Transcript:
Speaker 1: The following podcast is a presentation of the Washington College of Law, and American University. Any unauthorized use or distribution is strictly prohibited.
Fernando: Welcome everybody. My name is Fernando Laguarda and I'm the faculty director of the Program on Law and Government, and I'd like to welcome you back for our continuing coverage of the impeachment trial of President Donald Trump. As our guest again today, we have Professor Kim Wehle, who is visiting [inaudible 00:00:30] Law and Government here at American University Washington College of Law. Welcome again.
Kim Wehle: Thank you. Happy to be here.
Fernando: I introduced you last time as an expert in constitutional law and separation of powers, and I guess now you're also an expert in this impeachment trial because you've been talking about it and following it very closely. Just to get right to it, last week we talked about the rules in the beginning of the trial, and since then, we've seen the case by the House Managers, and now the case from the President's Counsel concluding, and today, they've moved on to questions. Can you give us a sense of your overview of how the defense case went?
Kim Wehle: The defense case was pretty scattershot, so as we know, lawyers tend to, at trial or even in a motion practice, or an appeal, will have a theory of the case. Kind of a theme that weaves everything together, and we didn't really see that. The strongest day was probably the first day when Ken Starr, my former boss in Whitewater, kind of opened the hearings, and I do think on behalf of the President, his voice lended a bit of decorum and dignity to what could have otherwise been something on their side with that involved a lot of table-pounding. We saw that in the House.
Kim Wehle: I know he's been criticized, like other people, for being a bit hypocritical on this whole topic, but his position was essentially the President had some lapses in judgment, but this age of impeachment is really a problem. The problem, really, for the Republicans is that their strongest argument is that this was wrong, shouldn't have been done, but it's not a basis for removal. The President wants the argument to be it's a perfect call. There was nothing wrong at all. That's made for a disjointed defense.
Kim Wehle: Their defense on the legal standpoint has been essentially what Pat Cipollone said from the White House in response for requests for witnesses. "Impeachment is per se unconstitutional because it upends an election." That, on the one hand, has been their argument. This is unconstitutional. It upends an election, number one. Number two, this is unconstitutional because this is a policy decision by the President in foreign policy, and you shouldn't be questioning motive.
Kim Wehle: As Adam Schiff said today, and I think it's absolutely right, "Motive is what makes regular people's behavior potentially criminal or civilly liable." Terminating an employee is legal unless it's done with an intent to discriminate on the basis of a protected status. It's that intent that makes something unlawful civilly. Likewise, an intent can make a conversation a conspiracy as a crime. The idea, again, that somehow intention be taken into account, I think that's legally unsupportable.
Kim Wehle: The position they take in that, the President was okay in having across-the-board stonewalling. Ken Starr, I think, misstated the law on this as well. He said, "There's good legal support for not responding to subpoenas." That's absolutely not true. Both Nixon and Clinton went all the way to the United States Supreme Court challenging on some immunity grounds the notion that the President is not susceptible to process, and they lost.
Kim Wehle: If the President does have to respond to, in Nixon's case, the trial subpoena, in Clinton's case, a civil deposition request, of course his people who work for him don't have complete absolute immunity either. Legally, those are the problems. Factually, arguably, the factual defense is two-fold. One is that this was about rooting out corruption in Ukraine. The problem with that, of course, is in addition to the evidence from the President, out of his own mouth, that they're interested in investigations of the Bidens, and you could say maybe that's for corruption is that Joe Biden, by all accounts, did work to address corruption in Ukraine.
Kim Wehle: Of course, Marie Yovanovitch, the Ambassador to Ukraine, that was her whole thing. I mean that was her crusade, and she was fired. The argument that this is about rooting out corruption, there isn't really support for that. They've come up with a new argument, which is burden sharing. The burden sharing argument is while President Trump, and I think there's support for this, has done more to support Ukraine than prior Presidents, including Obama financially, and he was tired of that, and wanted Germany and others to support, do more financial support.
Kim Wehle: The problem with that is there's no contemporaneous factual record, really, that supports the burden sharing narrative, particularly in light of the various circumstantial evidence that shows that it was this quid pro quo. The one piece that's missing, arguably, from the House Manager's case, is a linkage between the President's admission that he withheld the aid, the $391 million in aid in violation of the Impoundment Act, he doesn't admit that, but that's the GAO's determination, and that he wanted an investigation in the Bidens, the linking of the aid with the investigation.
