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Speaker 1:聽聽聽聽聽聽聽聽聽聽 The following podcast is a presentation of the Washington College of Law at 国产小呦女. Any unauthorized use or distribution is strictly prohibited.

Fernando L.:聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽 The following podcast is a presentation of the Washington College of Law at 国产小呦女. Any unauthorized use or distribution is strictly prohibited. So welcome everybody. My name is Fernando LaGuardia on the faculty director of the program online government and this is our continuing series on the presidential impeachment trial. Once again, we are delighted to have professor Kim Willey here with us who is visiting from University of Baltimore and is a visiting fellow in law and government teaches constitutional law and civil procedure here and has been interviewed in the media and been doing a lot of writing on the impeachment, so we're delighted to have her back. Thank you very much.

Kim Willey:聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽 Thank you for having me.

Fernando L.:聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽 So a lot has happened and I think we're going to call this impeachment recap. It's our third in a series on the trial in the Senate, but sort of taking a look back, I do want to talk about what's taken place and then kind of make some predictions about the future based on what's happening now and the aftermath of impeachment. But can you take us back, just to recap for those who might be joining at this point, the house manager's case, what was the case that they brought against the president and what were the claims that were made?

Kim Willey:聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽 So two articles of impeachment. I understand. I've heard her from people that were inside the bunker in the house that they actually started with 32 and narrowed it down to two and the two were abuse of power and the second was obstruction of Congress. So the abusive power argument was that in withholding the $391 million of aid that the Senate had appropriated for Ukraine in making that determination to withhold it and not let Congress know, even though the statute require that the president abused his power because he did that, not in the interest of the United States, not in the interest of foreign policy not in the interests of Ukrainian democracy. But in order to get pressure the Ukrainians to announce an investigation into his then primary political rival for the 2020 presidency, Joe Biden. So it was for personal gain, not for the interests of Americans.

Kim Willey:聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽 And that office is really like a fiduciary. They didn't use that word, but I use that word that he's not there because he is ordained somehow with inherent power, but because he has the power of the people and asked to exercise it that way, that's essentially the house managers argument on article one. And article two obstruction obstructional Congress. The argument was that there is essentially an obligation by the various branches to cooperate or coordinate and respect each other's prerogatives. And in this instance, the white house didn't just do what other white houses have done that is respond and then raise objections like civil litigants do in discovery, for example, you produce documents and say, well, I'm going to redact these pieces because it's privileged and they'll have a fight about privilege. Instead of doing that, the white house just said, we will not give you anything and directed people within who had been in the administration or previously worked for the administration, directed them not to comply with subpoenas at all.

Kim Willey:聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽 So that was essentially a massive immunity argument. The idea, not so much that you can show up in Congress and assert legitimate privileges like executive privilege, but that you cannot show up at all. And the basis, I think for the obstruction of Congress charge was that both Richard Nixon or I said the underpinnings, legal underpinnings, both Richard Nixon and Bill Clinton went to the United States Supreme Court on a notion of blanket immunity for the United States president and this court knocked him down. So as lawyers, we know if the president himself doesn't have such kind of absolute immunity, it was really a frivolous argument to say people that worked for the president have broader immunity from process than the president himself. So that was basically the argument and we can talk about the extent to which they did a good job and did not so good job.

Kim Willey:聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽 I think that they can be criticized for how that was set up. The president's defense was twofold on number one, on abuse of power it morphed. It started out as well, the narrative is not what you think it is. The money wasn't withheld to entrench the president's power. The money was instead withheld because the president wanted the Ukrainians to investigate Joe Biden and the alleged Ukrainian interference in the 26 election and he really cares about sort of dislodging corruption in Ukraine. The problem with that was he fired a former Ukrainian ambassador Marie Yovanovitch unceremoniously, and she was really a champion of rooting out corruption in Ukraine. In addition, the wrongdoing that Joe Biden and allegedly did was to try to get the former Ukrainian chief prosecutor fired. He was a very corrupt prosecutor. That was completely consistent. There's no ambiguity there.

