Prof. Wehle Delivers a Clear Message: The Rule of Law is in Danger

Professor Kimberly Brown

Kimberly Wehle, professor in the University School of Law and a former official in the U.S. Department of Justice, is on a mission. It’s not a mission with an easily articulated goal: Win the argument. Defeat the enemy. Take the territory. Instead, with an organic purposefulness that only happens when a passionate, skilled individual sets her mind to something, Prof. Wehle has become a leading voice in a national, even global, conversation about the growing concern that the tenets of American democracy, articulated in the U.S. Constitution, are becoming frayed.

Her voice is everywhere—CNN, MSNBC, NPR, the major broadcast networks—on an increasingly routine basis. In one day, she had major appearances on both NBC and NPR. Next spring, she’ll publish a book, Debatable: A How-To Guide to the Constitution. What Wehle is saying, just as routinely but also consistently, is that the American government is ceding its role as the guardian of these democratic principles. Between the White House, the Congress, and the judiciary, a strange kind of authoritarianism is worming its way into our system. With 10 years of teaching and scholarship at UB, and prior experience as an Assistant U.S. Attorney, as an associate counsel in the Office of Independent Counsel Kenneth W. Starr, as a law clerk to a federal judge, and as an attorney at the Federal Trade Commission, Wehle is delivering a strong message that the country is in trouble.

“It’s not political,” she says. “It could be Republicans or Democrats doing it—it doesn’t matter. The rule of law is under attack. I never set out to do this, but I feel almost a spiritual determination to speak. The constitutional viability of the country is at stake.”

The School of Law’s Updates blog recently talked with Prof. Wehle about her rising profile in mainstream media, and where she thinks this slowly unfolding crisis is heading. The conversation has been edited for clarity and length.

How did this media work start for you?

I was sitting at home one Sunday, and I read this piece in the New York Times that stated, authoritatively, “The president’s power to pardon is absolute.” That’s inaccurate. I knew that wasn’t right because I’ve done work in that area—and because the law is grey.  It’s rarely black and white. I couldn’t let it go. So I wrote an op-ed that was published in The Baltimore Sun that argued against that point of view. Then I started to write more, on my own. I wrote for The Hill in D.C. I’ve done several pieces for that publication. Then local radio picked up on some of that work—WBAL and WTOP. I was interviewed a couple of times there. Then a producer at CBS heard me and got in touch. Paula Reid, their justice correspondent, interviewed me. I can speak with some authority on constitutional matters, on federal courts and so on. It’s just taken off from there.

It’s fair to say that you are a frequent guest on a lot of major news shows—you’ve been queried by everybody from Wolf Blitzer to NPR’s Rachel Martin, and plenty in between. Do you have an agent? How are you managing all of these invitations?

I’m keeping my own calendar these days. I don’t say yes to everything. Teaching is still number one for me, but I feel like I’m doing an important public service. The rule of law is under attack by this White House, and the Congress is abdicating its oversight role. Many people who speak in the media don’t have particularly deep expertise in constitutional law and constitutional theory. But nowadays that kind of thing is on the front page of every newspaper—activist vs. originalist judges, for example—and few people understand the theoretical complexities that go into that. Still, regular people cast votes on these things, and giving clarity to the truth around them is what motivates me. Sometimes I stop for a minute—it’s stunning to me that I’m in this position, but then I remind myself that it is a tremendous privilege. I didn’t plan for this in my life.

You’ve met some high-profile figures in talking about the Trump White House, the Mueller investigation, and so on—John Dean, David Gergen, Donna Edwards.

Yes. What I’ve noticed is that we’re all talking about the same thing: upholding the rule of law. The public officials involved in these matters, like Rod Rosenstein, who I’ve known for years, are after the same thing. These officials don’t have press secretaries, people lining them up for interviews. They are not in it for money or fame. They’re doing the work. And it’s hard work.

How would you describe what is happening in the government? Is our democracy truly under threat?

I can speak with some authority on this. I’m not concerned with the politics of the day, or Trump’s latest Tweet. I am concerned about accountability. We are moving into a tyrannical state, and that’s not good for anybody. When it comes to the Constitution, there is no “cop on the block.” It’s like a contract to renovate a kitchen. If the contractor walks off the job, he gets to keep the down payment unless the homeowner goes to court to enforce the contract. The Constitution is similar. It contains rules that bind our government. But in order for the rules to mean anything, the Constitution must be enforced—otherwise it’s just a piece of paper. Right now, it seems like a lot of people in the government, elected people, are afraid to do their jobs under the Constitution. Suddenly, the viability of our democracy is at stake. I think we need to press the red button on that viability—it’s in danger right now.