Fernando: Aside from Mick Mulvaney's public statement of that.
Kim Wehle: Correct. Correct. Correct, but he said there was a quid pro quo. That is why he should, I think, be called. John Bolton is the person who could fill that gap, but of course, this is another, I think, misstatement legally, legal misstatement that the public doesn't understand. If direct evidence were the only legitimate evidence, that is Trump saying, "Yes, I did a quid pro quo," we would have very empty prisons in this country. A lot of times, most of the time, cases are won or lost on circumstantial evidence. We talked about this in my Civil Procedure class. You could see that it rained, and you know it's raining. That's direct evidence. I saw it in the morning. Everything was wet. I'm inferring from the wet pavement that it rained.
Kim Wehle: That's also, I think, a misstatement, this idea, "Oh, we need more direct evidence to be able to tie the quid pro quo, withholding of the aid to the Biden investigation. I think there's enough there for House Managers, from a circumstantial standpoint, but that little piece is missing, and the Republicans don't want that to become the next phase of the trial. They don't want that evidence out.
Fernando: You raise a lot of interesting points, but I want to kind of start at the end about the evidentiary burden because it kind of relates to the language we're using. The Constitution provides that the Senate will conduct a trial of impeachments, and that language of trial, for us, then implicates courts because we usually think of courts when we think of trials.
Fernando: Now, we have kind of layered process where it's in a political venue, because it's the Senate, but we have the language of trial that's giving us the jurisdiction for what's taking place, presided over by the Chief Justice or not, depending on, and we can talk about that a little bit, but that evidentiary standard that you mentioned, I think is resonating as an argument about what is sufficient, and what the burden should be when you talk about circumstantial evidence being sufficient. In many trials, it is. Is there an argument to be made? In a political trial, perhaps, circumstantial evidence might not be sufficient, and there might be reason for direct evidence.
Kim Wehle: Well, those are two questions. One has to do with the kind of evidence, and I'm not aware of any parallel, investigative, fact-finding circumstance where it would be exclusively direct evidence, but there is an open question, I think, on the burden of proof, which normally, that's how we resolve this. For criminal trials, when you're talking about taking someone's liberty and putting them in jail, the standard is beyond a reasonable doubt. You have to be able, if you cannot articulate a reason for your doubt, then you convict. It's a very high 99 type percentage.
Kim Wehle: For money damages, for discrimination, it's preponderance, that's 51%. The Constitution doesn't tell us which. The President in his brief said, "It should be beyond a reasonable doubt," but it really boils down to individual senators. You raise a good point. One of the questions today, because we're in question and answer, was about essentially asked, I can't remember which side, if it asked the President's lawyers or the Democrats, but asked, "If there are two different rationales, possible rationales, for withholding the aid, one is anti-corruption, one is help me in 2020 election, then what do we do?"
Kim Wehle: I really think that comes down, on the one had you could say, "Okay, well that begs the question. Let's get the evidence. Let's hear from John Bolten. Let's hear from Mick Mulvaney. My position is the American public should get the facts, regardless of where you are. This is an epic decision. We should have good information, but then the other question would be, "All right, well maybe, because there's an alternative narrative, even though it's sort of weakly supported, that's enough to create a doubt for which you can give a reason to justify an acquittal, as if it were a criminal proceeding."
Kim Wehle: We've heard a lot about due process. We've heard a lot about the presumption of innocence. We've heard about this stuff, and as law students know, due process is traditionally concerned with government taking someone's life, liberty, and property without a fair process. Of course, the President has more power than anyone else in the country, perhaps the world, and he's in charge of the entire criminal justice system, as well as the military apparatus, and national security, so there's less of a concern about government taking something from him without process than there is traditionally when you're talking about due process, presumption of innocence, things like that.
Fernando: And the deprivation here would not be of liberty, or property, or any other protected interest. It would be of his office.
Kim Wehle: Right. I mean you could say it's his job, and in the administrative law context there is case law supporting the idea that a job is property, but I agree, it's de minimus. Even in that, you wouldn't get a full-blown criminal jury trial for that. There's all kinds of process. I mean process can mean you get to file like a letter saying this is unfair. That could be process. It doesn't mean a jury trial with [inaudible 00:11:52] rules of evidence.
