← Amicus With Dahlia Lithwick | Law, justice, and the courts
Amicus With Dahlia Lithwick | Law, justice, and the courts
A Trial That's Not A Trial
00:48:40
As the Chief Justice and Senators swear in for Donald J Trump’s impeachment trial, a lawyer’s eye view of proceedings.
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- [00:06]
Neil Eggleston
Do you solemnly swear that in all things appertaining to the trial of the impeachment of Donald John Trump, President of the United States, now pending, you will do impartial justice according to the Constitution and laws, so help you God.
- [00:30]
Dahlia Lithwick
Hi and welcome back to Amicus. This is Slate's podcast about the courts and the law and the rule of law and the impeachment trial. I had to confess to my editors this week that the main reason I was personally glued to the screen watching Chief Justice John Roberts swearing in the members of the Senate for the opening of Donald Trump's impeachment trial on Thursday was because I had been covering the court for two decades and I had never seen the man's legs. It was amazing. It was like watching Oscar the Grouch just hop up and walk out of his garbage can. And I for one found that thrilling. Related if you think about it for a minute, this impeachment that we are involved in now is at base about election interference. The reason we cannot put off dealing with the President's actions until this coming November is that for the second time that we know of, he's tried to affect the outcome of an election by asking a foreign power to dig up dirt on a and we cannot wait for the election because he's doing that right now with this very election. So next week we're going to start to bring you a special series of amicus that is going to ask tough questions about the very integrity of US Elections. Election law professor Rick Hassan is going to try to help us map out the serious issues and challenges facing this too often overlooked institution. Just voting. Next week, the behind the scenes story of what happened with the President's now defunct Voter Fraud Commission. Spoiler. Bonkers. And you will hear about a stunning cross examination that buttoned up probably the most significant voting rights case of the 21st century so far. We're going to be releasing special election meltdown episodes of Amicus every week for the next five weeks and Slate plus members will have access to extended interviews which will be dropping on Sundays. So get ready for a whole lot more amicus in your life in the coming weeks. And if you want even more amicus, maybe even some real life live off the cuff amicus, please join us in Washington D.C. on February 19th for our live show. Rick Hassan and I will be joined by Florida gubernatorial candidate Andrew Gillum, MacArthur fellow Danielle Citron, and Dale Ho of the ACLU's Voting Rights Project. And we are going to together try to figure out what we can do to preserve and protect that little thing we think of as free and fair elections. And we're gonna do it before November. We'd love to have you there for this crucial and timely conversation. For tickets and more details, please go to slate.com live to get your tickets. I am very much looking forward to seeing you there. It's slate.com live for tickets. And make sure you look out for the election Meltdown series of amicus, wherever you get your podcasts. So, friends, there's a happening this week, including Bridgegate, argued at the Supreme Court and the first ever known use of the words okay, Boomer in an oral argument.
- [03:39]
Neil Eggleston
You know, one comment about age, you know, the hiring person who's younger says, you know, okay, Boomer, you know, once, once to the, to the applicant, that.
- [03:51]
Dahlia Lithwick
Was about age discrimination. And it happened on Wednesday. But we're going to try to focus in on the Senate impeachment proceedings on this show because what happened on Thursday when Chief Justice John Roberts marched across the street to the Capitol and into the Senate chamber, well, that was only the third time in history that we have seen an impeachment trial.
- [04:10]
Neil Eggleston
The presiding officer will now administer the oath. To John G. Roberts, Chief justice of the United States. Senators, I attend the Senate in conformity with your notice. For the purpose of joining with you for the trial of the President of the United States. I am now prepared to take the oath. Will you place your left hand on the Bible and raise your right hand? Do you solemnly swear that in all things appertaining to the trial of the impeachment of Donald John Trump, President of the United States now pending, you will do impartial justice according to the Constitution and the laws, so help you God? I do.
- [04:53]
Dahlia Lithwick
Roberts was not, let me confirm, wearing the gold striped robe that his mentor, Chief Justice Rehnquist, had sported when he presided over the Clinton impeachment. But for a man who's not used to being on camera, he conducted himself with great decorum and gravitas. But what's going on? What happens next? What is this process, particularly the legal part of this process? What does it all mean? Well, our guest today is Neil Eggleston. He's making a return visit to Amicus. He was White House counsel during the last three years of the Obama administration. He represented the office of the President in privilege litigation against the star independent counsel's office during the Clinton Whitewater Monica Lewinsky investigation. And one of the reasons I really wanted to talk to him is because I have a lot of sort of big, amorphous Vague questions, but lots of specific, nitpicky questions about so many things that I can barely even put into words. And it all seems to be missing from the news coverage. And. And Neil knows all the things, so. Neil Eggleston, welcome back.
