Well, hello, everyone. Im bhan behalf of georgetown law, i want to welcome you to our conversation on constitutional priorities. My name is nean neal katyal. Im joined by general paul clement. Thank you for joining me. Paul this should be fun. Neal i think we should dig into how this transition might be different than past transitions. And maybe well talk a little bit about the specific cases that could be impacted by the change in the administration. Maybe we should talk a little about that too. Right before getting into all that, paul, would you just mind introducing yourself to the audience . Paul sure, i would be happy to neal. My name is paul clement. Ill just talk about two things that are relevant for todays presentation. First, is just the georgetown connection. Im a georgetown undergrad and somebody who has been teaching at the law school in various capacities since the clinton impeachment, since 1998. Thats when i featured a separation of powers class at the law school some of that affiliation runs deep. And im delighted to be here. Just a second aspect of my bio is relevant, is my service in the Solicitor Generals Office. I spent several years all during the Bush Administration, the Second Bush Administration or bush 43 as we called it. And perhaps most relevantly for todays discussion, you know, i was there from almost the beginning. I came into the office in february of 20 o 1. So i was in the office before ted ohlsson was there because it took him a while to get confirmed. So i definitely saw from the inside a little bit of what the transition in the office looked like from the Clinton Administration to the Bush Administration. And i know for some of the students, thats ancient history. But i still think its reasonably relevant to whats beginning on today. Neal . Neal my name is neal katyal. I taught law at georgetown for more than 20 years. Actually its my second class was while paul was 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 the president lawyer ken starr to Monica Lewinsky dime the class. It was one of the things i love about georgetown and teaching here is our able to bring people in from all over. I too served in the Solicitor Generals Office as Principle Department yep and as act deputy and as acting s. G. Ive argued two cases which is is 1 3 of paul. Im trying to catch up. But its going to take me a long, long time. But i started on january 20th in the Obama Administration. So on day one. I was also there for that entire transition time, you know, then solicitor general ana kagan wasnt sworn in so i had to do this for the first couple of months. With that, maybe ill just start there. I think a lot of people think of the Justice Department and the Solicitor Generals Office as being so politicized. But paul ran that office for basically seven and a half years an greg garr right before i came in. And i regular when the new of my appointment was announced, maybe one of the first two or three calls i got was from greg, the solicitor general at the time for president bush who said, i just want to help you. Lets get together and go over everything in the office. And i remember we went and we went to a barnes noble and starbucks and found a quiet corner and spent. He walked me through everything for four or five hours. Was the classiest thing. And i walked in on january 20th. Our meeting was around the 18th. I walked in in the 20th scared out of my mind. But 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 helpful way. And i you knowtial the office only has 16 lined attorneys in it. There was some perceptions that the Push Department was politicized. I found none of that in the 16 attorneys that you an greg hired. It was just the 16 greatest attorneys. I think if anything they skewed a little to the left because you know, great ones do. But you know, it was really remarkable. And you know, thats what i think of the Solicitor Generals Office is this nonpolitical evenhanded administration of the law. And you and greg really carried that out. Could you talk a little bit about the s. G. s office and kind of what its about, its function, history and the like . Paul sure, no, id be happy to. You know, youve already highlighted that there is this real sort of cad reof career liars that are the bread and butter. Theyre the life blood of the ausms i think if you think about the Solicitor Generals Office and compare to some of the other great offices in the Justice Department like the office of Legal Council, the the Solicitor Generals Office is really pretty unique because there are so many career lawyers and so few political lawyers. In the office. The only people who are political appointees from who change from it will or the and the principle solicitor general. So the rest of the office, career deputies all of the assistance, they carryover from administration to administration, and i think that for kind of obvious reasons is part of the reason that you typically dont see lots of positions change from administration to administration because youve had those positions sort of embraced and then artis late and unbelieved. Or years and year and years. If you think of somebody in the office i mean hes literally been in the Justice Department for the justice administration. This is his impteenth administration. Theres all that kind hoff kind of institutional knowledge. Kind of my philosophy when i was in the office, when i was in a position to hire people on the spot is that you really didnt want to take politics into account or skew the hiring for two reasons. One, was just because it would be contrary to the long traditions of the office. And that would have been sufficient on to the day, but theres also this sort of selfinterested view, which is you want lawyers and in the moot courts who you know, sort of stink like the whole court. I think in the Push Administration there would have been a real disservice to