Kim Wehle: One of the biggest, I think, problems with President Trump's claim of lack of process, as we all know, that he had an opportunity to appear before the House before they voted on articles of impeachment, and just kind of said, "Nope, I'm not participating at all because the whole thing is unfair." Most of us in the real world wouldn't take that stance if our jobs were at stake. We would say, "You know what? I'm going to show up and kind of make my best case to keep my job."
Fernando: One of the things you mentioned at the beginning was about the coherence, or lack of coherence, of the defense case. Perhaps it ties to who they have for a client, that coherence might not be important in the way in which we're trying to understand a lot of the President's messaging. We search for coherence when perhaps that's not what they're trying to message, and this is coming across as well in the trial, trying to synthesize or say, "There's a theory here," as opposed to tearing down the notion of impeachment.
Fernando: I'm wondering whether this argument about impeachment itself being a electoral interference. Now's not the time, if ever is the time. Is that a legal argument that sounds at all, or are they trying to basically write it out of the Constitution, or do they have a standard impeachment would be legitimate if ...?
Kim Wehle: I think they're trying to write it out of the Constitution, not necessarily consciously, we want to trash the Constitution, but they're defending the President at all costs. Certainly, I think their position is impeachment is unconstitutional, can't do it close to an election, as if somehow there's immunity from impeachment the year before an election, then we'd be in big trouble. They'd be like, "Okay, it's my last year in office. I can do whatever I want." That's a problem.
Kim Wehle: The standard that is in the President's trail brief is a crime that subverts the Constitution. It's not any old crime. It's not just abuse of power. It's a crime that would then subvert the Constitution. The problem is what is that crime if it's not treason or bribery, which are expressed in the Constitution? Here we do have, and I think this is partly where the Democrats kind of dropped the ball, obstruction of Congress Article number two is a crime in the United States Code. It is actually a crime.
Kim Wehle: We do have a charge of a crime in the second article of impeachment. In the first article of impeachment, there are questions of violations of Federal Campaign Finance Laws.
Fernando: Potentially bribery.
Kim Wehle: Potentially bribery. They didn't charge it as such, and the argument is ...
Fernando: And the Impoundment Act, which [crosstalk 00:14:34].
Kim Wehle: Impoundment Act, exactly. The argument, as I said earlier, is, "Well, when the President's exercising foreign policy, and this is what Alan Dershowitz, Harvard Law Professor, who's defending him, argument is essentially there is no oversight of that. Now, this argument was made, in part, during the Bush administration, when it came to torture. John Yoo, our colleague in the academy now at U Berkeley, who was in the Office of Legal Counsel DOJ, took the position that when we are at war, the President has unlimited discretion. Now, we seem to be hearing the argument from this Presidency, the President has unlimited discretion period, if you can shape it as a policy determination, meaning a judgment call.
Kim Wehle: That would be unlimited discretion. You can frame, "I'm going to execute all my political opponents. I'm exercising my discretion over foreign policy. Why would you second guess me?" It's the gift that could keep on giving, and where is the limiting principle? I asked my colleague at CBS, Jonathan Turley, who's also faculty at GW. He testified on behalf of the Republicans in the House Impeachment Process, and I've asked the question, "What then would be impeachable?" It's very hard to pin an answer down for that. I don't know, other than treason, which requires a Declaration of War, which doesn't happen anymore because the Declaration of War cause has pretty much been wrote out of the Constitution as Congress' prerogative.
Kim Wehle: Bribery, the problem with bribery is the Supreme Court has construed the criminal statute to have a very high burden, so I think that might be why they didn't charge bribery because they would have some really legitimate good faith factual defenses to that, but then that begs the question of how much does the criminal code dictate impeachment when there was not a criminal code when the impeachment clause was ratified?
Fernando: I want to ask you, did you follow Professor Dershowitz's argument at all? Did you hear how he was arguing about limiting impeachment to criminal conduct?
Kim Wehle: I sort of half listened to it because when he said, "No one agrees with me, and I'm also disagreeing with myself," he sort of lost me on that. I know there were, and I'm not a Constitutional historian, but again, Professor Turley was sitting next to me during this argument and saying, "Wrong, wrong, wrong, wrong, wrong," as a matter of the Constitutional record. I think, from a structural standpoint, there has to be checks on each office. That's the way it was set up.