- [05:56]
Neil Eggleston
Thanks. Thanks, Dahlia. As you know, I'm a loyal listener, so pleased to be here.
- [06:00]
Dahlia Lithwick
Okay, well, then, if you're a loyal listener, let's just jump into this. I feel that I have asked every guest for the past two months, what is the Senate impeachment trial gonna look like? And every one of them, with all due respect, has said, I have no idea. Is it still the case that we just don't know because it's all kind of in Mitch McConnell's hands, or is it shaping up to look an awful. The Clinton impeachment trial that you were involved in.
- [06:26]
Neil Eggleston
I think we have started over the last week or so to get some greater definition about the way the trial is going to look. There will be a resolution put on the floor by Leader McConnell on Tuesday. I think that will try to set the bounds for what's going to happen subsequently and throughout the remainder of the days. There'll be significant attempts by the Democrats to make amendments to that resolution. But I think the basic contours have come into play, which is there'll be a couple of days of presentation by the House managers, followed by a couple of days of presentation by the counsel for the president. I think it provides for a rebuttal by the House managers. Some questions, I think, by the senators, although I think listeners probably know that, oddly, the senators are not allowed to talk to the extent they want to ask questions, they have to ask them through the chief justice. And so I think that the contours are coming a little more in focus now, certainly, than they were before the holidays.
- [07:24]
Dahlia Lithwick
And then there is this big looming question. Is there a kind of off ramp at which they determine we're just going to vote, no witnesses, no future, nothing, we're just going to dismiss. And that's a possibility. At which point we could just have closing statements and it's done, right?
- [07:44]
Neil Eggleston
Yes, sort of. I've thought about this, and I would argue that the Constitution talks about a trial that will take place in the Senate. I don't think a motion to dismiss constitutes a trial. And I would argue that some sort of proceeding with some sort of evidence doesn't necessarily have to be new witnesses, but that a motion to dismiss does not actually constitute a trial and therefore would be in violation of the Constitution.
- [08:09]
Dahlia Lithwick
And how did it work in the Clinton trial, the witnesses were sort of deposed and then they didn't actually come in and testify. Right.
- [08:19]
Neil Eggleston
So if you remember, in the Clinton era, there had been a couple year investigation by Ken Starr, the independent counsel who then prepared a massive report and accompanying exhibits. If I'm remembering correctly, he actually proposed articles of impeachment that the House might want to consider. So he had done an enormous amount of work, and that work was thereafter provided to the House of Representatives, first to the Judiciary Committee, then to the House of Representatives. House, very quickly, I think within, easily within two months, voted articles of impeachment that were sent to the Senate. I think in the Senate, there were, if I'm remembering correctly, there were three witnesses who were, I think, deposed. Sidney Blumenthal, because Republicans always want to pick on Sidney Blumenthal. I think Monica Lewinsky. And as I sit here, I can't remember who the third was. I don't think that they testified live in front of the Senate, but I think they testified as part of the Senate process and their deposition was played or transcripts provided or whatever. But there were witnesses, if I'm remembering correctly, in the Senate impeachment trial of President Clinton.
- [09:30]
Dahlia Lithwick
The overarching question that I have for you isand this is always a struggle on this show, which is supposed to be about law. But more and more when we talk about impeachment, we talk about law that comes dressed as politics. And of course, this impeachment trial purports to be a legal proceeding, and yet in all sorts of ways, that's confounded by the fact that it's a political process. We've heard Mitch McConnell say, I'm not a juror, I'm not impartial. This is a political process. It's got nothing to do with the law. And you come at this as a lawyer. So what I want to try to do is refocus this on sort of lawyerly questions, which I grant might be completely orthogonal to what it is that's happening. But let's pretend that the law matters. And that raises this question that I have about. I understand the impeachment managers are the analog to the prosecution. Right. So we've got a bunch of House members who will prosecute the case. That makes sense as a legal matter. I'm very confused, Neil, about the defense. Donald Trump's defense lawyers, as we sit here right now talking about it, are going to be Pat Cipollone, who's White House counsel, Jay Sekulow, who's a private lawyer to the president, possibly Rudy Giuliani, possibly Alan Dershowitz. This is kind of like the TV lawyer dream team plus White House counsel. Right. Is that standard? Who usually defends the president? Usually makes no sense. We've had two impeachments, but is this normal?
