tv Bob Bauer and Jack Goldsmith After Trump Virtual CSPAN September 9, 2021 12:02am-1:05am EDT
dakota? >> bismarck. >> correct. second question. will you appear with me on my tv radio program very soon? >> i would be happy to do that. i appreciate the invite. >> that was easy. congratulations on the authoritarian moment and on all that you are doing. i hope to catch up with you soon. >> thank you so much. >> "after words" is available as a podcast. to listen, visit c-span.org/podcasts or search c-span afterwards on your podcast app and watch this and all previous interviews at booktv.org. just click the "after words" button at the top of the page.
good evening, everyone and welcome. i'm the co-owner of politics and prose along with my wife, lisa muscatine. we have a very relevant and thought-provoking program this evening featuring two accomplished high-level government experiences. bob bauer and jack goldsmith here to talk about their book after trump, reconstructing presidency. bob worked in a democratic one and together they sort of written a guide to the damage the presidency did to the governing institution and suggest how to go about repairing and better protecting the system.
a couple of brief housekeeping notes first. to post a question at any point click on the q-and-a icon at the bottom off the screen. the chat function also will be active for comments, not questions. put your questions in the q-and-a column. in the column you will find a link for purchasing copies of after trump. jack served under president george w. bush as a special counsel to the department of defense from 2002 to 2003 and then as the head of the office of legal counsel, the justice department from 2003 to 2004. he is now a professor at harvard law school and a cofounder of law andaf has written previous books one first-hand account of the battling of the bush administration over counterterrorism policy and actions and the other about the disappearance of jimmy hoffa and jack's relationship with his owh stepfather who was a prime
suspect in the disappearance. white house counsel to president obama 21022011 and was a senior advisor to joe biden's campaign. professor at nyu law school and codirector of the legislative and regulatory process clinic. the book came out last fall before it wasam 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 on how to repair the institutions trump left behind. the book's basic premise is that the effort will require more than just a different attitude by biden and his team, jack and bob argue it exposes gaps and ambiguities in the laws and the norms and broad weaknesses of the presidential accountability that will require some serious
restructuring to go against -- excuse me. i have something here that's blocking what i was saying. it will guard against similar by a potential future president with authoritarian tendencies. the authors put forward in their book as many as 50 proposed changes to the laws, regulations and norms as reform measures. i'm sure we are in for a lively discussion so the screen is yours. >> story. >> thank you so much. i'mm going to speak first. very grateful to politics and prose for having discussed the book a and everyone for listeni. the book is called after trump, reconstructing the presidency. i'm going to talkk about why we wrote this book and then briefly summarize the project that we proposed in the book.
as mr. graham said, the book was published in september of 2020 which was a preface that we didn't know if he would be 2021 or 2025. we now have that after trump is with us.o after i explain in general terms with the book is about, bob is going to talk about where the reform project is now, the u urgency of reforming the presidency now, the prospects and priorities of the reform and what we are doing to help achieve reform. i'm going to start by talking about how we came to write this book. bob served in the obama administration andhe i served in the george w. bush administration. we both served in senior executive branch positions. bob was in the white house, i was in the justice department. we have different political outlooks on things. we became friends after bob left the obama administration and was teaching a class at nyu law school which i started
discussing our views about the proper role of lawyers and the executive branch and we had actually agreed initially to write a book about the white house counsel's office which was the office the top lawyer in the white house would advise the president onig a personal basis representing the government but on a very close basis with the president. there's never been a great book about the white house counsel. bob had strong views about it and so did i from different perspectives. we p met one day to talk about that book andnd to outline the book. this is about a year and a half ago. and this i think was in january of 2020. in the course of trying to sketch that book out, we kept coming back to the trump presidency and we kept talking about all the things trump had done to violate the norms and expose the limits on
accountability. we are both students of the presidential reform in the 1970s and the ones that were famously implemented after watergate and vietnam after the church commission reforms that regulated every aspect of the presidency after the debacle of the presidency in the early 70s. reforms had worked remarkably well in our view for 40 or 50 years but the reforms that seemed to have run their course by the time trump came into office and so by the end of the day, bob and i decided we wanted to write a different view that when trump left office there was going to be a similar conversation and a similar need for coverings of reform of the presidency akin to what happened in the 1970s and 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 want to explain because i don't think that this is very clearly understood the unique challenges to the presidency that donald trumpal posed. obviously trump wasn't the first president to be accused of excessive uses of presidential power. some of his predecessors characteristics excesses or at least alleged excesses such as unilateral uses of force in aggressive ways or unilateral extensions of administrative power, these were not the kind of orders my boss did disregarding walls in the name of article presidential power, these were not the characteristics
enemies. trump used his control of diplomacy and law enforcement to nudge the foreign powers to help him when the election. the conservative john bolton who saw him up close and personal said in the context of his kind of law enforcementnt and his kid of abuse of diplomatic power he basically said trump seemed to commit this as a way of life. another example and the last one i will use of courses the pardon power. trump used the pardon power promiscuously and not in obvious ways but certainly abusively. there's never been a president that has come close to using the pardon power in such self-serving ways to help friends to pursue a political agenda to help himself in the way that trump did. some presidents have done some of that in the past. but that was exceptional. trump made it into the rule.
