclose the results of the investigation and the facts that we uncovered so that was delivered to the voters not after the election where it wouldn't make any difference, but before so they could evaluate that in the electoral process.

That never was an argument then, and it shouldn't be now. Oh, no, no, no, don't look into it. Boy, if you call for an investigation, you're just trying to do that because you want to damage the former Vice President's electoral prospects. That's not the issue.

LEVIN: I'll get right to that. As soon as we come back.

(COMMERCIAL BREAK)

AISHAH HASNIE, FOX NEWS CORRESPONDENT: Live from "America's News Headquarters," I'm Aishah Hasnie in New York. House Democrats ramping up their pressure on the President as news of yet another whistleblower comes to light.

The second whistleblower is said to have firsthand knowledge of President Trump's call with the Ukrainian president and lawyers representing their informant say more potential whistleblowers are waiting in the wings.

House Democrats are accusing the President of choosing the path of quote, "defiance, obstruction and cover up." Mr. Trump claiming their Impeachment Inquiry is part of an Intelligence conspiracy.

And hope for an imminent end to the General Motors strike are bleak. A Union official reporting that contract talks took a turn for the worse after the UAW rejected GM's latest offer of a new four-year agreement.

GM workers have now been walking the picket lines for 21 days.

I am Aishah Hasnie, back to LIFE, LIBERTY & LEVIN.

LEVIN: Robert Ray, let's get back to this impeachment clause because Nancy Pelosi has these little pressers and others said the President committed crimes. The President has to be held to account.

Then they cite Benjamin Franklin, you know -- keeping Republican. They cite very little else because I don't think they know what else is in the Constitution. That's just my opinion.

Has the President committed some crimes that I'm not aware of?

RAY: I mean, I think you're right. The Democrats like to talk about just abuse of power, and they want to skip over -- it's not just impeachment in a vacuum, or even abuse of power in a vacuum or abuse of the public trust.

It's only a certain category of offenses that qualify, which would be the most serious that you can imagine, right?

Treason, bribery, or other high crimes and misdemeanors. So that means that the Impeachment Clause is not divorced from the necessity to show that actually a crime was committed, and then it's only a certain category of crimes like based on historical practice, that would be sufficient to remove a President from office based upon impeachment history that we've had for whatever, 240 years.

So, you know, it's got to be both. I've always said, my shorthand way of looking at this is that well-founded articles of impeachment would have to demonstrate both that there has been the commission of treason, bribery, or other high crime and misdemeanor, as well as an abuse of public trust.

LEVIN: And they keep saying he has committed crimes, but they won't say which one, can you tell me which crimes?

RAY: Well, I mean, I've rattled them off before. We've seen -- it's not treason, right? Because last time I checked, Ukraine is an ally. So it's not that one. And anyway, the notion that it's treason is ridiculous. So that went pretty much -- that surfaced for about all of five seconds with I think Bill Weld, and then was quickly and easily dispensed with,

Then there's bribery, but the bribery statute doesn't apply to foreign government officials, at least as the bribery statute would ordinarily be construed. So it's not that one.

It's not extortion because under Supreme Court precedent, extortion would require the showing of a quid pro quo. And you and I have both looked at as have now the American people to the extent they take the trouble and time to look at it. You know, there's no showing of a quid pro quo in that conversation.

Yes, there is a discussion of a Biden investigation and yes, during the course of the conversation, foreign aid is mentioned. But the notion would be more a requirement of showing more, it's not just that the two exist in the same conversation. You have to show that one was given for the other.

In other words, one was given an exchange for that benefit. That can't be shown, so extortion is out -- oh for three, right?

And the fourth one, which the Department of Justice did consider through the Office of Legal Counsel, and the Public Integrity Section where you would think that these issues would be resolved, and again, without any interference by the Attorney General. So this whole argument about the fact that Bill Barr should have recused himself is ridiculous.

But the question was, is it -- could it be considered an illegal foreign campaign contribution? And the answer is no, because it's a little hard to see how asking for an investigation is the conference of a thing of value.

If it's not a thing of value, then it can constitute an illegal campaign contribution.

So those are the only four things that I can think of it could be. No treason, no bribery, no extortion, no illegal foreign campaign contribution, therefore, no crime.

LEVIN: Is Joe Biden above the law?

RAY: No.

LEVIN: Is his son above the law?

RAY: No.

LEVIN: Where is his son today?

RAY: I have no idea.

LEVIN: Does anybody?

RAY: Not that we've seen that's publicly reported, no.

LEVIN: If you're going to conduct a quote unquote, "Impeachment Inquiry," you're going to keep bringing up Biden's name because it's mentioned once in this transcript. Shouldn't you be subpoenaing the Biden's to find out exactly what they know and why the President United States might have at least mentioned their names in passing?

RAY: Well, it would seem to me, Mark that a legitimate defense in all of this. I mean, your view would be different, wouldn't it? As a rational ordinary American citizen, if there is ultimately found to be a basis behind a Biden or son investigation, wouldn't your view be different if -- in other words, that investigation is legitimate and lawful and uncovers potential illegal activity?

