Impeachment Trial Update - January 22, 2020



Speaker 1: The following podcast is a presentation of the Washington College of Law at American University. Any unauthorized use or distribution is strictly prohibited.

Fernando Laguarda: Welcome everybody. This is our first conversation with professor Kim [Wehle 00:00:14] who is a visiting fellow in law and government. I'm Fernando [Laguarda 00:00:18] , the director of the program and we're delighted to be able to have this chat to learn more about the impeachment trial currently taking place in the United States Senate. President Trump, professor Wehle is not only an expert in constitutional law and in separation of powers, and also a commentator on CBS, on NPR, a prolific writer. Just now talking to her about various parts of this whole process. I'm learning about pieces that she has written and arguments that she's made in publications. So we'll get to all of that as well as your questions and then hopefully have a forum for posting questions so we can continue the conversation. So welcome.

Kim Wehle: Thank you. Thank you. Happy to be here.

Fernando Laguarda: I have a bunch of questions that I wanted to talk to you about and we were talking a little bit beforehand as well, but maybe we can start just by getting your sense as to what's happened so far. We're on day two of the official proceedings underway in the Senate, so we had a whole day yesterday and now today we're actually still watching the arguments being made by the house members who are prosecuting the case. What happened yesterday? What was your takeaway from yesterday?

Kim Wehle:    So yesterday was the day that the rules governing the trial were discussed and passed ultimately in the wee hours of the morning, at two in the morning. So the original Senate rules for presidential impeachments go back to Andrew Johnson. They were updated for Bill Clinton and Mitch McConnell, Senate majority leader Mitch McConnell proposed a resolution that piggybacked to a large degree, but not entirely on the Clinton rules for purposes of this trial. The big difference is in Clinton, there was a independent counsel, Ken Starr. I worked on that investigation with him pursuant to a statute that has since lapsed. But of course Ken Starr had a grand jury and four years of FBI agents, a team of prosecutors, and grand jury subpoena power, and a court backing that up to develop a massive factual record. And that's what went to trial for Bill Clinton. For this case, there was no prosecutor, Bill Barr did not appoint a special counsel, like a former deputy attorney general Rod Rosenstein did with respect to the Russia question. Appointed Robert Mueller.

Kim Wehle:  In fact, the White House, as is publicly known, initially did not pass on or directed that the whistleblower complaint, not even go to Congress. So I think the expectation was this wasn't going to get any scrutiny. So the fact gathering, the spadework had to happen in the house proceedings and or here in the Senate proceedings. So the big issue yesterday was, will there be additional fact development through new witnesses in advance of trial through depositions, which are allowed under the rules. Democrats made I think 11 amendments to the resolution to try to get a consensus or basically four Republican Senators to join with them to have more factual development. And actual witnesses in the trial and there were all basically tabled, meaning they lost.

Kim Wehle: The only thing that did shift is, understanding is in private conversations between Mitch McConnell and his caucus, maybe some of the more moderate members instead of two days for 24 hours per side for argument, which is what we're seeing today, there's going to be three days per side for 24 hours. And originally Mitch McConnell's resolution didn't have any evidence at all on the record.

Kim Wehle: For Clinton, all of the evidence that was in the house, that would've been the Starr report did go automatically into the record for the Senate trial. The original proposal was that Mitch McConnell would have nothing come into the Senate trial at all. That was changed. So there is in the record, the I think 12 witnesses or 13 witnesses that testified in the house impeachment process. And whatever documents they were able to gather that they didn't gather through responses to subpoenas is because as we know, the second article of impeachment is for obstruction Congress because the White House has refused to respond to congressional subpoenas relating to the impeachment inquiry. So the factual record by any accounts is minimal. It is not comprehensive and it's really not ready for trial.

Fernando Laguarda: So we'll get to that in a second because that's one of the major talking points on the Republican side. But sticking with this point about the rules, because law students in particular know that procedural rules matter and frequently are outcome determinative. One of the talking points on the Republican sides has been these are the same rules that were in place for the Clinton impeachment. You've pointed out a little bit about how the process of getting the Clinton impeachment in front of the Senate was different because there was a special prosecutor under different statutes. But in fact, there rules here that Leader McConnell was propounding gave him a lot more authority in terms of, if witnesses were going to be called, when they were going to be called. And in terms of timing and sequencing in addition to less time. So how did that come across and why is that important that they're trying to kind of shortcut the proceeding?

