video app, c-span now or online at c-span.org. >> i school students, it's time to get out your phones and start recording for your chance to win $100,000 in total cash prizes for the grand prize of $000 by entering c-span studentcamid documentary contest. this year's competition we are asking students to picture yourself as the newly elected member of congress and tell us what your top priority would be and why. create a five to six minute video showing the importance of issues from opposing and supporting points of view. be bold with your documentary, don't be afraid to take risks. there still time to get started. the deadline for eries is january 20 20 23. for competition roles and tips on how to get started visit our website at studentcam.org.

>> listening the programs on c-span through c-span radio just got easier. tell your smart speaker to select c-span radio and listen to washington journal. important congressional hearings and other public affairs events throughout the day. weekdays at 5:00 p.m. and 9:00 p.m. eastern. catch washington for a fast-paced report. listen to c-span anytime. just tell your smart speaker, play c-span radio. c-span, powered by cable. host: back at our table this morning, kimberly wehle. being here let's talk about the supreme court case the oral arguments. what is this case about? guest: whether state legislators , that is the equivalent of members of congress for states

can basically have the final say in federal elections. it is an interpretation of the constitution which sets the time, place, and manner of federal addiction -- elections. it's a really radical theory because essentially what's being argued here is that state court judges under state constitution cannot hold state legislators accountable if they violate state constitutions. it's a really radical legal theory. it needed all the way to the supreme court. it doesn't look to court is going to take the radical view of the constitution. host: what's at the heart of this? guest: a gerrymandered map in north carolina. gerrymandering is the process for determining how to carve up the state for purposes of federal elections to the united states congress. the north carolina legislature had their jenny mayor durkan map

josh -- gerrymandered map. the states court struck it down as unlawful under north carolina law. now the legislature is coming to the supreme court wanting the supreme court to say essentially whatever the legislature does, stance. no matter how illegal is under state law. so that is really the state but it goes beyond just gerrymandering. the most extreme version were to hold in theory when it comes to the next presidential election state legislatures could do whatever they want in picking collectors for the presidency. so it has implications not just for north carolina not just for gerrymandering but for federal elections that could go all the way to the white house. host: u.s. constitution elections because reads the time aces and manner for holding

elections shall be prescribed i each state by the legislature thereof but the congress at any time, by law, make such regulations. so how do you think the justices read this? is this a really important part of the constitution in this case? guest: i think it surprises people there is no affirmative right to vote in the u.s. constitution. the language that you just read states decide their own practices. this has nothing to do with state elections. it decides how the electoral process works. like, we know we can register to vote at the dmv. that is a congressional statute. so here with the supreme court is trying to decide is whether when it comes to federal elections what the legislature

says in the bottom line. the word legislature, believe it or not, isn't just mean. elected officials back at the time the constitution was ratified. it meant all kinds of politicians and i think one of the wrinkles that arose for the challenger here, the people that what the legislatures to say we have the final say as they admitted a governor could be to something the legislature did. the constitution creates all the parties of government so it's really bizarre to say once it creates the legislature, it can be evolved into the constitution. i don't think, as i said based on the oral arguments we can talk about which justices this way. host: before we talk about which

justices are lining up which way is heavy listen to part of the oral argument. this is amy coney barrettnd taking issue with the portion of hiarment. take a look at this. [veo clip] >> a try -- a way of try to do with our president or the constition itself? it's explaining why the procedural limitations are ok but some are not. >> we certainly have tried to craft an argument that is consistent with all of the courts precedents. but we think there are good reasons why there would be a limitation. even if not a procedural limitation. we can see this in james madison. 367 were james madison he singles out one state, south carolina for a program for their partisan gerrymander. it was found right in the state

constitution. that's the rule that my friends on the other side are advocating r. they are saying you can have a partisan gerrymandering. host: procedural substance so not so much the matter of the test but pulling things from the history and say like the madison comments supports the procedural substance in mind. guest: we grounded in precedents, your honor, and tax and structure and history. -- text, and structure and history. guest: justice barrett was a civil procedures professor. the distinction is trying to say when it comes to procedural the supreme court supplies the constitution when it comes to substance, stick with the legislature. she said it's very complicated in other areas of the law and i'm praise it -- paraphrasing the idea you are blowing up a bunch of work and we will be in

