Amicus With Dahlia Lithwick | Law, Justice, and the Courts

Episode: A Trial That's Not A Trial
Date: January 18, 2020
Host: Dahlia Lithwick
Guest: Neil Eggleston, Former White House Counsel to President Obama

Episode Overview

This episode delves into the unprecedented impeachment trial of President Donald J. Trump, focusing on its legal underpinnings and the inherent tensions between law and politics. Host Dahlia Lithwick and guest Neil Eggleston explore the nature of the Senate impeachment trial, the evolving roles of legal counsel in these proceedings, questions of executive privilege, enforcement mechanisms of congressional subpoenas, and the risks to legal and institutional norms. Throughout, they reflect on the challenges of maintaining the integrity of law in a highly politicized process.

Key Discussion Points & Insights

1. The Impeachment Trial: A Legal or Political Process?

• Lithwick frames the impeachment as an intersection of law, politics, and institutional integrity, noting her own fascination with the unprecedented visuals and procedures of the current trial.

  • "This impeachment...is at base about election interference." (01:00)

• Eggleston confirms that, for only the third time in U.S. history, a Senate impeachment trial is underway, with many aspects taken from the Clinton proceedings but still subject to political maneuvering (06:26–07:24).

  • Quote:
    "The contours are coming a little more in focus now, certainly, than they were before the holidays." — Neil Eggleston (06:26)

• Both discuss the possibility of the trial being dismissed early, with Eggleston expressing the view that a mere motion to dismiss would not meet the constitutional requirement of a "trial" (07:43).

  • Quote:
    "A motion to dismiss does not actually constitute a trial and therefore would be in violation of the Constitution." — Neil Eggleston (07:43)

2. The Roles and Composition of Counsel

• Comparing historical impeachments, Eggleston details the typical mixture of government and personal attorneys that can compose the president’s defense team, noting that some confusion is natural due to the overlapping roles (11:00–12:40).

• Lithwick voices concerns about blurred lines between official and personal legal representation, especially with individuals like Pat Cipollone (White House counsel), Jay Sekulow (private counsel), and potentially Rudy Giuliani and Alan Dershowitz (10:00–11:00).

  • Quote:
    "It's kind of like the TV lawyer dream team plus White House counsel." — Dahlia Lithwick (10:55)

• Eggleston acknowledges some precedent for mixed legal teams but criticizes Cipollone’s approach for lacking a legal foundation and potentially damaging institutional integrity (14:13–16:54).

  • Quote:
    "I was critical of it for a couple reasons. One is that it was not particularly a legal based letter, and I thought that the White House counsel should be writing letters based in law and sort of not in politics..." — Neil Eggleston (15:00)

3. Executive Privilege vs. Immunity: Definitions and Application

• Lithwick and Eggleston clarify that executive privilege and immunity are often confused but are legally distinct. Executive privilege pertains to protecting presidential communications, while absolute immunity is a contentious doctrine about refusing even to appear before Congress (24:20–27:55).

• Eggleston recounts precedents, notably U.S. v. Nixon and In re Sealed Case (ESPY), and the ongoing McGahn litigation's implications for future oversight and balance of powers.

  • Quote:
    "OLC takes the position that [absolute privilege] applies to a very small set of very senior advisers who have regular communications with the President." — Neil Eggleston (26:09)

• There are concerns that prolonging court disputes over privilege and immunity unwittingly favors the stonewalling party—a challenge Adam Schiff tried to avoid by not bogging the House inquiry in endless litigation (29:19–33:43).