have nothing but scale yeah cleshes depilling in the ranks in the same way would have been a disservice in the Obama Administration but than prior clerks. If anything, maybe this is smig d. You set this up the office skewed a little left because brilliant lawyers begged that way. I figured i had a good sense of how justice skill la thought. Scalia thought. I wanted to court more jisses on the left and the right. There are more reasons why you had that balance. Let me tell you about my experience and kick it back to neal to talk about his thoughts on maybe to defend things are different. My was sloor to neal. And it was a way he was more dramatic. At the beginning of the Push Administration, the person who was serving as a activing solicitor general. And the Clinton Administration, who is now the state solicitor general for the state of new york. Barbaras situation was unusual because she took that position after serving in a career position in the u. S. Attorney generals in the eastern d district of new york. So she was in that sense sort of an unarble an audible. It could be smooth and not involve sort of disrupt ev changes in position to the extent that the new administration thought it would make sense to have somebody who served in one of the two political roles in the Previous Administration serve as the acting solicitor general until ted ohlsson was appointed. So when i came in, i was working as the Principle Deputy with barbara. Obviously, im coming in with the new administration. So you know, i had a prior relationship with the attorney general that he i didnt have. Not only did i get to have sort of, you, no coffee with greg garr but i got to meet every day with barbara. We worked that process through. I think seamlessly until ted goes there, ted ohlsson in june. And then and i think this is very consistent with neals experience. But i dont have to put words in miss mouth. But it went when we came in that there are changes to position in a large number of case. To the contrary. Im not sure there was a single case where we had take an position in the Supreme Court brief that we then sort of changed in the Supreme Court. I think there were one or two casesers and really only one or two that i remember where the Prior Administration had taken a position in a lower court brief that had been reviewed or approved by the Solicitor Generals Office and by the time that he seen, the case came up to the Supreme Court, the office had a different position. I can remember one or two casesnd. And there were the case where is frankly wow would expect it. I think one of the cases where no, we took a different position. We no, buzz the lower Justice Department. And and whatever you think about that issue it probably can maybe suspect that thats going to change when theres a transition from a Republican Administration to a Democratic Administration or vice versa. But other than that, im just a vast fast majority of the issues. Even sthoom are controversial. Even some where the Bush Administration where if it were write option a klein clean stake was the difference. I think it reflects well on the office. But you can take a little bit more about your experience and then to the extent you expect things to be different right no. Talk about that as well. First of all, if you talk about the office, the Legal Council or Something Like that, its 100 right. Not just because of is relatively nonpolitical staff but also because its function, you have an audience of people at one country. Its differ than any other government jobs. Youre audience was the president or Something Like that. But youve got these nine people who are stable year after year after year after year. And that what that means is your incredibility is an institution is add its the most important asset you have. Youre not, if youre the solicitor general, you think there are longterm interests in the United States government who dont depend on who the government is. Sow that does come, come on in the not just in positions that youve takeen but other people that you hire. I tend to hire a bit more conservative. You coont of nose how you think. I need to know how the rest of the court thinks. And so on. I think thats why thats why our hiring practices looked a little bit the way that they did. When i came out on january 20th, as i said, i had that five hours or so metting with grefplgt then wive and to try and see is there anything that we would be changing . And i was Principle Deputy like you. We decided that needler should be the action. We had a general view that the positions had that had been taken were reasonable. Er there wasnt any need to have an acting person and so we do that. At the owned the day, i looked lieu the breast and now tes very public. Being chased position in a single not one. And i think that is a credit to the way you all ran the ufse. You know, and a credit to the solicitor general and trying to come up with the right position for the United States. There were two instances i think that became pretty public. One was a believe in the d. N. A. Testing case. Which i i think was a pretty good position. But we decide to adhere. And then the other is dont ask, dont tell, that horrible military policy that gave folks from serving in the military. The solicitor general elana cageen decide to push it as. Even though there were deep, deep policy disagreements with it. I think that this administration faces something very different than what you or i had. This past solicitor General Office in the Trump Administration i dont know if it was the solicitor general or somebody in white house i want to talk about that in a minute. But i think you know, change position like candy in so many case after case from the longterm interest of the Justice Department. And so if youre if youre someone who is an institutionalist. Already being served as an assistant officer in the region. Its