- [11:01]
Neil Eggleston
So just to go back to the one I remember, which is the Clinton impeachment, Chuck Ruff, who was then White House counsel, had a significant and maybe leading role and assisted by others in his office. And in addition to that, David Kendall and people at Williams and Connolly were also assisting. So as I remember, there were on the defense side for President Clinton, there was an official group of lawyers and then David Kendall, who was President Clinton's longtime defense lawyer in connection with the entire Starr investigation. So I think that that's the way it was done in the Clinton administration. My kids say I'm old, but I'm not old enough to remember the Johnson impeachment. Excellent. So I can't quite remember. I do think I've read that the then current attorney general and some former attorney generals were part of the defense team. So I think there may have been a similar lineup in connection with both governmental lawyers and private lawyers in the Johnson impeachment as well.
- [12:02]
Dahlia Lithwick
So this thing that is confounding to me, which is I don't understand exactly how White House counsel is working hand in glove with private counsel. And you're saying in the Andrew Johnson impeachment, possibly the attorney general, it seems to me the thing that is very confusing is don't all these people, at least by design, have quite separate lanes in government? I mean, you come to us, as, you know, former White House counsel under Obama, conflating all these jobs in the impeachment strikes me as very confusing. Am I just being deliberately obtuse here?
- [12:41]
Neil Eggleston
Well, I am not. So let me, if I could just take a step back in answering that question. So I was in the White House counsel's office then as an outside lawyer representing the office of the president in connection with the star independent counsel investigation. And there were lawyers, me, for example, representing the office of the presidency and sort of the president in his official function with regard to assertion of privilege and things such as that. Then the president also had private counsel. We were careful, I think, to keep those roles separate. I did not represent President Clinton in his personal capacity, and David Kendall did not represent the president in his official or presidential capacity in the Obama administration. It really wasn't much of an issue because there were no issues that created a tug of war between those. It was essentially one guy and one set of problems. And those set of problems were official problems. And so we really didn't confront that issue here. I'm not really surprised or troubled that there are both governmental lawyers and personal lawyers involved. This one action by the House, and ultimately, if it takes place by the Senate, has an enormous impact on the president, both in his personal capacity and his presidential capacity. And so I'm not critical of the combination of inside and outside lawyers in connection with the defense of President Trump once we're now at the Senate trial.
- [14:14]
Dahlia Lithwick
And yet you were pretty critical. I read about a talk you gave this fall. You were pretty critical of Pat Cipollone kind of getting out of his lane in that October letter where he proclaimed in lots of Trumpy words that the president would not be cooperating in any way, the impeachment inquiry. So I guess it seemed to me that you were saying that he was acting strangely as though he was Trump's personal lawyer in that matter, not as White House counsel. And then I think I also read you telling the New York Times that he has in many ways acted just as though Trump was his personal client. Is that different from what White House counsel ordinarily does, or is that just a tone issue?
- [15:01]
Neil Eggleston
So I think that Pat has acted in a way that's less respectful of his duties as counsel to the office of the president than prior White House counsels, certainly different than I did as White House counsel with President Obama and different from my role during the Clinton investigations. I was particularly critical of the letter that Pat wrote in Octoberand this is the seven page letter, however long it was, that just essentially said that impeachment is unconstitutional. We're not going to cooperate in any fashion. We're not going to give you witnesses, we're not going to give you documents. And it was filled with exclamation points in all caps, if I'm remembering correctly. I think it led most people, including me, to conclude that there was a second potential author of the letter, and that's the President of the United States. 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 or not in, you know, beefing up the base and the like. There are plenty of people in the White House who can perform that function. And I think that the White House counsel should essentially stay in his lane. So I was critical of the letter for that reason. I was actually critical of the letter for a second reason. Which is having been White House counsel, I knew that a letter like that would have very little impact on career officials in the various different agencies. And it was going to be a letter that was going to be ineffective. And as White House counsel, I never wanted to write a letter that I thought was going to end up being ineffective. And it turned out, obviously can't remember the number, but a dozen or whatever administration officials testified during the House hearings, which is exactly what I would have predicted would have happened. So I was critical, I think, of the letter for those two reasons and.
- [16:54]
Dahlia Lithwick
Maybe others, is the implication that hehad he written a more sort of doctrinally sound lawyerly letter. Maybe the Fiona Hills and the other folks who testified would have been deterred from testifying, that it was just, again, this kind of tonal problem?