Kim Wehle: When I talk to regular people, I say, "Okay, we have three branches of government." When people ask you, "Can he do that," that's the wrong question. The question is, "If he does that, what's the consequence?" To answer that question, you look to the other two branches. What's the consequence in the judicial branch? Well, there isn't one because the OLC memo says you can't, internal DOJ cannot indict a sitting President.
Kim Wehle: You can't hold the President accountable for criminal conduct in office through the judicial branch. The only option then is the impeachment clause. Well, if impeachment is not possible for policy decisions, if impeachment isn't possible because there's no basis to gather the information through subpoenas or requests from Congress, then we're knocking that out too. The answer to the first question, can he do it, is yes. Not because legally he's allowed to, but because there are no consequences for speeding. If there's no consequences for breaking the speed limit, the speed limit doesn't have any meaning.
Kim Wehle: That's the heart of things. When people talk about fear of this country becoming a monarchy or slipping into tyranny, the idea is really psychological. The framers understood that people, it's human nature to amass, entrench, and abuse power, so there have to be checks on that. We know that in our workplace. We know that in our kids' schools. We know that at our churches. There have to be consequences, and I think in this moment, the Republican argument is there's unlimited. There's no real consequence. That's, I think, troubling.
Fernando: I would recommend to the students that are here, to go back and look at Professor Dershowitz's arguments because I think his, to over-summarize, his claim is that the language of the Constitution, treason, bribery, and other high crimes and misdemeanors, sort of is limited to criminal conduct.
Kim Wehle: And that misdemeanors means high crimes. They're collapsed.
Fernando: Misdemeanors means high crimes. They're collapsed, and therefore all criminal protections that would apply, the interpretation of the language, and everything else, he's really reading it as a criminal defense lawyer. It's very interesting. It made me think if your only tool is a hammer, every problem is a nail. He's reading the Constitution the way a criminal defense lawyer would read a statute, and saying, "Apply the rule of [inaudible 00:19:44]. Minimize everything, You have to put the defendant on notice, and really treating it as a crime, and saying, "It must be a crime."
Fernando: Then, he kind of picks up some threads where in prior proceedings, mostly the Johnson impeachment trial, there was some doubts about whether or not the conduct required criminal conduct.
Kim Wehle: Yeah, I mean Judge Starr also talked about the court. He referred to the Senate as the court. Of course, Chief Justice Rehnquist, in the Clinton impeachment, corrected the lawyers to say, "Don't call the senators jurors. This isn't a court." I kind of feel like it's either all or nothing. In a criminal process, there is often a Grand Jury with subpoena power, so Ken Starr had this with respect to Bill Clinton, and the affairs the led to his impeachment. I participated in that Grand Jury proceeding. You, as a target, could be indicted, prosecuted, put in jail, or executed. The stakes are enormously high.
Kim Wehle: No one brings their lawyers into the Grand Jury. That whole process, first of all the government has a lot of power to gather the information, which the House does not have here. There was not a special counsel appointed. Bill Barr did not do it. In fact, [inaudible 00:21:07] on even turning over the whistle blower complaint, and working to get that Grand Jury power, so we're not developing that factual record, but even if that were the case, and there were, Trump wouldn't get the process he got in the House, that is allowing his lawyers to go before the Grand Jury, which were in that instance, the members of the House of Representatives, and saying, "Please don't indict my client."
Kim Wehle: Even if you're innocent, the indictment, being indicted period, destroys your life, and this can be very, very expensive. Part of my issue with the whole criminal thing, it's like, "Okay fine. If that's what we're doing, then let's do it. Let's stop the Senate trial. Let's subpoena everybody, and put them in depositions, and put them in front of the jury."
Kim Wehle: Then the argument is well, the House should have done that before. I would say, "Yeah, I agree with that." I've said that publicly, but that doesn't mean in this moment, the American public should have the wool pulled over their eyes. Americans deserve to know what happened one way or the other.
Fernando: Because this isn't a real trial, now we're in the process of the questions. Have you seen any of the question time?
Kim Wehle: Yes.
Fernando: How has that gone? Are there questions you would like to ask? Is there a process for asking the questions that is worth explaining a little bit for the listener?
Kim Wehle: Yeah, so it's interesting for a few reasons. One is the Chief Justice is actually speaking. He's doing what he's been doing from day one, which is reading something that's put in front of him. He's not actually exercising discretion. I think, in part, because he hasn't been asked to, so we're hearing a lot more input from the Chief Justice. In a normal trial, you'll have a witness, and the witness will be cross-examined, so you hear from both sides that probe the gray areas, the problems, in the case from the other side's point of view.