Kim Willey:聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽 So Biden was actually working to root out corruption, so that narrative kind of fell apart. The second one that was floated was burden sharing that there was that he did that because he wanted European countries to share the burden of defending, giving money to Ukraine, and Trump has given a lot of money to Ukraine, but there really wasn't any factual basis for that defense and that sort of floated away. I think their primary defense was that while this happened, but it's not impeachable that it's not a basis for removal because removal opens elections and oh by the way, this is so political and oh by the way the Democrats screwed up in not getting all the facts out when they had the power, which I think is a legitimate critique. And obstruction of Congress, the argument was while all they wanted to do was litigate this and they're entitled to litigate it and the Democrats didn't bring these issues to the federal courts, the problem that's assuming there was a good faith response to begin with.

Kim Willey:聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽 And we know even in civil litigation, if you completely ignore or request for production of documents in the civil context, you can be sanctioned. You do have to at least good faith respond. And I think the argument under the second article was the complete stonewalling was so unprecedented and it can't go unchecked. And one thing I don't understand why the Democrats didn't include in the second article, was that it's actually a crime to obstruct Congress. So we heard a lot about how the impeachment articles didn't allege a crime, but they did. They just didn't articulate it that way and didn't argue it that way for whatever reason.

Fernando L.:聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽 Yeah. I wanted to ask about the defense argument. I guess you're not calling it so much a defense as a theme maybe or suggesting that it's a theme about that there was no crime alleged somehow that that was sort of most succinctly put by Alan Dershowitz in his summation, but also argue throughout the defense, do you feel that that was a frivolous defense argument or do you think that that actually had some merit to it?

Kim Willey:聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽 Well my colleague at CBS news, my co legal analyst, Jonathan Turley, testified for the Republicans in the house impeachment proceeding and even he who's quite I think, hawkish in protecting the president's prerogative across the board here. Even he admits that abuse of power alone can be a basis for impeachment.

Kim Willey:聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽 I think Dershowitz, which was out on a limb there, which probably reflects some flex, impart that he's not a constitutional scholar. He's a criminal defense lawyer and a criminal professor, criminal law professor, but his position, and he got a lot of pushback, but I was frankly relieved when he said it on the Senate floor because it really is the theory on animating the defense here is that the president, they use the words, it's a policy decision. Okay. The president made a policy determination with respect to foreign aid.

Kim Willey:聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽 He has discretion over policy determinations that you're trying to climb inside his brain and determine intent. Well, of course all kinds of things. Activity becomes criminal based on intent. Activity becomes civilly liable based on intent, discriminatory intent. So essentially boil down the argument was if the president is making judgements as president, that is unassailable.

Kim Willey:聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽 That is unaccountable and Dershowitz I'm paraphrasing basically said, if the president makes a determination, and I think he conceded the facts were what they were, that it was important to withhold aid in order to get himself reelected. If he believes in his mind that reelection is best for the American people that is, cannot be impeachable. That his belief in what's best for the American people is what's best for we the people. And he has that level of discretion. Of course that is ... it's hard to do.

Kim Willey:聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽 The reason I think he got push back is that is an articulation of the power of a Monarch, potentially an autocrat. That's unlimited power. And of course that's exactly what the framers in the revolutionary fought and died to break away from in common law England and the sovereignty principles that they thought were oppressive. So that can't be the case. But these are sort of technical, somewhat theoretical, scholarly arguments that most people don't understand. And so when you frame it as all the president did was withhold some aid, he gets to withhold aid. That makes sense, I think to a lot of people. And that are supporters of the president that the Senate majority Republicans had to think about in terms of our own reelection.

Fernando L.:聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽 I want to ask about the argument about witnesses and about the deliberations, but I want to, since we're on this point and you've stated it so well about what arguments the defense made, skipping to the end, the president was acquitted, do you draw out conclusions about the acceptance of those arguments? Is there jurisprudence of impeachment? Is this purely political? Do we look and now say, well, there've been two modern trials and we can draw some line here in terms of principles or do you think this is very much limited to the application in the case before the Senate this time around?

Kim Willey:聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽 I'm actually and I don't really come out normally and say this publicly, but I'm of the mind, if this conduct was not impeachable, it's really hard to identify what would be impeachable other than-

Fernando L.:聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽 just this public.