Then it doesn't look so much like a, oh, wait a minute, we're digging up dirt on Joe Biden and his son. So it would seem to me a logical defense to say, hey, wait a second, there's actually merit to this, which is why the President is pushing toward actually having somebody look at it and make an informed and intelligent judgment about whether or not any crimes were committed.

LEVIN: Didn't Joe Biden, say publicly that he was involved in the firing of the prosecutor? For whatever reason. He was bragging about it.

RAY: He was bragging about it.

LEVIN: He was bragging and didn't he confess to blackmail? I told them we're going to withhold the money if you don't fire this prosecutor.

Forget about his son or anything else.

RAY: Certainly pressure was applied. And he basically said, if you don't believe me, then pick up the phone and call the President, President Obama because I have just put a hold on the money.

LEVIN: So that's kind of what the Democrats are accusing the President of?

RAY: This one was overt. Now, the only difference that anybody can parse between those two situations is that this one they claim, oh, no, no, this is different. Because this potentially, you know, benefits the President of the United States and his electoral prospects.

Well, you know what? Any investigation at higher levels potentially has an impact on the political process. I listen to that argument in my head and all I can think about is my prior experience. Yes, that's so -- so what?

We conduct investigations, high profile investigations that potentially have impact -- collateral impact -- on a political process. That's not a reason not to investigate. It's simply by professionals, one that should be made with care.

I totally trust the Attorney General of the United States to conduct investigations in the public interest with care that would not have an adverse untoward impact on the political process. That's what we're there to do. That's equal justice under the law.

LEVIN: Ladies and gentlemen, don't forget most weeknights, you can watch me on Levin TV, Levin TV. Sign up. Go to 844-LEVIN-TV. Give us a call there, 844-LEVIN-TV or go to blazetv.com/mark, blazetv.com/mark. And don't forget, "Unfreedom of the Press." We'll be right back.

(COMMERCIAL BREAK)

LEVIN: You raise an interesting point, Robert Ray, people saying the President was interfering with election -- not people, the media and left- wingers and Democrats, the President was interfering with an election. I read it. I don't see it that way in the least. And that raises an interesting topic, too.

So we're going to impeach the President based on inferences? Based on my interpretation versus your interpretation? But it's more than that.

RAY: Well, it's not just inferences, though. You know, the contention is, you know, at the end of the day, was there any untoward investigation of Biden that was commenced?

LEVIN: No. No, no.

RAY: Did the President feel any pressure from Ukraine?

LEVIN: No.

RAY: No. Did this have any untoward impact on the political process? No.

Did the money that was promised with regard to foreign aid get released?

Yes. So what are we talking about here?

LEVIN: Nothing.

RAY: Oh, no, no, what we're talking about is what was in the President's head, what he was thinking, and by the way, it's the same argument that was made with regard to obstruction of justice in connection with the Mueller investigation.

Well, he didn't actually obstruct justice, everybody concedes. But no, no, no, we knew what he was thinking. We know what he was really trying to do.

And it was only because people around him stopped him from his instincts, and therefore, you know, we're going to find that a criminal offense was committed as the result of what the President was thinking.

Are you kidding me? I mean, that's where we've gotten.

LEVIN: But this other point that you mentioned, interfering with an election, and that's the projection that the left and the media and the Democrats are mentioning out of the transcript.

Well, Joe Biden calls the Ukrainian government, he is the point man for the Obama administration, and he tells them and he brags on video, fire the guy or you're not getting the billion dollars. And he says within six hours they fired the guy.

People are talking about he did that to protect his son. Okay. I would also argue he knew that he wanted to run for President one day, too. He is the Vice President.

RAY: Which potentially has the impact on that political process.

LEVIN: Right. What about that?

RAY: Well, it was what I was trying to say before. I mean, if the shoe is on the right foot, it comes back around. Right?

So, you know, look, I think that the best place to be on that issue is understand, just because things have an impact on the political process doesn't mean that what you're about is something improper.

We live into a political world. People used to say to me, well, you're going to conduct your investigation as Independent Counsel, 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's necessarily going to have impact.

The point is, is that we put people in these positions, including the Attorney General, a Special Counsel, an Independent Counsel, whatever it may be, because they exercise reasonable judgment, understanding that we are in a political process and the idea is to not do anything that is untoward or improper.

LEVIN: Well, this argument is a little strange, isn't it? The timing of what the Democrats are doing now is for maximum political impact. This is the first effort like this, where you have an election actually coming up where the people of the United States can make the decision, rather than the Democrats and the House.

RAY: Mark, it's not going to be too much longer when we are going to be within a year of an election. That is, by definition, being within an election year. And we're not far from -- we're already in the midst of presidential debates, and we're going to be in primaries.

LEVIN: So what's the purpose of this?

RAY: By February -- well, look at the timing, okay. The end of the Mueller investigation, this comes up. What are the Democrats concerned about? They're concerned about the release of Inspector General Horowitz's report from the Department of Justice involving the FISA Court and the origins of the of the Russia investigation and whether there was any improper interference run by President Obama's Justice Department.

