tv Bob Bauer and Jack Goldsmith After Trump Virtual CSPAN September 8, 2021 12:31pm-1:33pm EDT
>> good evening, everyone and welcome to p&p live. i'm brad graham, the co-owner of politics and prose along with my wife lissa muscatine. we have a relevant and thought-provoking program this evening featuring two accomplished attorneys with high-level government experience. bob bauer and jack goldsmith. they're here to talk about their book, "after trump: reconstructing the presidency." jack is a veteran republican administration. bob worked in a in a democ. together they written a sort of guide to the damage that donald trump presidency did to our governing institution and they
suggest how to go about repairing and better protecting ourr system. a couple of brief housekeeping notes. first, to pose a question that any point just click on the q&a icon at the bottom of the screen. screen. the chat function also will be active, though for comments, not questions, questions in the q&a column. and in the chat, you'll find a link for purchasing copies of "after trump." jack served under president george w. bush as special counsel from 2002-2003 and then as a legal counsel at the justie department 2003-2004. he is 2004. he is now professor at harvard law school. he's also a cofounder of l'affaire and written previous books, one firsthand account of the legal battling in the bush administration over counterterrorism policy and actions, and other about the disappearance ofct jimmy hoffa.
in jack's relationship with his own stepfather who was a prime suspect in the disappearance. bob served as white house to president obama,, 2010-2011 and was a senior advisor to joe biden's campaign. he's professor at nyu law school and codirector there of the legislative and regulatory process clinic. jack and bob's book came out last fall before it was known whether or not trump would win a second term. but now that he's out of office the book is especially relevant to today's national discussion over how to repair the battered institutions trump left behind. the books basic premise is that the effort will require more than just a different and more appropriate attitude by biden and his team. trump presidency has gaps and ambiguities and laws and norms
and broader weaknesses and presidential accountability that will require some serious restructuring and guard against -- excuse me. i have h something here that is blocking what i was saying. it will guard against similar exploitation by a potential future president with authoritarian tendencies. the authors put forward in their book as many as 50 proposed changes laws, regulations andha norms as reform measures. i'm sure we're in for a lively discussion, so bob and jack, the screen is yours. much and i'm going to speak first. i'm jack goldsmith i'm very grateful as always for having us discuss this book and everybody for listening get. in the book is called after trump reconstructing the presidency and i'm going to talk about why bob and i wrote this
book and then briefly summarize with one project that we propose the book that mr. graham said the book was published in september of 2020 and we didn't know if after trump would be 2021 or 2025. that we now know that after trump is with us, and so i try to be slain in general terms of the book is about bob is going to talk about where the reform project is now in the urgency of reforming the presidency now and the priorities to the reform. and what we are doing to help achieve reform. all started by to talk about how bob and i came to write this book be served in the obama administration i served in the george w. bush administration. we will serve as senior executive lawyers positions about was in the white house and i was in the justice department. i different political outlooks on things, became friends after bob left the obama
administration. about was teaching a class at nyu law school which i went to and we started discussing our views about the proper role of lawyers and the executive branch. and actually agreed initially to write a book about the white house counsel read which is the office the top lawyer in the white house with fighting as the present on the personal basis representing the government been a very close basis. there's never been a great book about white house counsel bob had strong views about it is a nice predict from different perspectives and make met one day to talk about that book. an outline the book and this is about a year and half ago and in the course this was in january of 2020, and in the course of trying to sketch of that book which kept coming back to the truck presidency. we kept talking about all of the
things a trump done to violate the norms and exposed limits and accountability. and we are both students of the presidential reform in 1970, the ones that were famously implemented after watergate in vietnam after the church commissions. reforms that really regulated every aspect of the presidency after the debacle of the imperial presidency in the early 70s. reform is a work markedly well interview for 40 or 50 years but the reforms would seem to have on the course by the type trump came to office. so by the end of the day, bob and i decided that when trump left office and will be a similar conversation in a similar need comprehensive reform of the presidency. and like would have in 1970 so we set out to basically write a book that would be something of a roadmap of how to think about those reforms.
so before i get to what we proposed i just want to expire because i don't think this is very clearly understood. the unique challenges to the presidency. that donald trump posed. obviously trump was on first president to be accused of excessive use of the president's power. some of trump's predecessors characteristic excesses released alleged excesses such as unilateral uses of force and aggressive ways or unilateral extensions of the administrative power, these were not the kind of where is my boss is bush did, disregarding laws in the name of article to power presidential power, these are not trump's characteristic views. truce abuses i had to summarize them, were the following.