Kim Willey:聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽 treason. Yeah, I mean, but I mean we're at this point where thank you. Treason, right? Treason would. I would assume be impeachable, but that requires declaration of war, which we don't do anymore. So that's not really feasible. Bribery I don't have an opinion on whether effectively article one was bribery. There are a lot of scholars that believe it was framed as bribery. Even if it wasn't articulated as bribery it was more like extortion, you do this for me or else I won't give you the aid. And of course we know as a matter of notice pleading. The civil context, you don't have to cite the cause of action as long as there's notice of what the facts alleged are.

Kim Willey:聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽 So maybe bribery wouldn't qualify. High crimes and misdemeanors. There's a strong argument that if the crime doesn't relate to abuse of office, like for Bill Clinton, perjury in relating to his plus his marital affairs, that's not impeachable. So if you read the president's briefs, the argument they articulated for the standard was a crime that is also undermines the sanctity of the constitution. So I'm not sure what that needle threading is. That being said, actually I had a talk today with the Federalist society here at 国产小呦女, Washington College of Law. And a student raised a great question, which is that given that impeachments is 51% and removal is a super majority, is there ever a circumstance where politically impeachment and removal is feasible? I don't know. I mean in this polarized context, probably not. So if 51% for both houses would probably be so low, that may be impeachment and removal would be used just to as political pushback.

Kim Willey:聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽 If you had Congress that's not from the same party as the president, but as like a super majority on both ends wouldn't work either. I don't think today and we can talk about what's happened since impeachment with this president. This president is not demonstrating unlike I think what Lisa Murkowski anticipated. For example, Alaska Senator Lisa Murkowski and her rationale for acquittal, this president is not in any way chastened. His behavior isn't being cabined or limited or in any way shaped by the threat of impeachment anymore. And that's really the question. Is it a consequence that keeps people with a massive power in check? And I don't know if that is the case anymore.

Fernando L.:聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽 That's a good reformulation of my question, which I think is probably impossible to answer about whether or not you could create some kind of jurisprudence more practically does it have an impact. Let's put a pin on that and get back to, we've skipped forward about what does it all mean? Let's go back to the process here. There was a live question about whether senators should hear from witnesses and John Bolton was sort of the witness that most Democrats wanted to hear from. What happened to that process and the arguments that were made for and against witnesses.

Kim Willey:聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽 Okay. So the problem, and I have said this since December, I think in part was that the house Democrats did not subpoena Mr. Bolton and they didn't move to compel. And the argument was it take too long. I think that was bad lawyering frankly it was not sufficiently aggressive. The courts can move quickly and I think even if they can't, they should have proceeded with impeachment and taken the argument off the table. That's legitimate as a strategic ... from a strategic standpoint that the Democrats should have done more.

Fernando L.:聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽 Senator, I'm Doug Jones from Alabama, made that exact point and pointed out how in Bush V Gore, the case got resolved by the Supreme court in time for an inauguration. And so the courts are capable of getting stuff like this done.

Kim Willey:聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽 Absolutely. I think that was a massive blunder.

Fernando L.:聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽 Have you heard anything as to why or the inside thinking on it?

Kim Willey:聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽 All I've heard is what we've heard publicly from Adam Schiff was this delay problem. But I think strategically it was a massive blunder. And I try frankly in my little voice, I did write a piece early December saying hello, these are the reasons why you should subpoena and moved to Gabel, but I don't have any inside track to the strategy there. And of course are excellent lawyers, but the stakes are so massively high. So then we got to the ... and I should say in the Democrats defense, unlike for Bill Clinton, unlike from Richard Nixon, there was no prosecutor. We had Leon Jaworski. We had Ken Starr, no prosecutor with a grand jury and grand jury subpoena power and if the federal courts to back up that compliance with those subpoenas. They did not have FBI agents. They didn't have a team of prosecutors.