Kim Wehle: In the trail, thus far, it's been a few days of speeches, and a few shorter days of speeches. We hear from one side. We hear from another side. There's no probing. There's no questioning. There's no getting to the gray areas. What's interesting about today is one, we're hearing the Chief Justice, there's more of a judicial process, which is because the rules require that all questions go through the Chief. They can't just blurt out questions.
Kim Wehle: Number two, we're seeing senators from both sides probe the problem areas in the other side's case. I think that's really interesting, and so when people kind of ... CBS has listed all of the questions on their Twitter feed, and they're probably other places, but if people who are just coming to this, and kind of want to know, "Okay, where's the rub? Where are the parts that are really going to decide this?" That's a good place to start, to read the questions because it's almost like a cross-examination of the would-be witnesses that we didn't have in the actual trial process, asking the tough ones, the relatively tough questions.
Fernando: The questions are going from both sides to both sides, and in some cases of both sides.
Kim Wehle: Yeah, the flip from back and forth, so they go from one party to the other party. They're directed at whoever they want.
Fernando: Have you heard any good ones? It's hard to follow all of it, but have you seen anything actual bring to light, or is it more cross-examination, "Isn't it true that," and then insert a leading point that someone's trying to get their side to make?
Kim Wehle: No, I mean I think like the example I gave, if there are two possible narratives for why the money was withheld, what do we do? I think that's a legitimate question as to what the burden of proof should be. There were questions about does a crime need to ... A lot of that stuff we've already gone over, but I do think that the questions are probing [inaudible 00:24:58], and what's interesting is it seems like the House Managers have prepared answers, so I don't know if they're just good lawyers and anticipated them all, or there was some kind of prior exchange of how these questions would go.
Kim Wehle: What we don't know, one of my students from this morning was in, actually could go, went to the gallery, and watched, and said it was very interesting to see the senators and how they're interacting with each other. I don't have any inside access to that, but if anybody does, it's worth going over there and watching to see how, on the floor, the jurors are reacting to these questions.
Fernando: What would you want to ask of whom?
Kim Wehle: Oh gosh, that's a good question. I feel like most of it has been ... Backing up, I think the question for Republicans would be what's the limiting principle on Presidential power going forward? What's left of it? What would be removable, other than someone just happens to be in the White House from the other political party? That, I think, from a Constitutional standpoint hasn't been really answered. I think one of the problems factually has to do with truth and lies, and we're in a post sort of truth, post-fact universe where we have, for example, the President saying, "I've never met Lev Parnas, and then we have tapes of him having conversations, and then some pictures of him having conversations with Lev Parnas.
Kim Wehle: From an intellectual, sort of academic standpoint, I would like to know from both sides what facts are relevant to this procedure and what are not relevant to this procedure. As far as probing the gray areas, I think we've exhausted it. I would like to see John Bolton testify. I think that could, just like the White House tapes shifted the entire Nixon impeachment process, that could shift it one way or the other. If things wrap up on Saturday, I have concerns that impeachment just is not going to be a relevant mechanism for oversight for the Presidency going forward.
Fernando: Let's talk about that in a second, but let's get first to witnesses and Bolton. Why is his testimony in particular so critical?
Kim Wehle: He was a National Security Advisor, and so that's the person in the White House that coordinates all of the sort of diplomatic national security parts of the government on behalf of the President of the United States. If the argument is, listen, Trump didn't really know what was going on, and it was Rudy Giuliani doing everything, I think, actually to answer your other question, I wish they would focus on Rudy Giuliani, and I'll get back to that. Actually, I'm going to talk about that now.
Kim Wehle: As administrative law person, there's a debate about outsourcing in government to private contractors. The Supreme Court gets really upset when Congress makes exotic agencies that don't have, the President doesn't have authority over the people that are heads of these agencies. We have advice and consent clause where the Senate has to actually approve Presidential appointees to the Cabinet, federal judges. Rudy Giuliani is conducting foreign policy in a way that's at odds with traditional long-standing governmental policy.
Kim Wehle: He's not even under contract with the United States. The government couldn't sue him for breach of contract, let alone having gone through a Senate confirmation process so was accountable to the United States [inaudible 00:28:45]. That is really serious structurally. Now I forgot your prior question.