he basically merged the institutional presidency, the office of the presidency the public office, with his personal interests in a way that had never been done by the president and in a way to basically cover the landscape in every form of corruption. just to give you some examples, these are examples remembering from the truck presidency, nondisclosing's taxes nondisclosing his finances, these are all things the presence had done going back to the 70s. in a really great his wife mixing his business interests with his public office and using his public office for profiting off of his business interests and separating itself from its businesses the weight of the presence had and the justice department cases in ways we have not seen since watergate to protect himself and to protect others. in his political friends and
also to try to urge the justice department to uses very powerful tool to help him read trump used his control over the diplomacy and law enforcement technology or powers to help him win the election, john bolton's book, the very conservative john bolton who saw trump up close and personal said that in the context of his kind of law enforcement and in his kind of abuse diplomatic our, he basically said the trump seem to commit of obstruction of justice as a way of life. another example of the lustful use is the parking power work trump use this power promiscuously and not in obvious ways illegally but certainly abusively, there's not been present has come close to using the pardon power and self-serving ways to help them to pursue political agenda and help himself. in the way the truck didn't some
presidents presidents had done some of that in the past but that was exceptional and trump made it the rule. so these were all that i would call serious abuses of power and amazingly, not necessarily illegal. some might've been illegal in software the most of these abuses of power, were for various reasons not law, there were certain. norms of the expectations of behavior that we have for presidents that aren't necessary are enforceable by law they don't have a penalty illegal diligently and you can enforce them in court. there is no potential prosecution. these are rules and expected behavior presidents who act like presidents are expected to do. and these norms are the most they grew up naturally enough in the 70s they grew up self-consciously.
president had complied with conflict of interest rules and independent rules of the justice department and the like and trump blew through all of these norms and exposed all of these norms as basically useless and concerning the president. he was indifferent to these norms which are vitally important to our confidence in executive power into ensuring the president acts in the public interest in accordance with the law even if the sanction is norms is not law. pretty clear that trump also attempted to violate the laws many times he may have, we can talk about the different instances if you want read the most extraordinary episode of this is the ten episodes were counted in them mueller investigation about trump trying interfere with law enforcement, the connection with the investigation. now come back to that in a moment. another element of trump's abuses were that this is typical of popular dialogues, he made it
commonplace to attack the most important institutions of the american presidency, every afforded institution the start of trump's attack is including congress, the courts, his own officials, members of his own party. judges, i'm sorry, brady said that, state officials, institutions within the executive rash like the fbi the cia he sought to denigrate and deny and to destroy trust of all of these institutions. what you do about the president hike this. the book of bob and i wrote are premised on the idea that we may have another trump and indeed we may have much more clever trump, one of the most extraordinary things to understand about him was that he was actually in many instances thankfully incompetent read over the executive power he was a very good. and i mentioned in the mueller
report the trump 20 get somebody to stop it into fire mueller an amazing thing was that he had the power in the formal power to accomplish that, he couldn't get anyone to do it. he was not good at using the executive power to achieve his head. in the worry is that these gaps and accountabilities these week norms, these gaps in law, are going to still be there when we have another president who is a populist demagogue and it could be a republican/right wing for democrats/left-wing populist demagogue pretty but the worry is that you can have a more competent president who can take an even greater advantage of these groups. so we basically think the contrast is now and will talk more about that. so if i were to describe, let me just say, for thanks, four
assumptions are working assumptions and proposing a reform that we do for between the presidency so to speak. neither bob nor i would say this in the book explicitly, our project is not to significantly reduce presidential power. don't think that the office of the presidency needs to be significant to trump, there's a conversation to be had about that. it's on our project. we think that the is and see is vital to the station the operation of the economy into national security and we have a powerful presidency on the presidency needs republicans have confidence in the presence actually enforcing the law the president is acting the public interest. so the president needs to be constrained to be accountable to the people. that is a project were also very attentive, lots of reforms that end up in the past that have ended up making things worse rather than better pretty famous example of this is an evident
