LEILA FADEL, HOST:
The impeachment inquiry into President Trump will feature testimony from two lawyers who work for the National Security Council at the White House. One of them is the NSC's legal adviser, John Eisenberg. He won't be the first from the NSC to be questioned by members of Congress, but his testimony is greatly anticipated because he was allegedly involved in moving the transcript of the president's call to a highly classified server. To learn more about the National Security Council and the role of legal advisers, we've called on Harold Koh. He served as the legal adviser to the State Department under President Obama, and he's currently a professor at Yale Law School.
Welcome to the program.
HAROLD KOH: Hi.
FADEL: So, first, if you could help our listeners understand who John Eisenberg is - as I just said, he's the legal adviser at the National Security Council, the body that advises the president on national security and foreign policy. But what exactly is his role there?
KOH: So the legal adviser to the National Security Council was created in the late '80s as a result of the recommendation of the bipartisan commission report into the Iran-Contra affair. As you recall, Oliver North traded arms for hostages in violation of U.S. law and something called the Boland Amendment. And one of the recommendations was that the White House counsel was not enough.
You needed a lawyer for the National Security Council because it involves a specialized area of law. It began with one person, and that's become two persons. And right now, there's a National Security Council lawyer, who is John Eisenberg, and then his deputy, Michael Ellis.
FADEL: Right. And both of them are expected to testify this week or be questioned this week. And their role when it comes to their work with the president - what are they supposed to do for the president?
KOH: If you're in that role as legal adviser, your primary obligation is your oath to uphold the Constitution and laws of the United States of America.
FADEL: Right.
KOH: Here, you have this colonel who is working on this comes to you and says, I just heard a conversation that raises concerns for me because it might be illegal or improper - i.e., an abuse of power.
FADEL: Right.
KOH: Now, ordinarily, if you're the lawyer, your first question is, so what was it that made you worried? And then to determine whether you think it's illegal or improper...
FADEL: Right.
KOH: ...And to say, tell me more. I want to know more. And if after research, you conclude that it's not illegal or improper, you say, here is the reason why there's nothing to worry about. What he did instead, according to Vindman, is he said, I'm going to put this conversation where it's going to be very difficult for anybody to get to it. And then, a few days later, to come back to him and say, don't tell anybody this happened. That seems to be the complete opposite of trying to investigate to find out whether something illegal has happened.
FADEL: You know, when - with these two men now expected to testify or be deposed, what will you be listening for in their testimony? Because, as you describe, they broke what would be typical protocol. But to put - what they did - was that illegal?
KOH: Well, arguably, it violated something called the Hobbs Act, which is extortion. But, as you know, to be an impeachable offense or an abuse of power, it merely needs to be an abuse of foreign policy power - namely, exerting foreign policy influence for the purpose of private gain. And soliciting foreign interference in a U.S. election is basically saying that the U.S. people shouldn't elect their own president - that it should be done by somebody else.
FADEL: Now, the role of legal advisers in past administrations have been controversial at times. You know, legal scholars and legal advisers have been employed for controversial policies. What's your view on that in general - looking at things that might be legally ambiguous and interpreting that for the president and making that legal?
KOH: Well, there's always pressure when somebody says, I want to do something, to say, you can do it. But the idea that it's actually going to be secret or that it won't come to light...
FADEL: Right.
KOH: ...Is a fantasy. Everybody knows that. In fact, apparently Eisenberg - this is one of his obsessions, that he believed that too much stuff leaked. So I think, you know, if I was told - and I believe it to be a good rule of thumb - every decision you make, act as if it's going to be on the front page of The New York Times the next day. And are you happy with how that would look? Because your reputation as a lawyer will turn on that for the rest of your life. So that should have been uppermost on his mind.
FADEL: Now, before we let you go, these officials at the National Security Council - you know, they still have important work to do every day on national security and foreign policy issues. And they're also - as you said, a few of them have raised red flags. Others are being called to testify this week, these lawyers. But they have to go back and do this job every day. How will that impact their work on the - on this day-to-day basis when there's an impeachment inquiry going on with the president, and they're involved in the sense of testifying?
KOH: Well, it happens a fair bit. I think if you go to work for the government, you assume that you might be subject to a congressional investigation. You might have to spend time on it. Certainly, in my day, a huge number of officials were called up, including the secretary herself, to testify on the - in the Benghazi hearing. And one day, she went out for 18 hours. Yes, it's disruptive. But if you have nothing to hide, you go up and testify.
What I think makes this even more pressing is that none of the previous impeachment inquiries we've had - Andrew Johnson, Bill Clinton or Nixon - was about national security. As you know, Johnson was about violation of Tenure of Office Act. Nixon was about Watergate, and Clinton was about sexual misconduct.
But there was a count in the Nixon case, which was that he had engaged in the secret bombing of Cambodia. That was not voted on in the Judiciary Committee, but it was fundamentally a claim of privatization of foreign policy and abuse of foreign policy power. The Iran-Contra affair was also about the privatization of foreign policy and the abuse of foreign policy power.
And I think that that's the issue that is now being flagged by this whole question. Was there abuse of foreign policy power - which Vindman observed? And then, second, was there an attempt to cover it up - which Vindman is suggesting Eisenberg not only countenanced but directed him to do?
FADEL: Well, lots to watch for in the coming week and lots of questions circling. That's Harold Koh, professor at Yale Law School and former legal adviser to the State Department.
Thank you.
KOH: Thank you. Transcript provided by NPR, Copyright NPR.