Your Move, Mitch

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S1: This ad free podcast is part of your slate plus membership.

S2: The president says this rule of law is being relevant to his life and some of us still take the Constitution rather seriously, believe that those articles of impeachment approved against Richard Nixon turn out to be relevant to misconduct.

S3: Presidential It is a rare case where you have such a defined group who would experience immense immediate hardship if they are no longer eligible for relief from deportation and the ability to work.

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S4: Hi and welcome back to Amica, the Slate podcast about the law. The rule of law and the Supreme Court and justice. I’m Dahlia Lithwick and I cover those things for Slate. And this week has truly been one for the books. If you are watching gavel to gavel impeachment coverage, plus plucking the Democratic debate, plus keeping up with goings on in the federal judiciary, you’re probably very tired.

S5: But we thought we would just cannonball right em with an initial discussion of what we’ve seen so far in the impeachment process with Professor Michael Gerhart and what’s coming next. And then we’re gonna go in a deep dive. Well, I like this aquatic theme. Then there’s a deep dive after the cannonball on the Dacca case that was argued two weeks ago at the Supreme Court. And we will be talking to Janet Napolitano this week. And last brought testimony in the House Intelligence Committee’s open hearings on whether the president abused the powers of his office by allegedly withholding aid to Ukraine in exchange for an investigation of prisma. The Bidens and a debunked theory that Ukraine, more so than Russia, apparently interfered with the 2016 elections. These names Alexander Venkman, Fiona Hill, George Kent, Gordon Sann Lind, Kurt Volker. They have all come to blur together in our minds in the dozens of hours of testimony. But we thought it would be useful to pull back a little and figure out what it all meant and what happens next. Joining us to do that is Michael Gebhart. He teaches at the University of North Carolina School of Law with a focus on constitutional conflicts between presidents and Congress. He’s the author of six books, including Leading Treatises on Impeachment Appointments and Presidential Power. He’s testified more than a dozen times before Congress, including as the only joint witness in the Clinton impeachment proceedings in the House, speaking behind closed doors to the entire House of Representatives about the history of impeachment in 1998 and serving as special counsel to the Senate Judiciary Committee for seven of the nine Supreme Court justices. He has been watching these hearings awfully closely as a contributor to CNN, and it’s been a very long week and we appreciate him making time.

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S6: So Michael Gerhart, welcome to Amicus. Thanks for having me. Let’s dive in if we could. And it seems to me just watching the testimony of the last week and a half, that this has been a remarkably consistent story, including from the g.o.p.’s own witnesses like Voelker and Sunland. The story that’s been told feels very airtight, inconsistent. What is your sense? Just initially of the import of the accumulated testimony, the layers upon layers of corroboration of the same essential story?

S7: I agree. I think what we’ve been hearing from witness after witness has corroborated the whistleblower report to begin with and perhaps more importantly, really is consistent over time. The witnesses are all obviously experiencing and seeing and discussing the same thing from different positions that they’ve had in the government. And as you pointed out, this is not a series of witnesses who happen to have a history of democratic activism. These are professionals. These are nonpartisan professionals from the State Department or from their positions in Ukraine. They’ve all worked for multiple administrations and currently the Trump administration. They’ve had a great deal of credibility in acknowledging the fact that the president of the United States had put together a shadow operation that involved Rudy Giuliani, which was designed to put pressure on the president of Ukraine to make a public acknowledgment of opening an investigation against Joe Biden and perhaps Hunter Biden as well. And we heard on Thursday from one of the witnesses, Fiona Hill. She had described it as a domestic political errand that the president. The United States had asked Giuliani and others to discharge that domestic political air could also be described as an impeachable offense.

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S8: So I want to hit you with a working hypothesis and you tell me why I’m wrong. I have had this sense and in some sense it’s a Groundhog Day feeling, because I think this is what played out with Mueller report, too, that we have now spend weeks and weeks excavating a hole deeper and deeper, finding layer upon layer of corroborating evidence for the thing that was actually a mountain that had a flag planted in it. That said, I did the thing. And in the case of the Mueller report, right. We had Donald Trump admitting on television to Lester Holt. I did the thing. And then Robert Mueller spent years and hundreds of pages establishing that. And we have the same thing here. We have a readout from a call on July 25th that amply illustrates the weather. You want to call it a plot or the scheme or the back channel. The thing we’ve always known turns out to be the thing and all we’ve done is prove it. And yet somehow it feels as though we have not moved forward at all.

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S7: I think we’ve got something a little different here with Mueller. He did conduct an investigation that took some time and he produced his report. But the only investigation that has been done here has been done in real time by the House Intelligence Committee. We did hear and read the whistleblower report, but then the House Intelligence Committee had to conduct a number of different depositions behind closed doors. They produced testimony and evidence that has now been made public in some of those witnesses are testifying now in public in front of the House Intelligence Committee, and that produced corroboration. As you’ve pointed out, of a disturbing story that you’ve described as a mountain. And it is perhaps a mountain that presents, I think, a problem of impeachable dimensions.