  • Quote:
    "Taking a long time is not neutral. It's actually contributing to an outcome." — Neil Eggleston (30:36)

4. Enforcement of Subpoenas: Congress's Tools and Norms

• Eggleston discusses the waning power of congressional subpoenas if noncompliance is met without consequence, and the rare, almost antique option of “inherent contempt” (34:05).
• He advocates for the House to use criminal contempt as a plausible future deterrent, even though the current Justice Department may not act, suggesting future administrations may revisit these offenses (34:37–36:41).
  • Quote:
    "I think the House cannot be in a position of issuing subpoenas...who simply snubbed their nose and said they were not going to appear… I would recommend to the House that it, as to those individuals, pursue criminal contempt proceedings." — Neil Eggleston (34:37)

5. Rudy Giuliani's Multifaceted (and Baffling) Role

• Lithwick and Eggleston highlight Giuliani's complicated involvement as personal lawyer, informal diplomat, and alleged investigator, questioning the clarity or appropriateness of his roles (36:52–40:24).
  • Quote:
    "I don't know that anybody could sort out what Rudy. Rudy's role and which hat he was wearing..." — Neil Eggleston (38:01)
  • Fiona Hill’s testimony is cited: Ukraine policy was divided into two “lanes”—official foreign policy and Trump/Giuliani’s pursuit of political investigations.
  • Giuliani’s own letter to Zelensky is referenced for clarity that he acted only as Trump’s personal attorney.

6. Defining Corruption and the Heart of Impeachment

• Lithwick laments the loss of a clear, shared definition of “corruption,” as the term becomes politicized ("anything the other guy is doing I don't like") (41:49).
• Eggleston asserts that impeachment is not strictly a legal/criminal matter but is meant to address abuses of office:
  • Quote:
    "Did the President act in a manner abusing his office for his own personal benefit? I think that that should be the touchstone." — Neil Eggleston (43:44)

7. The Chief Justice’s Role: Law or Politics?

• Lithwick and Eggleston discuss the limited but symbolically potent role of Chief Justice John Roberts in the trial. While his decisions can be overridden by the Senate, his commitment to solemnity and the integrity of institutions will be on display (43:57–47:06).

  • Quote:
    "Chief Justice Roberts is going to want to be participating in a serious and solemn enterprise and is not going to want to be part of a denigration of the institution..." — Neil Eggleston (45:13)

Notable Quotes & Memorable Moments

• On the Spectacle of the Trial:
  "It was like watching Oscar the Grouch just hop up and walk out of his garbage can. And I for one found that thrilling." — Dahlia Lithwick (00:35)

• On Subpoena Noncompliance:
  "If it becomes the norm that people just say, yeah, no, I'm not showing up...you've really just gutted a norm there." — Dahlia Lithwick (36:24)

• On the Limits of Political Expediency:
  "This is an example to me of litigation that should not have been brought, that was brought in the short term interest of President Trump, but probably isn't the long term interest of the office of the President." — Neil Eggleston (20:44)

• On the Impeachment Process:
  "Solemn, serious, not sort of a circus is exactly what I wanted this show to be." — Dahlia Lithwick (47:06)

Timestamps for Key Segments

• Opening Reflections & Institutional Stakes: 00:29–03:39
• Senate Trial Structure and Possibility of Dismissal: 05:59–08:09
• Historical Comparisons & Legal Teams: 10:00–12:40
• Critique of Pat Cipollone & White House Counsel's Role: 14:13–16:54
• Executive Privilege & Ongoing Litigation: 24:20–27:55
• Courts’ Response Time & Schiff’s Strategic Choices: 29:19–33:43
• Congress’ Enforcement Powers, Contempt: 34:05–36:41
• Rudy Giuliani’s Role(s) and Impact: 36:52–40:24
• Corruption: Definitions and Constitutional Standards: 41:49–43:44
• Chief Justice Roberts’ Constraints & Symbolism: 43:57–47:06

Tone & Takeaways

• Intellectual, Wry, Concerned: Lithwick brings her signature wit ("Oscar the Grouch") but maintains a serious and at times urgent focus on the profound institutional risks at play.
• Expert, Candid: Eggleston’s legal analyses are measured, historically grounded, and offer direct assessments of the dangers in current practices and choices.
• Nuanced, Non-Partisan: Both strive to delineate the boundaries between law and politics—highlighting when norms are at risk and why legal distinctions matter, regardless of party.

Final Thoughts

The episode underscores how the Trump impeachment trial is not just a replay of past political drama but a potential turning point for American constitutional law, legal norms, and the powers of oversight. Through expert commentary, listeners gain both historical context and crucial insights into the stakes for the rule of law.