counsel statute after watergate was created a super independent counsel to examine allegations of executive branch. i was in the 1970s by the end of the 1990s, have the experience with the clinton impeachment and the like, those bipartisan consensus that had gone too far and made confidence in government worse not better and this happens a lot in president reforms predict we are very attentive to help the reform can be weapon eyes and abused and proposing it the reforms we do. and bob i actually acted on by what we called the golden rule and that is that we tried to or we don't agree on everything, especially about political matters but we tried to use that as a strength going into this project thinking that if we could agree on things, maybe there was a way to achieve a broader consensus about these things. ended up agreeing on everything in the book except one thing we
can talk about it again if you want. but the idea was that any constraint that we are proposing for president, we decided was a constraint i would be the extent of us both of us if our preferred present was in office and power and discretion we were given the president is one that we would be comfortable being exercised by a president that somebody we didn't want to be an officer we did above for. and political detachment for ourselves but we tried to step back as much as we could from the politics and addressing these issues in the final general point that i will make is that we really were attentive to the lessons of history which is important for many reasons here every chapter of the book and there are 14 tactics of the 13, every chapter in the book sketches the history of the particular presidential power or
discretion issue tenant talks about how these powers have worked with prior presidents and for a lot of these trump laws, most abusive the present, and all the most, a lot had prehistory some of the presidents doing thing similar we thought it was important to both prior reforms and prior presidential actions in each chapter to put trump in context and to learn from those prior presidential actions and attempts to reform is not to commit mistakes. with that, rather lengthy background, i am just going to briefly summarize the reforms of the book without getting into the details and bob will discuss some of these in more detail. so the book has three parts, part one focuses on how to achieve better protections against abuses of presidential power for personal and political gain. in most of these reforms are reforms that need to be implemented by congress and most
of these reforms are basically have the following qualities. divide norms in the past tax disclosures, conflict interest limits on the part of power and they were governed pretty successfully bite norms in the past we think trump shows those norms are just inadequate we need real enforceable hard legal constraint to ensure that the presidents for example, to encounter the growing state presidential campaigns and mueller report revealed gaps in the way that foreign influence new selections are regulated. we thank you so gaps need to be close by statute. and we think that the norms work pretty well in preventing conflict of interest, need to be made into very strictly enforceable laws and and the president needs to be separated by law and obtain a criminal penalty and for the businesses there needs to be completely open. it is for estate investments especially need to be open and
reported to congress in all of this needs to be legal machinery behind it. the tax disclosure requirement which worked quite well as a matter of norms is been made a matter of law and finally this chapter we think that it is hard to reform the pardon power because the bargaining power is one of the core powers of the president in article to read we believe there are ways that congress can bacardi rails on extreme abuses of presidential power especially use them to pardon for the use of a pardon to obstruct justice. and we think the law can and should be clarified even if he does these things and were pretty confident that these are constitutional and permissible for the congress to do and make very clear that the presidential self pardon which trump threatened but did not follow through on, is not
constitutional in the congress has the final word in that we can certainly have a safe and with the final view is from the supreme court. as part one of the book in part to the book focuses on very complicated and delicate relationship between the white house and the justice department when it comes to enforcement the rule of law in this country. this is a really tough issue, the reason and there is no single reform to fix this and we have lots of proposals and one of the problems is in this area, it is hard for congress to regulate because this is again a hard presidential power, law enforcement and supervision of the justice department is at the core of the presidency executive power. and this is why so many elements starting at watergate and managing this relationship has been done by norms rather than statutory reform. and bob and i have a series of reforms to basically a lot of
this came up with the norm for cleared when they were not clear, the work disregarded or circumvented. a lot of instances, the norms were just missing. in a lot of instances the norms learned, they didn't have an enforcement. so there a lot of people are skeptical that reforms can be done, the norms that will be binding on a future president is left to hold into and that is certainly legitimate concern. but norms work even in the trump presidency. there's a lot that he has people wanted him to do but he didn't. now perfectly that they worked remarkably well we think are a lot of steps that can be taken special counsel regulations to make it clear of the prosecutions are not allowed and throughout all of the guidance and to how the fbi investigations of presidential campaigns and presidents should