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S9: And so I guess then the question is, and this has been, I think, the animating question for weeks now. It was always clear, I think, to House Democrats that the Senate would never vote to convict. This was being done partly, I think, in order to ferret out the truth, as you’ve described it, and partly to persuade, partly to put on a public performance of a Watergate like hearing in a very, very compressed amount of time.

S8: And I think then we have this awkward conversation, Michael, about who was persuadable and was anyone persuaded, which seems to have nothing to do with the truth of the matters proven.

S7: You’re right that one of the audiences for this is, of course, the American people. It’s not entirely clear anybody’s opinion was changed, though, I think.

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S10: Recent polls suggest that more than half the American people believe that the president has done something wrong. That’s not insignificant. It seems as if that might justify the House of Representatives perhaps looking into this more deeply, and that’s what we’ve been experiencing over the last couple of weeks.

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S11: So the House Republicans have been as committed on the final day on Thursday as they were on day one to their counter-narrative. And I think the theory goes something like Hunter Biden. ALEXANDRA Chiluba, Benghazi cult in the basement of the house. Tell me if I’ve missed anything. I mean, I think that’s the height was pretty good.

S12: And and I guess the question is, we can talk about the kind of ontological meaning of having two completely disparate theories of the case. But I’m just more curious about how this compares to the impeachment’s.

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S11: I know you’ve studied almost more than anyone previous impeachment’s was there this split screen, alternate reality, choose your own ending. You know, you either buy into the idea that the single most nefarious meddling in the 2016 election was ALEXANDRA Chalupa with a lead pipe in the attic talking to the Ukrainians. Or that, you know, there is this repeated pattern of of using Donald Trump’s power to solicit foreign interference in elections.

S12: Is there an analogue?

S9: Is this how either the Clinton or the the Nixon impeachment is played out in terms of perfect denialism on the part of the other party?

S7: In a word, no. In the Nixon situation, it took two years for different committees in the Senate and the House to build a record and eventually did get to the House Judiciary Committee, which began to draft impeachment articles which it later ratified or affirmed.

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S10: In this situation, again, the investigation has largely been done in real time, and that’s different in the Clinton situation where I ended up testifying as a joint witness before the House Judiciary Committee, members on both sides pretty much agreed on the basic facts. What they disagreed on had to do with the legal or constitutional significance of those facts in the current situation.

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S7: We have what you’ve pretty much described, alternate realities. I prefer to live in a world in the real world where facts make a difference. And so there’s one reality and we’re learning more about what the facts are, which have been developed and even produced in transcripts that have been shared with the American people. And those facts tell a consistent story as you describe.

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S9: It feels to me that the nut of the thing now is we are now having an internal Nicene war about questions about how improper.

S11: You know, the thing that I said, everybody seems to now agree it was done. We can have a side alley fight about whether Hunter Biden also did something wrong. But everybody, I think, including Republicans on the committee, agree that there was this back channel and that there was that the Fiona Hills and the Alex van Menz were being cut out of the process and that there was another process, it seems, to have involved Rudy Giuliani and Al Veiny and Pompeo and possibly the vice president, if you believe Gordon Sandlin. But certainly Gordon Simon and I think Fiona Hill said it on Thursday. That is what they wanted. They wanted these two separate tracks. And that is what Sunland delivered. And the only question left is, is this bad? It doesn’t seem as though even though we can fight about things like Adam Schiff had this amazing closing about hearsay, you know, everything is hearsay. It’s hearsay. If Fiona Hill’s heard it, it’s hearsay. If Voelker heard it, everything is hearsay. And we’re having kind of technical fights.

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S8: I don’t even just mean the process fight about whether this impeachment inquiry was fair, but we seem to be just stalled out on the idea that maybe presidents do this all the time. Presidents withhold aid all the time. Presidents have side deals all the time. Presidents do bargains all the time. Is that what it’s going to come down to that, you know, to hear Devin Nunes tell it, this is just president President Tting and there’s nothing improper about it. And to hear Adam Schiff tell it, this is a massive abuse of power. In other words, I almost feel like having gone through a political process, we almost have come back to this legal or quasi legal question, Michael, which is, is this an abuse of power?

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S7: You’re right. And we have come back to that. Question. It’s not entirely clear to me how many people on the Republican side would agree on the basic facts. But yes, there has been relatively widespread recognition that there are certain facts and these facts to present the question you just described. A question that has constitutional ramifications. The particular question raised by the facts has to do with the Constitution. And and again, these facts are debated to a fair degree in terms of their constitutional significance. And some Republicans clearly think the president did nothing wrong. Some Republicans think it’s all the Democrats fault. But ultimately, I think it’s Congress’s job to make a determination about whether or not what has been described or variety of witnesses rises to the level of an impeachable offense.

S11: So so so it’s a problem that the that the framers deliberately left it kind of gauzy. And so we have high crimes and misdemeanors, which we know to mean stuff that is a high crime and a misdemeanor. It doesn’t necessarily have to be a statutory criminal act. And then we have trees and and then we have bribery and it’s all very gauzy and anko aid. And into that kind of gauzy in Kuwait, Bill now falls the acts that you’ve described. And I just keep wondering if it is a failure of law or a failure of framing by the people who drafted the constitution that we now don’t quite know what we’re trying to pin onto the donkey here.

