Advisory Opinions - The Enormous Powers of the President

Episode Date: April 16, 2024

Co-authors Jack Goldsmith and Bob Bauer join the podcast to discuss their book, After Trump: Reconstructing the Presidency, and the need to reform presidential power. But first, a protest and a dinner party at a Berkeley Law School dean's house. Did the location qualify as a public forum? Sarah and David evaluate. The Agenda: —Dean of Berkeley Law School and a Palestinian Protest: 1A protection? —How to go about civil disobedience —Reforming the Insurrection Act —The need for bipartisan support in reforming presidential powers —Did Donald Trump abuse the pardon power as president? —Special counsels and the fear of rigging prosecutions Show Notes: —The Logan Act —The American Law Institute —David's Sunday column Learn more about your ad choices. Visit megaphone.fm/adchoices

You ready? I was born ready. Welcome to Advisory Opinions. I'm Sarah Isger, that's David French. And have we got a pod for you today. So first, we will talk about Dean Erwin Chemerinsky at Berkeley Law hosting a dinner at his house that was met with a little disruption. Then we'll talk about a Supreme Court decision on takings clause stuff. Spoiler alert, it was unanimous. We'll talk to Bob Bauer, former White House counsel to President Obama. He also was the co-chair of the Presidential Commission on Election Administration and the

co-chair of President Biden's Presidential Commission on the Supreme Court of the United States. He is joined by my former professor, Jack Goldsmith, who is a professor at Harvard Law School and was the former assistant attorney general for the Office of Legal Counsel. They have co-authored a book together on fixing the presidency. So we'll talk about the Insurrection Act, special counsels, the pardon power, war powers, all of the ways that perhaps instead of just shaking our fist at Congress to do their job, we can also maybe him in the presidency. Why isn't this getting more traction?

All right. So first up, David, let's talk about the dean of Berkeley Law School. Erwin Chemerinsky is maybe the most famous living First Amendment scholar in the United States. Can you think of anyone more First Amendment scholarly? I think he would be. I mean, it's just like pure fame, like walk through the airport and people flock to you kind of fame. He's number one in the First Amendment space, probably on that one. I think that's true.

And he has been at all of the places. He was at the Department of Justice Civil Division. He's been at a private law firm, DePaul University, USC, Duke University is where I first met him, University of California, Irvine, and now he's the Dean at Berkeley. Now, for those listening to this podcast, I'm sure the vast majority already know why we're talking about the Dean of Berkeley Law School. So last week, he invited about 60 students to his house for dinner. And from here, I'm going to read his statement. All had registered in advance, all came into our backyard and were seated at tables for dinner. While guests were

eating, a woman stood up with a microphone, stood on top on the top step in the yard and began a speech, including about the plight of Palestinians. My wife and I immediately approached her and asked her to stop and leave. The woman continued. When she continued, there was an attempt to take away her microphone. Repeatedly, we said to her that you are a guest in our home. Please stop and leave. About 10 students were clearly with her and ultimately left as a group. Interestingly, but unrelated to our First Amendment analysis, this followed what can only be called a really gross poster that they circulated on campus. Very gross. It had a caricature, like a cartoon Chemerinsky holding a bloody knife and fork with the words in large letters, no dinner with Zionist Chim while Gaza starves. As far as I know, David, Chemimerinsky has nothing to do with Israel.

He's made very clear repeatedly that as the dean of the law school, he has nothing to do with Berkeley's investments in nor power over divestment from Israeli causes. Not that that should matter in particular, except that there's a real question over why they targeted him. There's a question, Sarah? Is there really? There's not, because you know what? Does anyone want to guess what religion and ethnicity Erwin Chemerinsky is? That's right.

He's Jewish. So this whole thing sort of reeks, if you will. But around this conversation, a lot of us, meaning David Latt, you, me, have been saying that this is not protected by the First Amendment, as the student keeps saying she is. In the video that's posted online, she says, I talked to the lawyers, the National Lawyers Guild, which is a super pro-Palestinian progressive group of not very good lawyers, it seems. But, you know, we kept hearing, ah, it's a gray area. It was a school sponsored event, to which my response is, no, it's not a particular gray area. We actually have a lot of First

Amendment law around public forum access. Right. So let's start from the top here. First of all, to be a public forum of any kind, and we'll go through the different types of public forums, there has to be some amount of like a state act or state action. It has to be public property or private property that's been deemed to that usage being used by the government. I'm not even sure we get to the state actor part here. So let's assume for the sake of argument that the school paid for the food is going to reimburse Chemerinsky for the food. We know from later comments that Dean Chemerinsky made, it's his house. This is not the school's house. They don't give it to him, et cetera. He owns the house outright. So, David, let's just start from this. If the school

reimburses it and he used school channels, you know, school, his school email address, and the student school email addresses to invite them to dinner at his house. This is to celebrate the three L's who are graduating. Is he a state actor? UC Berkeley, by the way, is a public California school. Just the receipt of state funds alone does not make you a state actor. I mean, Just the receipt of state funds alone does not make you a state actor. I mean, there are private actors that receive immense amounts of state funding, just immense. And they remain private actors. It's a matter of control.