court over and over to try to define with that distinction is. i think she is one of the justices that might not be willing to just go down this path which is just a lot of new ambiguity for the constitution host: some of the other justices that might follow her or she is following them. guest: will, thomas and justice alito and justice gorsuch have already shown support for that radical idea that it stops at the legislators court. state constitutions cannot overwrite a legislature. like kavanaugh, the chief justice roberts as well as they look like they are in the middle of squarely -- want to stick with tradition which has been going on for 22 to 30 years. host: critics even claim or of

legislature or it could let them reverse the results of the presidential popular vote. but the u.s. constitution says congress may determine at the time of choosing the electors. the federal law phase they can't take presidential electors after the fact. any intent would be of those in federal court despite what you might hear. guest: that's a really complicated question but it really boils onto something called the electoral count. it is a really old statute that the congress is thinking about amending. if you combine it with the old statutes, i disagree if you think there is already even without the states coming out in the radical way there is already sort of room between the november election and december 1 for state legislatures to me and say we don't care with the boaters said we are going to pick with the electors -- which

candidates and those the ones that the congress would have to gavel and in january after some little problem. we will take more on this. maybe the expectation is early summer where we hear all sorts of things. host: some others. we have a case on affirmative action, whether it's going to hold that is unconstitutional to consider race in an application that is a big deal. we have a case on whether you have constitutional first amendment right to refuse to serve lgbtq clients. notwithstanding a state law protecting against discrimination on the basis of gay, lazy and status but also it could bleed into things like race that there would be a constitutional right to discriminate on the basis of race. those are just two examples.

there are others having to do with presidential power. that is when states come in and sue a president to say what you are doing under federal law is affecting our budget. so if the court in two cases were to say yeah, they can do that we would see a lot of second-guessing and a lot of spiraling against >> whichever political party controls host: the white house. host:caller: (202) 748-8002 host: host:-it is again a very rare area caller: (202) 748-8001 caller: caller: when it comes to artificial -- to our viewers, yn call in with any questions or comments that you heard so far this morning in our conversation with kimberly wehle, abc news legal contributor, also a law professor, visiting law professor at american university here to talk about the legal issues. another one is the january 6 committee, considering criminal referrals to the justice department. what is the significance of this?

guest: nothing when it comes to criminal activity. congress cannot bring criminal charges against anybody but i do think it is somewhat symbolic and educational. i've said before, a big role of the january 6 committee is educate the public through the hearings. we will have a big report. the idea of potentially even theoretically indicting a former president is so substantial and significant for our history and president that i think sort of laying out the evidence that congress developed against donald trump and then cnn reports probably four of its closest advisers might be in that group where they would refer -- make criminal references. host: the former president as well? guest: the former president donald trump as well as rudy giuliani and others.

the sort of people reading and talking about that would almost warm people up to the idea this might be coming down the pipe through special counsel jack smith but they cannot actually -- doj could ignore what congress does and not take action whatsoever. host: so does this go to merrick garland or does this go to the special counsel? guest: i think based on the referral by merrick garland to the special counsel, this would be within the power of the special -- authority in the special counsel, that as well as the mar-a-lago documents taken out of the white house. host: why is that? guest: because the way the regulation works, just so people are clear, the special counsel takes jack smith out of the direct line of command to merrick garland. merrick garland can step in but has to expire to congress why he might interfere with what mr. smith does but referral gives

the topic he is responsible for. one is january but only the top brass on january 6, the people at the capitol, the 900 plus people now in the criminal justice system, that stays with local u.s. attorney's office in washington and the second big topic that has been carved out from maine justice to jack smith is the mar-a-lago documents investigation. host: this week jack smith asked officials in three states with communications with former president trump from the legal standpoint, what is -- what does that mean for his investigation? guest: it means one of the things he is looking at is the attempt to have the states create fake slates of electors to that states congress and just so we are clear, it is illegal for you or me to vote fraudulently, certainly illegal to come up with fake slates of electors to do the united states congress into gaveling in someone who is not elected by the people pursuant to the law.

