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 par