Priorities in the first hundred days. My name is neil and i am joined by my colleague paul. Paul, always good to see you. Likewise neil, great to see you. It will be fun. We both served in the Solicitor Generals Office during past transitions i think we should probably start by digging in a little bit on to what is happening in the front and how this transition might be different than past transitions. Maybe we will talk about specific cases that could be impacted by the change in the administration and you know, i think given that there is another impeachment trial about to begin maybe we should talk a little bit about that too. Maybe before getting into that carl, would you just mind introducing yourself to the audience. Sure, i would be happy to neil. Im paul clement and i will talk about two things that are relevant for todays presentation. First, just the georgetown connection. I am both a georgetown undergrad and somebody who has been teaching at the law school in various capacities since the clinton impeachment since 1998. That is when i first started teaching separation of powers class at the law school. That affiliation runs deep and im delighted to be here. Just a second aspect of my bio that is relevant is my service in the Solicitor Generals Office. I spent seven years in the Solicitor Generals Office altering the Bush Administration, bush the second or bush 43 as we called it. Perhaps most relevantly for todays discussion i was there from almost the beginning. I came into the office in february of 2001 so i was in the office before ted olson was there because it took him a while to get confirmed so i definitely saw from the inside little bit of what the transition in the Office Look Like from the Clinton Administration to the Bush Administration. I know for some of the students that is ancient history but i still think it is reasonably relevant to thinking about what is going on today. Well. Cool. My name is neil and i taught law at georgetown for more than 20 years. Teaching his seminar. I taught a class called clinton. It was about all the legal issues surrounding mihm and it was ongoing at the time of the impeachment trial, and i had basically everyone drop by the class from with the president s lawyer and can target was the independent counsel. And m monica got the linsky came into the class brain is one of the things that i loved about georgiana teaching there. Our ability to bring people in from all over. Can i to serve in a Generals Office as principal deputies and acting, not for seven years. For about two and half years. In total ive had 43 cases of the court which is about like one third of college. Right. To get out. Its taking me a long long time. I started on january 20th in the Obama Administration. So on day one. I was also therefore that entire transition time. And then the general pagan was not confirmed until around marc. So i had to think through all of these questions and go through the process. For the first couple of months. And so with that, i will started their. I think a lot of people think that theth Justice Department ad the Generals Office is being so politicized. But even that office for basically seven and a half years. Right before i came in. And i remember when my appointment was a announced, we were one of the first two or three phone calls was from greg. The general at the time. That was for president bush. He said i just want to help you. Letset get together and go over everything. And i remember that we went to a barnes noble and a starbucks and found a corner and he walked me through everything for four or five hours. It is the classiest thing. And i walked in on january 20th. I was scared out of my mind. But also like i had a really good appreciation for what was going on in the office. Because he had taken the time to walk me through in such a really helpfull way. And the office only had 16 line attorneys in it. And the perception that bush Justice Department was politicized it is. And found none of that and that 16 attorneys. It was just the 16 greatest attorneys prayed and think of anything, it probably leaned left because the great ones do. And it was really remarkable. And that is when i think about the Generals Office. This nonpolitical even handed administration of the law. Youdm and craig quickly. That out. So with that, can you talk a little paul about the office and kind of what its about, its functions and streams line predispute lecture i would be happy to read and youve already highlighted that there is is real sort of career lawyers cadre that is the real breadandbutter. They are the lifeblood of the office. I think about the Generals Office, compared to even some of the other great offices in the Justice Department like the office of legal counsel. The Generals Office really is. Unique because there are so any career lawyers and so few political lawyers and the appointed lawyers in the office. As the only people who are political appointees, to change from administration through administration on the generals and the principal solicitor general. So the rest of the office, the career deputies and all of the assistance of the carryover from administration to administration. And i thinkre for obvious reaso, is part of the reason that you typically do not see lots of conditions change from administration to administration. Because youve already had this division sort of embrace and articulated in a brief sometimes. By the lawyers who have been in the office for years and years and years. So you think of somebody as a senior career deputies in the office. And literally is