different than the question we had. Because the question we had do you div kate are this position the lorme standingish yea of the Justice Department. So well give you a, of the Justice Department. And thats a very different i question. And then youve got that creditibility piece on the other side. Until you say youve got the audience with nine people. Its difficult to plip a position. But Trump Administration did that and. But now to flip it again. Back to what the original longterm position was is i think, you know, probably called for if urs and to take one example of this, the Affordable Care act. You know, there is ash arguably, a tiny flaw in the act at this point. You know, and and, you know, whether or not you can debate whether that exists or not. But the Trump Administration took the video that because of that flaw the entire kit and caboodle, the whole thing had to be struck down as unconstitutional. To use the leemlengo. And i cant think of any solicitor general living or dead who would take that position and yet, they did. So like thats a good example to me of where, you know, you dont want to change positions from the path administrations if you cant. But if you government sot y as an intense tuition nali. Maybe ill just stop here. Neal ill talk about it more generally. The situation now is different than the situation that we face. And so i think that that the issue is going to be one, you know, that that the new acting solicitor general and council presumably by others are going to need to think about it long and hard. I think its going to be really important and its going to be important if the office wants to change position to what they perceive to be the longterm interest of the office, that they that they pick 2 right cases. And i think that they pick the right cases. And they also need to be a little bit careful kind of how many they pick and which one. Sort of the ideal scenario would be to change back into a position that is both obviously consistent with the longterm views of the office and institutional interest of the government. And is going to win. Because, you know, when you change position and you win than if you change position in boos. And obviously the Solicitor Generals Office across the administration as you said you have an audience of nine. And you have to understand that, you know, in some administration, the nine are going to be more sempthettoik some of your positions than maybe a different administrations positions if the policy policies were different. It was a little bit tougher for me to make some arguments on the war on terror given the court that i had. I think that the Biden Administration is going to have to realize that theyre making arguments to a reasonably conservative court. If youre thinking about the ideal set of targets it without be that everybody can see that the position youre reem bration. And you end up winning and it seems like the a. C. A. Case is pretty good as a target. 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 whenever reasonable arguments can be made. I think that consistent with what you said, i think its how its been understood that as a correlation event, i mean, even if you think that part of a statute is unconstitutional, it would be in a longterm sort of traditions of the office to have as little of the statue as possible. Fall unconstitutional. I think switching positions in that respect, which i think they identify as thats what the Justice Department does and the Justice Department in my view tends to get itself in trouble when it deviates from that tradition. So it would be great to see that. Think the just i think the justices would welcome it. I think its a really strong position. And so, you know, neal clarify for the viewer. Paul if they change positions and said that the entire statue doesnt fall and that you dont have essentially zero accept rabblet in the cares act, thats the position thats likely to prevail. I think that this sort of fit what i would say is the model a case where the preconditions are met. The only thing that make this one a little bit hard is just the timing. You know, if if if there was a brief to be filed, it would be, you know, super easy to, you know, file a brief that took a different position if it were the position were announce bud the brief hadnt been filed or it would be Something Different, this case is fully brief and argued what do you think if they were going to change their position whats the right way to manifest that change of position . Because i dont think the answers answers right in the Supreme Court rules. Need to think it through. Neal i think its a supplemental brief. Paul definitely permitted. Neal so i think thats probably the right format in which it should be done. I dont think its something you do lightly. But this case has you and i agreeing on this. This fits to a tee. One compli cating thing is the acting attorney general might recuse herself because she was in private practice. That leads to a complicated question of what happens then . Ed also interestingly didnt sign any of these briefs and i find remarkable since this dockett. I have a guess as to why and i suspect you do too. Now, he might come into the case. But theres this really deep question about, you know, what is relationship between the president and the solicitor general. And you know, in the case like this which in which you may have an acting solicitor general, but you have an administration that has is one of its central ideas, you, no healthcare for everyone, its really not come wanting to change its just the department of position being that the entire one and how much can the president say to the double acting solicitor general in that area and you had mentioned paul a moment ago the affirmative action cases in 2003. As i understand it there was a little bit o that dynamic going on back then between the Solicitor Generals Office