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Law Professor On What's Ahead For The Impeachment Inquiry

RACHEL MARTIN, HOST:

So we’ve got the ongoing testimony happening this week in the impeachment inquiry. There’s another important milestone happening on Thursday. The House will take the first vote on the impeachment inquiry. This means lawmakers will have to go on record either for or against the process. But it also sets the rules going forward. For more, I’m joined by former assistant U.S. attorney Kim Wehle. Kim, thanks for being here.

KIM WEHLE: Hi, Rachel.

MARTIN: So I want to talk about the White House response to the news of this vote because they have maintained all along that the impeachment inquiry thus far has been, quote-unquote, "unauthorized." But explain why Nancy Pelosi is holding this vote now, and if it is just to authorize the process, doesn't the White House have a point, that everything that has happened up to now has been unauthorized?

WEHLE: Yeah, I don't think it's so black and white, actually. We do have, we know as of Friday, one witness. A close adviser to John Bolton has filed a lawsuit in court basically asking the federal judge to say, listen, my client's getting competing advice, one directive from the White House, one directive from Congress. Can you please tell me what I need to do? Am I allowed to and required to respond to a congressional subpoena? And I think what Nancy Pelosi is doing, to use her words, is to, quote, "eliminate any doubt" as to whether that witness and future witnesses have to respond. Because there is a shred of legal authorities in a line of cases that suggests that Congress' position in court would be stronger with this kind of clear House vote. It does - I don't believe it's required. I don't believe it's a black-and-white thing, that it's unauthorized up until this point. But I would say going forward, she'd be on the strongest legal ground with this vote.

MARTIN: If it gives the inquiry more gravitas, more accountability, why didn't she hold it earlier?

WEHLE: Well, that's probably a political judgment. We're now in - several weeks into the impeachment process where we know that the polls are rising in their support for impeachment. In addition, the sort of narrative - the factual narrative is pretty clear as far as what happened whereas, when we started, it was a whistleblower complaint and cries from the White House that there was no quid pro quo based on the summary of the transcripts of the now infamous July 25 meeting between President Trump and the Ukrainian president in which there was a request for a criminal investigation of Joe Biden and his son.

And so the objection to the process has been about process. That is there's no - there was no official inquiry vote and that there's no due process allegedly for the president in the House of Representatives. And those are pretty weak arguments. Due process is a concept that's fundamentally for criminal defendants, and criminal targets of grand jury investigations don't get cross-examination of witnesses and don't get their lawyers and the grand jury and all the things that the president's lawyer is claiming he's entitled to under the Constitution for a House inquiry.

MARTIN: Those things happen in the Senate.

WEHLE: That would happen in the Senate, exactly, and people go to jail without that when it comes to a grand jury investigation.

MARTIN: You mentioned John Bolton earlier. How central is his potential testimony to this whole thing?

WEHLE: I think he's going to be probably one of the most - if not the most - critical witness. And as I mentioned, his lawyer is the lawyer for the witness who filed this lawsuit seeking clarity. John Bolton is the person that's closest to the president as a former national security adviser. And to the extent to which we have been hearing from other players about what was going on generally in the State Department and the White House around Ukrainian policy, John Bolton is potentially the person that can link it to the president of the United States himself. And we know he did not leave on good terms with the president. We hear that he objected to this withholding foreign aid from Ukraine in exchange for this kind of basically opposition research that could influence the 2020 election.

So if John Bolton is going to go in there and tell his story, that could be very, very damaging to the president and even put potentially the nail in the coffin of the case for at least articles of impeachment. And this kind of vote, I think, will make it easier for the federal courts to rule that these Congressional subpoenas need to be responded to, which I think really is a vast weight of authority.

MARTIN: OK. So bottom line - I mean, this announcement came after former deputy national security adviser Charles Kupperman defied a congressional subpoena. He didn't appear yesterday. Bottom line - now you believe this will make that impossible or at least more difficult, that this vote will compel high-profile witnesses to come forward.

WEHLE: This vote will make it hard for a judge to not compel high-profile witnesses to come forward. And I agree. Going forward, I think it'll be very, very hard once this case comes down, as I expect it to do, for witnesses to just completely stonewall. They will be defying not just Congress but the federal courts as well.

MARTIN: Kim Wehle - a law professor at the University of Baltimore and the author of "How To Read The Constitution - And Why." Kim, thanks as always.

WEHLE: Thank you, Rachel. Transcript provided by NPR, Copyright NPR.