been in the Justice Department sense the carter administration. Im not going to do math on the fly but there is nothing nothing he has not seen. So theres all that Institutional Knowledge in the office. I do neils point, certainly my philosophy when i was in the office in the position to hire people for the career spot. As you really do not want to take kind of politics into account rescue the hiring for two reasons. One was just because it would be contrary to the long tradition of the office. And that wouldve been sufficient insufficient today. But often theres a selfinterest. What lawyers in the office but in the process for coming up with your position and also in the court who sort of think like the whole court. In the Bush Administration, there was a real disservice to have, nothing but scalia clerks filling in the pranks. The same that way that i think it wouldve been a disturbance in the Obama Administration to have sort of nothing but another clerk. If anything, you said that the office seemed a little left because brilliant lawyers think that way. I beg to differ for obvious reasons. I think for any reason, if they had been because i figured i already had a good thought on how justice glia thought where i need help with hiring people for the left side of the court in the right. And so theres all sorts of reasons why you have that sort of balance in the office. So let me just say a few words of my experience during transition then kick it back to neils to talk about his thoughts were things are different this time around my experience was very similar to neils. Anyway it was more dramatic because at the beginning of the Bush Administration the person he was serving as the acting general, was the Principal Deputy from the end of the Clinton Administration. Barbara underwood is now the general for the state of new york. And barbara situation is ayo little unusual because she took that Principal Deputy position after serving in a career position in the u. S. Attorneys office in the Eastern District of new york. She was met with sort of an unusual Principal Deputy. But still i think the people thought that the transition from one administration to another administration in the estes office to be sufficiently sort of smooth and not involve destructive changes the position to the extent that the new and ministration but it wouldse make sense to have 70 observed in one of the two political roles in the previous administration. Serve asmi the acting solicitor general and tell he was appointed. So when i came in, was working as the Principal Deputy with barbara. Obviously is coming into the new administration and i had a prior relationship with the attorney general barbara did nottt have. So i was probably serving at a slightly different position rated not only did i get to have but with greg gar, got to meet every day with barbara. We worked that process through. And it essentially seamlessly until he got there. Ted olson, in june. And then what i would say more generally and i think this is a very consistent with neils experience. I dont have to put words in his mouth because hes right here. Make it wasnt when we came in, that there were changes in a large number of cases, to the contrary. Im not sure there was a single case where we had taken a position in a Supreme Court brief. That we then sort of change in the Supreme Court. Think there were one or two cases. And really only one or two that i remember where the Prior Administration had taken a position in a low of court brief that had been reviewed or approved by the solicitors Generals Office. By the time the same case came up to the Supreme Court, the office had a different position. I can certainly count on one hand, i am really remember one or two cases. And they were the cases where you would expect it. I think one of the cases where i know we had a different position. And in the lower courts and j te Supreme Court was the university of michigans affirmative action case. And whatever you think about that, it probably can maybe suspect thatin will change when theres a transition from a Republican Administration to atr Democratic Administration or vice versa. But other than that, the vast majority of the issues, even some that are controversial. Even some of the Bush Administration was running on a clean slate and wanted to come out differently. The position was not changed in resort of the continuity was preserved. I think that reflects well on theof office. Maybe you can talk a little bit more about yourxp experience and how you perceived things to be different right now. Neal first of all when you think about the office, it was different than the office of legal counsel. That is 100 percent right. Tnot just because of a relativey nonpolitical staff, but also because of the function. Your function is nine people. It is just different than the other government job. Yours. Audience is the president or Something Like that, that you got these nine people. They are stable. Year after year after year after year. And what that means is your credibility in the institution as the most important asset you have. Youre not in the office like every other relationship there. One reason that you are not that way is because you understand the longterm interest of the United States government that do not depend on who the president is. And so that does then, not just in the positions that are being taken, but the people that you hire. I tend to hire a bit more conservative. I need to know how the rest of the court thinks and so on. So i think that is why our hiring practices looked a little