Kim Willey:聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽 The house had to do this as legislators. They're not trained criminal investigators or at least some of them were, but they didn't have that power of the executive branch of the justice department behind them. So by definition they did not have the tools, the financial resources and the enforcement capabilities that a prosecutor would. So they had one hand or two hands tied behind their backs to begin with because Bill Barr didn't appoint a special prosecutor unlike former deputy attorney general Rod Rosenstein did when he appointed Mueller. Barr didn't even turn over the whistleblower complaint as we know, I think in violation of a statute frankly. But so that wasn't going to happen. That being said, once we got to the Senate Gimpel Ann's book leaked out a little bit and it was clear that to the extent to which the factual narrative was had a gap in the house, it was what was the president actual thinking.

Kim Willey:聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽 You can piece together circumstantial evidence that he would tell the aide to help his election, but we don't have the smoking gun. And of course as lawyers we know you don't need the smoking gun. Lots of people are in jail based on circumstantial evidence of intent. But John Bolton made public, he was there and he could testify as to his actual intent. So my position was by the time we got to the Senate, even though arguably the house should have done more, the stakes are high enough that the American people were entitled to know all the facts and here's someone with firsthand knowledge of the president's intent and both sides of the aisle or the American populace and something as important as impeachment should have been able to hear from that person. In addition, I think there's a strong argument that is that from a textualist standpoint, the word trial means something in the constitution.

Kim Willey:聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽 We know in the sixth amendment, in the seventh amendment, a sixth amendment right to jury trial. If criminals are in criminal trials, some of the amendment civil trials, the framers understood the trial men evidence. They talked about witnesses in the sixth amendment. So the idea that there'd be a quote trial without witnesses is anathema I think to common sense and Americans understood that. But of course, again I think the Republicans game the system and the Democrats didn't push back. I think the Democrats could have probably done more, and I wrote on this in real time as well. So this is not Monday morning quarterbacking and they could have done more in the Senate proceedings to push for a fair, more transparent process.

Fernando L.:聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽 They didn't move to compel, they didn't ask for any rulings from chief justice Roberts.

Kim Willey:聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽 Correct.

Fernando L.:聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽 They didn't seek intervention from the chair. Essentially they stuck to the rules. And you think that they could have been more pro work?

Kim Willey:聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽 A couple. So, I mean moving to compel would have been the house. In the Senate they could have done a couple of things. First of all, I think at a minimum, I know there was some concern about getting the chief justice involved, but the rules give him a lot of authority. The rules that have been in place since Andrew Johnson set the chief justice chase during Johnson's trial was quite active. At a minimum, they could have asked for to strike false information and false legal statements from the record. Please, your honor, that is not factually supported. The house, for example, this is something Sip Petzl Baloney said the members of the house and Republican party were able to be in every single deposition. Please strike that from the record. I don't understand why that didn't happen number one. Number two is there was nothing precluding those lawyers from filing a brief. File a brief with chief justice Roberts saying, please take read the rules to allow more evidence than we're getting.

Kim Willey:聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽 Here's the historical argument for what a trial means. Here are the separation of powers, implications for what a trial means and then the judge, the justice would have said, listen, I'm going to put this to a Senate vote, but on the record, we would have the Supreme court justice, the chief of the entire federal court system weighing in on legal principles, which he is clearly capable of doing. They do it all the time and the constitution handpicked that person to preside over this trial for a reason because the vice president was too political. That assumes in my mind that person had more discretion than a potted plant banging a gavel.

Fernando L.:聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽 The appearance of the chief justice, I think is for us a topic for another conversation as to what that does to the institution of the Supreme court, through him represented through him essentially reading out questions and asking the majority leader what to do next.

Kim Willey:聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽 He did-

Fernando L.:聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽 I guess one time, he didn't read-

Kim Willey:聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽 Twice.

Fernando L.:聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽 Or twice in the senator poll.

Kim Willey:聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽 And that he was going to say to them in his defense, he did refuse to read questions that would have outed the whistleblower and he's deserves tremendous credit for that.

Fernando L.:聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽 So and another argument against witnesses relates to his intervention, which is that if there had been witnesses and the courts had had to get involved, then there would've been perhaps dual involvement by the chief justice in a process in the Senate and overseeing what's happening in the courts eventually ruling on witnesses.

Kim Willey:聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽 Unless he could have just ruled on all of it. I think there's an argument he didn't need to send it to a lower court under article three jurisdiction because under his jurisdiction as the presiding officer of the impeachment trial, he had original jurisdiction to make those calls. He didn't need to siphon it through article three. I think that's the argument that I would have made.