Kim Wehle: Well, in the Clinton process, the question was they would have these arguments based on the existing record like we're seeing now. So it's almost closing arguments in a trial. Talking about the evidence and then there'd be a vote as to whether to have additional witnesses in addition to the 90,000 plus documents that Ken Starr's team collected. So the idea was, listen, we've beat this horse in terms of the investigative process. Once we talk about what we've done, what Ken Starr gathered, maybe we'll get some more evidence. Here, I think there's a strong possibility if you read the president's trial brief and there's actually some distance between the president and members... Republicans in the Senate on the theory of the case. But if you read the president's trial brief, the position is this entire process is improper. That the act actions for which he was impeached are unimpeachable and I think we could see a motion to dismiss the articles of impeachment before even taking up whether there should be more witnesses.

Kim Wehle: So as you suggest the process would be, there could be a motion and discussion on whether to consider more witnesses and then who those witnesses should be. My guess is it's possible the threshold question would be, after we hear these six days of argument, listen, we've heard all the argument as a matter of law, there's no need for more witnesses because this is not a basis for removal, period. And then they wouldn't have to get into the question of whether the factual record is complete because the argument would be listen, abusive power standing alone without a crime is not impeachable. And an obstruction of Congress, which is the second article the argument has listed. All he was doing was asserting legal defenses that can't be a basis for removal because people are allowed to defend themselves from scrutiny by Congress or anybody else with government power.

Fernando Laguarda:   Well, there's another point, I don't know whether you think this is real or not, but I've heard it from non lawyer observers, which is after six days and countless hours, in their mind, of sitting and listening without access to their iPhones and only being able to drink water or milk and having to just be quiet. It's very unappealing to ask for more of that. And so in fact, delaying the question of witnesses makes people look good because maybe there will be witnesses, but by the end everybody could say, "I'm just tired of having to sit here." And it's a lot easier to say, "Yeah, we're done."

Kim Wehle:   Yeah, I think that there's that. But each of those politicians sitting in the chamber, of course they have their own personal boredom and tedium to deal with, but they really have their constituents primarily. I think that there is, with multiple polls saying that the numbers are in the 70s, percents. 69, 70% of that want witnesses. They want a real trial. The delay factor. I think the vulnerability for Republicans is more leaks, more information coming out through other sources that put pressure on the Congress to actually reopen the investigation in some way to bring more evidence onto the floor. I mean I think that McConnell did give some cover to the senators to say, "Listen, we're just going to do what Clinton did. We are punting this question of witnesses." We're not saying, I mean they all voted down witnesses yesterday, but I think on the theory that, listen, we'll take this up later.

Kim Wehle:  We're not saying no witnesses. We're not saying a trial with no witnesses where we are on record for that for now. Because we want to hear from everyone and determine if we need more witnesses. But I do think there still will be pressure even after six days of this and the tedium and boredom. There will be some pressure to say, "Okay, now you're really on the record that we don't need to hear from the number one person really John Bolton." John Bolton, who testified or according to Fiona Hill said that, "I won't be part of this drug deal." That was against Donald Trump, having the July 25th conversation with Zelensky. Because he thought it was going to go off the rails. Who said that, you know Rudy Giuliani is like a hand grenade that was going to bring everyone down. He, the narrative in part the factual counter narrative on behalf of the president is that the withholding of the aid was to counter...

Fernando Laguarda: Corruption.

Kim Wehle: Corruption inside Ukraine. John Bolton was the national secure...

Fernando Laguarda:  Security advisor.

Kim Wehle:  Advisor, thank you. So he's going to know, he's going to have firsthand knowledge of what the president's thought processes were with respect to his policy towards Ukraine. Arguably or that's perceived. So the point would be let's listen to him and have him are, validate the president's narrative that this was a legitimate exercise of Commander in Chief executive authority over foreign policy.