bit the way they did. When i came out on january 20th, as i said i had the five hours or so meeting with greg before hand. Then i went through policy after policy or brief after ralph. To try to see it through, anything that would be changing. And i was Principal Deputy like you. I was notot acting. Without the the leadership should be the acting. We had a. Much a general view that the positions that have been taken in the last administration were reasonable. There was no need to have an acting person who was a political appointee. So we did not do that. And at the end of the day, i looked through the brief and this is v now. Public, or very public. Not one position change. I think that is a credit to the way you all ran the office. In a credit to the office of the general more generally just trying to come up with a right position for the United States. There were i think two instances that became. Public. One was a brief in the dna testing case. Which i think was a. Aggressive position because the department had flown there. We decided there the other one was dont ask dont tell. Military policy that excluded gay folks from serving in the military. And they decided to continue defending as the Bush Administration had. Even though there were deep deep policy disagreements with it. I think this administration faces something very different than what you are high had. This past solicitor General Office in the Trump Administration. And i dont know if it was a general driving it or the white house. Some interesting dynamic that i want to talk about in a minute. I think in changing positions in so any cases, from the long term interest of the Justice Department and the longterm positions of the department. And so if you are our somebody whos institutionalized and i think that acting, general is. She served as an assistant in the office. Its a different thing than the question that we have because the question wee had was do you deviate from this position which does reflect longstanding interest of the Justice Department. Now youve deviated from the position who was then filed in court. Andd himself deviated from the longterm interest of the Justice Department. That is a very different question. Then you have the credibility piece on the other side. I started out by saying that you have this audience of nine people buried is always difficult particularly in an ongoing case, the Trump Administration did that. But now, to flip it again back to what the original longterm position is. That is isi think, probably cals for if you are in the institution, just to take one example of this. Paul you knowhe this better than anyone, the Affordable Care act. There is arguably a tiny flaw in this at that point. And whether or not, the debate whether or not the Trump Administration took the view and because of that flaw, the entire kit and caboodle, the whole thing had to be struck down as unconstitutional. The legal lingo is not severable from the rest of it. Living or dead, any general, i dont think they would take that position. And yet they did. So like thatod is a good example to me of where you do not want to change positions from the past administration if you can. If you have some outlier positions, your most compelled to as an institutional. So i dont know if you want to talk about that example more generally. But maybe i will stop your prey to. Paul so i will talk about that example and ill talk about it more generally. Youre right, the situation now is different than the one we face so i think that the issue will be one that the new acting solicitor general and the council will presumably buy them and others think about long and hard. Its really going to be important. Its going to be important if the office wants to change positions and what they perceive to be the longterm interest of the office. They pick the right cases. And i think they also need to be careful about how any they pick. And which ones. Sort of the ideal scenario presumably would be to change that into a position that is both obviously consistent with the longterm use of the office and institutional interest of the government and who will win. Because when you change positions and you when, it looks different in the end and if you change position and you lose. And obviously the Generals Office cost administration, as you said, an army of nine. And you have to understand that some administrations, the nine are going to be more sympathetic to some of your positions thenad maybe a Different Administration position if the policy were different. Probably tougher, for me to make some arguments about the war on terror given the court that i had. And i think the Biden Administration will have to realize theyre making arguments to reasonably conservative court. So if youre thinking about the ideal target, and be one with everybody can see that the position that youre re embracing or embracing is in the longterm interest of the government. And where you end up winning. I guess from that part respect, seems like the case is a. Good a. Good target. And obviously this is something that you and i can talk for an hour about. But it has been the longterm position of the Justice Department to defend the constitutionality and the statutes whenever reasonable arguments can be made. And i think consistent with what you said, its been understood that the core area of that, even if you think the part of the statute is unconstitutional, it would be in the sort of traditions of the office to have as little of the statute as possible as unconstitutional. So i think switching positions in that respect