S7: I think in large part you’re probably correct as in describing the current situation. But what we’re also having to confront at some level is whether another country is broken. The framers did design a process, did vest Congress with the authority to make a determination about particular facts and again about whether those facts might rise to the level of something sufficiently serious that would justify congressional examination and maybe even an impeachment proceeding, which we’ve seen in the House and maybe an impeachment trial, which you might end up seeing in the Senate.

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S10: But as you also, I think suggested, the original constitution, which set all this mechanisms and action may ultimately not work very well. It’s a process that requires patience. It’s a process that requires serious consideration of the possibility that there are facts. The Congress has to take into account. But at the same time, since the framers established this impeachment process, a considerable amount has changed. Political parties have taken on a tremendous role in the fidelity to those parties has become enormously intense. And the attachment to those parties, of course, has become incredibly strong. And perhaps political parties become so important in American life that they simply have clouded people’s perception of reality.

S7: And that’s not what the framers ever anticipated. The framers thought that the American people would care about facts. The American people would largely become educated and they would care about the Constitution. And it’s not entirely clear that they do.

S13: Okay. So I’m having a heart pounding panic and listening to you essentially describe describing that, you know, if you’re not the other descriptively correct. Yeah. That this is just broken. And I would I would probably filter into what you just said. Also, I think the framers obviously didn’t describe a media landscape in which there was no way to penetrate that, a factual, a historic reality we live in. But are you just saying that? Are you just walking away? Michael? No, not at all. Saying no, sorry. It’s it’s broken. You broke it. You bought it. America. I’m moving to Canada. Is that where this. No, no. I’d like to think that’s not what I said. There’s my panic attacks, Vicky. Yeah. I mean, I care about the Constitution.

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S7: I have obviously devoted my professional life to it as the customary law professor and somebody who studies constitutional history and and does believe the facts matter. Nevertheless, the time has moved on from the framers. And we live in a world in which the media 24/7 has developed the possibility that there are competing realities and the American people tend to listen to or read those things that reinforce their opinions and their perceptions of the world. And that’s just made it much harder for Congress to function in any way. That people generally might consider to be legitimate, and that’s a problem that’s more difficult than ever before. It’s not a problem I can solve offices. Constitutional law professor, but it’s a problem I can identify. And that is that the president has done something and we can debate what that something is and whether it rises to the level of impeachable offense.

S6: So you had said that the next step is that this goes to the House Judiciary Committee and they draft up the possible articles of impeachment. And I wonder if the other three articles that were adopted with respect to Nixon were obstruction of justice, abuse of power, contempt of Congress. Is that what we are building to hear? Is that what you imagine the articles are going to look like?

S10: The impeachment articles that were approved against Richard Nixon had charge. Richard Nixon were three different kinds of misconduct. The first impeachment article approved against Richard Nixon had charged him with obstruction of does justice. The second had charged him with directing the heads of the CIA and IRS to harass his political enemies. And the third impeachment article had charged him with failing to comply with four legislative subpoenas. If we fast forward to the present circumstances, what we discover is that those three impeachment articles could well be applied to the current occupant of the White House. But if we listen to the president of the United States, Donald Trump. He has argued that he is absolutely immune from having to comply with loads of subpoenas. He has also argued that he’s entitled not to produce any information that puts him in a bad light that has to be turned over either to Mr. Mueller or to Congress, and that the only way he may be held accountable is the next election in 2020. The problem is that the president, United States, Donald Trump, has tried to rig that election. By asking the president of Ukraine to make a public declaration against one of his political rivals, and that’s a disturbing prospect, because what has happened is the president has dismissed the rule of law as being relevant to his life. And some of us who still take the Constitution rather seriously believe that those articles of impeachment that have been approved against Richard Nixon turn out to be relevant as well to the misconduct of President Trump. First, he has obstructed justice in Iran in different ways. Second, he has asked the president of a foreign country, actually asked the presidents of a few different countries to intervene in the next election on his behalf. And then third, he has refused to comply with more subpoenas than most people can count.

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S11: They keep talking about this impeachment trial. And it occurs to me I don’t actually know what it looks like. And and I’ve heard tell that the senators are not allowed to, for instance, speak. They’re not allowed to ask questions if they have questions. They have to deliver them, too. I guess the chief justice, that they have to surrender their devices. They’re not going to be able to tweet and interact with humanity. Kate, can you just walk us through this is presumably right. We’ve just gone through the grand jury portion. Now we’re going into the trial portion. If articles of impeachment are advanced to the Senate, what is a Senate trial even look like?

S10: A Senate impeachment trial turns out to be under the control of the Senate majority leader. That happens to be Mitch McConnell and he will design a process. We don’t know exactly what that process might look like. It might actually end up being an expedited consideration of the impeachment articles that will have been approved by the House of Representatives and then perhaps dismissed by majority of senators as being sufficiently serious enough to justify the ouster of the president of the United States.