Fernando Laguarda:  How likely do you think that if they were to call him that he would actually end up testifying? Let's play hypothetical here because we've gotten a little bit into the what the counts are the charges. Do you believe that that kind of conversation between the national security advisor and the president is the kind of conversation that is open to evidentiary exploration? That is, he should be able to say "Yes. As the national security advisor, I gave this advice to the president in confidence. I told him, I disagreed with him."

Kim Wehle:   Well like any privilege, it's discrete. You can exercise a privilege, like a current attorney client privilege as to certain communications, not an entire relationship. It's not an immunity. So number one, it would have to be a question by question type assertion of privilege. John Bolton goes into a deposition, a question's asked, then there'd be an assertion of privilege and then there'd have to be a determination made as to whether that was a proper assertion of privilege. The question there would be, could that be resolved by Chief Justice Roberts in the moment? I would argue, yes, some would argue it has to start in a civil action in a lower court and make its way all the way to the full Supreme Court. That's question number one. The question number two is there's, privileges are no absolute. So we saw Richard Nixon asserted privilege with respect to tapes of his conversations in the Oval Office.

Kim Wehle:  So that's the heartbeat of article two. And the Supreme court said unanimously in response to a trial subpoena, there are countervailing concerns that outweigh that. That is the public has a right to know. So that is brought to bear, that's number two. The third piece is privileges are waivable. Donald Trump has talked about this. He released the July 25th call summary. So I think the argument would be even if in theory John Bolton might have... There might be a basis for telling him he can't testify now that the president has gone out there about the July 25th call. That call for example, John Bolton's knowledge about the call, any privilege has been waived. And people know that with attorney client, if you tell Aunt Martha about your conversation with your attorney, you can't then later use the attorney client privilege as a shield. You can't use it as a sword and a shield at the same time.

Kim Wehle: You can't say, "Listen I'm innocent because as we've heard, my attorneys told me it was okay." And we have heard that defense to some degree with respect to this president and some of what was gone on in the narrative and other ways. And at the same time, oh but if you ask me for the information, I'm not going to give it to you because it's shielded. You can't use it both ways. So that's a complicated question. I think it's overstating it to say the president can just keep John Bolton from testifying. The issue that you indicate though is okay, what about what happens to the process then? How much will that slow down the process?

Kim Wehle:  I would argue that the stakes are so high, not just for this president, the people who voted for him, but for the rule of law and the integrity of the constitution going forward, that we should just take a breath and do the spade work that's required. I think a rush job is not good for the process. It's not good for a process that people buy into as legitimate. And I think that's really important given the divisions in this country that people feel like it was fair.

Fernando Laguarda:  So the same critique about a rush process perhaps could be applied to the case that the house is bringing to the Senate right now. One of the arguments that I've heard Republican Senators make has been the argument that we shouldn't have to do the houses job. If they didn't develop a record for us, then we just have the record that they have. Do you feel like that critique in terms of the rush to get the articles done, undermine their case and as a result why is it the Senate's job to fix that?

Kim Wehle:  I do think, and I've said that I've written an op ed on that. I do think that the Democrats made a mistake, frankly, a strategic mistake, in not moving to compel compliance. The president was... His position that that no one who's ever worked for him is subject to congressional process is indefensible. It's indefensible, legally. But that doesn't mean that it's not worth getting a court order telling him it's indefensible. And that was essentially, I think the Democrats position was it's going to take too long. For a number of reasons, it would have been worth it in my mind. Number one is there would then be the federal courts behind the legitimacy of the impeachment inquiry. It would take that argument away or at least dilute it. Because it wouldn't just be Congress saying impeachment's legitimate. It would be Congress plus federal courts, two branches of government saying it's legitimate. Number two, courts can act quickly.

Kim Wehle: We've since had preliminary... Freedom of information act requests for information from OMB, from private parties, be granted in litigation on preliminary injunctions. Since this whole process. So Congress could have been doing the same thing that [foyah 00:16:57] plaintiffs are doing and gotten information with its impeachment prerogative versus foyah, but courts can move quickly. Third, they could have still been on the same timeline, and just gone forward without the court decisions. Would have put pressure on some of these witnesses. Some might've complied just by virtue of having been in court because, I mean one of Bolton's associates Kupperman did engage in a court proceeding and Congress withdrew that subpoena. I don't really understand that. So they could have just said, gone on multiple fronts, said "We're going forward on our timeline. We're not going to wait for the courts, but we're going to try to get courts decisions." As far as however, whether that means that the Senate can make the argument that, oh, now it's too late.