be conducted read into rethinking the relationship between the lawyers the white house and the lawyers in the justice department actually taking power away from the white house where politics are even higher on the list and they are the justice department in determining what the law is in most of these reforms as i say are internal to the executive branch and some of them need to be or have congressional support. it's wildly important that congress enact make clear the president can commit it destruction of justice, this is not clear. and it needs to be clear for a whole variety of reasons. very briefly that i will stop, part three is about more traditional separation of power issues between the president and congress. we can written a book about this we focused upon primarily the work hours on the war on
terrorism and what should be done they are in on the war powers resolution of the 70s and how that can be reformed. and to curb some of the most extreme abuses of presidential power and also we have reforms of virtue for some constraints the presidents heart extraordinary unilateral power to use weapons whenever the president decides we also have suggestions complicated suggestions i'm afraid about making these reforms about the president's ability to basically fill in positions in government is supposed to be filled by senate confirmed persons. and trump like other presidents circumvented those rules and trump more than his predecessors, this is a process is not good for the functioning of government to think the senate has to do congress the present pathway by reducing the number of senate appointments. in proposing reforms for that
and this is more traditional long-term separation of powers problem. we also talked about emergency powers and have a need to be fixed and also ways to buck up and get congress more power and enforcing it. so that whole lot of 70 didn't go into detail on any of them. to very high level overview of the book and i'm going to turn it over to bob to talk about where we are now read. bob: thank you jack, over the course of the truck presidency and the concern about his conduct. and as jeff pointed out, we also try to put what he did in a historical context to show how the goes on some of the more tennessee's of is predecessors. he was more blazing the trail but also following the path to the presidents in certain respects laid before him. nobody imagine the present would
take it and he was very proud about it in as i said in the offset, in is very tense and more questions will be on the book and issues that jack and i did not have an opportunity to write about but would if we were to turn around and write in addition to this and that would include only learned about what happens under our system is the president refuses the laws of election he goes about doing what he can to obstruct the transition of power and then whole set of issues no compact them in a minute to do with the ongoing effort that he made and also questions of doubt rated continuing through the events of january 6 and beyond so the question is having this concern, where do we stand now. i want to make a general statement and jack and i will subscribe to, and then talk
about what problem it presents and how we might address it. that is that we need to capture some of the momentum towards reform i think over time in some respects has channeled into of their efforts. an understandable, a country that is faced pandemic and social economics associated with pandemic that once trump left office, there would be an attention of the administration on the part of congress to address the large national problems and process reform is never simple. and it doesn't have disputes about the intended meaning or purpose is of particular approaches to free-form one way or the other, this is like the watergate. and after watergate there was a really effort for a number of years to absorb the lessons enact reforms that appear to
take full account of those lessons in the form of the executive branch and a number of ways. check touch upon them briefly in a medical fact that a turnabout how we deal with the differences between what i would call the fostering attention to this reform that i think it is urgent and this time. and how it is very different on the experience after watergate and i want to try to capture the moment before it is too late to say before we find that it has dissipated altogether or it is dissipated as jack suggests takes office in the future with the same tendencies might be even craftier and more effective in this and accentuating the legal themes more so than donald trump was predict salome say something about watergate. in the thick of the watergate
episodes, i was in law school and all of this took place predict everything came to a head and my look back recently and what was quite striking is even during this time there were significant differences from the two political parties and there was an appreciation of the urgency of reforms in some respect even if there were significant disagreements between the parties about the details. and also a robust society response in the watergate. which was to say, law and religious, there were leaders in those communities who join with elected officials and members of the bar, and with that the top. talking about the significance of an episode for understanding flaws in our constitutional government and reform. so for example, during watergate
and particularly the national shock, the massacre when president nixon dismissed a special prosecutor cox and he was unable to do so followed by the attorney general the deputy attorney general essentially had to effective fire him. but the response there was not only congressional political response lives also a strong institutional society response. and justin smith president of the bar association and republican issued a statement not just in his own but the bar itself and it changed that no questions about the law. no man is above the law. but he pointed out that no american is above the law and the president is certainly not above the other leaders of institutions