>> so these were all serious abuses of power.nd some of these things might have been illegal. but most of the abuses of power and most of the other abuses of power. the expectations of behavior that we have that are not enforceable by law and don't have a penalty that attaches to enforce them in court for the prosecution these are expected behaviors that presidents that act like presidents are expected to do and for the most part they grew up naturally and after the 70s they grew up self-consciously and presidents have complied with the conflict of interest rules and independent rules for the justice department and the like.
trump exposed these as basically useless and constraining the president. he was indifferent to these normsfe which are vitally important to our executive power and to ensure that the president acts in the public interest and in accordance with the law even if the sanction is norms and not law. it's pretty clear that he also attempted to violate the law and may have and we can talk about the particular instances if you want. the most extraordinary is the episodes counted in the mueller investigation about trump trying to interfere with law enforcement and connection to the investigations of him. i will come back to that episode in a minute. another element of the abuses were that, and this is typical of the populist demagogues, he made it commonplace to attack
the most important institutions of the presidency. every important institution was subject including congress, the courts, hisre own officials, members of his own party, judges, sorry i said that, state officials, institutions within the executive branch like the fbiex and the cia. he saw to denigrate and devalue and destroy all these t institutions. so what do you do about a president like this? the book we wrote is premised on the idea that we may have another trump and indeed we may have a much more clever trump. one of the most important things to understand about trump is that in many instances thankfully he was incompetent at yielding executive power. he wasn't very good. the report about trying to get someone to stop the investigation and fire mueller and the like.
the amazing thing is the president of the united states who had the formal power to accomplish that he couldn't get anyone to do it. he wasn't good at yielding executive power to achieve his ends. the worry is these gaps in accountability and these weak norms and gaps in the law are going to still be there when we have another president who is a popular demagogue and it could be a republican right-wing populist demagogues or it could be a democrat left-wing. but the worry is you will have a more competent resident that can take even greater advantages of these weaknesses. so we basically think the time for action is now and bob will talk more about that and why that is. so if i were describing -- let me just say four things, the assumptions and proposing a set of reforms that we do for fixing
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. we don't think the office of the presidency, the executive branch and office of the presidency needs to be significantly strong. there's a conversation to be had about that. we think thero presidency is vil to the operation of the constitution. the operation of the economy and national security that we have a presidency and that it needs to -- the public needs to have confidence that the president is acting towards the law and in the public interest. so the president needs to be constrained and accountable to the people and that is our project. also there areer reforms that ed up making things worse rather than better. a famous example ofra this is te independent counsel statute after watergate created a super independent counsel to examine
allegations of executive branchb malfeasance. in the 1970s, by the end of the 1990s after the experience of the impeachment and the like, there was bipartisan consensus and it had gone too far that it made the competence of the government worse, not better. this happens a lot in the presidential reforms andnd we ae very attentive to have the how e reforms can be weaponize h and abused proposing the reforms that wee do. we also acted by what we called the golden rule and that is we don't agree on everything especially about political matters, but we try to use that thinking if we could agree on things may be theret was a way o achieve a broader consensus about these things. we ended up agreeing on everything in the book except for one thing we can talk about again if you want. the idea was that any constraint
a lot of them had histories as others do and it was important to put the presidential actions in each chapter and to learn from those prior presidential actions so as not to commit mistakes. i'm going to briefly summarize without getting into any detail. bob will discuss some ofcu these in more detail. part one focuses on how to achieve better protections against abuses of presidential power for personal and political gain. most of m the reforms basically have the quality governed by the norms in the past and the tax
disclosure and conflict of interest. they were governed pretty successfully by the norms in the past and we think trump shows that they are just inadequate and we need the legal constraints to ensure that the president for example to counter the state intervention in the presidential campaigns. they need to be made into very strictly enforceable laws. the businesses need to be completely open. the states especially need to be open in congress and all of this needs to have a legal machinery behind it.