It is not a matter of funding. It's certainly not purely funding. I think that's exactly right. And I don't think it's anywhere close to enough that he is an employee of a public university and that the public university might be reimbursing him for food. Imagine if he went out to lunch with potential donors and he had his food paid for by the university. That does not suddenly turn him into a state actor for all purposes, whenever he's out doing anything for any reason where the school might be, where he may put in for reimbursement for something. And I don't think it matters that it was a school sponsored activity in the way that this would have been inviting students over to dinner because they are also

members of your school community, public school community. Right. I mean, you know, to me, if you just steal, man, the absolute heck out of this, let's just say you're going to take the National Lawyers Guild position. In my view, I just let's just assume for a moment that this is a circumstance that's that's extreme, such as this is an annual official law school event that because of some reason had to be moved off campus to his house. Let's just imagine it was that the most state actiony situation possible. That's still not a public forum. Okay, let's get to our forums then. Yes. All right. So we have traditional public forum, right? That's going to be your maximized public sidewalk, public park. That's where you and I so often talk about time, place and manner restrictions. Right. So you can still say no microphones. You can still say you can't do it

after dark, et cetera, et cetera. Below that designated public forums. That's where like, maybe it's not a public sidewalk, but the government has said, this is an area that is a designated public forum. Same thing, right? You can still do time, place and manner restrictions. But basically, like once you've opened that up, all the crazies can come say their piece. Yes. And they do. So like a free speech wall at a university. There's some interesting stuff on those free speech walls, always. Limited forum. So a limited forum is actually what we're mostly most often dealing with when we talk about the First Amendment context. This would be a school, you know, a public elementary

school allowing their cafeteria to be used after school for Boy Scouts or the Bible study group or whatever else. So you're allowed to discriminate, if you will, on classes of speakers. You just can't do it based on viewpoint. And that's where most of our fights happen. Is it that you're just saying you don't want that class? Or is this actually viewpoint discrimination? To the extent we still have First Amendment cases on limited public forums, like it's on limited public forums like this question. Let's we'll come back to that non-public forums. This would be, yes, things that are owned by the government, but in no way are open to free speech. An airport terminal, a polling place. are open to free speech, an airport terminal, a polling place. And that's basically just held that the government needs to, it can restrict on content as long as the restriction is reasonable

and the restriction does not discriminate on the speaker's viewpoint. Okay. So I actually think there's a decent chance that Chemerinsky's home falls into a non-public forum, like a polling place or an airport terminal. This is someone's private home. In no way did he ever designate it as a place for everyone to speak their mind. But to your point, David, let's steel man this, okay? Because if it's a non-public forum, we're done. Yeah. It was very reasonable for him to say like, no, we're not having open mic night at my private dinner at my non-public forum. Open mic night at my dinner. But let's steal, man, that somehow this through the magic of magic turned into a limited public forum. Right. And that is a that's a titanium man.

That's not a steel man. That's I think that's adamantine man. To me, this is so clearly a non-public forum when you're talking about a private dinner at someone's backyard that isn't, you know, open to the public in any way, shape or form. It's limited to 3L students who received an invitation. I mean, I think if that's not a non-public forum, I don't understand how a polling place could be a non-public forum or an airport.

I mean, those are actually open to the public. This isn't, but okay. Yes, but continue with the adamantium manning. Yes. Yeah. The limited public forum. So again, this would be more like an elementary school cafeteria that's opened up after school where you can reserve it for your group. And again, you'll like, it should be occurring to you why this doesn't sound like someone reserved the dean's backyard for their speech. But limited public forum, even then, as I said, we have to distinguish between classes of speakers and types of speech. So when Chemerinsky invited the 3Ls over to his home for a celebration of them finishing law school. David, I think even then they lose this analysis because it wasn't open. Mike Knight, it wasn't

open to all conversations. He wasn't discriminating on the basis of viewpoint because it's not like he or anyone else at the dinner gave a speech that was pro-Israel, pro-war, pro-anything. There were no speeches of a persuasive, topical, political nature, and nobody else had a microphone. So you run into that restriction as well. There's just no world, whether it wasn't state action, it wasn't a limited public forum. And even if it were, you'd have the classes of speakers restricted. And even then, the time, place and manner restriction over the microphone where they try to take the mic. Like you lose under all four of those tests to me.