- [17:15]
Neil Eggleston
No, I don't think that the Fiona Hills and the Admiral Vindmans of the world really cared much about what the White House counsel had to say about whether they should testify or not. What I really mean is that having it not be a particularly legal letter and ultimately an ineffective letter, it was going to show the inability of the White House to really have an impact over who the witnesses were going to be if they were out of the White House. People like Acting Chief of Staff Mulvaney was in all likelihood going to follow the direction of the White House counsel. But once you get to career officials of the State Department, they just don't particularly care what the White House counsel has to say. And so I would not have written a letter as if my pronouncement would be necessarily taken because I thought the likelihood it would be taken as a binding directive was quite low. And that's exactly how it turned out.
- [18:09]
Dahlia Lithwick
So that's interesting because I think the thing that I've been tilting at, and you just said it is the White House counsel's responsibility is not just to this president, it's to the office of the presidency. And one of the things you don't want to do is kind of diminish that office. And is that what you're saying?
- [18:30]
Neil Eggleston
Well, I think so. Look, this happens. There was a pressure, I think, in the White House to do that on behalf of President Clinton. Obviously, President Clinton took a very different attitude towards the impeachment process. He took it seriously. He was contrite and apologized to the nation when the process was over. And President Clinton came out of that process with higher poll numbers or at least as high poll numbers as when he went in and poll numbers that were quite high. And I think he decided to treat the process with sort of much more respect than the current White House has. But, Dalia, could I just give you an example of something I'm a little bit worried about, which is, I think, responsive to your question, but not quite in the impeachment context, which is there's this litigation ongoing about Don McGahn, the former first White House counsel for President Trump, and about whether he can be compelled to testify before Congress. And, and that's exactly the kind of litigation I tried to avoid. That issue has been litigated once before. It was litigated at the end of the George W. Bush administration involving Harriet Myers and Josh Bolton, who had been chief of staff. Judge Bates, who's a terrific Republican judge, deputy to Ken Starr, if I remember, correctly, ruled that there was no privilege, absolute privilege, that that authorized either Harriet Meyers, former White House counsel, or Josh Bolton to refuse to respond to a congressional subpoena. So that had been lost once before, protecting senior officials of the White House from harassment and distraction. I regard it as one of my principal jobs, and I asserted this from time to time on behalf of current, very senior officials. I did not assert it in a blanket fashion at all. There were people in the White House who weren't happy with that. But I was very careful about when we would assert it and made sure that we did it with a very firm foundation. I'm quite concerned that this litigation has the ability to change the relationship between oversight by Congress and by the president. And fundamentally, I'm worried that the White House is going to lose. And if the White House loses these litigations, it'll be a precedent that then will apply in the future. And the ability to keep senior White House officials from responding to congressional subpoenas will be lost. The ability to essentially even engage in the accommodation process will be significantly diminished because the courts will have already set forth the sort of parameters of the accommodation. And so I'm worried that President Trump and Pat Cipollone are litigating this with a weak hand and the loss will have an impact on future presidencies. 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.
- [21:36]
Dahlia Lithwick
I think that's such an important point because in sort of reading up on, you've actually been on both sides of these subpoena wars. You've counseled people who are facing subpoenas. You've, as you said, negotiated to try to avoid or limit demands for testimony on behalf of the White House. And I think that the word that we always heard going into these oversight processes was always accommodation, that this was resolved by accommodation behind the scenes. And it was immensely important to all the institutions involved to try to find solutions. And what we're seeing now is this blanket refusal to accommodate. And what you're saying is that's only going to take us down the road of warfare on all issues, all the time, going forward, regardless of who wins or loses, that the sort of norm of accommodation has been broken. That's what you're saying, right?
- [22:29]
Neil Eggleston
Yes. And I thought accommodation was essentially the way to go. There are two Congress and the executive branch of the presidency are coordinate branches of government. And try to work it out in a way where Congress got the information that it needed. And yet I was able to protect the sort of core values of the presidency and the core institutional interest of the presidency was really where I wanted to really end up.
- [22:54]
Dahlia Lithwick
And if you're hearing this, you are listening to the regular version of our show, which is awesome. Thank you. But if you were to sign up for Slate plus, you could enjoy this show commercial free. And you'll get access to bonus segments and extended versions of all your favorite Slate shows, including exclusive extras in our election meltdown series, the one that launches next week. Plus membership is only $35 for your first year and you can sign up free for two weeks just to check it out first. And that's not all, of course, by signing up for Slate plus, you would be supporting this show and all the journalism that we do here at Slate. We know you value our coverage now more than ever. You know how urgent this work is. We need your help to do it. Sign up for Slate Plus Help secure Slate's future. To learn more to begin your free two week trial, go to slate.comamicus+ and now back to our conversation with Neil Eggleston. He is former White House counsel to President Obama. So I think of you a little bit as the executive privilege whisperer. You've been so involved in claims around executive privilege, particularly post Clinton. And I wonder if just let's start with the nuts and bolts question, which is I think people talk about executive privilege and immunity as though they're completely interchangeable. They're not interchangeable. Can you just explain, explain when we talk about executive privilege, what we mean and why the privilege exists.