S11: Wait, so they can decide not even to here to have the trial itself. They can make a preliminary decision to just dismiss that thing in its entirety.

S10: We don’t know what Senator McConnell’s going to do with respect to the process that he may be used in response to the articles of impeachment that will have been approved by the House of Representatives. But what might happen is that someone may make a motion to dismiss those impeachment articles and simply stop any further consideration of the possibility the president of the states has committed impeachable misconduct. That could happen. I don’t know. But if we were to follow the Senate rules, they would have required a particular kind of process that would have enabled the Senate to take a look at the evidence that has been produced by the House. The House managers will have marched into the Senate to present whatever number of impeachment articles they have approved against the president, United States. We don’t know the number of those articles, but whatever number may be trans minted over to the Senate will then be presented to the Senate. And then Senator McConnell will have configured a process that in all likelihood will expedite the consideration of those impeachment articles. He might allow the House managers to make arguments before the Senate that would support the impeachment articles that the House of Representatives has approved. And then he might actually allow for some consideration by the Senate of those articles, and he might even allow the Senate to to vote on those particular articles. It seems unlikely he will call any witnesses to testify before the Senate. He doesn’t want to have a protracted proceeding in the Senate. I suspect what he wants is an expedited process as he can get that would ultimately result in the acquittal of the president of the United States or whatever misconduct. The House of Representatives has charged against him.

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S11: And then there was reporting in the in The Washington Post late Thursday suggesting that this is a little bit of a tight rope for Mitch McConnell because the president doesn’t. I mean, I think McConnell’s proposing a two week right at the beginning of the new year in and out, but at least have some kind of process and that Donald Trump wants zero process. He’s just very edgy. Stated an aggrieved and wants this to go away, and I wonder what Senator McConnell is thinking about as he’s trying to craft something that threads the needle between effectuating this outcome of getting it done and also at least the appearance that they have taken this seriously. What what what is. What does he think about when he’s trying to build that?

S10: What he’s trying to think about is how can we expedite the consideration of whatever number of impeachment articles the House of Representatives has approved against President Trump? It could be two, could be three, could be four. One of those impeachment articles might charge him with having refused to comply with dozens of subpoenas. Subpoenas are lawful orders, which the president has defied as and he’s ordered a number of his current and former officials not to comply with. President Nixon had actually not comply with four legislative subpoenas. President Trump has not complied with an order to others, not complied with far more than for its dozens of lawful orders. The president has defied and Senator McConnell might conclude that there should be a process for expediting consideration of an article based on the president’s refusal to comply with a number of subpoenas. He may also put together a process that would require expedited consideration of any self-dealing by the president, which we haven’t heard about much lately, but has been taking place over the course of the last three years. And the House of Representatives might ultimately approve an impeachment article which charge the president of essentially self-dealing that has been in him himself financially at the expense of the constitution and in a manner that could offend the Constitution and comprise an impeachment article that would charge him with misconduct. The majority of the Senate is likely not to take any self-dealing impeachment article very seriously and perhaps might either dismiss it or maybe take a vote on it. And also one may not convict him on that basis. It is also conceivable that the House of Representatives might improve another impeachment article which charges him with abusing his power by soliciting the president of Ukraine to intervene in the next presidential election on behalf of the president of the United States. Senator McConnell might get that dismissed quickly, or Senator McConnell might allow the Senate to vote on it. But a majority of the Senate may turn out to be likely not to take such an impeachment article very seriously and not convict the president on that basis. And then what we’d have is the president, United States, remaining in office and then running for re-election and then the next critical judgment will have to be made by the American people.

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S11: And the only other floating piece that I would love for you to pin down is there’s a court in Washington, D.C., a federal district court that’s still deciding the fate of the Don McGann Kupperman John Bolton testimony. Let’s say that decision comes down and then gets appealed up and then goes up further to the Supreme Court where to assume that whatever the determination is about forcing people to testify. That happens long after this process is over. In other words, that’s something of a pantomime that we’re going through that is not going to have any impact either on the House scrutiny or what happens in the Senate. Is that fair or is there some way? I know Judge Sirica fast tracked some of these questions in Watergate, but are we to assume that this is all just a side action that is not going to impact the impeachment process?

S10: I think you’re right that whatever court cases might find their way eventually to the Supreme Court might have found their way to the court after the House impeached, the president and the Senate decided not to convict him on the basis of articles of impeachment that had been approved by the House of Representatives.

S11: And then the very last question I have for you just comes from our mailbag, that a listener was a little bit confused about the quid pro quo discussion and sort of made the point that I think some of the GOP congressional representatives have been making, which is to say what’s the difference between a quid pro quo? And I know we’ve slid from quid pro quo to bribery to extortion. And so I think that the question is, where is the corrupt intent in here? How do you define the moment in which it’s crossed? And from the president asking Zelinsky to do him a little favor. Into now something is highly improper and wrong. And again, I think you and I can both stipulate that we have a mass of witnesses who say this just felt completely corrupt and wrong. But I’m just wondering analytically, as a legal matter, how do you think about when this becomes not just. Can I ask you a favor? But something is really bad. And even if that money wasn’t released and even if Zelinsky and Trump ended up meeting at the U.N., something really bad has happened.