Let’s say the rule of law is bending. Where does that lead us as a nation?

We’re a young country. We don’t know. But historically, what we’re seeing are the ways that a democracy can fall apart. Attacks on critics, violent language, ignoring the rule of law. All of these tactics lead to tyranny. Our job, as lawyers and legal educators, is to provide measured, informed answers when people ask alarming questions like, “Can he do that? Can they get away with that?” Well, he can, they can—if there are no consequences. If you have a child, and you make a rule, “No eating in the living room,” that’s your rule and the children know they have to follow it. But if one day you say, “OK, just this once, you can eat in the living room,” then that rule is just broken. It’s lost its force and validity. The child knows it instantly. That’s what so many of us see happening at the top echelons of the executive branch, as well.

Your way of articulating that rule of law argument—that once you break it, it’s gone —is straightforward and powerful. That has to be a reason why so many TV producers want you on their shows.

I have this voice, and I have to use it. It’s almost a spiritual thing for me. In my teaching, I tie the law to day-to-day life and current events all the time. My students appreciate that. They integrate it and carry it with them.

With so much uncertainty out there in 2018, what are you telling people to do? We can listen and try to understand what you’re saying, but there must be more.

Educate yourself. Every person has to do more, and learn more, about how democracy works. Get to know your Constitution. And you have to vote. Voting is what works.

Several of  Prof. Wehle’s media appearance are available on her website.

Learn more about Prof. Wehle.

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Prof. Tiefer: Trump’s Signing Statement on Defense Bill ‘Lays Down the Gauntlet’ with His Own Party

Professor Charles Tiefer

Writing in Forbes, University of Baltimore School of Law Professor Charles Tiefer says that President Trump’s recent signing statement attached to a defense spending bill sends a resounding message to his own party, which still holds the majority power: I want more, and I’m going to take it.

“When President Trump signed it (rather than vetoing it), by recent presidential custom he was to some extent following the precedents of some presidents, like George W. Bush, who issue their own signing statement,” Prof. Tiefer writes. “Like them, his signing statement for the defense bill listed various provisions that they deemed at odds with their constitutional powers as Chief Executive and Commander-in-Chief.

“But there were striking aspects to Trump’s signing statement. First of all, the current Congress has Republican majorities in both the House and Senate. Trump was not confronting a Democratic Congress; Trump was laying down the gauntlet to a Congress of his own party. Trump was making all the more of a power grab because he picked his fights with a Republican Congress.”

Read the Forbes article.

Learn more about Prof. Tiefer.


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‘Perjury Trap’? Prof. Wehle Considers the Meaning of the Words on NPR

Professor Kimberly Brown

Interviewed on NPR on Aug. 21, University of Baltimore School of Law Prof. Kimberly Wehle says that the use of the term “perjury trap” by President Trump in his continuing criticisms of the Mueller investigation into Russian interference in the 2016 election is problematic, in that it undercuts the intent of the rule of law and investigative norms.

The term “suggests some prosecutorial misconduct,” Wehle says, adding, “It’s suggesting that any time you sit down to testify under oath, that that’s a trap.”

American democracy, the former Department of Justice official says, relies on the legal process, including the demand for truthful testimony, in order to sustain itself. Undercutting that foundation with Trump’s arguments that the Mueller investigation is illegitimate leads to a loss in confidence that the system is fair and just.

Prof. Wehle notes that there is “Constitutional ambiguity” in how the investigation’s findings will be handled.

“People fill in the blanks, whether conservatives or Democrats,” she says. “This is a big one—this is a huge ambiguity.”

Listen to the interview on NPR’s Morning Edition.

Learn more about Prof. Wehle.




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Prof. Gilman Appears on NPR to Weigh the Potential for Ratifying the ERA, Aug. 21

Venable Professor of Law Michele Gilman

Michele Gilman, the Venable Professor of Law in the University of Baltimore School of Law, director of clinical education and co-director for the school’s Center on Applied Feminism, will appear on the Aug. 21 edition of NPR’s 1A with host Joshua Johnson for a show about the Equal Rights Amendment. The show starts at 10 a.m. on WAMU-FM.