And whether or not what the origins of the Steele dossier and the political implications of that and what was -- but more importantly, what was not disclosed in the FISA Court in connection with those warrant applications, which led to the beginning of what became the Mueller investigation.

That's all going to come out. The other shoe is going to drop. And there's going to be an avalanche of information that is coming.

So, you know, like a lot of things in politics, the best defense is a good offense. And that's what's happening.

I'm hopeful at the end of this that, you know, the American people would be smart enough to see where the motivations lie and make, you know, informed judgments about what's 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 origins of both the Russia and Ukraine investigations, and you know, there will be answers that will come and consequences that will flow from that.

In the political process now that these allegations with regard to the Vice President and the Vice President's son have surfaced, my guess is one way or another, we're going to get to the bottom of that as well. Even if it means getting to the bottom of it in the political process.

And all the while, we're going to suffer through it appears an impeachment proceeding in the House, which doesn't appear to have foundation under the law, meaning no treason, bribery or high crime and misdemeanor and ultimately, potentially, you know, further proceedings in the United States Senate.

LEVIN: We'll be right back.

(COMMERCIAL BREAK)

LEVIN: Let's say this gets out of the House, it goes to the Senate.

Republicans, what should they do?

RAY: Understand the most important thing is that the Senate does what a majority of the senators want to have happen in the conduct of that proceeding.

The first thing I would expect to have happen has happened during the Clinton impeachment is that there will be a motion to dismiss, which will go to the Chief Justice and ultimately likely to a majority of the body as to whether or not that motion is granted.

So it may potentially be a very short circuited --

LEVIN: They kill it right out of the box.

RAY: Well, that's certainly an option. Now, that presents some difficulty, I imagine for, you know, remember, a third of the Senate is up for reelection every two years - that may present some issues with certain senators.

But I think it might well be a well-founded motion, don't you? I mean, look, 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 and ultimately the majority will decide at any time during the process whether or not to terminate the proceedings and one way to do that would be by virtue of granting a motion to dismiss.

LEVIN: And what if they said, you know what? This was poisoned from the get go. This investigation in the House wasn't done the way it's supposed to have been done. We're not going to give our imprimatur to it here in the Senate. We don't work for Nancy Pelosi and those six chairmen.

And so it's come to the Senate, we will take it and we will end it.

RAY: There has to be process like we've talked about, and appropriate process, but not unlimited process. And if you truly believe that it is not a well anchored impeachment referral to the Senate, it seems to me that that's ripe, at least for consideration about early termination.

And one of the vehicles to do this would be to favorably consider a motion to dismiss.

LEVIN: And you're saying the Democrats tried that with Clinton in the Senate?

RAY: Well, it failed because it was, you know, it wasn't quite the same parallel. This is a situation in which the President's party has a majority in the Senate, which was not true during the Clinton impeachment.

LEVIN: And I would argue that yes, the Senate will decide, not the Chief Justice because Chief Justice Rehnquist when he had a procedural ruling to make when the Democrats said in the Clinton case, please limit this trial to the issues raised in the report and nothing beyond -- or the impeachment, I should say, the Chief Justice said, that's not my job.

This is -- you know, this isn't a court. You're in charge, the Senate, of what you want to consider and not consider. We'll be right back.

(COMMERCIAL BREAK)

LEVIN: Robert Ray, how do you think the press has covered this?

RAY: There's been a rush to judgment in part, I suppose. I mean, if you took a long view at this somewhat understandable -- you know, the benefit of being in the middle of all of this is that you understand that the Democrats I think feel a sense of urgency.

On the one hand, they, I suspect want to proceed because they're being pushed by their progressive base to actually impeach.

On the other hand, they know that if they go too quickly, the public will turn against them. So they're caught right now in an electoral calendar, we're fast approaching, being within one year of an election.

And on the other hand, they're being pushed by the progressives forward.

And the media acolytes, of course, are falling into this trap, rather too quickly, but understandably so when you see what's happening.

LEVIN: It seems to me in many respects, the media are leading the charge on this thing. They can't stop talking about impeachment. They get a little hit on their ratings. And as I've written in my book, a lot of the people in the media are of a similar mindset that when you look at the media, there's a lot of people in the media who used to serve in Democratic administrations are on the Hill and vice versa, their families do.

When you watch the Sunday shows, and you watch Republicans on there or people from the Trump administration or people who just disagree with what the Democrats are -- they are brutalized.

They are fighting with Chuck Todd. They are fighting with Jake Tapper.

They are fighting. It's not -- the things that we discussed tonight are very important in terms of process and how the Constitution works and so forth. We hear almost none of that.

RAY: What I've try to do is weigh in on both sides, meaning make myself available in these so-called liberal media. And, you know, outside of that, to be available to comment on this. It is very difficult to do when you see what's happening in this process.

So I'm one of the few people who has at least made an attempt to have a rational conversation in that debate, but it's getting -- it's going to be very difficult to continue to do that.

LEVIN: All right. We've had one.

RAY: Thank you, and a pleasure. It has been a pleasure to be with you.

LEVIN: You, too. Thank you. See you next time on "Life, Liberty & Levin."

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