Kim Wehle:  That I disagree with for a number reasons. As we talked about before, there is no Grand Jury here and the Senate or the House is not the same as a prosecutor doesn't have the Grand Jury power. Doesn't have the resources, the tools. Can't be expected to do the same level of spade work. Number two is the rules allow for depositions. The rules that have been in place since the 18th century allow for depositions. That beams, the rules assume that there's going to be new fact development in the Senate. Because the deposition obviously gives is the idea is we've never heard from this witness. Let's interview them first and then we'll have them come before trial. So...

Fernando Laguarda: I think Congressman Jeffries pointed out perhaps that there's an average of like 10 or 12 witnesses in all Senate impeachment trials. It was an interesting slide he put up yesterday. Like witnesses are the norm was the [crosstalk 00:18:40].

Kim Wehle:  Yeah. I think their argument might be, well we should just limit it to the witnesses that were in the House, but I'm saying additional witnesses seem... As far as witnesses are the norm, I made this argument today in a piece in The Bulwark which I think you might've read, but I mean again, on the question of originalist or textualist approach to the constitution, it says impeachable trial in the impeachment clauses. The Senate has the sole power to try the case. And the Chief Justice presides the sixth amendment. The seventh amendment talks about trials and it was within a year the Congress voted on the sixth and seventh amendment of the... Within a year of ratification of the original constitution. The sixth amendment talks about witnesses, the right to confront witnesses in a criminal trial. The seventh amendment talks about that the jury decides facts. And that a court can't override if you have a common law preservation of jury trial. Right.

Kim Wehle:  So the framers understood a trial meant facts, a trial meant witnesses, a trial meant a determination of what the story is as a factual matter. So I think the idea that somehow there's such a thing as reconciling the word trial for purposes of impeachment and a process that has only argument and no actual evidence doesn't jive with a plain language reading of the text of the constitution.

Fernando Laguarda: You have made a very strong argument about why the stakes are so high here. Can you explain or elaborate a little bit as to what you mean by that? I mean you're obviously calling for a more robust process in the Senate, although you're critical of the deficiencies that they face in terms of the process so far. Why do you believe that the stakes are so high?

Kim Wehle:  Yeah, and I want to first thank you for this opportunity to talk about this in the law school setting. And I think it's really, really important for that very reason. If you think of the constitution and our federal government as a three legged stool, and each branch is co-equal with the other branches, the idea being there is no king. Every branch gets their papers graded by two other branches. So think about the presidency. Who grades the presidencies papers? Well, because of the internal DOJ policy, which is essentially a policy about exercise of prosecutorial discretion. Can indict a sitting president that's not exclusive to Trump. It started back with Nixon. The judicial branch is that leg of the stool is knocked out for purposes of overseeing the presidency as a practical matter. So it has to be through the Congress. Some have made the argument it has to be at the next election, but if the... The framers understood if the abuse of power is about getting basically distorting an election, then the election is not going to help.

Kim Wehle: The election itself is been manipulated. So you need something else. So we have the impeachment clause. Bill Clinton. We had no abuse of power and we had a perjury and obstruction of justice. The precedents shows that's not a basis for removing a president. Part of the problem there was, listen, he lied about his marital affairs. He didn't do anything that really abused his power of office. Certainly with respect to a young woman, but not in terms of hurting the American populace. That's not real. Now we've got articles of impeachment where we have abusive office, abuse of the power of the presidency through abuse of a private attorney to conduct foreign policy in a manner that's inconsistent with longstanding bipartisan, nonpartisan position towards Ukraine. Ukraine, that's the bulwark between Western democracies and Russia, which is a menace to democracy across the globe. They invaded, Russia, invaded Ukraine in 2014 13,000 Ukrainians have since died in that civil war.