with i think can be identified as but the Justice Department does. In my view they tend to get itself in trouble when it deviates from that tradition. So be great to see that reaffirmed for you too think tht justice would welcome it. I also think that from a really strong position. Neal can you clarify that. Paul i think to the argument that they have change positions and said that the entire statutes fall. And that you dont have essentially zero severability in the informal care act. I thank you so based on my reading of the law and the oral argument. That is a position is likely to prevail. I think the sort of hits but i would say is the model of a case where the preconditions are met. The only thing that makes this one a little bit harder is the timing. If there is still a brief to be filed, it would be super easy to file a brief to different physician if it were an analysis of the reef had not been filed. It would be the easiest thing in the world to file a different free freighted this case is fully briefed and would argue. If they were going to change their position. What is the right way to manifest that change in that position. Because i dont think the answer is in the Supreme Court rule. I think they need to think itnk through. Neal i think it is a supplemental report is permitted under the role. Paul but its definitely permitted, yes. Neal so think that is the right format in which it should be done. And again i dont think its something you do lightly. But in this case, you and i agree on this. If visit to a t. It complicates this case is that the acting closing general might be recused from it because she has filed a brief in the case when she was in private practice. And that leads to a complicatedf question of well, what happens then. And also interestingly did not sign any of these briefs which i find remarkable. I have an idea as to why. But nowec he might. But there is this really deep question about what is the relationship between the president and the general. And you may having and acting general. But you have an administration thats one of the central ideas, healthcare for everyone prayed that certainly not, wanting to leave the Justice Department in a position that the could be struck down. You do have this question about how much can the president say to the acting solicitor general in that area and you had mentioned, paul, a minute ago, the affirmativeaction case in 2003. My understanding was there was a little bit of the dynamic going on. Back then between the Solicitor Generals Office and the white house. I dont know if theres anything that you want to talk about with that. It. Paul i was talk about it in general. I think it is one, maybe i should have said thisy at the beginning. Especially folks who are less familiar with the Solicitor Generals Office. The interesting aspect of it is that neil and i started to talk about, were both going nostalgic from our time there. Its a great office. The folks who work there are incredible. And consistent with everything we said in the weight that it operates and its relationship with the court. The Supreme Court in particular. Theres this sense of independence. Not entirely dependent but a little bit separate and apart. People talked about it as the justice or the 36 law clerks. But it underscores that the office is facing towards the court. But then you look to the organizational chart rated and you look at it and it says r solicitor general roche for te attorney general and the attorney general works for the president. So startling it is my view that its open to the president. In any particular case to say that this is the position of the United States. And that is open to the solicitor general to either represent that position before the United States Supreme Court or to resign. But you do not get to say no. Im going to countermand the president , thats not the way it works created and i guess what i would say and i have no insight on this. Everything i know whats going on the Justice Department the last couple months, hiring the papers. So i dont know exactly how things are working in the last administration. But i can speak to my own experience. Its understood that as a matter of at least mind view of the separation of powers, the president could tell you what your position was going to be in any given case. And the beautiful thing was is that it did not happen. And you are kind of given this space to operate any use your judgment. But understanding that you are doing this is part of the Justice Department in part of the administration. And i think that is one of these things where precisely because its on written and you dont see it on the org chart. Its kind of an amazing thing and were thinking about but also it is something that i think you have to work out to preserve. So from that standpoint, i think it is great. That the acting solicitor generals along with that in the office. I think that anybody is served in the office is going to have an appreciation for the office but also for this little bit of a delicate hand because you dont want the president and you do want to tell them what to do on a regular basis. With that power doesnt dip party do you agree with that neil. Neal yes and i completely agree with that. I guess my view is certainly the president and the solicitor general in the. Though we do think it should be done expressly and openly. I think one way in which the office can lose its power and stature is not in order is if you have the white house staffers calling up the solicitor general and saying i want to do x or y. Which is something that