it needs to be made a matter of law and finally in this chapter we think it's hard to reform the pardon power because theor pardn power is one of the core powers of the president in article two but we believe that there are waysys congress can put guardras on abuses of presidential power, especially the use of the pardons for the bribe or the use of a pardon to obstruct justice. and we thinkuc that it can and should be clarified. weer are pretty confident that these are constitutional and permissive to do and we also propose that they make it very clear it threatened but didn't follow through is not constitutional. congress won't have a final word on t that but it could certainly have a say if it ever comes up.
it focuses on the delicate relationship between the white house and the justice department and it comes to law enforcement and the rule of law in the country. this is a really tough issue. there is no single reform to fix this. p in this area it is hard for congress to regulate because this is againin a core presidential power. it's at the core of the power to take the clause power. this is the start of the relationship that has been done for the statutory reforms. we have a series of reforms to basically the norms just were not clear and when they were not
clear, they were disregarded or circumvented. a lot ofis the norms the reforms that will be binding on a future president and that's certainly a legitimate concern but the norms worked even in the trump presidency. there's a lot of things donald trump wanted his justice department to do that they didn't do. notn' perfectly, but they worked remarkably well and we think there are a lot of steps that can be taken for the special regulations to make clear the politicized are not allowed and throughout all of the guidance to have fbi investigations and presidential campaigns and presidents should be conducted to thinking the relationship between the white house and the
lawyers and the justice department and actually taking some power away from the white house lawyers where the politics are even higher on the list than they are on the justice department in determining what theis law is. most off the reforms as i say ae eternal to the executive branch and some of them need to be congressional support, for example it is vitally important congress enact and make clear that the president can in certain circumstances used obstruction of justice. it needs to be clear for a whole variety of reasons. very briefly then i will stop, part three is about more traditional a separation of pows issues between the president and the congress. in the book we focus primarily on the war powers, the war on terrorism and what should be done there and on how that can
be reformed and we have reforms to put constraints on the power. about the president's ability to basically fill in positions in government that are supposed to be filled by the senate confirmed persons. more than the predecessors this is a process that's not good for the functioning of government to reduce the number of the senate appointments but we prepare the reforms for that and this is a more traditional separation of powers problem it's how they
need to be fixed and also ways to give congress more power in and forcing the subpoena. so that as a whole lot of stuff i didn't go into detail on any ofnt them. it's any very high level reviewf the book and now i'm going to turn it over to bob to talk abouto the reform on these book. we also tried to point out the context and the predecessors in certain respects and other presidents in certain respects before him nobody imagined the president would take and as i mentioned and i outset, it was very
intense. jack and i didn't have an opportunity to write about what we would if we were worked to write a second addition and that would include what we learned about what happens under our system if a president refuses to concede the result and goes about doing what he can to obstruct the peaceful transition of power and then there's a whole set of issues having to do with the ongoing effort that he made to put the election into doubt for the events of january 6 and beyond. so the s question is this past concern, where do we stand now and i want to make a general sort of statement that i think jack and i both subscribe to and talk about what problem it presents and how do i address it
and that is we need to capture some of the momentum towards reform that i think over time in some respects has been dissipated or channeled into other efforts. understandably in a country that has faced the pandemic and all the social economic dislocations associated with the pandemic that there would be an attention on the part of the new administration and congress to address these large national problems and the process reform is never simple and it doesn't show the intended meaning or the purpose of the particular approaches t to reform. but one way or another, this isn't a period after watergate there was a sustained effort over a number of years to observe the lessons and enact reforms that appeared to sort of counter those lessons in the form of the executive branch and a number of ways and jack
touched on them briefly. i want to go back to that and talk about how we deal with the differences between what i would call the full attention to this period that i think is urgent and this time and how it is different from the experience after watergate and then we want to try to capture that momentum before it is too late and before we find that they dissipated altogether or its dissipated and others as suggested take office sometime in the future with the demagogue who might be even more craftier and more effective and accentuating the legal teams. ..