Fernando: About why Bolton's testimony [crosstalk 00:28:52].
Kim Wehle: Oh, why Bolton? Okay, so Fiona Hill, Bolton's top person within Bolton's, she testified he was there on a number of key meetings, and said, "I'm not going to deal with this. I'm not going to be part of this drug deal, and when there are questions raised about withholding the aid," he said, "go talk to the lawyers." John Kelly, former Chief of Staff, the President Chief of Staff, he came out yesterday and said, "If Bolton speaks, he's telling the truth." Bolton, people say he's a loose cannon, but progressives were sick about the idea of him being in that position because he's such a loose cannon. He sings off his own page.
Kim Wehle: If he could sit and answer the question, "What did the President, in real time, know? What was his reason? Was it because of [inaudible 00:29:35]? Was he worrying about corruption, or were all these other witnesses, they're understanding correct that it was announce an investigation of the Bidens to help me get staying power in 2020, or you don't get nearly $400 million in aid. That's a lot of money.
Kim Wehle: The other piece that isn't asked, and I would ask this too, $35 million of it was not released. We keep hearing the aid was released, the aid was released, the aid was released. That's not actually accurate, and I don't really understand why the Democrats don't underscore that fact.
Fernando: Today I also read that Eliot Engle, the Chair of the House Foreign Relations Committee, said that John Bolton told him back in July in a phone call, "You should look into what happened with the dismissal of the ambassador to Ukraine." Sort of giving him, volunteering this is something that should be of interest to you as an oversight committee, which is pretty significant. I don't know why I read about this today. It seems like Engle made that statement. I don't know why. Perhaps going to the point of why Bolton's first-hand knowledge of events is so important and what it might say.
Kim Wehle: Yeah, and it's deeply troubling structurally as well that Mike Pompeo, Secretary of Defense, has first-hand knowledge of this. Mick Mulvaney, Chief of Staff, has knowledge of this. Rick Perry, former Energy Secretary, has knowledge of this. Attorney General Barr has first-hand, real-time knowledge of this. Of course, Rudy Giuliani. We're lawyers. If this were even a simple case where we had deposition authority, all of these people would have testified at this point.
Kim Wehle: The fact that the highest levels of government had first-hand knowledge, and the American people haven't heard about this. Frankly, Trump is the only one that's on the chopping block, I don't understand that. House Democrats didn't even subpoena Bolton. Schiff said today, which is true, well, the McGahn subpoena is still in the DC circuit, and by the way, people might know this, but the argument is that the House Democrats should have done more, but the argument that's been made in the DC circuit on behalf of the President is there's no standing challenge of failure to comply with the subpoena.
Kim Wehle: Their position is, "You should have subpoenaed us, but by the way, if we don't comply, you have no standing to challenge it in court." It's another checkmate. It's another unlimited power, and of course, without facts, there's no way to do an investigation. There's no way to legislate. That's one of the arguments that the President's team has made is that without a formal vote, or all these hoops to jump through, that there is no subpoena power, but there's pretty solid case law in the Supreme Court going the other way, and I think as lawyers, one of the big questions right here is what are our ethical obligations as lawyers, even on behalf of the government, to make good-faith arguments that are supported in the law?
Kim Wehle: The President's lawyers aren't doing that. They're making arguments that are undermined by binding Supreme Court precedent, and if this were, again, a civil case, I was in US Attorney's office, and I made some of these arguments, the judge would say, and it's happened to me one time on a standing case, "Counsel, refer to Rule 11 the next time you file a brief like that." I mean it wasn't a rule of [inaudible 00:32:57] violation, it was creative argument, but we have binding authority that is inconsistent with these positions.
Kim Wehle: Lawyers don't just get to make any old argument. The other thing that was really scary, and I don't know if anyone saw out of the 7th Circuit, there was a decision, who's the big judge, not Easterbrook.
Speaker 3: Easterbrook.
Kim Wehle: Was it Easterbrook? Issued a decision in an immigration case.
Fernando: Oh yeah, it was Easterbrook.
Kim Wehle: It was Easterbrook?
Fernando: Yeah.
Kim Wehle: Immigration case, and the Justice Department basically told the Executive Branch to ignore it. They had to go back and his decision was, "I've never, in my career as a judge, seen disrespect from the Executive Branch for a judicial decision." I think that's the next frontier we have to look for. Are we going to now see, and not just we're going to blow off Congress, but we're going to blow off the courts too." It looks like we are.