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S10: I think that moment actually took place over the course of several months. And over the course of several months, the president had put together a shadow operation that was designed to produce dirt against a political rival. And so from that circumstance, we can infer that the president of the United States was acting in bad faith. At the same time, we might be able to determine over the course of months who the president, United States might have committed a bad act, sufficiently bad to rise to the level of an impeachable offense.

S14: At the end of the day, what we may end up with in the Senate are two things that are important for establishing impeachable offenses. One is bad faith. The other is a bad act. We may have bad faith on the part of the president with respect to a number of different things. We may have several bad acts and the bad faith and bad acts may be incorporated into articles of impeachment that charge misconduct on the part of the president and states.

S10: And then the Senate will have to consider whether or not whatever the House is passed justifies an impeachment trial.

S5: You wrote a piece in the Atlantic where you said, quote, If you add up the nonsense that the president’s defenders have proliferated in his predestination, that the constitution allows him to do whatever he wants. Their proposed result is disturbing an executive who can shut down an impeachment inquiry and protect from disclosure anything done by anyone in the executive branch and who is immune to criminal investigation and allowed to defy subpoenas. End quote. And I think that you said that. But I just want to give you a chance to close on it, because I think what you’re saying is that this is an administration that goes into court and argues you can’t get us in court. The only remedy is impeachment and then goes into an impeachment process and says, you can’t impeach us. So you really are looking at a Nixonian if the president does it, it is an illegal kind of.

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S11: That’s the premise here. And that I think what I’m hearing you say is that pincer move saying I am immune from any scrutiny, be it in a court or in the impeachment process. And also, I could never have done anything improper in the first instance because I have vast and capacious powers. What you’re saying is really the only thing left at that point is the 2020 election. Correct.

S14: Correct. I don’t think the framers of the Constitution ever imagined a president like Donald Trump. They had put together a number of different options for holding a president accountable for misconduct. One possibility would be in a courtroom. But the president had states has said, I’m not going to be held responsible for misconduct in a courtroom because I’m absolutely immune from criminal process for anything I did as president. I states. Another option that the framers had designed was to hold the president accountable in an election. But President Trump has put together an operation that was designed to rig the next election, and it might turn out to involve further Russian interference with the American election. If that happens, it will have been done in all likelihood on behalf of the current occupant of the White House and perhaps the president I states might be reelected or he might be defeated. The framers of the Constitution also created an option of impeachment, and the House of Representatives is trying to look into that right now. The House of Representatives likely to approve several different articles of impeachment. The charge, the president with different kinds of misconduct, including asking foreign leaders to intervene in the next presidential election. We don’t know what the Senate will do with that, but the odds are the Senate will not take that very seriously. The Senate will not convict and remove the president, aide states, in which case the president and states will have been able to have blocked most of the options the constitution has put together for holding a president accountable for misconduct. That can’t be a good thing.

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S7: And at the end of the day, the American people will be asked for their judgment. We don’t know what it will be, but they will have been watching all of this for weeks and months and maybe years, and they’ll get a chance to render their judgment next to November.

S12: One question that I should have asked early on, but John Roberts, the chief justice, John Roberts, his role in the impeachment is almost entirely ceremonial.

S11: Correct. He doesn’t sit down with Mitch McConnell and cook up a playbook. Right. He is not part of designing this process.

S10: Mitch McConnell will have designed a process that could possibly be challenged by Democratic senators. But a majority of Republicans control the Senate and the chief justice of the United States. Percentage of the Constitution is charged with presiding over a Senate impeachment trial. But he will not be able to reach any substantive judgments on anything. And he might not be able to reach any judgments about the process either, because according to the Senate rules, whatever the chief justice decides may be appealed to the entire Senate, and then a majority of the Senate may decide whether they agree with whatever the chief justice has said, meaning that a majority of the Senate gets to decide what the process is and what are the substantive determinations about whether or not the president, United States committed impeachable misconduct.

S6: Well, there have been no. OK.

S5: Michael Gerhart teaches at the University of North Carolina School of Law with a focus on constitutional conflicts between presidents and Congress. He’s the author of six books, including Leading Treatises on Impeachment Appointments and Presidential Power and has testified frequently before Congress. Thank you very, very much. I know it’s been a long day and we appreciate so much your time and we’ll be watching right along with you. Thanks.

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S7: Thank you. I’ve always to be able to have a conversation with you, and I hope it’s been an enriching conversation. And we’ll help people understand better what’s been going on in Washington.