shock of the massacre when president nixon had a special prosecutor archibald cox with the deputy attorney general and then to affect the firing but the response there not only a political response and chesterfield smith was the president of the american b bar association and the republican the in the name of the bar itself to say no person is above the law you have to frame it differently today but the president is certainly not above the law and other leaders of institutions for the association who makes the difference in the lives of americans also spoke out at the national council of churches the conference and
the american hebrew conversations all issues stern admonitions to the public something extraordinary was happening with that constitutional governance and had to be addressed just brieflyse from the only on the occasion of the saturday night massacre about the dismissal of the special prosecutor archibald cox convince the nation was a moral crisis of the highest magnitude and this is one in a number of places you can look at the watergate period and then to reckon with and it was critical to have a significant reform program so what occurred the foreign
program 1974 and with that to take place as some of these reforms tap into to be in sometime before and if they were related to what the federal election campaign act of 1974 to the core statute passed in 1971. it is true over this period of time the democrats have a very large majority in the 95th congress from 1974 through 1978 and the democrats have those majority and it didn't shift in thehe other direction until the reagan election and congressional success of 1980
but having said that you can't even have that presence in the congress as the sole reason why these were passed there were bipartisan agreements even with the details i will give you fuel explain —- a few examples that may seem quite remarkable but that affects the government which was provided among other things for the independent counsel experiment going to the special counsel of regulations that we have today in the personal disclosure requirements anticorruptions measures enacted by the president and vice president members of congress to pass the house to vote on the conference bill by a margin of 370 through 23 and it passed in the senate and 74 / five. the foreign intelligence surveillance act addressed to
the authority of the government and national security of electronic surveillance of us citizens or agents of foreign principles of the united states even though it wasn't without controversy pass the senate 95 / one in the house of representatives passed it ultimate 250 / 176 but that the senate projected allo the way through sose there was the institutional annoyance but also how far the role to have a special course that is established but really you see this remarkable margin f of support and one more having to do with the nixon attempts for what was appropriated for domestic programs enacted into law with the empowerment act
of 1974 that passed by a 7520 margin after they pass the margin of 82 nothing in past 4126 aware we today? we have significant stalling out that ought to be taking place because this issue like so many we are dealing with has become very polarized so gradually what happened on january 6 is subject to competing narratives and the insurrection are simply a collection of people who were curiosity seekers out of control and we see of course and then paralyzed on that respect on a partisan basis if
anyone realizes we are t having this conversation today on the day the senate will vote on a political reform statute in the house does have elements of executive branch reform but also many of the things i campaign finance reform voting rights act reform and then of course caught up in deadlock about whether or not the democrats as a result will be compelled to challenge the filibuster to take that down e-overall or for limited purposes but yet this is that we try to do in the book we can think of ways to design reform that even if they do not provide for each political party for what is required and just on voting reform this is
in considering them. jack has touched on much of this but that neither party can accuse the other one writing the reform in their own self-interest and some priorities it seems to me developed since we wrote our book like transitional form that jack is mentioned with the obstructionsi of justice and statutory reform to make it clear what the boundaries are we think t these are reforms that could be addressed and then to have some bipartisan interest in more powersar the steps have been taken for
exampleon that competing authorization of the use of military force passed by the congress to address the situation in iraq and to enact the a1 math. the question is are we able to do that? the time is now. to feel so strongly and is already express the support with the will war powers reformrm and the president at the end off the day and is indispensable so we should not allow that to pass even if we
discount enough that political party but there are republicans we do recognize this goes both ways as a fundamental issue of constitutional governance to put the presidency and the constitutionally accountable basis there is noe critically important command the support of both political parties if you think there is a republican support to be had but it goes to the question how they are designed so important to understand what we are trying to accomplish. we think a huge danger affairs that materialized from the trump administration the future presidents and then to attempt more effectively even
then trump and then they attempted to do. and then following the writing of the book with the advocacy trof the reforms and with a number of directions talking about that publicly very soon. and with that systematic attention to pass us by if we are not careful. >> let me encourage everybody who has yet to post their questions and the q&a column. we have a few and i will ask now but there is room for more
questions there are a couple of these questions when you speak to the point to get around the divisiveness but i will read them mike's is how can we make these reforms but sought by elected officials to stop americans with minimal info and interference on the democrats how to change happened how is a huge segment of america become more hopeful again?