importance make a difference in the lives of americans also spoke out . the us catholic conference and the american, union of american indian congregations through their leadership issued start admonitions to the public, that something extraordinary was happening threatening the constitutional government tt that had to be addressed. i'll quote from a letter issued by the national council of churches and his secretary on the occasion of the saturday night massacre and i'm quoting . the special prosecutor archibald cox and his fascination with amoral crisis of highest magnitude and one which demands a response , ". this is one in a number of w places where you can look at the watergate period and see the country coming together across political divides and recognizing that something
had occurred and it was critical to have asignificant reform program . so what occurred? the reform program over a series of years from 1974 78 and 1979, a reform in a number of areas of concern about the institutional pride's presidency did take place and some of these reforms tap into a movement that had been extensive for some time before and there was some debate to the extent with which they were related to watergate and an example would be campaign-finance, the finance act of 1974 to the core statute that had been passed in 1971. and it is true of course that over a time the democrats had grlarge majorities in the congress . from 1974 to 1978 and 79. the democrats had very large majorities and it's actually
ship didn't shift in the other direction until the reagan election and successes of 1980 but having said that, you can't even posit the strong democratic presence in the congress and still reason why these reforms were passed . there were bipartisan implements that something had to be done even if they were just in the details. let me give you a few examples which five contemporary examples might seem remarkable. the ethics in government act in the wake of watergate which provided for the independent counsel experiment that led down the mulch was thrown to the special counsel regulations we have today and a personal financial disclosure requirements and high corruption measures that were enacted on the vice president and members of congress passed the house and the conference bill by a margin of 300 7223. and passed in the senateby a margin of 74 to 5 . the federal, the foreign
intelligence surveillance act that was designed to address the question of the authority of the government oin the name of national security to collect electronic surveillance on us soil of american citizens for agents located in the united states, that reformed though it wasn't without controversy for a number of reasons. passed the senate 95 to 1 and now several representatives past andultimately 256 to 176 , there was irritation in the house over what the senate rejected all the way through so there was institutional annoyance there and also some disagreements about how far to reign in the president and what roles on a special court . of course nonetheless you see really the remarkable margin of support for it andi'll mention one more . president nixon's attempt to refuse what congress had
appropriated for domestic acts into law for the budget and impoundment act of 1974. passed the senate by a 75 20 margin after the senate passed an amended measure by an margin of 82 nothing and passed the house 401 to 6. so where are we today? we have significant stalling out of this argument over reform to be taking place. this coming togetheraround reform that want to be taking place . the issue of polarized politics like so many that were dealing with has become polarized. gradually the given what happened on january 6 has been subject to one competing narrative about what really happened l, that there really wasn't an insurrection or a collection of people who were curiosityseekers who got out of control . and i think we see a course this debate taking place in a t number of contexts and
paralyzed in this respect from the partisan basis and i think everybody realizes we're having thisconversation on the day that the senate is attempting to vote on a presidential , not a presidential -- a political reform statute in the house and it does have elements of executive branch reform that is also conservative on things like campaign-finance reform,redistricting reform, voting rights act reform and that is caught up in complete partisan deadlock . i talk about whether or not the democrats as a result are going to be in hell to challenge the filibuster in an attempt to take that down either overall or for limited purposes . we can think and think of ways in designing reform that even if they do not provide for each political party what it believes is absolutely required, it provides some basis for r capturing some
momentum in n the battle and just on voting reform for a minute and this is not a topic jack and i address in our book but we know now that a president of the united states has urged the vice president of the united states in hewhat was once thought to be a ceremonial capacity to disregard the electoral count act and send the phone back to the states where legislators presumably and state republicans could disregard that tally. electoral act in 1887 is in desperate need of revision so that both these can be made in the future. again the goal of this act articulated would be faithfully followed even the rules of government or impeachment process when you s. have a good number of impeachments in the trump years and then of course nixon impeachments. it's been clear there are institutional reforms in the
senate that could make the senate much more effective to consider articles of impeachment. actually the house as a more effective body and bringing to the senate, the senate a more effective bodyin considering them . we think however in the advancement of the book and jack discussed much of this re there are ways to in that reforms can be designed to address uneventful requirements that neither party can accuse the other one of writing a reform in a narrow partisan selfinterest . imparting those motives but not in fact possessing them . some that have been developed since he wrote our book like transition reform but others jack had mentioned like making clear the president is subject to obstruction of justice and properly designed reform but making it clear what the boundaries are in a political