- [24:20]
Neil Eggleston
Sure. So the case everyone really knows about, of course, is U.S. v. Nixon, which isand the Nixon in that case is President Nixon. People forget that that case arose out of a trial subpoena to President Nixon for the tapes in connection with a trial that was coming up of his underlings. He was not actually a defendant or a target, I guess, of that. And the Supreme Court recognized that there was a constitutional underpinning to executive privilege and recognized the President needed some zone of ability to talk to his senior advisers without intrusion by sort of other investigators, but that it was a qualified privilege and that that qualified privilege had to give way to a showing of need by whatever entity it was that was seeking the documents. In that case, the Supreme Court ruled that the trial process outweighed. I think it used the expression an undifferentiated need for secrecy by the President. And as a result, tapes were ordered turned over to the special counsel by a unanimous opinion, mind you, with, I think four members of the Supreme Court had been appointed by President Nixon at the time that that was rendered and its decision written by the Chief Justice, Warren Burger. So that's sort of what the executive privilege is about. The best explanation of the entire concept was actually an opinion by Chief Judge Wald. It's a case I argued on behalf of the Clinton administration. It's the ESPY case, like so many of these. It's called In Re Sealed Case, but arises out of espe, which explains the difference between presidential communications privilege and executive privilege. But to get to really the point of your question, there is a subset of executive privilege that the Office of Legal Counsel at the Department of Justice has recognized and has recognized for a period of time, including in an opinion written to me when I was White House counsel involving a senior Obama administration official. And that is what's called absolute privilege, and that is a privilege not to appear at all in response to a subpoena. OLC takes the position that that applies to a very small set of very senior advisers who have regular communications with the President. And that is essentially the issue that's being litigated in McGahn. McGahn is refusing to testify at all in all of these cases. The witness could still show up for the testimony and assert executive privilege where appropriate, in response to specific questions. So what's being litigated in McGahn is this issue of does he have the right to refuse even to appear and answer any questions whatsoever, including, you know, look, White House counsel, I did it. I had lots of communications with people that were not covered by executive privilege that I could have been asked about. The other thing that makes, I think, the McGahn case disposal difficult, particularly for this Absolute privilege issue is that Mr. McGahn is at Jones Day. He's no longer a White House official. So the issues that always concerned me about congressional subpoenas to senior White House officials was the ability to distract the senior advisers from implementing the President's initiatives and policies. And that's why I thought it was important. But I don't think that that issue applies when it's a former implementation employee who really can't be distracted from serving the President because he's no longer serving the president. So I think there's a pretty big difference between those two.
- [27:56]
Dahlia Lithwick
And this is all separate and apart. Just for listeners who are confused from the claims that are being made in the financial records cases, those are claims that are being made about, you know, absolute immunity from suit, absolute immunity even from investigation. I believe that's separate from these privilege claims that people like Bolton and Kupperman and McGahn are litigating right now, correct?
- [28:22]
Neil Eggleston
Yes, very much so. Those are what I would think of as even more out there claims that essentially say that the President of the United States cannot be investigated at all so long as he's President of the United States. And their position has benefited a little because they take different positions in different courts and the positions have not been particularly consistent. So they argue in some courts that they particularly the request by DA Vance in New York for financial records from the accounting firm Mazars, they essentially argue that we can't be investigated at all for any criminal activity while we're President of the United States. Other places they've argued that they can only be investigated in connection with an impeachment and not anything else. The theories keep twisting around, but you're right, that essentially is a claim that the President of the United States is absolutely immune from even investigation while he's president.
- [29:19]
Dahlia Lithwick
And you mentioned the Nixon case. And I want to just ask you one question that again, I've seen this in some of your writing around these claims of privilege and whether it's smart for people like Rudy Giuliani to simply ghost and not show up. Isn't the hallmark of the Nixon, Nixon tapes case that Judge Sirica fast tracked, that the entire litigation start to finish, including at the Supreme Court, happens in a really compressed amount of time. The Don McGahn subpoena, as I understand it, was first issued in April. We got the decision from the district court this fall. Who knows what's going to happen, if anything? Part of the reason I'm asking this question is the courts have, if they want the discretion to make these things go fast enough that they work in conjunction with an impeachment inquiry. We have seen, I think, close to nothing of the sort from the courts who have overseen the various cases you and I are talking about. And it raises this question, you know, Adam Schiff made a decision, rightly or wrongly, as impeachment began, to just not battle this out in the courts. Was that an error?