Kim Wehle: It's 100% in America's interest to support the Ukrainians, and this was done at odds with that goal, right? But there's no crime expressly alleged. That's said honestly too much. Because obstruction of Congress is a crime. So we really in a way have abusive of power and a crime. And we-

Fernando Laguarda:  And GAO have said that...

Kim Wehle:  That it's illegal.

Fernando Laguarda: Perhaps there's the illegality of that process to withhold the aid. So there could be illegality.

Kim Wehle:  I think there is, right, because-

Fernando Laguarda:  Even if it's not a crime, it's illegal.

Kim Wehle:   Right. There's a statute that says that once Congress appropriates the money, the president, the Executive Branch can't stop that without notifying Congress. And it's that notification that didn't happen. So we do have a clear violation of the statute. We also have, Ellen Weintraub, the chair of the Federal Election Commission. She tweeted months ago that this is probably a violation of federal campaign laws because you're invoking foreign assistance in an election.

Kim Wehle:  It doesn't have to be monetary. So you have that as a potential crime. Of course Johnson was impeached for violating a federal statute. We have history that that's legitimate. So we have all of this mounting, sort of pointing towards this being a serious problem constitutionally. And we have uniform across the board, political loyalty to a person in office. So I think what we're doing is knocking out a second branch of government as a meaningful oversight. Because the question is, what's left then of impeachment going forward? What is impeachable? And what happens to independent, non-biased sort of decision making by so-called jurors in the Senate.

Kim Wehle:  I don't know. Right? There were no parties at the time the constitution was ratified. So we're in a world where it's party over constitution and my concern is that we are seeing the very structure of government morph to the point where we will have a single stool with one leg and no meaningful oversight. And when that happens, there's a link directly, framers understood this. This is why there was not a Bill of Rights in the original constitution. There's a link between an accountable government and individual rights. People talk about my rights, my rights, my rights. Well, your rights are only so good as they're enforceable. If a government could bully you arbitrarily and there's no consequence, your rights don't mean anything. So in order for us to have our rights, our rights to speech, our rights to gun ownership are our rights to raise our families the way we want.

Kim Wehle:  That's a subset to due process, right? Just like abortion is. If there's a violation of the right, you have to be able to hold the government accountable. But if there's no checks, there's no mechanism. Can't do it through the Judicial Branch. Congress is so party loyal, they're not going to do it anymore. We then don't have an accountable democracy anymore. We don't have an accountable presidency and I think that's deeply disturbing. That's something in 5, 10, 15 years we can look at our rear view mirror and say, "Whoa, what happened?" There's nothing unique or special about American democracy that protects us from human nature, which is to amass, entrench, and abuse power. We saw it in Venezuela, we saw it in Turkey. In our lifetimes. This has happened in other parts, other functioning democracies of the globe are not that way anymore and we are not somehow by divine inspiration or protection. The constitution is a piece of paper. It doesn't grow arms and legs and wings to swoop in and protect us from abuses.

Fernando Laguarda: Hungary, Poland. There are a lot of other examples.

Kim Wehle: Yes, yes.

Fernando Laguarda:  Where that has led to problems. What about this argument about it's an election year. It's an election year. So that's really the venue for litigating the question. And that complicates the process in the Senate is this notion that... Well, it even arguably complicated the process in the House that they rushed because they didn't want to drag into an election year and essentially be litigating that issue at the same time as a campaign. And it's a complicating factor and I don't know [crosstalk 00:26:49].

Kim Wehle:  For sure. I'm not a political pundit. I don't have my finger on all of that. I think that it's unknowable what the political future is, particularly given what's happening with the Russians still interfering of course. Since those...

Fernando Laguarda: Not so much the outcome, I mean the point that it's the right venue for making the accountability argument, that you are suggesting has to be addressed by the Senate. In other words, isn't the forum the fact that we have an election in nine months?

Kim Wehle:  Well, the response to that is I think Adam Schiff has made it listen, the impeachment is literally about having electoral integrity. That the impeachment is about the president's use of his office to get foreign influence to stay in office by having, strong arming Ukrainian... The brand new Ukrainian president into attacking, publicly smearing a political opponent.