abuse of the partisan power. we think these are reforms that can be addressed and where others in congress actually see some bipartisan interest in the area of work hours and since they been taken to leading to o for example consider repealing authorization of the force that was passed by the congress to invest in the situation in iraq many years ago and now believed to become the basis for presidential assertions of the party beyond what congress ever intended in issuing that a ums. so the question is are we able to do that and i think the time is now if we don't allow this reform moment to pass by. we have a democratic president who indicated he feels strongly about institutional capacities and institutional norms and that he will support institutional reform and has expressed that support for work hours reform , for measuring the independence of the department of justice and having a president at the end of the day passes rather than vetoes the bill is indispensable so that's a moment we should not allowed
to pass. i also think it's important to say even if we discount some of the extreme lands made in the former presidents trumps weighing of this political party, there are republicans who do recognize that this door swings both ways and this is a fundamental issue of constitutional governance, putting the presidency on the constitutionally accountable basis is equally important. at one other command, or both political parties so we do think there's republican support to be had and again it goes to the question of how these reforms are designed and that's why the opening chapters and comments in the book about the approach we took, it's important to understand what you're trying to accomplish. let me close by saying we think the their huge danger that we can face this problem again and that the fears that materialized, the dangers that materialize ofin the trump administrationcould materialize again with future presidents . both comparable demagogues
could attempt maybe more effectively even menstrual to test norms and test legal boundaries, test constitutional boundaries in a way that trump wanted to do and many times attempted to do . therefore we should not be signed when jack and i held on and encouraged to continue following the writing of this book to do rimore with the advocacy for these reforms in a more formal structure way and that's what we are going to ddo and we've received support from a number of directions that we will be talking about that publicly. we think this is something that is going to require systematic attention during a training time that the passersby if we're notcareful so i'll close my comments with that . let me encourage everybody who hasn't yet to post their questions in the q&a column. we have a few and i'll go ahead and ask now but there's
room for more questions. a couple of these questions speaks to the point you were making about how to get around the divisiveness that exists and but i'll read them and maybe you can talk further about that. mike says how can we make these reforms when one parties intent on accepting most if not all of donald trump's bad action. and susan notes that there is an outright assault by elected officials to attack democracy with republicans doing everything they can to stop americans. who don't vote their way and voting minimal interference from the democrats, how can change happened? how does a huge segment of america become more hopeful again ? >> i'll take a quick crack at
that. i'm a democrat and i probably judging from the questions share a lot of the claim ffor the individuals asking those questions have at least. i would advise my portfolio included voting rights and in 2022 the lighting campaign and spent a significant amount of my time with other measures trying to protect the right to vote in 2020 and i have strong viewson this topic and have held ndthem for many years .ea so i am quite confident even the republican colleagues of mine who i have working relationships wouldn't disagree about who's responsible for which arguments in this reform debate but i am certainly on the side of those who think we need more access, or protective access for voters and these legislative enactments are really seriously problematic legally
flawed, morally flawed and i have objections to them. what i think in the projects and i'm working onthis also , i think in the project that jack and i are working on all our pastor reform that may not and that doesn't necessarily mean you don't pursue them. they may not get you everything you're looking for in the areas where the party is the most divided but you can find some ground agreements and i'll give you this one example to go to voting rights and i think othersthat jack and i found writing this book together . our pathways to some reform and we can get some of it done. if you're able to do that obstruction of justice statute that captured the president clearly in a thoughtfully designed way you're able to clear the power in a way that is consistent with constitutional requirements and really would revive the norm that we so aggressively challenged by trump and put
oulegal boundaries around abuses. that may not be everything we're looking for in the reform of democracy but it's an important start. one last example in the voting rights area, i'm working with republicans on the defense of election officials who want to do an attack on the state and they're not getting support from their statelegislators who are the victimizers and the principal assailants and i'm finding republican support for them and working with those republicans . i think that lwe have to be thoughtful about how to find those paths and move in the direction ofaccomplishing something in the nature of reform to achieve momentum in that direction . >> jack, you are on mute. >> there are many problems and issues in our constitutional democracy and many channels where reform might be appropriate including the presidency.