Fernando L.:聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽 So the vote on witnesses broke along party lines with the exception of Senator Romney who voted for witnesses. Otherwise, it was party line vote no witnesses.

Kim Willey:聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽 I think there might've been two-

Fernando L.:聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽 Oh, senators know also ... sorry Senator Collins.

Kim Willey:聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽 But that was Collins. I think that was the nail biting edge of the seat vote more so than the acquittal. And that was unfortunate because it I think it left Americans so divided that they don't have belief in the legitimacy of the process. And like I say in regular life, if your kid loses the little league game, but the rules were fair and they were properly enforced take them out for pizza. You don't get baseball bats out and get angry.

Kim Willey:聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽 But if you feel like it was completely rigged or unfair, then you not only get upset about the outcome, but you lose faith and respect in the whole process and you pull your kid out and pulling people out psychologically, emotionally from the important I think privilege we have of democracy is absolutely devastating and it's too bad. I mean that's an understatement that more members of Congress didn't look at it from a macro standpoint for a meta standpoint, but most people don't look at it from a meta standpoint and which is why I do what I do.

Fernando L.:聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽 Tell me what you think of. I think Senator Romney's statements in connection with deliberation and I guess there really wasn't deliberation. There was just then after the witnesses were voted down, the Senate move to sort of hear statements from senators and their votes on the impeachment counts and Senator Romney broke with his party and got a lot of press on that and I think arguably Senator Jones from Alabama who comes from a 60% Trump approving state also kind of voted against his political interests as well. But Senator Romney got a lot of publicity for his statement and his vote. Did that strike you in any particular way or resonate sought of [crosstalk 00:24:24]

Kim Willey:聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽 Yeah, I thought, I mean I thought it was a bright spot and a dark canvas for where we are in American democracy in that what people lose sight of is that there are laws and then there's norms, and norms are sort of a close cousin of values and we all have to make decisions based on our own value system. And that includes integrity and that seems to be lost and not part of the dialogue.

Kim Willey:聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽 I mean the Federalist papers talked about it and people in office, we assume just like people who teach our children, people who run our churches, people who manage hospitals make decisions based on hard calls based on ethics, not just on their own, the personal consequences or professional consequences for themselves. And I think Mitt Romney demonstrated real courage in that moment.

Kim Willey:聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽 And I think democracy does take heroes and courage to be sustained. And I want to say, I mean keep in mind Mitt Romney and his family probably have to have a security detail for a very long time by virtue of that vote. So this is not, it goes beyond politics in my mind and I think that he deserves, at least he gets my personal respect in that regard because I think living your life based on your own value system is what keeps them keeps you on track. And he did that.

Fernando L.:聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽 Yeah. As I commend to students to read the statement because it was very unusual in terms of sort of what you expect to hear.

Kim Willey:聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽 Well he has a deep faith, there's a Mormon and that the people derive those, that sense of value system from various places. But for him that's real. And I have, as I said, I have a lot of respects for that.

Fernando L.:聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽 It was clearly evident he choked up when he talked about his faith. That was very evident. So you called it a dark canvas. Was this process legitimate? Does it comport with the constitution or are you concerned about the whole process as it has come out? Do you feel like it's a somehow distorted the meaning of the constitution?

Kim Willey:聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽 I mean, I think the outcome is we're seeing it now in the aftermath. The argument that Adam Schiff made is that an unaccountable presidency strikes at the heartbeat of democracy. And we're seeing that we're seeing within 48 hours, the president fired Lieutenant Colonel Alexander Vindman who had testified against him. It was decorated war hero career diplomat officer and his brother who had no involvement in that. And this fired, Gordon Sondland. Of course, he has the discretion to do that, but there was no ambiguity that it was retaliatory. And we've also seen interventions in the Mike Flynn investigation and the Roger Stone sentencing, both sentencings. And remember Roger Stone and Mike Flynn, those prosecutions came out of the Mueller probe that was supposed to be independent and now it's becoming politicized. So what we're seeing is a president who understands there are no checks on his behavior and the framers understood that power will be abused and entrenched, only be entrenched and abused if there aren't any limitations.