the white house does for almost everything else. Obviously not prosecution decisions. Like a department or Something Like that. But i do think the office is different in thatol sense. You just dont want that kind of settling informal kind of breezy kind of way to prepend to the offices position. One of the greatest things about the office i think that is the way in which they make decisions. Its highly regularized. It is no secret conversations. All of the different entities who care about something, they write a memo to the solicitor general. An mmomo is reviewed by several layers. And then to the solicitor general. So was a really wonderful way of making decisions party to so youve have any sort of extraneous phone calls or Something Like that. It throws thehe whole thing offkilter. So that, i think there are a lot of questions from both the Supreme Court, thee transition. It. Paul can save thing before we transition. I dont need to transition but i just want to say one thing for which is it follows directly from what you just said. The other thing that i thank you so important is for people kind of think that theres a right way and a wrong way for new administration change. In a way that is ultimately revived and reflected in his greenn card partied in the right way to do it is the underlying concern is the new administration has a different policy. And does like the policy of the last administration. They should change the policy prayed and then if it changes the policy, its easy for the solicitor general to say avenue policy. Maybe you need to remand the case of the lower courts consider the new policy. For the policy is just not there anymore. As in the case is moot. So all of those seem to be the right way to make the policy read to your point, i think that can come in, i think the Solicitor Generals Office has to be careful is that somebody is trying to change the policy without actually changing the policy. Saying hey, they stripped of this role. And i know ordinarily, you could petition for Supreme Court review. Even if you do not come the rules will just go away. That struck me as the right answer would be, go to the secretary of transportation. If it all goes away, i got plenty to keep you busy. We do not have this in a disguise of the Solicitor Generals Office to make a legal determination actually smuggle in the policy determination. They just seems like shut such an important point especially during a transition i wanted to make it express. Paul and i get calls all the time. Like jonah feel this and that for unit and its one of your rules, you can change it. You can take it away for me anytime you want theyre afraid to do that for they want me to do the dirty work for them. Thats absolutely the wrong way to go. And i want the viewers and the people to understand, thats about the agency decisions. As a whole separate thing about when youre defending acts of congress in which you do not have that discussion. So very fabulously. You have a defendant, and Campaign Finance reform even though the administration, the Campaign Finance regulation. The defending the act of congress and you couldnt have the agency changes to it because it was congressional. It. Neal with that, i know the people are so interested in talking about the courts right now. Can maybe into different features of it. One is the coronavirus. It is so weird. Ive had to phone arguments and you probably had ten at this point. I find them, there is one way in which they are better in which is first of all, you will from Justice Thomas and some of the justices who dont ask as any questions. So that is fascinating and on its own. But its also that you do sometimes getting a sustained interaction with one justice over repeat questions in the way the normal Supreme Court arguments, usually some of the justice, in essence its more like a court of appeals argument with theres only three. One of them is going after you for a while. That can lead to i. Think, sometimes a line of questioning that is deeper and more probing of a position. And on the other side i find the thing that i think that we do, one of the reasons for our job is we read the room and were watching intonation and in so any things to try to understand the position resonating. And on the phone, were operating live. Like i i find it hard to know winter stop and answer. These adult want to go on but i dont know if ive satisfied the what the justice has asked me. I cannot see them. So overall, i find that. Challenging environment. Anything fall prey to. Paul so i will start with another outside of the new format which is just, i typically drive myself into the court the morning of the argument so for a typical Supreme Court argument, i have anxiety about what will a crash on the 14th street bridge would look like. It doesnt matter if somebody else is driving. The point is that you have to get there. Dc traffic, and in virginia. So dc traffic can be a challenge. You worry about this in the morning of argument for you worry a little bit about what youre going to wear. Thats at the window to. Nobody can see what you are wearing. So in a sense of just being able to basically argue fromo home. Theres something to like about that. But in all seriousness, i reallyio do miss me in person arguments. Ill say two things that i miss. One is veryat similar to what nl has said already. It is not just that you cant read the realm or the justice. That is true. It is a question in a life argument. You can see sort of whether its asked the smile rest with just a cold stone sober kind of look. It and those are very different