and the white house. I dont know if theres anything you want to talk about that about that . Paul ill talk about the issue generally. Maybe i should have said this at the beginning especially for folks that are less familiar with Solicitor Generals Office. One of the really interesting aspects of the offices you know, neal and i Start Talking about the office were both growing nostalgic with our time there. It was a great office. The folks that work there are incredible. And kind of consistent with everything we said and the way it operates and its relationship with the court and the relationship in particular theres a sense of independence or being not entirely independent but a little bit separate and apart. You know, people talked about it as the 10th justice or the 36th clerk. You look at the organizational chart and, you know, you look and the organizational chart says the solicitor general works for the attorney general and the attorney general works if the president. And so attorney general work for the president. And so it was my view that it was open to the president to say, look, this is the position of the United States. And that is open to the solicitor general to either kind of threapt position before the United States Supreme Court or to resign. United states Supreme Court or to resign. You do not get to say no shared i am going to countermand the president. I guess what i would say and i have no insights everything i know about what was going on in the Justice Department i read in the papers. I do not know how things were working in the last of, but i can speak to my own experience where it was understood as a matter of my view of the separation of powers, the president could tell you what you are position was going to be in any case and the beautiful thing was it did not happen. You were kind of given this space to operate and to use your judgment, but understanding you were going to do it as part of the Justice Department and the administration. I think that is one of these things where precisely because it is admitting precisely because it is unwritten because you not see it on the chart it is an amazing thing and were thinking about but also something you have to work a little bit at to preserve. From that standpoint, i think it is great the acting solicitor general is an alum of the office. Anybody who served in the office is going to have an appreciation for the office but also for this little bit of a delicate dance because you do not want the president to be telling the solicitor general what to do on a regular basis, but that power does exist. Do you agree with that . Neal i completely agree with that. My view is that certainly the president can countermand the solicitor generals view in case. I do think it should be done expressly and openly. One way in which the office can lose its power and stature as not an ordinary litigant is if you have the white house staffers calling up the solicitor general saying i would like you to do x or y, which is something the white house does for almost everything else. Obviously not prosecution divisions, but some order to the Agricultural Department or Something Like that. I do think the Solicitor Generals Office is different in that sense and you do not want that kind of subtle informal way to creep in to the offices decisionmaking. The way in which the office makes decisions is highly regularized. There are no secret conversations. All of the different entities who care about something write a memo to a the solicitor general and that demo is reviewed by several players. Several layers. It is a really wonderful way of making decisions. If you have any sort of extraneous phone call inputs, it throws the whole thing offkilter. With that, there are a lot of questions from folks about the Supreme Court. Host can i say when paul can i say one more thing before we transition . This involves directly what you just said. The other thing i think is important is for people to think there is a right way and a wrong way for a new administration to change its position in a way that is ultimately reflected in Supreme Court brief. The right way to do it is if the underlying concern is the new administration has a different policy and it does not like the policy of the last administration, it should change the policy. If it changes the policy, it is easy for the solicitor general to say we have a new policy. Maybe you need to let the lower court consider the new policy in the first instance or the policy is not there anymore so the case is moot. All of those seem to be the right way to make the policy. To your point, the danger that can come in and i think the Solicitor Generals Office has to be careful about is somebody trying to change the policy without changing the policy. The d. C. Circuit judge struck down this rule. I know ordinarily you would appeal the rule or petition for Supreme Court review, but if you do not, the rule will go away. The right answer was, that is great. Tell the secretary of transportation. If the rule goes away, i have plenty to keep you busy. Do not guys in the in that the guise of a slow sitters General Office smuggle in policy determination. That seems suchlike an important point, especially during a transition. Neal totally right. I get calls from cabinet secretarys all the time light, dont appeal this, dont appeal that. I am like, it is one of your rules. You can change it. Take it away from anytime you want, but they are afraid to do that. They want you to do the dirty work for them. That is about executive or agency decisionmaking. There is a whole separate thing about when you are defending acts of congress and you do not have the discretion you have paul here who defended the mccain finance reforms even though the administration was particularly happy about Campaign Finance administration. It was his duty to defend acts of congress. You could not have