S5: Now we want to turn to Dacca and a closely watched case at the high court on November 12th. The justices heard oral argument in one of the most important appeals of the term. The question of whether the Trump administration could reverse an Obama era program protecting about 700000 young undocumented immigrants known as Dreamers from deportation. The program, called Deferred Action for Childhood Arrivals, or DACA, was announced by Barack Obama in 2012. It allows young people who are brought to the states as children to apply for temporary status that shield them from deportation, allows them to work. It lasts for two years. It’s renewable. But it does not provide a path to citizenship and other conditions apply. Then Secretary of Homeland Security Janet Napolitano is now the president of the University of California. She and the UC Board of Regents filed one of the very first lawsuits against the Trump administration after it announced in 2017 it planned to rescind Dacca. Napolitano is acting in her capacity as the president of the University of California system. The academic home to more than 1000 DACA recipients.

S12: So thank you very, very much for being here. Thank you. And I guess I just want to start with this question, a framing question. That is, when you created DACA in 2012, you were deliberately building a stopgap vague because this was this intractable fight over immigration that nobody could break through. Did you suspect that the fact that it was stopgap then was going to make it seem less credible to the court today? Did you even think about that?

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S15: No.

S16: But we were very careful when we created DOCA to follow existing Supreme Court precedent in terms of the reach of executive power here and the theory of prosecutorial discretion that’s inherent in the executive branch. And it applies to the Department of Justice, to its decisions, to the Department of Homeland Security and Immigration context.

S15: And we received an opinion from the Office of Legal Counsel and the Department of Justice concurring with our conclusion that the program was legal and appropriate. You know, when we created it, we didn’t know how many young people would ultimately apply to be in Dhaka, whether it would be, you know, 5000 or 50000, as it turns out.

S16: It’s well over 700000 today.

S6: And your particular case is one of three that were consolidated. And so yours is Department of Homeland Security versus Regents of the University of California. Are all three of the suits fundamentally the same claims?

S17: No. There there are some differences. Our case involves really the institution of of the university on behalf of our students, a number of states filed litigation. The State of California filed its own case by way of example. But some of the other cases involved individual DACA recipients. And there is some difference in terms of the claims made.

S11: And can you just walk us briefly through what the lower courts determined in in your litigation, the lower court?

S18: In our case, there really were two buckets of issues.

S19: The first bucket was whether the court had any authority to review the case at all, whether it was justiciable. And the government was arguing that in terms of immigration enforcement, this is a question so inherently executive in terms of its implementation. The courts have no business really weighing in. And then the second bucket of issues involved, the Administrative Procedures Act. And of course, our argument was that in rescinding a Dacca, the administration violated the Administrative Procedures Act. Why? Because the sole reason given at the time of rescission was that the program was illegal from the get go. And of course, we argued strenuously that it was not illegal. And having based its decision on an incorrect reading of the law, that is inherently an arbitrary and capricious decision under the Administrative Procedures Act. So the first bucket and the second bucket become related because, of course, courts are there to interpret questions of law. That’s what makes this case justiciable. And of course, the incorrect reading of the law is what made the Trump administration’s decision violative of the EPA and all of the challengers prevailed in the lower courts.

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S6: And you had an op ed in the L.A. Times where where you stipulated it’s unusual for a former cabinet secretary to turn around and sue the agency she once led. But you said you were principally motivated by the harm of the rescission to your students at UC. Can you just walk us through what the alleged harms are?

S18: Yes. We have around 17:00 Dacca students in our undergraduate student body. Actually, they’re also in our graduate and professional schools as well. And if DOCA is rescinded, they will all be living in fear of being put into actual deportation proceedings and they will lose their authority to work. And these students primarily come from lower income families. They need to be able to work to go to school. So it’s both the fear aspect, but the work authorization aspect that makes this case so very important to our students.

S5: And it’s worth, I think, teasing out a little bit that there is this reliance interest. They came forward because they were invited to come forward. They were told they would be protected. Even Donald Trump initially said that he would protect them. And so there is this wrinkle to the case, which his students generally, the dreamers relied upon, promises made that exactly what’s going to happen wouldn’t happen.

S18: Well, that’s right. And, you know, the reliance interest only increased over over time.

S20: And, you know, President Trump has been, you know, very inconsistent on this score at the beginning of his administration. He said, you know, basically, I love the dreamers and my heart goes out to them. When John Kelly was the first secretary of homeland security in the administration. He eliminated a lot of the priorities that we had set for immigration enforcement. That is, we prioritized for deportation those who had committed other felonies, those who had a string of serious misdemeanors.

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S18: Those who were known gang members or security risks. And those we apprehended right at the border before they got into the interior of the United States. Secretary Kelly got, you know, erased all of those, making any of the 11 million or so undocumented residents of the United States eligible for immediate deportation. But he carefully carved out Doca and kept Dacca in place, and so we actually had a program that began in 2012 under President Obama that continued through the first year of the Trump administration.

S20: Then what happened is that a group of Republican state attorneys general sent a letter to the Department of Justice. I think they also sent it to the Department of Homeland Security.

S21: But they they certainly said of the Department of Justice saying if they did not take immediate action to rescind Dacca, they were going to file case to have the courts eliminate the program. And very shortly thereafter, the attorney general, then Jeff Sessions, announced that DACA was being rescinded.