we all know electoral reform, we've discussed that in this book that's a huge topic . another is reform of congress . you might think a lot of the problems with the two powerful non- compliant president that congress has not been exercising his constitutional responsibilities . we don't have proposals for that. what we focus on our proposals that most of which became clear during the trump years. we focus on fixing the back and after you have a populist demagogue as president elected. and just to underscore something that we haven't seen yet there are reasons to think there are republicans who support some of these proposals and may have even made some of these proposals in congress and a lot of the proposals, especially the ones we prioritize are ones for which there wasa bipartisan consensus for 50 years . the hope is that if you put
these reforms forward when a democrat is in office there's an unusual situation that you have a democrat who might be willing to accept these constraints but you're able to kind of grab off some of the earlier consensus among enough republicans to make this a reality. i'll rmjust did knowledge if these reforms are packaged as anti-trump reforms and the closer we get to the next presidential election and the closer we get to trump declaring that he's going to run, it gets harder and harder. that's why reform ,it's urgent that this be done quickly . these are issues on which there has been partisan support for decades until trump and there's reason to think it may be possible again on some of these issues . >> you didn't deal with electoral reform and i just toss this question out from john. it seems to anme in order to avoid another trump from taking office we need to fix the process that allowed him
to win the nomination of a major political party. how do we fix that problem? trump neighbor never should have made itpast new hampshire. you want to take a lack that ? >> i have done a lot of work on and like everybody else suffered through the presidential nomination process in this country and it's flawed in many respects is an understatement . we could have 10 of these programs and barely scratch the surface in the procedures by which we choose and by which the parties choose them. voters in party primaries choose the parties as nominees for president and even sure how to get a handle on this point because there are so many aspects. as you know, the parties really lost control of the nominating process and they outsourced responsibility in many respects although that's
improved in the last time around. outsourced responsibility for the debates to the news media. they have had an opportunity for example in july and in cleveland to try to block trump who had never been a republican and who proposed little threat who was continuously deriding the republican party leadership and an opportunity to put the nomination into question. they didn't take it because the party did not believe it had reallyinstitutionally the capacity to make that kind of decision . but this is a very tough topic and i sympathize with the questioners perplexity because it is a reason why frankly there's no reason in the world today that politician like donald trump but as we said before maybe someone more clever and more effective in pursuing his or her designs could make it through the nominating process again.
>> mike is just posting another question. how could he reform the partisan power with without the constitutionalamendment ? >> you may take that please. >> as i alluded to its hard and you can't have, the pardon powers are very broad. they described it in very expensive terms. and most of trump's self serving politically self-serving pardons, you can't reform by statute because the constitution allows the president to make politically self-serving pardons. however we're confident after
a study of executive branches and opinions and looking at legal precedents that while you can't stop the president from pardoning whoever he wants, congress can criminalize that pardon while not in any way impacting the president's ability to pardon. you can make it a crime for the president to pardon in exchange for a bride or an in exchange for part of an obstruction of justice. and even article 2 hardliners like for example bill barr have suggested this can be done. we explained in the book why we think that's not a burden on the party power because it allows the pardon to go through but it is a regulation of the consequences or at least the motivation behind the pardon for. that can survive a constitutional challenge and there's reason to think so in the executive branch and there's nothing in thesupreme court that rules it out . it's not a slamdunk legal argument but we think it could work. more importantly let me say one more thing. we would almost certainly never be tested in court and its the kind of thing and this is important to understand. laws like this can inform the
behavior of executivebranch officials even if they think it's never going to be enforced . this is why the trump subordinates didn't help him fire mueller. they were worried about possible obstruction of justice so a statute on the books like this can dissuade presidents from committing abuses of music pardons and certainly with ones that would be illegal under the statutoryscheme even if it's never enforced . >> another questioner asks whether you discussed with the department of justice policy to prevent sitting president from being indicted . you anticipate that this will be modified. >> ldi'm having a bit of a disagreement on this. i think i'll let bob speak for himself. i think thatopinion was probably correct . i think bob has some problems with the opinion. in the book, we assume the validity of the opinion but it was twice affirmed bythe justice department .
during the nixon or ford ministration in the 70s. then again at the end of the clinton administration and all proposals assume the continuing validity of that executive branch ruling. i'll this but it's something that could be overturned . all it would take is the justice department to provide that it no longer about that was the law . the justice department has a strong jstarting decisive about his opinion this is an issue on which it's looked twice but it's conceivable they would change it. i don't know what the administration's plans are about that . you havethoughts about that ? >> i don't know. i do have real qualms with the two opinions. they're both issued in the administrations residents who are facing criminal investigation and impeachment. and that doesn't suggest in and of itself that they were wrong but i am concerned
about the way those are constructed and i think that we now have a problem that jackson and i discussing the book and a slight difference of opinion about how to address it but on the one hand people assume boththe president is in officeand he or she cannot be prosecuted , can be investigated but not prosecuted . but when they leave office there's this general sense and a little bit of this is the backlog of the book . that's the latest in the aftermath of the four nixon party that it's so divisive for one administration to prosecute the former president of another. whichis such a dangerous travel there it has to be a reason. it's just not to do it now, as jack points out in the book , he's not arguing that conduct prior to becoming president is somehow immune from prosecution, not arguing any pending prosecutions ought tobe suspended .