Kim Wehle:  So, I think the problem with that is that you can't address election interference with an election that was potentially interfered with. I think that's the argument. Also, I just think there's a problem with constitutional literacy and civics in our country. Annenberg did a study in 2015, only a third of Americans could name all three branches of government. So I do think that this process is not just a test of the presidency, it's a test of our constitutional system and these individual senators. Some of them are up early reelection as well. And the American public can say, "Listen, how do I feel about a vote to not even hear from John Bolton?" Because the Senate, I think few people understand the amount of power the Senate has, right? In terms of the advice and consent... in all appointments.

Kim Wehle: Federal judges, Supreme court judges, the president's cabinet. That Mitch McConnell single-handedly basically is the gatekeeper to democracy. And you could have a bipartisan bill in the house of representatives and he just won't bring it to the floor, even though Americans, through their representatives of the house want immigration reform. They want gun control, they want healthcare reform. These numbers are high, but it's not happening. So this to some degree is putting an eye for Americans on how the Congress actually works and how it's functioning. So I'd say there's that benefit. But my third answer to that is I just think, I think government needs heroes. I mean, we just had MLK day this week, Martin Luther King, and he said something along the lines of, "The arc of history bends towards justice." And sometimes you just have to act with integrity and do the right thing. And how-

Fernando Laguarda:  Do the bending.

Kim Wehle: Do the bending, make the next right choice. Right. I mean the right choice is, if this were, say, this is so important in terms of a functioning government going forward, that's corruption free. If this were making a decision as to whether have elective surgery in your own family, you would gather the facts, you would talk to experts, you would, you might say a prayer. You would talk to your family and your friends you really care about. You would think about it, you'd mull it over. You wouldn't say, "Well listen, I got to start a new job or I've got to do something else in September that's important. So I'm just going to go to the first doctor who says take the leg off." Or have my child do that. That's not how we make good decisions in the world.

Kim Wehle:  So I would just, I think people's common sense is at odds with this idea that this should be rushed through with truncated information on unfair process, keep things under wraps so that we can just fix it in the next election. When we know we had two and a half years of Muller and a 400 plus page report that said that election was actually, there's a lot of work done to distort that election. And it's happening now. I mean, Robert Mueller said, "Congress needs to act right now." Immediately. He's used the word urgent. It's not happened.

Fernando Laguarda: I'm not going to ask you to summarize what happened today because that would be unfair in front of the Senate, but what are you looking for in terms of how the House manager's case unfolds? What would you like to see and given what the rules are, what do you think they need to do in order to meet that challenge that you've laid out? What is it that they have to do?

Kim Wehle:  Well a couple things, and I think they're doing it to some degree from the pieces that I've been able to watch because obviously we're teaching today. I think they need to tell a story to the American people. They need to grasp people's, interest and, once upon a time, this is what happened. Have it unfold in a way that grips people. So they care and they're curious and they can follow it. And it's not just walking us back and forth. So we have a series of voices, I think, in the House managers that have different approaches and different styles. We heard Congressman Crowe from Colorado talk about, as I mentioned, why does it matter that we give you aid Ukraine? Why do we not want those soldiers on the battlefield with Russians, with sneakers and no body armor and no helmets?

Kim Wehle: Why is that bad for America? So there's that piece of it. And I think, frankly, I'll probably, I might write something on this, I do think that if I were advising them, I might say, "Treat this as a trial with a judge that actually has discretion, bring motions directly to the Chief Justice and see what happens." There's been a lot, I think of allowing the rules, the majority in the Senate to dictate. And as you say, procedure can't dictate outcome. It's really important. But the framers injected the the Chief Justice only to preside over impeachment trials of the president. He's not around for the other impeachment trials. This is not in article three, it's not in the court's jurisdiction. It's in article one which gives... And article two which talks about the impeachment power.

Kim Wehle: It's a carve out, separate power for the Chief Justice of the Supreme Court to preside. And there certainly are parliamentarians that can bang gavels and read resolutions. If this is a trial, judges have some discretion. And I do think, given that there has been, at this point, no new evidence, we're seeing clips of actual witness testimony. But the other evidence that's come out into the public sector, they can get it in there through this process. Even if they don't actually call witnesses. What I say is my dad used to say, "You could tell someone don't think blue." But they're going to think blue, right? So if you put this in people's consciousness, even if it's not technically...