S5: You’ve laid out fairly beautifully that there are these two issues. One is just disability. The other is the administrative procedures, actor, EPA. And of course, that’s going to sound familiar to listeners because so often when this administration gets into trouble, it’s that they’re doing something they could probably do. They just do it badly. And this is an example. That was the census case there where the the chief justice said, look, this just is not mapping onto the pretext that you gave us for why you want to add the census question. And the EPA really doesn’t require much. It just says that government actions can’t be arbitrary, capricious or an abuse of discretion. And as you said, I think, you know, initially the reason that was given for ending the program was very perfunctory. And then a second reason was given. Let’s listen for one second to Ted Olson. He’s a lawyer representing the Duco recipients at the Supreme Court.

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S22: The government’s termination of DOCA triggered abrupt, tangible adverse consequences and substantial disruption in the lives of 700000 individuals, their families, employers, communities and armed forces. That decision required the government to provide an accurate, reasoned, rational and legally sound explanation. It utterly failed to do so.

S12: Is it correct to say that had they offered up a good pretext, even if it was a pretextual pretext, had they made some claim for why they were asking for the rescission, we wouldn’t be here? That the problem was it was just badly handled?

S21: Yes.

S23: And, you know, under the Administrative Procedures Act, agencies are supposed to offer careful, reasoned judgments for their decisions. And, you know, a a decision that would immediately subject 700000 young people and realize these are young people who’ve grown up in the United States. They really only know the United States is home. They are students. They are in our military. Some are business owners. They’ve started families here to immediately terminate a program or to wind it down.

S24: Certainly required the government to offer more than, well, it was illegal to begin with and therefore, we’re going to end it.

S5: I think I just want to ask you what it means that Ted Olson, this conservative icon, argued your side of the case. I mean, did that give any sense that this was not a partisan right, left, you know, Obama versus Trump issue, the fact that he he was willing to take up this appeal?

S21: I think so. And the fact of the matter is that DOCA has broad bipartisan support. Poll after poll has been done on it that show the vast majority of Americans support Dach, recognizing that these young people really are caught between a rock and a hard place, that they were brought here typically before the age of six. They’ve grown up here. They have to pass a very stringent background check before they can be eligible for DACA. So they’ve done nothing wrong other than they are here in an undocumented status. But the inability of the Congress to deal with immigration policy, the need for our country to comprehensively reform its immigration laws has really unduly impacted this particular group. And I think the American people recognize that and recognize that it’s not only not legally required that they must be subject to deportation, but that is bad immigration enforcement policy and inconsistent with our values as a country. So, yes, I I think, you know, having a noted former solicitor general of the United States under a Republican president help argue this case on behalf of the DOCA recipients, certainly should have sent some signal to the court that this was not your classic Democrat versus Republican issue.

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S5: So Noel Francisco, the solicitor general, says it doesn’t matter for EPA purposes. We have a second memo. This one is a better memo. It was issued last year by Kirsten Nielsens. She was the new homeland security secretary at the time. And the new memo is supposed to now provide all of the reasons that, as you noted, were nonexistent in the first memo. And the new memo said that the earlier rationales were right, but then added this message, the theory that we wanted, a message that, quote, leaves no doubt regarding the clear, consistent and transparent enforcement of the immigration laws against all classes and categories of aliens. So essentially, this is sending some kind of telegraphic smoke signal to immigrants that they are not welcome. And how receptive was the court to the second rationale that was provided under the Neilson memo?

S25: Well, you know, at the oral argument, the they spent a fair amount of time on the Neilson memo. In my view, they spent way too much time on it because that memo was prepared when the litigation we were like nine months into the litigation.

S26: And, you know, the the agencies are supposed to make their judgments based on reason and accurate interpretations of the law at the time they actually issue their decision and an A and then after the fact in the course of litigation, kind of back of the hand. Well, never mind. Don’t pay attention to the real reason we offered. Here’s this other pretextual reason that we’re going to contribute to this case, in my view, should should not even have been considered.

S6: And that leads me to Neil Gorsuch, who seems to have I’m not sure if I’m unfairly characterizing it, but essentially he was like, oh, come on, are we going to have them come forward with a third pretext? Let’s listen to him for one second.

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S27: What would what good would another five years of litigation over the adequacy of any explanation settle? No.

S11: And I guess my question is simply, are we at the point where having failed to offer a good pretext and then have rving failed to offer a second good pretext? The argument now is, well, we don’t even have time for a third pretext. Let’s just thumbs up. This sucker. Is that. Is that where the court ends on this?

S25: Well, I hope not, because I realize that the precedent they would be setting there, they would be setting the precedent that really the requirement under the EPA that an agency offer a reasoned, well-considered basis for its decisions at the time the decisions are made really doesn’t mean anything. And that would be a rewrite of administrative law that we’ve had for decades and really permits the continued sloppiness of this administration and its failure to adhere to the requirements of being careful and thoughtful in terms of how it administers its business.

S5: It seems as though part of the way this oral argument unspooled is we were having one conversation about the EPA and just disability and these very technical legal admen law principles. And then right next to it in stark relief, we are talking about profound losses and suffering to actual human beings. Let’s play Justice Breyer just for one second, talking about. This is not just about the dacko recipient.