Kim Wehle: I mean there was a question with respect to the Supreme Court's decision on not including a citizenship question in the US census. It was floated publicly that the White House was going to take the position potentially they're not bound by the Supreme Court. RBG has said this. People follow, in our country, laws. That's a norm that we abide by rules. We are all better off for it. We're so partisan, and people think I'm partisan. I get accused on both sides of being this way or that way. I'm really about the rule of law.
Kim Wehle: If we live in a world where the President doesn't have to worry about being held accountable by Congress, and doesn't have to worry about being accountable through the courts, and can just ignore judicial decisions, then we have a one branch government. Then we do have a monarchy, and we could only hope that whoever is in that position has integrity and ethics. By all accounts, with what, 14,000 lies so far. It's not this guy. Integrity isn't going to get us there. People say, "Oh, the next one will be better." I hope so. I have four children. I hope so.
Fernando: I think that that is a very good argument, and I'm going to push back on it anyway by saying the following. "Is this, the arguments that are being made, more about lawyering, where you have to argue all the possible grounds, and eventually a decision gets made, and there will be compliance, or there has to be compliance, or there's [inaudible 00:35:37] for compliance, or do you really believe that it's more than lawyering, and it's ignoring rule of law, as you just said?"
Kim Wehle: According to Easterbrook, it is ignoring rule of law, so take a 7th circuit judge, but I do think having been inside the Justice Department teaching administrative law, I know Professor Lubbers is here, and others that have some expertise, I think there's an argument that government lawyers, their client is not the President, it's not even the head of that particular agency, but is the American people. Having been inside, even in the Whitewater investigation, there was a big debate as to whether to go after Hillary Clinton's communications with White House counsel because she was not technically an employee, and so she wouldn't be protected by the attorney/client privilege.
Kim Wehle: Inside government, unlike in private practice, I've done both, people have real legitimate debates. Do we make this argument, because if we make this, what does this do to the rule of law? What are the implications from a policy standpoint for the American people that we represent going forward? That's a different, and I've had conversations with clients as government lawyers saying, "I will not file that motion for you." It's problematic legally for a lot of reasons, so you need to settle this. You can't have that conversation in private practice.
Kim Wehle: In private practice, like Rudy Giuliani's doing on behalf of the President, it's win at all cost, so long as you don't get sanctioned or disbarred. I mean that's kind of the bulldog point of view. I think lawyers have to make a decision what's my brand? I mean I would suggest the brand being that person is impeccably ethical. A really strong lawyer will go to mat for clients, but can be trusted. We have people in our lives.
Kim Wehle: I don't think, I do think government lawyers have an obligation beyond just winning at all cost regardless of the boundaries of the law. We know that because Rule 11, for regular lawyers, does require you to have taken steps to make sure that the arguments you're making have a good-faith basis in the law, or for extension of existing law.
Fernando: I was looking at this before. Just when Pat Cipollone, the President's counsel, made a false statement on his opening argument, that there didn't seem to be any consequences to that. That was troubling to me that there wasn't a sense of correcting. There was not a mechanism for it.
Kim Wehle: I wrote a piece in Atlantic on that, and the argument was the House Manager should have objected. I mean there's nothing in the rules preventing objection, your honor, misstatement of the record. Please strike that from the record. That happens in trials. Tell the jury to ignore that comment. Now, I can say, "Don't think blue," and we all think, thank, whatever, thought blue in this moment. Don't think blue. It's hard to get it out of your head, but it still would be a clear instruction from the Chief Justice, "Listen, I'm not going to tolerate factual inaccuracies because the stakes are so high."
Kim Wehle: That is, in part, I think a fault of the House Managers because judges, as we know, normally, with some exceptions, if they [inaudible 00:38:48], most of the case, they don't do stuff unless you file a motion, or you ask them to. It's the obligation of the lawyers to get the judge involved. You file a complaint. You file a answer, that sets the stage. After that is motions, motions, motions. "Judge, please do this for me." We haven't seen that, and I assume, I mean Adam Schiff's an outstanding lawyer, I assume they've made a strategic decision that that kind of obstruction or perception of being difficult during the process would be politically problematic.