Kim Willey:聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽 We know that in our regular lives. So I think from again, a meta level, yes, it was a colossal failure. And I have deep concerns about the validity of democracy going forward as a result. Because we don't have, there's not any legislative check. Impeachment isn't working to address abuses of power. The president violated legislation. The prior president violated the appointment or the appropriations clause. The president violated or bypassed the Senate confirmation process and having Rudy Giuliani to work for him. The president completely blew up oversight authority by Congress, by stonewalling and not turning over a single document. So if you look at the levers by which the Congress institutionally is positioned to oversee the office of the president, not just this president, all of those have paid pretty much gone. And so now we see the belted suspenders of the white house grow.

Kim Willey:聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽 And what the framers were concerned about is the result of that will be picking and choosing who gets justice, who gets retribution based on political views or other sort of ... or aspects of ourselves that we're born with race, gender, ethnic origin, et cetera. And we're already seeing that obviously Roger Stone got a better deal and it's within in response to a tweet. Right. That's not unusual and my concern is we're going to see it go the other way to more, not just Alexandra Veneman who the president also called on the military to retaliate against him because he testified truthfully under oath in Congress in connection with an impeachment hearing, but that we'll see winners and losers based on political views and that's central to what our separation of powers has protected against.

Fernando L.:聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽 Help us understand this point because I think it's important. Most of what you've said the president has done and he's done it. He has authority to do, he has authority to dismiss a white house official. He has authority to recall an ambassador. He technically has authority at least has the ability to weigh in on prosecutions. He may not have statutory authority but, and the justice department itself has the authority to alter sentencing recommendation. So we see a lot of things that you could say there's authority to do it. How is it a breach of trust or a violation of the rule of law or values that support the rule of law for this to go on?

Kim Willey:聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽 Because it's true I mean it does come down to the rationale, the reasons for these things. I mean if you look at the DOJ sentencing manual and the guidelines, it says that these decisions aren't to be made by having anything to do with political affiliation. And of course Roger Stone was in jail. Was convicted on five count criminal counts in relation to his relationship with WikiLeaks, which they hacked the DNC servers and released damaging information about Hillary Clinton that helped to get the president elected. So there's clearly a conflict of interest in the president having a say in the sentencing. And traditionally, again, back to norms and integrity, presidents have just basically treated the justice department as independent so Americans can have faith that the facts and the law are driving criminal decisions, not politics and favoritism. So intent does matter.

Kim Willey:聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽 Again, a good spec to this concept of a fiduciary might technically have the power to invest in X versus Y even if they're running somebody's trust fund for example. But if the X happens to be a great investment but it's cousin Vinnys sort of fund or whatever, that could be a breach of the fiduciary duty because that person is not making that decision based on what's best for the beneficiary in a neutral fashion. It's self interested. We have all kinds of laws that govern government employees and people who invest in the stock market and CEOs of companies, all kinds of laws that care a lot about the rationale for actions. The rationale for actions is a difference between something that's legal and something that's ilegal and there's the argument that that metric doesn't apply to the presidency is an argument for a monarchy or in the hands of the wrong person a dictatorship. The framers understood that to me it just doesn't pass the straight face test to suggest that the president has unlimited power to do whatever he wants.

Fernando L.:聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽 Did the president's defense essentially put this question to the voters by saying, well, it's an election year Congress shouldn't be involved and therefore all of this is an election issue. Is this what voters should be deciding this matters or it doesn't?

Kim Willey:聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽 Well, two things. One is the word impeachment is in the constitution, I think like six times. So if impeachment itself was a violation of the electoral process, it would be unconstitutional. And it's not because it's in there and it's in there apart for the reason that the framers were worried about using the power of office to get reelected. So elections itself can't fix that.

Fernando L.:聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽 Senator Randy makes this point in his statement and I think very well.

Kim Willey:聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽 So, I mean, this is a perfect storm. And like I said earlier, and I haven't said this, but now it's over. I do think this was impeachable conduct and if there's nothing that's impeachable, if this is unimpeachable, I don't know what I try not to sort of stake my ground one way or the other politically because I'm really caring about the rule of law and thoughtful analysis that is sustainable across presidencies and not in any one particular party.