- [30:37]
Neil Eggleston
So I actually think it was not an error largely for the reason you said. As you mentioned, I did a piece in the Washington Post last summer because it was predictable what was going to happen, which was going to be that there would be a series of subpoenas issued, that the administration was not going to comply with subpoenas, that Congress was going to go to court. And I made note argument about the substance or the merits or how the court should rule. But the point I tried to make is by not ruling, they are essentially benefiting the president and putting a finger on the scale to the benefit of the president and sort of taking a long time is not neutral. It's actually contributing to an outcome. And so many of these issues, I think, are really fairly simple and could be ruled on quite quickly, could even be ruled on from the bench. I get it that district judges don't like to do that because they're going to be reviewed in the court of appeals and they want to make sure that they have sort of all their arguments in place, although I think some of these could have been resolved by ruling from the bench with an opinion to follow. But I did argue, and I really feel pretty strongly that courts have an obligation to decide these kinds of matters very quickly. I should say that I think that the courts in New York on the financial cases have done pretty quickly. I think the district judges have gone pretty quickly. Courts of appeals came out with opinions quite quickly. Chief Judge Katzman had a terrific opinion, I thought, in the Mazars case in the Second Circuit, which was quick and precise and quite well done. The result of that, though, is I do think with things like the McGahn case and the litigation, which frankly took a while before. Judge LEON and let me just throw in one other thing, which is and the likelihood that the case would not just go to the court of appeals, but would also be sought review by the Supreme Court would mean that it would be months and months and months at least, before these issues would be resolved. Surprisingly to me, the Supreme Court took the two or three of the financial records cases, think that they were not particularly certworthy, but the Supreme Court decided to Take them. So a decision will not be coming out of the Supreme Court until end of June, probably, I predict, at the earliest. As a result, I don't think that Chairman Schiff made a mistake by not pursuing litigation. I know he's under some criticism by the conservatives for that. I think of it for two reasons, which is one, I think that he had more than enough evidence. I don't think there's really a legitimate dispute about what happened here. More evidence is always nice, but I don't think that this case is really being litigated on the basis of what actually happened. And he's confronted with allegations that the President was acting in order to skew the 2020 election. And I think the view by him and by Mrs. Pelosi was that the House simply had to act and, and couldn't really wait for the judicial process to take its course. And I think that was actually a wise decision.
- [33:44]
Dahlia Lithwick
Neil, can you talk about the fact that given these assertions of no, we're just not showing up, particularly from folks who are not even government actors like Rudy Giuliani, when they just said, no, the House just said okay, did the House have any ability to push back against that?
- [34:06]
Neil Eggleston
My view is that the House has a tool that it has not yet used. I mean, there's been some discussion of this tool of inherent contempt, which is having the sergeant in arms go out and arrest people. I think that hasn't happened for over 100 years. And I think the likelihood that, that being a realistic tool, I think should not really be on the table.
- [34:26]
Dahlia Lithwick
I like that, by the way, the tiny jail. I was a big proponent of putting them in tiny jail. But you're.
- [34:31]
Neil Eggleston
Are you really?
- [34:32]
Dahlia Lithwick
Well, it was silly. I just. Just like the optics of it, but go on.
- [34:38]
Neil Eggleston
But I do think that there's another option that the House has not yet availed itself of, and I would urge that they do so. I think the House cannot be in a position of issuing subpoenas to individuals who have no colorable claim to absolute immunity, as we talked about it, or to refuse to appear at all, who simply snubbed their nose and said they were not going to appear. I think Rudy Giuliani falls in that category. He may be able to assert attorney client privilege in connection with some communications with President Trump, but there's a lot he could answer questions about. So I would recommend to the House that it, as to those individuals, pursue criminal contempt proceedings. The criminal contempt penalty is a misdemeanor punishable by up to a year in jail. But in addition, the status of statute provides for a minimum one month in jail, which is a significant incentive to people, I think. So people ask me, well, Neil, what sense does that make? It's a Republican administration and this Department of Justice is not going to seek prosecution against any of those people. I would just say that I believe it's a five year statute of limitations. And if there's a Democrat elected in November, the ability for the next administration to look at those issues, look at those individuals and decide whether prosecution is appropriate will be very much on the table. And if I were one of those witnesses, I would want to know about that and I would think about that and I would talk to my lawyer about it. Before I simply took the position that they were going to ignore a subpoena. And I just really think that the House has to not leave itself in a position where it does nothing in response to people who got a subpoena and just chose not to appear.