Oh, totally. I mean, imagine, for example, it's an after school situation where someone has reserved a room after school for a book group and you're going through like you're reading The Road or something like that. And then somebody walks in with an amplifier and a microphone and starts delivering a soliloquy on how Dune Part Two might actually be the perfect ending and there's no need for Dune Messiah. And as though, although that's probably one of the more interesting speeches that I would like to hear. It's not the time, place, or manner for it. Not the time, place, or manner for it. So no, you lose. You lose. David Ladd, of course, in his newsletter, Original Jurisdiction, had his own write-up of this that largely comes out to the same place. But I will say that David added his own spin at the end. So if folks like this believe their actions are justified in order to bring public attention to

the plight of Palestinians, that's all well and good, but they don't get to escape otherwise applicable punishment because their cause is just. The willingness to accept punishment is a feature, not a bug, of civil disobedience. I'll conclude by urging law student activists to ask themselves before they get involved in a disruptive protest like the one at Berkeley Law, is this about the Palestinians or is this about me? Am I acting in a way that's selfless or is it self-aggrandizing? Am I trying to make social change or am I seeking the sugar high of a viral Instagram moment? And it also urged them to ask themselves, what's the best way to bring about social change,

at least for people with the talent and drive to make it to elite institutions like Berkeley Law? Is it to get expelled from law school or denied bar admission for breaking university rules or even criminal laws as part of a protest? Or is it to work hard, rise up through the system and stand up against injustice once in a position of power? And then he reiterates one of my favorite stories from the most recent Supreme Court confirmation hearing. When Kentaji Brown Jackson

was a student at Harvard College, a fellow student hung a Confederate flag from the window of the dormitory. Jackson and other members of the Black Student Association who took the flag as a statement that they didn't belong at Harvard spoke out against the flag and protested. But they also made sure to stay on the right side of the law and to continue excelling on campus. As one of Jackson's classmates, Antoinette Coakley, now a law professor, recalled to the New York Times in 2022, Kintanji said, wait a minute, as we're doing this, we're missing out on classes. As we're fighting against this injustice, we're actually doing them a service because we're going to be failing. So we protested, but we made sure we were in class, Coakley said. We were going to show them that by showing up the way we did excellently, that they were wrong. Progressive law students, be like Justice Jackson. Don't get mad. Get powerful. And then you'll be able to make a real difference in the world. I tell that students that story to law students now all the time, because it's a balance, right? It's a balance between speaking out against injustice and sort of biding your time until you're actually in a

position to change the thing that you're upset about. Well, and a big part of what we're seeing is a group of individuals who believe that if their cause is righteous, it's the classic ends justify the means. I mean, this is, you know, a far left version of what you often see now on the far right of just pure ends justifies the means. If we're correct, we can do what we want to do. I don't know if Sari saw some of the footage that was circulating online over the last couple of days of a pro-Palestinian activist who got up, I believe it was in Bakersfield, California, perhaps, and said to the city council members that we're going to come to your house and murder you. Right. Right. And right to the city council. And she was arrested on the spot. And the next, you know, sort of the denouement of it was video

footage of this person weeping when she's being denied bail. And what did she expect? And so we'll continue to follow that. Dean Chemerinsky hosted two more dinners at his house that seemed to go on without incident, at least inside the dinners. The student involved has said that she is considering bringing assault charges against Dean Chemerinsky's wife when she tried to take the microphone. And of course, there's questions over whether the student will be disciplined by the university for going to the dean's house with a microphone and disrupting the event. All that and more will continue following. But next up, we've got a Supreme Court case. And we'll take a quick break to hear from our sponsor today, Aura. Ready to win Mother's Day