questions even though every worg of the question is exactly the same. The biggest thing as well as because of the way the Supreme Court processes the cases and the fact that the justices do nott really talk about the cases amongst themselves before the oral argument, theres so much oral argument. Not this sort of reading the justice is asking the question bring how are the other justices reacting to that. Anyway, the fact is almost more dramatic when the other lawyer is arguing. Th i remember a i case that i argud tagainst and i know my juice ws cooked before he went up to the podium because i could see during his argument the pushback that i was hoping to give back, wasnt there the kind of body language of the justice. It was favorable. To the other side. I find in a typical in person argument, you can learn a lot about where thent court is. Just like watching them during the other persons argument. Uand you do can as the visual on that entirely. In the second thing that i reallyth miss is we get the opportunity to argue in front Supreme Court on multiple occasions. But for most of our clients, e going to be the one and only chance to get to the Supreme Court of the United States. In part of this is going into the building, seeing the justices in action. Lehman, win or lose, most every one of my private sector clients in the couldve been involved with and they been with me in the Supreme Court building. Theyve left the good feeling. The justices are so well prepared. The building is very well designed to instill the, the missing out on the big part of the experience prevents one of the any reasons. Neal also i would add to that, like when my partners just argued fortn the first time in a case a couplee months ago. It is looking so forward to this. He finally got to the Supreme Court and he does. And he didnt bluejeans the whole time. Hes using his laptop. Its definitely a loss on the outside. Think one other interesting thing is that maybe this is drawing too much from it but because so any more people i think are tuning into the arguments. Because they are liveto streame. Things like the justices are, the questions are darn good right now. You dont have as any followups. Those initial questions i think are crafted. Maybe they know because i have three minutes to ask the question prayed so think it t comes in with a bit more preparation than a more spontaneous question on the fly. That. Oticed we think about with a bunch of questionsti from the viewers abt whos going to step down. Our others going to step down. Justice breyer. I cant begin to speculate as to what is going to do. Before Justice Breyer, and is never been about him. As always been very meshed institutional and longterm whatever institution he said. So think that is really going to be the calculation for him. It is the appropriate time given the partisan break in the country over the last year. I think it wouldve been replicated. To be. Worried about having whoe war run him. So i think the a kind of questin will be something that he is thinking about. Paul it is a great question. And obviously you know Justice Breyer in a way that i dont. I would imagine that is something that he has to consider. I think that Justice Scalia obviously did not make the decision. But i heard himd talk about the decision publicly. He sort of said, as head of human nature to take into account whether the person is likely to replace you is going to be good for the institution. If theyre going to spend the next 30 years rewriting everything you just wrote. Just seems natural the justice account. G into please have this feeling, we saw this with justice ginsburg. He saw a little bit with just thomas at the end of the Trump Administration. Youre starting to see some of these people talking about asking about Justice Breyer to step down. To think so and seeming lee. Then it talks to important debatable issues about how much power the Supreme Court has. Im not saying that its irresponsible or even entirely natural maybe. But i guess it seems unseemly. So im curious if you have a different view of it. Might reason is, for your own reasons, maybe you would like for him to retire. My advice wouldce be do not talk to him. Hes going to make whatever decision he is going to make. I do not think you going to advance the ball an inch. It might just rollback a little bit. If people are sort of suggesting it. I think this is something where as a left separately for people who are secretly rooting for retirement. The less said the better. Neal i totally agree. And some people were saying this id was horrified then. These are human beings after all. Theyre not robots. Not software upgrades. They were trying to replace or r something. At the same time, a little ridiculous antiquated article that uses lifetime tenure approach as opposed to any year term or something with that. Could offset a lot of this. It is predictable. But its unfortunate i think. If you do not have too much martine paul. But i know a lot of people are interested in thoughts about impeachment and someone. Maybe just one thing since you are such a student of the chief. We are saying according to reports, declined over this trial. Im curious if you have any thoughts about that. Paul thank you neal. I want to ask you, more broadly about your thoughts about the situation. Let me just firstst talk about e chiefs decision. I think there is two things that are really important to keep in mind. The first is his decision to not preside, i dont think really addresses the separate issue of whether or not the senate has the power to try a sort of