- [36:25]
Dahlia Lithwick
Also for some of those reasons that we talked about earlier, which is these norms, right? I mean, I think if it becomes the norm that people just say, yeah, no, I'm not showing up going forward, if that has not been enforced to the limits that you can enforce it, you've really just gutted a norm there. Right?
- [36:42]
Neil Eggleston
Yeah, I know. I think that's right. I think that the House is. Is simply going to let people get the subpoena and treat it as an invitation that that is not in the interest of the House.
- [36:52]
Dahlia Lithwick
We haven't talked about Rudy Giuliani, and I feel that I have to. And yet the question I have written on my page is question mark, question mark, question mark. I think the question I want to ask you is, particularly with the documents that we saw this week, there's no longer any question that he was acting in a capacity, I don't know, on behalf of the State Department or other things, things he's asserted. It's now, I think, fairly clear that he was acting as the President's personal attorney, doing whatever he was doing in Ukraine. I guess I'm just sort of baffled again by his lane in all this. He's the President's personal attorney, okay? But now he's also doing international diplomacy, back channel diplomacy, but also conducting some kind of formal corruption investigation about Burisma and Hunter Biden, but also maybe a defense lawyer in the impeachment also never honored his subpoena. I'm very confused. Where do we put Rudy Giuliani in all this? Question mark, question mark, question mark.
- [38:01]
Neil Eggleston
So, Dalia, I don't know that anybody could sort out what Rudy. Rudy's role and which hat he was wearing sort of in connection with all this. I mean, I sort of joke. Can't imagine it was really worth it. But Rudy got the President Article one of impeachment, and Pat Cipollone got him Article two.
- [38:21]
Dahlia Lithwick
Ah, nice.
- [38:22]
Neil Eggleston
So the notion that Rudy would be a defense lawyer is actually quite intriguing because it's really the activities of Rudy that have. Have gotten us where we are today, at least it appears to me. I think, in some ways that Fiona Hill, when she testified, really hit the nail on the head, at least as far as I was concerned, which is that she came to realize that with regard to Ukraine and the Ukraine policy, there were really two lanes, which is that she was involved, along with the Ambassador and others, in a foreign policy lane seeking to assist Ukraine, particularly against aggression by Russia. But that there was a separate lane being led by Ambassador Sondland and being led by Rudy Giuliani and Lev Parnas and the sort of people on that side. And she called it, that was a domestic activity. And domestic activity is sort of designed to hurt the President's possible political rival, Vice President, President Biden. But she really described it as they were. You can't really mix them. The domestic side was not really a foreign policy side. It was a US Domestic effort, which was different than what she was doing. I really thought it was impressive the way she had sort of analyzed that. And I would. And I agree with the way she thought about it, which I think then explains really what Rudy's role was. He was largely acting on behalf of. Of his individual client, as the letter released by Parnas this week made clear. Rudy made very clear in the letter that he wrote to Zelensky that he was acting as a personal attorney for the President in his individual capacity, not in his presidential capacity. And that was involved entirely with the effort to get Zelensky to announce an investigation of the Vice President Biden. So. So I think in some ways, Fiona Hill was able to sort of cut through the different strands here. And I thought it was impressive the way she did it.
- [40:25]
Dahlia Lithwick
And that dovetails with, I think, the last sort of big bucket of questions I have for you, which is you've done a ton of corruption litigation in your career, and I know you think about corruption. I think one of the things that's gotten lost for a lot of us is what corruption even means anymore. And I wonder if you can speak to this kind of funny corruption off we're having over Ukraine, which Is, you know, we have one side saying, look, it is demonstrably a corrupt thing to withhold almost $400 million in congressionally designated aid to Ukraine in exchange for going after your political rival. And then sort of the Trump answer is no. I was, in fact, going after corruption myself. You know, what Ro was doing when he was swanning around the globe, meeting with various oligarchs and doing whatever he was doing was rooting out corruption. And the corruption here is Hunter Biden's. And I'm sort of thinking of it in the context of Bridgegate arguments this week. But so much of the discourse, even around emoluments is, can you give me a crisp definition as a legal matter of what corruption is? Because I think we've lost it. I think corruption has become anything the other guy is doing that I don't like.