the concern that i think we i debate in the book is a concern that somehow with looking at a prior administration and making a concerted effort to determine whether laws were broken and potentially on the basis prosecuting a former president but it would create divergence, but in some cases be divisive and dangerous if for example theprosecutions are unsuccessful . i tend to be more willing to take thatrisk then jack would be. he warned about this more markedly than i would . but i think the bottom we have to tastart rethinking what it would mean, what did he mean 1974 when the president of the adasaid no president is abovethe law . we have to make that mean something . >> you come from different political backgrounds so how much did you disagree writing
this book and to the extent that you did, were the differences moreover analysis of the problem and identifying what is a problem or what isn't or were the differences over today tend to be over solutions ? >> i'll discuss this in the first instance. i've written five or six books and i hadseveral co-authors . this is such a joy to write this book with bob. it was a learning process for both of us. we didn't know each other that well when we started to write it. we didn't have a full sense of each other's views and but we both went into the spirit of complete open-mindedness to the others arguments and we went back and forth on a whole bunch of issues and i think it's fair to say we were both open to the others arguments. we ended up agreeing on almost 99 percent of opinions and everything really. and in firmly, really agreeing with everybody on the right way forward.
to what issue i think we had a disagreement on is more just kind of a fundamental we theoretical or philosophical difference was the one bob was mentioning about not the availability of the ministration prosecuting a prior president for his acts committed in office but as bob said, i have a much darker view about whether that would be a good thing for the country if the current justice department investigated the ax and office of the prior president to see if the prior president committed crimes while in office then to prosecute the president . that's an issue on which we had a degree of emphasis but that was it. on everything else, we have to reach consensusi believe . is that right after mark. >> i just want to reciprocate and say i haven't had an experience as stimulating and rewarding that i can remember . then i had writing this book
with jack and i think both of us to come to it with an open mind and we spent long days when we were able to stick together and long stretches on the phone and by email just talking issues through with again, with an openness to arguments on the other side. i think at the end of the day it's really, i never looked t back and thought what any of the compromises or amendments that we reached on particular issues represented some sort of surrender of any basic principle or positionto reach agreement . we actually found ourselves in agreement, persuaded each of us that the positions we were about to adopt in the book and write up in the book was the correct position so it was very rewarding and respect. >> the one thing we did disagree on, one of our friends read the book said you shouldn't, we fleshed out that disagreement in a chapter in the book. one thinks this, here's a counterargument that somebody
suggested someone we admire suggested we take that up what but we sbelieved it was important to keep that in in the spiritwith which we approach these issues so there's four or five pages and there are all right are respectfully disagreeing with one another . >> we have time for one more question from the audience and we've got one from sandra who asks about subpoena power. what proposals for reform make for the subpoenas actually being honored? >> you want to take that word you want me to do it ? >> we pick up on a proposal and we have some proposed modifications. the basic idea is that the works, subpoena power we just back up a second. the legal issues surrounding the congress ability to subpoena information from the executive branch, these are
not settledissues. they're not clear in the law . trumps resistance to subpoenas is not unlike the other presidents resistance to subpoenas. it is any separation of powers class between the branches, there are different on some dimensions but the president has a huge pradvantage institutionally to congress because the president can resist a subpoena, litigatedfor years and basically run out the clock which is more or less what truck did . so our proposal and it's not unique to us is that snthere's a lot of fast tracks judicial consideration about the separation of powers disputes and what doesn't let years go by gor to get to the supreme court to resolve these issues . to try to result in a short time, months, not years so be at least we can have the president will have the advantage of inertia, of not turning over the information. there's adanger to this and i think we mentioned it in the book .
it's not clear in these classes that the congress is going to prevail on a lot of these issues. executive branch might prevail. so running up the clock might lead to a quicker resolution that leads to outcomes that congress doesn't like we still know it's important to take this running of the clock power out of the presidency. tryto diminish that and that's what we propose . >> that brings us to the end. we have so much to do. jack and bob, not only have you done a service to describing the damage done by trump and how to fix it you your teamwork in writing the book has set their useful examples in bipartisanship . it remains all too rare in our international politics these days. it's reallyencouraging to hear the two of you will be working on a project together . >> thank you for having me. to everyone watching,
thanks for tuning in. a reminder that you can find a link in the chat column for purchasing copies of after trial. from all of us here at politics and prose, stay well and well read. >> you very much. >> every saturday american history tv documents america's stories and on sunday book tv brings you the latest in nonfiction books and authors. funding for c-span2 comes from these television companies and more including communications . >> broadband is a force for empowerment that such are invested billions, building infrastructure, operating technology empowering opportunity and community fade and small. charter is connecting us.