Fernando: Yeah, I mean lawyers have to file motions, but every motion comes with a cost, no matter what the proceeding is. Here, not only is this proceeding highly structured and unusual, and virtually unprecedented, with some exceptions, a few of the senators have been involved in one before, but otherwise, the majority have not. They don't really know what to expect, so they would for sure see a motion as being high unusual, out of order, and have to deal not just with the Chief Justice ruling on it, but the role of the Majority Leader, and the Chief Justice has been deferring to Senator McConnell, having at least also equal claim to wield the majority of senators to interfere or intervene, and that ...
Kim Wehle: To override, yes.
Fernando: To override or prevent.
Kim Wehle: But the rule is clearly give him authority to rule on the admissibility of evidence. It's absolutely plain as day. Of course, it's the only place in the Constitution where the Chief Justice presides over impeachment trials, so I think the argument is the framers didn't want the Vice-President in that role on the assumption that that role has some power, actually has some meaning. It's not just ministerial, and certainly during the Johnson impeachment, as you and I have discussed, Justice Salmon Chase did take a more active role.
Kim Wehle: The Chief Justice, he has discretion, and he's made a determination, I think, consistent with his mentor, Chief Justice Rehnquist, to be on the sidelines, but again, I think right now, it's take the something bigger than partisan politics. It's the structure and integrity of the Constitution, which is just a piece of paper. If it's not enforced, it doesn't have any meaning anymore. That's shocking to people when I tell regular people that.
Kim Wehle: As you know, I wrote a book, not for law professors, but for regular people, and when I talk about the book, I ask, "What is a right? What does it mean to have a Constitutional right?" People will say, "Oh, it means I was born with it." I'm like, "Okay, so you pay your rent, or you pay your mortgage, so you have a right to go to your house after work, right?" "Yeah, I have a right." "Imagine that one day you go home, and there's armed police officers circling the house. What happened to your right?"
Kim Wehle: "Well, it was violated." "What do you do? You can't call the police. You've got to go to court and get an order. You have to enforce the right. The right is only so good as it's enforceable, or it's not a right anymore." That's kind of what the Constitution is too. It has to be enforced or it doesn't matter. The other thing I don't think people understand is it's about confining power.
Kim Wehle: It's directly related to individual rights. The idea is government off my back. Limited government so that I can live my life in peace, that I'm not persecuted based on my views. That if government crosses boundaries, I have mechanisms to hold government accountable. That's what at stake in this moment.
Fernando: I think that that is a really good way to cap up to where we are right now. Before we close, what are you expecting going forward? How much more time for questions, and then we're going to get to a motion for witnesses.
Kim Wehle: I think it's eight more hours. Mitch McConnell said Majority Leader said yesterday eight hours today, eight hours tomorrow, and then the next vote would be on whether to consider witnesses. Under Clinton, it was a vote on which witnesses. Now, there's a threshold vote. It sounds like, last I checked, he doesn't have the votes to block that. Then I think the question would be, if that is consistent, the question will be, "Okay, is it just John Bolton? If it is John Bolton, how much of that is public? He'd be deposed first. Would that be behind closed doors? How much of that would leak?"
Kim Wehle: Then, if it's John Bolton, then do we hear from Hunter Biden on the argument that he has relevant testimony to the extent which he can refute or support the President's argument that there was corruption in Ukraine, and a legitimate narrative for withholding the aid based on corruption in Ukraine. I think that's the argument. Then, the response is, "Oh, well this is going to drag on, and on, and on," and it's like, "Well, hard, thorny problems aren't resolved in [inaudible 00:43:25] quick ways, and expect a really good result that people buy into."
Kim Wehle: That's the other piece right here. It's not just the outcome, but the American public's buy-in to the legitimacy of the outcome. If you feel like the process isn't fair, the outcome you think is not fair. If you think the little league umpire's getting paid off by the other team, you're really mad, not only that your kid lost, but that the whole game stinks, and you're like, "You're not going back there. I'm not letting you play again."
Kim Wehle: People come home from football games having their team lose, and we don't see riots in the streets because the process is fair, and I think that's what's at stake right now.
Fernando: Maybe we'll be having another conversation next week to talk about what happens next. For those of you who like theater, maybe we'll be seeing President Trump delivering a State of the Union speech while simultaneously on trial in the Senate for impeachment. Thank you very much.
Kim Wehle: Thank you, and thanks for all the students who came.
Fernando: Thanks for joining us, students, faculty, colleagues.
Kim Wehle: Faculty, yeah.
Fernando: Join us next week.