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And to be clear, every mom in my life has this frame. Every mom I've ever heard of has this frame. This is my go-to gift. My parents love it. I upload photos all the time. I'm just like bored watching TV at the end of the night. I'll hop on the app and put up the photos from the day. It's really easy. Right now, Aura has a great deal for Mother's Day. Listeners can save on the perfect gift by visiting auraframes.com to get $30 off plus free shipping on their best-selling frame. That's a-u-r-a-frames.com. Use code ADVISORY at checkout to save. Terms and conditions apply. All right, David, next up, we had an opinion hand down day on Friday last week. And one of the opinions was actually a really fun one on the takings clause, but also maybe less fun than it first seemed. So this was a unanimous

opinion written by Justice Barrett with several concurrences of people saying, just want to be clear, we didn't decide these other questions. The facts of the case are that George Sheets wanted to build a small prefabricated home on his residential parcel of land. To obtain a permit, though, he had to pay a substantial fee to mitigate local traffic congestion, about $23,000, by the way. He challenged that fee as an unlawful exaction of money under the takings clause. Really creative, George. The California Court of Appeals rejected that argument. It held that the traffic impact fee was imposed by legislation and therefore could not be a taking and that the court's precedent on takings only applied to ad hoc administrative action.

The unanimous opinion gnawed-dogged that and said the takings clause does not distinguish between legislative and administrative permit conditions. So, David, on the one hand, good to know, I guess. Like, that's great. I didn't know that anyone thought that there was a distinction. Justice Gorsuch's concurrence was sort of like why would anyone have ever thought that you could do through legislation uh you know violate the takings clause through legislation if you couldn't violate it through administrative action but in terms of what's to become of poor George Sheets I gotta tell you I think he's paying that permit fee. Yeah, it's a really interesting case. And I just, I really liked the case for one reason.

As soon as I started to read the facts, one of the first thoughts was California never change. What a $23,000 parking fee if you're gonna build a prefab. What kind of prefab home is this? A concert venue? What are you talking about? That wouldn't be a double wide, Sarah.

It'd be like octuple wide. I don't know. But it's just remarkable stuff. And as I was with you, that, yeah, it seems like an absolute sort of common sense conclusion here. And, you know, the doctrine here is it talks about in the permitting process, they have this two-part test modeled on the unconstitutional conditions doctrine. And that first, the permit conditions have to have an essential nexus to the government's land use interest.

And that nexus requirement ensures that the government is acting to further its stated purposes. Then the permit conditions must have rough proportionality to the development's impact on land use. This is where I think if he's got a chance going forward, this is where he's going to have to win. Because there's a nexus requirement if you're putting new stuff on land. Well, parking might be implicated.

Traffic might be implicated. You know, all of these things might be implicated. But is there rough proportionality? The word rough would have to be doing a lot of work here. The $23,000, that's a lot. That's a lot. But I'm with you, Sarah. This did not decide for him this case.

It just, it left him with the opportunity to make that argument. Another good example. The Supreme Court decides questions, not cases. George Sheets lives to fight another day, but I don't know that he'll survive the next fight. That rough proportionality, one of the questions left open is, can you basically do classes of groups? In this case, it would be a building permit. And you saw at least in one concurrence, they just are

noting that the question wasn't answered, but it was somehow the way they were noting it made me think that, no, we're not going to make local governments do individualized assessments. Classes of assessments are fine. Now, maybe you can still say that this is just outside the bounds of even a class assessment, but I kind of doubt it, David. I think that this was a very creative lawsuit and that the California Court of Appeals decision

that because it was legislative somehow, it couldn't possibly violate the takings clause was silly. Yeah, had to be corrected. Had to be corrected. Yeah. But I actually appreciated two other things. One, Justice Amy Coney Barrett, I felt like was really coming at Justice Kagan, in this opinion,

for the best writer crown. It is so clearly written and charmingly. At one point... Let's see if you're going to get the same... If you're going to note the same thing that I just thought about. At one point, it says, imagine that a local planning commission

denies the owners of a vacant lot a building permit unless she allows the commission to host its annual holiday party in her backyard. In property speak, granting it a limited access easement. I like the term property speak. She didn't hyphenate it. I think that's controversial to not hyphenate that,

but I'm for it. And Strunk and White is against hyphenation generally. So I think it survives that scrutiny. She's talking about, again, that nexus. Right. The landowner is likely to accede to the government's demands, no matter how unreasonable, as long as she valued the building permit more. So too, if the commission gives the land over the option of bankrolling the party at a local pub instead of hosting it on her land. Because such conditions lack a sufficient connection to a legitimate land use interest, they amount to an out and out plan of extortion. So David, I like that for two reasons.