agency changes because they were congressional. With that, lets spend i know people are so interested in talking about the court right now. Maybe two different features of it. One is coronavirus. It is so weird. I have had two phone arguments. You have probably had 10 at this point. I find them there is one way in which they are better. First of all, you get to hear from Justice Thomas. You get to hear from some of the justices who do not ask as many questions. That is fascinating and interesting on its own. It is also that you do sometimes get a sustained interaction with one justice over repeat questions in a way that in the normal Supreme Court arguments, some other justice would interrupt. That feels a little more like a court of appeals argument where there only three and one of them is going after you for a while. That can lead to sometimes a whole line of questioning that is deeper and more probing of a position. On the others, i find the other side, i find the thing we do one of the reasons for our job is we go in and read the room. We are watching body language and we are watching intonation and so many things to understand , is our position resonating . On the phone, we are operating blind. I find it hard even though even to know when to stop and answer. I do not want to drone on, but i also do not know if i have satisfied the justices asking me a question because i cannot see them. I find them to be a challenging environment. What do you think . Paul i will start with another upside of the new format, which is i typically drive myself into the court the morning of the argument. For a typical Supreme Court argument, i do have to deal with some anxiety about, what is the traffic on the 14th street bridge look like . The point is, you have to get there. D. C. Traffic, i live in virginia, so d. C. Traffic can be a challenge. It is something you worry about on the morning of argument. You worry about what you are going to wear. Nobody can see what you are wearing. In this sense of being able to argue from home, there is something to like about that. In all seriousness, i really do miss the in person arguments. I will say two things i miss. One is very similar to what neil has already said. It is not just that you cannot read the room or the justice. That is true. You see a question in a live argument you can sort of see whether it is asked with a rye smile, a wry smile, whether it is at with a cold stone sober look. Those are very different questions even though every word is exactly the same. The biggest thing is because of the way the Supreme Court processes cases and the fact the justices do not talk about the cases for months themselves before the fourth before the oral argument, so much oral argument is not just kind of reading the justice who is asking the question, but how are the other justices reacting to that . In way, the effect is almost more dramatic when the other lawyer is arguing. I remember a case i argued against neil in the sgs office. I knew my goose was coked before i went to the podium because i could see during his argument some of the pushback i was hoping to get was not there. The body language of the justices was very favorable to the other side. I find in a typical in person argument, you can learn a lot about where the court is just by watching them during the other persons argument. You lose the visual on that entirely. The second thing i miss we get the opportunity to argue in front of the Supreme Court on multiple occasions. For most of our clients, it is going to be there one and only chance to get to the Supreme Court of the United States. Part of the process is going into the building, seeing the justices in action. Even win or lose, almost every one of my private sector clients i have been involved and they have been with me in the Supreme Court building, they have left with a good feeling. The justices are so well prepared. The building is welldesigned to instill awe. I feel bad they are missing out on a big part of the experience. That is one of the many reasons i hope we are back in person before too long. Neal i 100 agree with that. One of my partners just argued for the first time a couple months ago. He was looking so forward to this. Engineer the strategy years ago to finally get the dream court. And he does get to the Supreme Court. And he does. And he is in jeans at home using his laptop. Definitely a loss on that side. One other interesting thing and maybe this is drawing too much causality from it, because some anymore people are tuning into the arguments because there livestreamed, i do think the justices the questions are darn good right now. You do not have as many followups, but those initial questions are crafted maybe they know they are going to have their three minutes to ask their question. I think it comes in with a bit more preparation than a more spontaneous onthefly questioning. I have noticed that. What do you think about we have a bunch of questions from viewers about who is going to step down . Is Justice Breyer going to step down . I had the privilege of clerking for Justice Breyer. I cannot begin to speculate as to what he is going to do. For Justice Breyer, it has never been about him. He is very much an institutionalist. Someone who thinks about longterm good of whatever institution he is in. That is going to be a calculation for him, when is the appropriate time . Given the kind of partisan rancor in the country over the last year, i think it would have been complicated. He would have worried about having a whole war about it. I think that kind of question will be something he is thinking about. Paul it is a great question. Obviously you know Justice Breyer in way i do not. I would imagine it is something he has to consider. I think Justice Scalia obviously did not make the decision, but i heard him talk about the decision publicly. Im not reveal any confidences. He