if it happens, it is against the law and i think that is what these subpoenas go towards. host: from page of the washington post, doj asks judge to hold the trump team in contempt. the prosecutors urged the judge to hold donald trump's office in contempt of court for failing to comply with them subpoena in return -- to adjourn -- return all classified documents in his possession. why is this significant? >> documents keep trickling in from donald trump and doj ask for a couple years now and there have been assurances over and over that you have everything and i think last week there were more that came out. what the doj wants is an affirmative statement from what we call a records custodian from the trump team that says you have everything. the trump team says we do not want to say that, we will say we have done a diligent search but

we do not want to say you have everything because you never know and the doj is saying we are tired of this, you are not complying with subpoenas, you are not -- you are getting cute about this and we are tired of it, we want to know if we have everything. because you're not complying, we want the judge to hold you in contempt which could be a fine everyday until they certify they turned everything over that was illegally taken from the white house. host: anthony in new york, democratic caller. caller: thank you for the opportunity. my question is for your guest but more portly for the academics at c-span. i would help in future programs you can address my two concerns. there are two acts by president obama when he came into office. the first act he did was to dismiss -- to dismantle a standing lawsuit whereby he had

dismissed a standing lawsuit for americans being unconstitutionally spied against , and he basically wiped the lawsuit off of the dock. there was no redress for the class-action lawsuit whereby americans were spied upon. and he said it was states secret trumped the constitu

>> constantly vladimir putin has a better friend of the united states. >> going awake field, massachusetts. caller: i understand you are the liaison for abc, kimberly. do you feel like you've been kind of put out there as damage control for abc? host: she could talk about her

role abc. guest: there's a very elite group of people that have access to legal education and the law school classroom. it really helps people understand how to become -- empower themselves to make their own decisions about this news that we get all day long and we don't really know how to sort through it. so my job here, the way i see it, is to help people make these decisions for themselves with basic tools of civic. written a few books on this and this is really why i'm here in whatever network -- not whatever network i'm affiliated with.

host: brian in michigan, independent. caller: we know first sir -- for sure that the civil rights were abused and now it's a way that the fbi got into the trump world. when are we going to discuss the constitutionality of this special court since the patriot act was enacted? i have no use for that patriot act, i want to remind you that william barr, at the beginning, said there was spying going on, and that was a big deal. as far as russia goes, russia has been surrounded since world war ii, so we haven't even lived up to the originality of nato. so, there's so many bad things going on, i wonder when we are going to get to the truth.

host: we heard that point, i'm going to have kimberly jump in. guest: he raises a really great point and that there is this pfizer court it's a post-9/11 innovation in the spying really ratcheted up. i put spying and air quotes because there's nuance to what's legal and what's not. at that point, americans were really worried about international terrorism and in those moments, i think the government gets more power, whether we like it or not. in hindsight, he might be right. in this moment it still functioning, we are functioning under multiple presidents and this is a balancing. it came up in the last call as well. how much are we willing to give up some of our freedoms to ensure greater national security and safety because the government needs information and there's no clear line to be drawn, that's why we have a three branch system of government, that's why we can't

have a president who has unlimited power. and that's really what i think the trump administration did differently than prior administrations, kind of take this view of the president as a king and the president is not a king. host: welcome. caller: good morning, everyone. kimberly, thank you for being on the show. my question concerns the articles of confederation and the primary reason i want to know how the constitution connects to it if the elections are being judged by the state make sense of -- i'm it -- i'm taking advantage, please explain that to me where the secretary of state -- tell me about how the articles of confederation connect to the constitution and why we give so much power to state? that's my question and have a wonderful day. guest: the articles of

confederation preceded the constitution and at the constitutional convention, the idea was, let's fix the articles and they got together and said, we don't like it, we will scrap those and start over. in that instance created a more powerful presidency, created representatives, government rather than direct democracy where there's a concern of populist sort of people, fringe ideas taking over. i think with the caller is asking is, how does the bureaucracy of elections work, and he's right, that the legislator sets laws and there's all kinds of people, thousands of people beneath that or in relation to that that administer elections and make decisions, including secretary of state's. every state is different. with more versus harper in this extreme version would do would cut all the people out and say,

for example, if we have another pandemic, we saw the last time, people worked really hard to make sure voters could vote in a pandemic. some of the things within the various administrative bureaucracy to make sure the voters could vote in more versus harper would say, nope, you have to have the legislator and make all those rules themselves. just to be clear, legislators aren't always representative of the people, and that's the concern around gerrymandering in federal elections. that is that the federal level the maps are carved up. they are so distorted and tortured that even if you have overwhelming support for a candidate, the way the maps are carved up the voters cannot actually pick the candidate of choice. so that's why having a state constitution and state judges -- it's good for every voter, good for americans. as i saidli