former office. Theyre obviously related issues but i think there really separate. The thing about the chiefs role in impeachment, it is very specific to an appeasement trial of the president of the United States. Donald trump is no longer the president of the United States. So presumably, his view of that clause of the constitution is probably as simple as that. I cant obviously. Reporter him. Is certainly based on interpretation of that clause. And it really doesnt address and a completely separate question about whether the senate can have a trial under the circumstances. Whether it is appropriate, constitutional. So dont think the chief is sort of foreshadowing the view of that separate question. And i think if he thought he were, i think he wouldve done something different. Whether it makes a different decision or explain in writing or something. Sobut i think is probably fair o say that they should be a separate question for you but the second thing that i want to highlight predicts directly related to my teaching at the law school over the years. One of the things that i have really been trying to impress upon people and think about the separation of powers. Is the constitutional law, it gets made in the decisions get made in places other than some cream court narratives. Sometimes when the president decides not to take an action because the president thinks that action isnt unconstitution. The constitutional law being made, sometimes with the senate takes an action or refrains from an action because of their view of what the impeachment clause provides. The making constitutional law. So i think theyve made in super interesting constitutional law. Theres no explanatory decision that goes with it. My view, it did not get to the Supreme Court, probably wouldnt because of the political question doctrine. We can talk more about that later if we have time. I think the chief has just made clear that he reads that clause as being specific to the current president of the United States. And make some sense because i think that provision may be in there. Because theres a perception of the Vice President would preside over the senate trial they would have a conflict of interest. And if you get a job promotion because the person is conflicted. Maybe you shouldnt be impartial dedicated. So find it super interesting that by making this decision and again based on what ive seen so far, without explanation for it. Its really making an interesting constitutional law. There is lot of arguments going back and forth of the current impeachment. Theres a lot of unprecedentede about it. And of thinking and the has been impeached twice before. I dont think we have had this in relation to the president anyway before. When you make it of adult deal. Neal i think 100 percent that the chiefs right to know presiding over this impeachment the way that was structured. Now had the trial began before january 20th, had begun a kamala wanted on the 18th and 19th. I think the chief would preside. And it would then be interesting question judy continued to afterwards. They dont see any other way really reading the text in precisely because of the rationale is almost certainly the one youai identified. Which is the chief justice should be there because the Vice President otherwise presiding we have a conflict ofan interest. So i think this was an easy call them by the chief made the way he did. So its great to have the chief presiding rated but i just dont think thats what the constitution says. And then you have this other question. But i do think youre absolutely paul. The former officials and already you have the problem that senator compton and others saying that you cannot. One thing is this is not exactly true of formal officials. Becauseot you have the impeachmt process starting before hand. And then youve got the text in the constitution of article one which has two different punishments if you are impeached. One is removed from the office. And the other is you can be by for the road, disqualified from future office holdings. A lifetime ban. Its hard to really think, understand the text if you do not think that a former official can be subject to punishment of a lifetime ban. Because otherwise basically, everyone who is facing in impeachment or been impeached, or aboutface removal. And then terminate the proceedings against her him in the lifetime ban provision would be meaningless. And after all lifetime ban is just the majority of the senate. And so the convictions of those is two thirds. Its a little not really any circumstances in my mind, in which someone who after they pasted two thirdsr conviction vote and lost it, is going to hang on and say will maybe ill get 51 people so i can serve again. Plausible. Ot so every person would resign of the convictionn notice. And in that cause would be meaningless. Theres one problem with i think, the argument that senator cotton andan rand paul has advanced. And then the one just historically, at the time of founding. The english history was to impeach former officials. Most shamelessly the governor hastings. Notorious scoundrel. He was impeached after he left. That was the actual one incidents in the philadelphia debate, that is mentioned is the hastings impeachment. So this was a wellknown case. And really nothing to the contrary. Theres little bit. Of, question that it has not been done much. The secretary in 1976 and former official impeachment proceedings were done against him. And a couple of others free spirit as it should be. And donald trump was rare. Paul i find it interesting. Im going to be teaching this