said it is human nature to take into account whether the person who is likely to replace you is going to be good for the institution, if they are going to spend the next 30 years rewriting everything you just wrote. These are all considerations that seem natural a justice would take into account. I just have this feeling we sell it with Justice Ginsburg we saw it with Justice Ginsburg. We saw a little bit with Justice Thomas toward the end of the Trump Administration. You are starting to see some of these people talking about it is time for Justice Breyer to step down. I think that is so on seemly so unseemly. It talks to important and debatable issues about how much power the Supreme Court has, the method of appointment. I am not saying it is irresponsible or maybe it is entirely natural, but i guess it is sort of unseemly. My instinct is if for your own reasons you would like Justice Breyer to retire, my advice would be, dont talk about it. He is going to make whatever decision he is going to make. I dont think youre going to advance the ball even an inch. It might just roll back a little bit if people are sort of suggesting it. This is something where the less said, particularly for people rooting for retirement, the less said the better. Neal i totally agree. Her member some columns our member some columns that were written saying a justice should retire. I was horrified then. These are human beings. These are not robots we are thinking of trying to replace or something. At the same time, it is engendered a little bit by a ridiculous antiquated article three that uses lifetime tenure as opposed to 18 year terms or Something Like that, which could sidestep a lot of this. It is printable, but predictable but unfortunate. We do not have too much more time, but i know a lot of people are interested in some thoughts about impeachment and so on. Maybe just one thing since you are such a student of the chief and we are seeing the chief according to reports, declined to preside over this trial. I am curious if you have any thoughts about that. Paul i do. Thanks for asking and i want to ask you more broadly about your thoughts about the situation. Let me first talk about the chiefs decision. I think there are two things that are really important to keep in mind. The first is that 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 former officer. They are obviously related issues, but i think they are pretty separate because the thing about the chiefs role in impeachment is that it is very texturally specific to an impeachment trial of the president of the United States. Donald trump is no longer the president of the United States. Reasonably, his view presumably, his view of that clause of the constitution is probably as simple as that. I cannot speak for him, but it is certainly based on interpretation of that clause. That clause does not address a completely separate question about whether the senate can have a trial under these circumstances, whether that is appropriate, whether that is constitutional. I do not think of the chief is foreshadowing his view of that separate question. I think if he thought he were, i think he wouldve done Something Different whether make a different decision or explain himself in writing or something. I think it is fair to say even he views it as a separate acquit a separate question. The second thing i want to highlight this is directly related to my teaching at the law school. One of the things i have been trying to impress upon people in thinking about the separation of powers is the constitutional law gets made and constitutional decisions get made in places other than the Supreme Court merits decisions. Sometimes when the president decides not to take an action because the president thinks that action is unconstitutional, the constitutional law being made. Sometimes when the senate takes an action or refrains from an action because of their view of what the impeachment clause provides, they are making constitutional law. I think the chief just made cement just made some super interesting constitutional law. There is no explain a toy decision that goes with it. My view explanatory decision that goes with it. My view a did not get to the Supreme Court and probably could not. We taught more about that later. I think the chief has made clear he reads that clause as being specific to the current president of the United States. That makes some sense because i think that provision may be in there because there is a perception the Vice President would preside over the senate trial and have a conflict of interest. If you get a job promotion because the person is conflicted, maybe you should not be the impartial adjudicator. I find it super interesting that by making this decision and again, based on what ive seen so far, without explanation for it, he is making some interesting constitutional law. There is a lot of interesting connotation arguments in a lot of interesting constitutional arguments. There is a lot that is unprecedented about it. I dont think any officer has been impeached twice before. I dont think we have squarely confronted the question we are confronting in the context of a president before. What you make of it all . Neal i 100 think the chief is right in not presiding over this impeachment the way it was structured. Had the trial began before january 20, had it begun on january 18 or 19th, then i think the chief would preside and there would be a question, should he continue to preside afterwards . But i think i do not see any other way of reading the text and precisely because the rationale is almost certainly the one you identify, which is the chief justice should be there because the Vice President and otherwise would preside and have a conflict of interest. I think this was an easy call. It is always great to have the chief presiding. He adds a measure of gravitas and solemnity, that i do