S28: There are 66 health care organizations. There are three labor unions. There are 210 educational associations. There’s six military organizations. There are three homebuilders, five states plus those involved. One hundred and eight, I think municipalities and cities, 129 religious organizations and 145 businesses.

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S12: So I think just as. Fryer is trying to make the point that this is tearing at the fabric.

S5: I mean, you made this point as well. You know, this is our institutions, the military, universities, this is everything. And then we have the the justices saying things like, yeah, it seems like there would be a lot of suffering here, but maybe it won’t be that bad. Or maybe provisions could be put into place to ensure that when we roll up Dacca, there’s not too much suffering. And I wonder just how as you saw this unfold, this kind of pinging back and forth between cold legal principles and administrative law principles and the pleas that are being made about actual human suffering on the ground and the ways in which the court reconciled that gap.

S29: I hope that as the justices retire to their decision making, they keep in front of mind that all Supreme Court cases affect, you know, a lot of people.

S23: But it is a rare case where you have such a defined group who would experience immense immediate hardship if they are no longer eligible for relief from deportation and the ability to work. And the breadth of the MIELKE in this case was really stunning. It was everybody from, as you say, you know, Microsoft to labor unions, to universities, to religious organizations, to health care organizations, all attesting to the value of DOCA and the harm that would be caused if this rescission is allowed to stand.

S30: This case directly involves seven hundred thousand lives. And I just hope that, you know, as they work their way through the Administrative Procedure Act and the questions about the law of just disability, etc., the justices realize that the human impact of their decision here.

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S5: I guess my last question that I was really struck by at oral argument is and I think you led with this when you said that the Trump administration has had an increasingly hardening position around this. That what started off as some solicitude for the human cost of rescission has turned into something else entirely in the last little bits of oral argument. Ted Olson was describing the Trump administration is kind of refusing to own the decision, hiding behind DHS, hiding behind the courts, refusing to take responsibility for what rescission would look like. And then Noel Francisco in his rebuttal said, we own it, it’s ours. We’re taking responsibility. And I wonder if in your viewing of this, you could draw a straight line somewhere in there between that closing sentiment and Donald Trump that day at tweeting out, calling DACA recipients, quote, very tough, hardened criminals. What changed here? Was it the Trump administration that changed? Was it the personnel at DHS or was it just we started from the proposition that some immigrants, even OCU undocumented immigrants, are fundamentally okay and we are now in 2019 making the claim that they’re all hardened criminals.

S21: I do not know. I have to think there was a political calculus made there.

S29: The Trump administration has made being anti-immigrant kind of a central plank of their of the administration and what he has accomplished as president.

S31: And, you know, and and I think that based on whatever political calculation he’s making, you know, the.

S26: They’ve just become harsher and harsher and more and more punitive where immigrants are concerned. And it and it falls particularly hard and harshly on this group who, as I said, are all young people who’ve grown up in our country. They’re not hardened criminals. They have to pass a background check when they apply for Dacca, when they seek renewal of their dark status. And so for the president to tweet out as he did was just factually inaccurate.

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S9: As are many of his tweets, and I’ll just close with this, because I think most court watchers came away from oral argument in Dacca saying this.

S5: This looks like a a fairly sound 5 to 4 to say that the recision is permissible. And I say that with the caveat that we are always wrong when we make judgments based on what happens at oral argument. But I wondering if underneath this there’s a layer of this is a pretty sober amalgamation of doctrine that is all kind of scary, whether it’s non justice to ability, you know that the courts have no business in this capacious ideas about executive power really fundamentally rethinking agency law and admen law. And I wonder if in a way it’s a perfect storm of some of the worst fears that folks have about the new Roberts court.

S29: Well, we’ll have to see. You know, the case was very well-briefed on behalf of the dark recipients. And, you know, the court will have to keep in mind not only the plight of these Dacca recipients, should they reverse all of the lower courts that have looked at this and and and hold that the decision was lawful. But the you know, the the the precedent they would necessarily that have to be setting about any administration’s ability to simply pay back of the hand attention to the requirements of the Administrative Procedure Act, which, by the way, was a statute designed so that agency decisions would be lawful, they would be reasoned, they would be transparent, and they would take into account the real costs as well as benefits that would be incurred by what they’re doing.

S5: Janet Napolitano was secretary of Homeland Security under Obama and was responsible for the roll of Dacca. She is now president of the University of California. Thank you very, very much for joining us and talking us through this incredibly important case. Thank you very much.

S4: And that is a wrap for this episode of Amicus. Thank you so much for listening. If you’d like to get in touch, our e-mail, as ever, is Amicus at Slate.com and you can always find us at Facebook dot com slash amicus podcast. We love your letters and your feedback. Today’s show was produced by Sara burnim. Gabriel Roth is editorial director of Slate Podcasts and June Thomas is senior managing producer of Slate podcasts. We’ll be back with another episode of Amicus in two weeks.