in one of my upcoming classes. We are going to try to expand this on both sides of this. I think what makes some of these questions about impeachment so interesting is because of a Supreme Court case. I would like to think about it is the other nixon case. It was. Clear that the Supreme Court will not get involved in these issues. Messing the 70 will try to get them involved. They wouldnt bring a lawsuit. I suppose theres an argument that you could distinguish the nixon case because of altered nixon case, the Supreme Court said that issues of impeachment are political question but they were focused on the question of whether what the senate did in that particular casen was realy a trial. Because they had kicked some ofe the factfinding to a subcommittee in the senate. And a challenge in a case brought by former judge was that is not really a trial. The whole senate and the for of the impeachment. The Supreme Court. Good margin said no thats a political question. It will be open for somebody to ssay if they want to that this question is separate from the trialne question. My strong sense is that the courts starting with the First District court that addresses that, to say no thank you is a political question. You have a different view of it. Neal yes a different question totally. Paul i think were getting. Close to our time together neoprene anything else that you want to share before we go. Neal paul, you had mentioned before in a case which you had argued against and what you said that you saw the justices. In that case, for everyone and we have hud, some. Heated cases over the years. The Affordable Care act as well. I thank you so supportive for folks to know that we are good friends. As one of the things that i love about this and i love about you in particular about georgetown is we can be on opposite sides of really hard stuff that we care tremendously about. And with every fiber in our soul but respect the person on the other side is making the other argument. Because our profession at the end of the day is all about precisely that. So you have taught meu so muchn addition to teaching so any georgetown students. I want to publicly thank you for your service to georgetown in the bar as well as to just being such a great person calling to me. Paul thankof you neil party tht is so kind. I would say the lessons you learn in arguing stcases against people and having the in the perspective is that yes we both care deeply about this but we both really hoping the court in the long run into the right answer by presenting the best possible argument. I think it really helps keep the focus where it should be. We are very good friends. Even though sometimes we end up on the opposite sides. The other thing to make the greatest once in a while end up on the same side. The only thing is better than arguing the case is getting to argue a case with you. Or be cocounsel in the case. And we have to do that as well. That is even better. I dont get too sappy but i do think that theres something to be said about the office in the Supreme Court, is a little bit of a model for mixing it up. Being passionate, not throwing punches in the form where punches are appropriate. In the understanding that a decision will be made and that the person on the other side is indeed a person. And i think all of these are lessons. Im conscious that as you said, in our profession, we are held to the fact that the Supreme Court is goingde to decide the cases. And they are the ultimate arbiter and that take some of the pressuree off. But there is a generalized lesson here. So i do hope the office and Supreme Court can bee a model in that respect read. Neal thank you so much and thank you all for watching read. Paul thank you. A. Book tv on cspan2 stop nonfiction books and authors every weekend. Sunday at 8 00 p. M. Eastern, and american life, journalist dan talks about the life and career adVice President , harris. And 11 eastern, goodheart, talk about the book, the great demographic reversal. The age of society, poverty and inflation revival. And on sunday, and 9 00 p. M. Eastern on afterwards, New York Times columnist charles bloom on his book, the we know. Black power manifesto. Author and founder and president , robert wilson. Watching tv, this weekend, on cspan2. Former President Trump becoming the first president to be impeached twice. This week the impeachment managers deliver the articles of impeachment against former president on insurrection to the senate. With marilyn democratic jimmy ruskin reading the article before the senate. Sue Macdonald John trump impeachment trial, removal from office and disqualification to hold and enjoy any office on earth or profit under the United States. So help you god. The delegates the sinners were sworn in. Republican Kentucky Rand Paul the point of order to dismiss the impeachment charges unconstitutional party to. Therefore make a point of order that this proceeding which would try a private citizen, and not a president , Vice President civil officer violates the constitution and is not in order. Since 55 45 senate votes. And afterwards, the Senate Approved the rules of the trial and adjourned until tuesday, february 9th. Marking the start of the Senate Impeachment trial. Watch the Senate Impeachment trial live at 1 00 p. M. Eastern on cspan2. Streamlined at cspan. Org or listen on the cspan radio app. Governor spencer cox delivered estate of the state address in Salt Lake City saying that he was hopeful despite the coronavirus pandemic. His speeches just under 20 minutes
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