So far, 37 states (of the required 38) have voted to ratify the ERA and add it to the Constitution. Prof. Gilman will discuss whether a 38th state ratification would be constitutionally valid, and if so, what the impact of the ERA would be on women’s rights.

Learn more about 1A.

Learn more about Prof. Gilman.

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Daily Record: UB Law School Sees Increase in Enrollment

For SI -- law center dusk

A Daily Record article covering fall enrollments at both the University of Baltimore School of Law and its sister school at the University of Maryland says both institutions are experiencing larger enrollments, while both are becoming more selective in saying yes to new students.

“[T]he University of Baltimore School of Law’s fall class of 237 students is 20 percent larger than last year’s due to a more deliberate effort by the school to increase its enrollment after years of decline,” the article states.

Jeffrey Zavrotny, UB’s assistant dean for admissions in the law school, says the increase is in part due to improvements in the legal job market.

“We were trying to get as many qualified students as possible while still protecting the experience for the students,” he added.

According to the article, the uptick is a national trend: The Law School Admission Council said last January that it is seeing a 10 percent increase in applications to law school.

Read the Daily Record article (log in required).

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Prof. Wehle: There Are Some Things We Don’t Know Regarding a Possible Subpoena of the President

Professor Kimberly Brown

Kimberley Wehle, professor in the University of Baltimore School of Law, tells ABC News that a possible federal subpoena of the president of the United States has some substantive unknowns—including whether he could be compelled to testify, and what the government’s response would be if he refused. Conversely, she says, other legal processes are well understood, following the legal cases of both Presidents Nixon and Clinton.

“It is well established that the president has to comply with a grand jury subpoena for stuff, like documents and tapes, and has to comply with a subpoena for testimony in a civil context,” Wehle said. “What’s not clear is: does the president have to comply with a grand jury subpoena for testimony?”

Prof. Wehle was part of a panel of experts who spoke to ABC about the headlining aspects of the investigation of President Trump by Special Counsel Robert Mueller regarding Russian influence on the 2016 election, including the possibility of campaign collusion, obstruction of justice, and so on.

Read and watch the ABC coverage.

Learn more about Prof. Wehle.


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School of Law Launches ‘Supreme Court and American Politics’ Online Course, Hosted by Lyle Denniston

Beginning Sept. 30, the University of Baltimore School of Law and edX—a premier provider of massive online open courses (MOOCs)—will host “The Supreme Court and American PSCourtplasmaolitics,” an eight-week self-paced examination of the causes and effects of politics on the nation’s top legal institution. The course, available entirely online at no cost, is hosted by Lyle Denniston, long-time Supreme Court reporter, unofficial dean emeritus of the Supreme Court press corps and UB’s Wilson H. Elkins Professor of Academic Transformation in the University’s Bank of America Center for Excellence in Learning, Teaching and Technology.

Denniston will be joined by a number of distinguished legal scholars from the University of Baltimore in this close look at the Court, which Denniston describes as having a mission, from its founding in 1789, that was “not so dependent upon popularity with the people.” In the decades since, political influence on the Supreme Court has waxed and waned, often depending on the immediacy of the issue at hand. In Bush v. Gore, for example, the Court intervened in a controversial vote count, effectively deciding the election of a president. In other cases, the impact of a decision may take years to comprehend.

Each week, learners will be will presented with videos—both lectures and discussions with one of several guests. These guests will include:

  • Gilda Daniels, University of Baltimore School of Law professor and director of litigation for The Advancement Project. Prof. Daniels is a former deputy chief for the U.S. Department of Justice.
  • Garrett Epps, University of Baltimore School of Law professor and Supreme Court correspondent for The Atlantic.
  • Ron Weich, dean of the University of Baltimore Law School and a former U.S. Assistant Attorney General and Senate Counsel to Senators Harry Reid and Edward Kennedy.

These weekly video lectures and discussions will be supplemented by reading materials and discussions that will help you understand why a national court is, in reality, very different from the politically-chosen national policy branches of government—the legislative and executive branches. Despite this distinction, the Supreme Court of the United States must still be a constitutional partner to these elected bodies.

This online course is ideal for anyone with more than a passing interest in the Court. EdX is a leading provider of MOOCs, and includes Harvard University, Caltech, Imperial College London and dozens of other leading colleges and universities among its partners.

Learn more by visiting edX.

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