and those that asked those on the questions it is the right to vote s in 2020 even those republican colleagues of mine and those that were disagree about who is responsible for restoring which arguments in that reform debate i'm squarely on the side of those that think we need more access or more protected access. and then to be morally flawed. so in the project and then the
path to reform that doesn't mean you set the other to pursue them and may not get you everything you are looking for in the area where the party is most divided but you can find some ground of agreement the others that jack and i found the pathway to some reform and if you get it done with that department of justice statute to curb the pardon power that was so aggressively b challenged around those abuses that may not be everything we are looking for but it's an important start
and working withht the voting rights area and then to be provided was support so with those assailants and i'm finding republican support for them i just think we have to be very thoughtful have to find a path and go in that direction a to accomplish something. >> there are many problems and issues and or institutional democracy that could be appropriate of the presidency intellectual reform we discussed that in the book that's a huge topic another is a reform of congress.
because congress has not been exercising their constitutional responsibility but what we focus on o our proposals that most of which came clear during the trump years. we focus on the back and you have the president elected and it yet butseen theree are reasons to think those proposals and a lot of of those proposals that we have prioritized are those to have a bipartisan consensus for 50 years. and the hope is to put these reforms forward a democrat who might be president who word except thesese constraints to be
that consensus to make this a reality. the closer we get to the next wpresidential election that's why it's urgent this is done quickly this has been bipartisan consensus and there is reason to think it may be possible again on some of these issues. so in order to avoid another trump from taking office to fix to win the nomination trump never should have made it past new hampshire.
take a whack at that? >> i'm happy to take first crack i have done a lot of work the presidential nominating process it is an understatement and we can have ten of these programs and we barely scratched the surface those that with the party primaries with the nominees for p president i'm not even sure how to get a handle on this point there so many aspects that are causing havoc the parties have lost control and nominating process they have outsourced responsibility in many respects although the democratic party for the presidential debates to the
news media and had an opportunity for example in july 2 block trump who had never been t republican and was continuously deriding the republican party leadership to put into question as they do not believe they have a institutionally capacity to make that decision that is a toughci topic and i sympathize with the questioners complexity because it is a reason why frankly the reason a politician like donald trump and more effective in pursuing can make it to the nominating process again.