Fernando Laguarda:  In evidence.

Kim Wehle: In evidence. It still is going to have an effect on how the American people look at this. Because it's less the senators than the pressure on senators by virtue of regular people watching this unfold and paying attention to the big question is why should I care?

Kim Wehle: Why, how does this affect my life? And I would argue we take a lot for granted that we have freedoms and in this country that are meaningful. And we have elections that, it's a privilege to vote in elections where our vote actually matters.. And we do have government officials that are accountable without that, life will really change and it's hard to predict that, but that's what's at stake when the storm troopers are at your back door, it's too late. Now is the time to keep the job description meaningful for our elected officials.

Fernando Laguarda: I want to end on a note that you're referring to and that's the role of the Chief Justice. You were talking a little bit about that and you talked about the Chief Justice perhaps involved with depositions. There've been three presidential impeachment trials, Salmon Chase, William Rehnquist and now John Roberts who was Chief Justice Rehnquist's clerk. And he was the mentee of the Chief Justice and Rehnquist took a very passive role. Salmon Chase I think was actually ruling on motions and being much more proactive, it turned out not to impress Rehnquist who then wrote the book about impeachment proceedings, but how do you see institutionally, that role of the Chief Justice? Do you really think it's an opportunity to be more proactive or your point is test him and let's see.

Kim Wehle: I do think it's an opportunity to be more proactive. I mean we are having, the Chief Justice Supreme Court, is presiding over a trial with no facts. So far with no evidence.

Fernando Laguarda:  It's not a good look, you think?

Kim Wehle:  No. I think it's putting it in premature of the judicial branch on a process that I think a lot of people are watching and realizing is illegitimate in terms of how it's unfolding. And he's got to think about, I think, not only the legitimacy of the court in that regard, the Supreme court, but of the constitution itself. And he, I think as the Chief J of the United States essentially, not just the court, the United States. He could take it upon himself to be the neutral arbiter that's essentially representing almost like a fiduciary, a guardian ad litem. The constitution in an environment where politics is broken, where the senators are not necessarily... I mean we know right now that we are in an environment with this particular precedent where it's impossible to stay in the Republican party or nearly impossible and have independent judgment and dissent.

Kim Wehle:  So that is a morphing our government for better or worse. Even if you're on team Trump, that's fine. But the Chief Justice, just like when a court, a decision comes before them, they're not just deciding that case. They're deciding the next case in the next case, and the next case, and the next case. That same point of view could be brought to bear. For example, I don't know why he couldn't make, just like judges do in trials, make kind of opening statement as to how he expects the trial to run. He could have... I don't know why the lawyers, the House managers and defense lawyers can't write briefs. File them with the court. There's nothing in the rules in the constitution I should say, that precludes that. Arguably that would be flouting the rules that Mitch McConnell set forth, but, the constitution says that trial should be solely in the Senate and that arguably assumes then the Senate sets the rules.

Kim Wehle: But as you suggest, it's fluctuated in terms of the amount of power. And then I think the question is why have the Chief Justice there, if it's purely ministerial? It was redundant. It was unnecessary. And I think he's in a position, you saw him yesterday telling the parties not to disrespect the chamber. I mean he did sort of a sanction or like made a comment, I mean not actual sanctions but rebuked Jerry Nadler and Pat Cipollone for this little spat that they had. But he could go beyond that and he could be more forthcoming in how, what is a fair process for the constitution for the American people as a presiding justice over an impeachment trial.

Fernando Laguarda:  Well there's a lot more to talk about and there are a lot more hours of impeachment trial to go. And I'm hoping that next Wednesday we can catch up again and get your thoughts on what has happened. And by that point I think we'll be hearing from the president's lawyers as well. And we'll hear a little bit more about their theory and be closer to resolving this question of what kind of a role the Chief Justice is playing, which I think is a very interesting question. Not just for purposes of the impeachment process, but also, he is a believer in the institution of the court.

Kim Wehle: Exactly.

Fernando L.: And so how he's perceived, I think has to be weighing on his mind. So thank you very much.

Kim Wehle: Well thank you.

Fernando Laguarda: And we look forward to all of your comments online.