Kim Willey:聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽 That being said, I do think the only check on the office of the presidency going forward is November 2020 and because we now don't have a process for ensuring that there's electoral integrity, I don't know if that's a legitimate check on the presidency either. I mean, there've been multiple bills that have come through the house in a bipartisan fashion that have been stalled by Mitch McConnell to address the electoral interference in 2016 so the Senate majority leaders exercising power that I would say arguably I've written on this isn't in the constitution. He doesn't have the authority. I mean, again, tactically he does, right? It doesn't, there's not a ban Damos provision, but you could make the argument that someone with integrity would say, okay, it has bipartisan support, I mean at least it's going to bring it to the floor. He won't do that number one. Number two is that what Cambridge Analytica did in terms of slicic indicing all these data, bits of information and focusing, into your phone, not misinformation or information that confuses voters.

Kim Willey:聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽 Right? So you don't know what to believe that is happening on a massive scale. And it's not just Russia. It could be China, it could be Saudi Arabia and it ... I mean a recent piece in Politico said that it's happening in the Trump campaign. They have quite a bit of money and there's a bunker out in Virginia who's to argue that reportedly is using those same tactics. There's nothing stopping them to keep people from the polls, misinform people. A lot of people in this country don't know the facts because they get most of their information on Facebook and what comes into their Facebook feed is tailored as distortions deliberately. And that's pretty well established and Mueller established that when it comes to the Russian interference in 2016 for example.

Fernando L.:聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽 Do you feel that what we've left now with impeachment is basically kind of defacto ordinary oversight? We don't really have impeachment the way that the framers intended it to be in the constitution. We kind of have, as you were referring to before, this sort of impossible situation to ever get a removal. So we're going to have sort of impeachment votes more frequently.

Kim Willey:聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽 I don't know if we'll see impeachment votes more frequently, but I don't think it's a pink slip. I don't think it's a reasonable mechanism for removal. And I just want to say, I'm not sure how much time we have left, but I don't want people to feel super depressed and that's what happens it's so bleak. This is awful. The house of representatives moved from one political party to another in 2018 with less than 50% of eligible voters voting. There are barriers to voting. My next book comes out in June 16th called What You Need to Know About Voting and Why. I don't pretend to be a deep dive expert in campaign finance and vote election law and voting rights. However, I do think that there's a power in numbers, and if that number were 60, 70, 80, 90, 98% regardless of money-

Fernando L.:聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽 It'll be harder to have mischief.

Kim Willey:聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽 It would be much harder to have our political spectrum hijacked by whatever the forces are, Democrats, Republicans, Russians, bots, and so the message has to be, get out there and cast your vote. If you want to do more, you can canvas and purple States from your phone. You can text voters from your phone, you can sign up for whatever campaign you care about on either side of the aisle, and we need poll workers. Most poll workers are aging. It's from a different generation of people that understood the importance of this. And technology is hard. They're not as fluid in it. So young people, if you care about this. This is really, it's not about protesting in the streets, it's about getting to the polls. And most States as I put in my book, you can move vote early. You can many, you can vote absentee.

Kim Willey:聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽 There are lots of ways of getting at it. So getting the message out to do it and do it early. I don't ... there are definitely people in this country who since the beginning of the Republic who don't want people to vote or want only the right people to vote. Why? Because it's so powerful. Why are their voter suppression efforts because their vote is so powerful. Why are there efforts to interfere in our elections? Because the vote is so powerful, so honor the privilege of being American and take back your own democracy and get those numbers way up high. In other countries like Australia. It's mandatory. There's law. We're not going to get there in our anti-socialist environment, which I'm not advocating for mandatory voting, but I am advocating for people to take control of their own government.

Fernando L.:聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽 I like that as a way to end. And I wouldn't be a law school podcast without reminding listeners that professor Willey is going to be teaching as part of our summer Institute on campaign 2020 in the law. So please look that up on the website. If you Google WCL summer Institute campaign 2020 you'll find it for more information. Thank you very much for joining us for this conversation.

Kim Willey:聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽 Thank you for having me. Professor.