not think that is what the constitution says. You have this other question, which you are right, it is a separate question. Conformer officials be can former officials be tried . Already, you have senator cotton and some others saying you cannot. One thing is this is not exactly totally official because you have the impeachment process starting before him. You have the text of the constitution in article one, which has two different punishments if you are impeached. One is you are removed from office and the other is you can be by further vote disqualified from future office holding, a lifetime ban. It is hard to understand the text if you do not think a former official can be subject to the punishment of a lifetime ban because otherwise, basically, everyone who is facing an impeachment word been impeached impeachment or been impeached or about to face removal has resigned and then terminate the proceedings and a lifetime ban provision would be meaningless. It would never be caked in because nobody would have an incentive to do so. The lifetime ban is a simple majority of the senate to the conviction vote is two thirds. Of the senate. The conviction vote is two thirds. Someone after they faced a two thirds conviction vote and lost it is not going to hang on and say i will get 51 people so i can serve again. That is not plausible. Every person would resign after the conviction vote if not before. That clause would be meaningless. That is one problem with the argument that senator cotton and rand paul have advanced. The other is historically. At the time of the founding, the english history was to impeach former officials. The governor of bengal, hastings, a notorious scoundrel, was impeached after he left. This is a wellknown case. And really, no evidence to the contrary. There is a little bit of president and has not been done much. The secretary of war in 1876, a former official. Impeachment proceedings begun against him. There were a couple others. Donald trump was a rare president. Paul i find it really interesting. I am going to be teaching this in one of my upcoming classes. We are going to try to examine all of the sources on both sides of this. I think what makes some of these questions about impeachment so interesting is because of a Supreme Court case, the case i like to think of as the other nixon case the walter nixon against the United States case. It is clear the Supreme Court will not get involved in these issues. Im not saying somebody wont bring a lawsuit. I suppose there is an argument you could distinguish the next in case because the wilderness in case the Supreme Court says the issues of impeachment are political questions, but they are focused on the question of what the senate did in that particular case and whether it was a trial because they had kicked some of the factfinding to a subcommittee at the senate and the challenge in that case brought by a former judge was, that is not really a trial. The whole senate has to sit for the entirety of the impeachment. The Supreme Court by a good margin said that is a political question. We are not going to get dragged in to that. His going to be it is going to be open for someone to say this is separate. My strong sense is the court, starting with the first strict core that addresses this up to the Supreme Court says, no thank you. Do you have any different view . Neal 100 political question. Totally. Paul i think we are getting pretty close to our time together. Anything else you want to share . Neal a lot of students are watching. You had mentioned before a case you had argued against me in which you said you saw the justices i went first. They were receptive. That case was the guantanamo case. We have had some heated cases over the years. The Affordable Care act as well. I think it is really important for folks to know we are good friends. That is one of the things i love about this bar and i love about you in particular that i love about georgetown. We can be on opposite sides of really hard stuff that we care tremendously about. With every fiber of our souls. But respect the person on the others making the other argument because our profession at the end of the day is all about precisely that. You have taught me so much in addition to teaching somebody georgetown students. I wanted to take the opportunity to publicly thank you for your service to georgetown and the bar as well as being such a great person and colleague for me. Paul thank you. That is very kind of you. I would say the lessons you learn in arguing cases against people and i think just having the perspective that yeah, we both care deeply about this, but we are both helping the court in the long run get to the right answer by preventing the best possible argument really helps keep the focus where it should be. We sometimes end up on the opposite sides. The other thing that makes a great is everyones in a while, we end up on the same side. Every once in a while, we end up on the same side. Getting to argue a case with you or be cocounsel on a case. We have had the opportunity to do that as well. If anything, that is even better. I did not want to get too sassy, but i do think there is 70 to be said for this was at her generals havas and the Supreme Court bar. There is little bit of a model for mixing it up, being passionate, not pulling punches in the forum where punches are appropriate. Still understanding that the decision is going to be made and the person on the others is indeed a person. All of those are lessons i am conscious that as you said, in our profession, we are all helped by the fact that Supreme Court is going to decide the cases and they are the ultimate arbiter. That takes some of the pressure off. There is a generalized lesson here. I do hope the Solicitor Generals Office and the Supreme Court bar can be a model in that respect. Guest
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