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 t