>> mike posted another question, how canon you reform the pardon power without the constitutional amendment? >> as i alluded to, it is hard and you cannot have those powers that are very broad the supreme court has described it and very expensive terms. and most of trumps self-serving pardons you cannot reform by statute because the constitution allows the president to make self-serving pardons. so confident to look at the legal precedents that while you cannot stop president from pardoning whoeverng he wants congress can criminalize that
will not in any way impacting the ability to pardon you can make it a crime for the president to pardon in exchange for the obstruction of justice scheme. even article twort headliners like bill bar. and then allows it to go through better regulation of the president or the motivation there's a reason to think so in the executive branch and nothing in the supreme court that rules it out. it would almost certainly never be tested in court this is something important to understand that laws like this can inform the behavior of
executive branch officials even if they think it will never be enforced. this is what happened why the trump subordinates did not help. and that statute on the books can dissuade a president from committing abusive pardons under the statutory scheme even if it's never enforced those that prevents a sitting president from being indicted to anticipate this will be modified. we do have a little bit of a disagreement on this but that opinion was probably correct. then i think they have problems with the opinion that in the book we assume the validity of the opinion that twice affirmed by the justice department on the fordmi
administration in the seventies and then again at the end of the clinton administration and all proposals assume the continuing validity of the executive branch ruling. it is something that could be overturned fall that takes is the justice department who doesn't think that's the t right part of the law they have a very strong rule of starry decisiveness an issue to look twice but it is conceivable they would change it i don't know the administration's plans on that. >> i don't know. i have no qualms with the two opinions of those presidents that are facing criminal investigation and impeachment that doesn't suggest in and of itself they are wrong but i am concerned away those opinions are constructed and now we have a problem that we
discussed in the book but then while the president is not in office then they cannot be prosecuted. but then when they leave office there is a general sense with afford nixon partisan then to prosecute so now jack can speak to this but he is now arguing the that conduct fire is immune from prosecution they are to be suspended and that we debate in the book it is a concern
that some have looking at a prior administration with a concerted effort if laws were broken and on the basis to be divisive. and then to be dangerous i can take that risk and then to warn about this but then to rethink what do i we mean in 1974 we have to make that means something. >> you do come from different political backgrounds how much do you disagree to the extent that you did with the
differences. >> so in the first instance when we say i've written five or six books and have several co-authors it's a joy to write this book with bob with the learning process for both of us we did not know each other that well and we started to write it. we didn't have a full set of each other's views but that completet open-mindedness. we went back and forth with a whole bunch of issues but we were open we agree on 99 percent of the things, everything really and firmly really on the right way forward and with that
philosophical difference. not the availability of the prosecuting for the president and office. and also takeic a much darker view ofpr that's a good thing for the country of the current justice department investigated and when then with a degree of emphasis and everything else can t reach consensus we just want to reciprocate and say why haven't had an experience as simulating and rewarding is i can remember then i had writing this book with jack and i think both of us didpe come with an open mind and we spent long days when we could
get together and long stretches on the phone and by e-mail talking issues through with thehe openness to the argument on the other side. and at thehe end of the day i never look back and thought any of the compromises that can be reached have a surrender of any basic principle just to reach agreement we actually found ourselves in agreement that that position was the correct position. so that was very rewarding in i that respect. >> what we did disagree on one of our friends who read the book said and here is a counter argument somebody we admire suggested we take that out but we believe it's important to keep that in in
the spirit so there are four or five pages in their where we respectfully disagree with one another sandra asks what proposals do you make for the subpoenas being honored? >> we need to pick up on a proposal and have proposed modifications the way the subpoena power works those that surround congresses ability to subpoena information from the executive branchar, these are not settled issues they are not clear on the law. trumps resistance is not
unlike prior presidents with that perennial separation powers trump may have been more aggressive that the trump has a huge advantage that's more or less what trump did and so that's unique to us is the law that fast tracks judicial consideration with the separation of power disputes that doesn't let years go by to get to the supreme court to try to resolve that in a short period of time if months, not years. so with that inertia. there is a danger to this it is not all clear in these clashes that congress will prevail the executive branch
might prevail so the clock may lead to a bigger resolution but surrounding the clock power out of the presidency to diminish that. >> that brings us to the end. so much to do not only have you done a real service to describe the damage done by trump but your own teamwork in writing the book has a very useful example of bipartisanship to remain all too rare of our national politics. it's great to hear the two of you will be working on a follow-up project together. >> thank you for having us. >> it has been a pleasure. thank you very much. >> thank you for tuning in and a reminder you can find a link
IN COLLECTIONSCSPAN2 Television Archive Television Archive News Search Service
Uploaded by TV Archive on