- [41:50]
Neil Eggleston
So I don't know that I can give you a crisp definition, particularly because, as you just said, this is a sort of a fight that's going on in the political process. And as you well know, Dalia, the impeachment process, high crimes and misdemeanors, although it's got the words misdemeanors and crimes in it, it's pretty clearly the founder of did not intend that to only apply if a crime had been committed. It was a phrase that was borrowed from English common law, which meant more than a crime. And, you know, we can think a lot of crimes that a president might commit that would not be impeachable. I actually think there's a very serious issue about whether what President Clinton did was actually an impeachable offense within the meaning of the Constitution. But, you know, that's significant significantly in the past, and you can imagine a series of things a president might do that would not be crimes at all, but would be certainly quite impeachable. And so I think that in some ways, the focus on crime has gotten away from what the founders meant when they wrote high crimes and misdemeanors. I mean, the problem with the Trump approach is that there's really no evidence in support of it. The only corruption that we've heard that he was trying to root out was alleged corruption by his political opponent. It wasn't that he was trying to better a Ukrainian society. He was obviously trying to get President Zelensky to announce an investigation into Vice President Biden. And there's a fair amount of information, mostly from Ambassador Sondle, that made it clear that all the president really wanted was the announcement of an investigation by Zelenskyy of Vice President Biden. He didn't actually care whether the investigation investigation took place or not. So I do think, at least in constitutional terms, what we need to think about is did the President act in a manner abusing his office for his own personal benefit? I think that that should be the touchstone. I think that's the way the founders talked about it when they talked about it in the Constitution in that hot summer. And I really think that's the way we should think about it. And that should be the decision that the Senator should be making as they're considering the evidence over the next couple weeks.
- [43:57]
Dahlia Lithwick
And so if we could circle back just in the last moment here to what I opened with, which is this is this weird interstitial process that is not quite purely legal, it's not quite purely political. It's an animal that I confess to having just a little bit of weird goosebumpy feeling watching the Chief justice in the Senate. It feels worlds collide and it's hard for me to be all in on the Mitch McConnell view that this whole thing is just bare knuckle politics. How much does John Roberts both institutionally I think we know institutionally he doesn't have as much power as one would imagine he can be. Any decision he makes can be overruled by 51 votes. But I wonder if you have some sense of John Roberts as an actor in this moment, how much he drags us out of bare knuckled politics into the world of law or how much he just kind of crouches there, lets the politics play out and tries to keep his own integrity, the integrity of the Article 3 branch. How does he find his lane in this process? Process?
- [45:14]
Neil Eggleston
Well, I think that 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 of the Senate or for that matter something that would drag the Supreme Court into the whole mess in connection with his own role. And I think he'll be careful in there's been a fair amount written about what his role could or should be. There will be a couple of constraints on him. And this is also a constraint on the current Senate, which is that there are standing rules of the Senate on how impeachment trials shall be conducted in the Senate and those rules cannot be amended, as I understand it, without a two thirds vote the Senate. And I think that we should presume as a result that those rules will stand. And so so those rules are in some sense immutable. The second constraint is going to be the resolution that I also talked about at the beginning that Mr. McConnell will put on the floor beginning on Tuesday that will try to set forth some of the contours of what is going to happen. I think the chief justice is bound by whatever those contours are. If the Senate votes, there have been some discussion about, well, could the House managers apply to the the chief justice for a subpoena to subpoena a witness? It seems to me that if the resolution adopted by the Senate says no witnesses, I think that that would be quite unlikely that he would grant a subpoena for a witness because he would deem that as sort of outside of his power. More interesting question. If the resolution ends up silent or sort of unclear on that issue, I think he will be quite cognizant of the constraints on his power. And I also think he'll want to be involved in a process that is solemn and serious and not sort of a circus.
- [47:06]
Dahlia Lithwick
Solemn, serious, not sort of a circus is exactly what I wanted this show to be. So Neil Eggleston, former White House counsel in the last three years of the Obama administration and represented the office of the President in privilege litigation against the star independent counsel's office during the Clinton Whitewater Lewinsky investigation. Neil, thank you very, very much for being the voice of simultaneously kind of the Where's Waldo? Of subpoena litigation over the past decade, but also for being the voice of reason and absolute centering of the law in this very mad moment. Thank you for being here.
- [47:45]
Neil Eggleston
Yes, thank you, Diya.
- [47:47]
Dahlia Lithwick
That is a wrap for this episode of Amicus, the impeachment trial edition. Thank you so much for listening in. If you would like to get in touch, our email is amicuslate.com and you can always find us@facebook.com AMICUSpodcast we love your emails. We love your letters, especially now. Your questions have been immensely helpful in shaping the show. Today's show was produced by Sara Burningham. Gabriel Roth is editorial director of Slate Podcasts and June Thomas is senior managing producer of Slate Podcasts. And we will be back with another episode of Amicus next week, what with the first episode of our election Meltdown series. Don't miss it.