One, I like the word property speak. Two, I like property law. Three, I think I said two reasons, but there's definitely three. Three, Justice Barrett's analogies are just so helpful. And they're winning me over. Because you saw this in her major questions doctrine explanation, where she talks about the babysitter, right? Like, you know, the babysitter takes the kids on an out of town overnight to the amusement park. That is an unreasonable reading of what you said at the end of the night. Or is it? And all the context clues that might give you that. So this is another

example where the analogies are just super helpful when you're talking about nexus. There's one other part that I thought was interesting. I bet I know what it is. I think you do. Okay. So at one point she says, nothing in constitutional text, history, or precedent supports exempting legislatures from ordinary takings rules. And then she walks through the text of the Constitution's takings clause that has been applied against the state through the 14th Amendment. She talks about the history of the takings clause, and then she talks about the court's precedent. And David, if we're going to now read text history and tradition, and tradition now means precedent, it will be so much clearer. And it's helpful. And I'm all for it. Fix the text history and tradition test and adopt

Justice Barrett's text history and precedent. This is correct. This is the way that it's worth walking through these things. That is such a great point. Such a great point. And I wondered when I saw text history and precedent, did we get a preview of Rahimi? Ooh. And in this sense of how is the court clarifying text history and tradition,

because tradition has always been the word in text history in that phrase that people have been most stumped about. We've talked about this a lot. What does that mean? Could that turn originalism into a kind of living originalism where you can, you know, in the, according to the, the judge news, the excellent judge Newsome piece that we've talked about before. I thought that was interesting. And that phrase text history and precedent was, um, I, I don't know. It just parked me like antenna went off.

Does this have any indication of anything else? Cause that's an interestingly chosen phrase, But there was one other just sort of neat phrase or neat turn of phrase she used that I thought was really helpful when she said, the takings clause right to just compensation coexists with the state's police power to engage in land use planning, though at times the two seem more like in-laws than soulmates. I also noticed that one, although I got to tell you, I had to read it a couple of times. I was like, it flagged immediately in my brain of like, that's funny. And then I like reread it and I was like, huh, okay. They're frenemies, maybe. No, I thought that was really well done. But her analogy that you talked about at first, Sarah, where she was talking about the party and conditioning land use on a party was an indication that our plaintiff here is going to, he's the nexus test. This is not that kind of condition. This is not that kind of condition. This is one that's related to the land use test for sure. The question

is the proportionality test. I think he's going to lose on that, but I agree that that's a closer call that, you know, $23,000 is certainly more than he should have to pay, but that that's up to the local government. And as long as all of the building permits are the same and some sort of rough percentage or something, that that's going to survive scrutiny. So congrats, George Sheets. And also, we're sorry, George Sheets. Congrats. And you've got more years ahead of you of potential legal futility. But this is a good milestone on the road to a probable loss. Yeah, you get a Supreme Court case named after you. Absolutely. That's the win here. And you spent way more than $23,000. Although congrats to the

Pacific Legal Foundation. They've been having a string of wins at the Supreme Court. And congrats to you guys, too. Yeah. I mean, they were solidly 9-0 on the right here. So absolutely. Yeah, I mean, they were solidly 9-0 on the right here. So absolutely. Okay, David, I'm really excited about this conversation. We're talking to Bob Bauer and Jack Goldsmith about their fixes for the presidency. And most importantly, what they've been talking about recently

is the Insurrection Act. Can you just give us a primer on the Insurrection Act? Yeah, absolutely. So the Insurrection Act? Yeah, absolutely. So the Insurrection Act is a law dating back to nearly the founding of the country that gives the president the ability to call out the troops to impose order. Now, this is something that's been used multiple times in American history when there have been local authorities or they have defied federal order or there's been a breakdown in law and order. But so it's necessary to some extent. But the Instruction Act really places all of the discretion in the president. It says the president can call out

the National Guard or the regular army, quote, whenever the president considers that unlawful obstructions, combinations or assemblages or rebellion against the authority of the United States make it impracticable to enforce the laws of the United States. So this is a in the president's discretion. Here come the troop statute to impose domestic order with no real check or balance. And so, as people will hear in the conversation, that's why I referred to this in a piece called, I called it America's most dangerous law. That's debatable.

I think it's just very, very, very dangerous. And, you know, a ton of presidents have used this. Just looking down the list, you've got Thomas Jefferson using it first for violations of the Embargo Act. Andrew Jackson using it against a slave rebellion in Virginia, for instance. A labor dispute in Maryland. Abraham Lincoln used it when the southern states seceded.

I mean, right? Like, that's a pretty big deal and one that we would want the president to have some power over. Ulysses S. Grant just using it left, right and center. He's the big winner here. White supremacist insurgency, violence in Louisiana after a contested election, white supremacist insurrection, white supremacist attempted coup in Arkansas, another one in Louisiana, another one in South Carolina, all the way through to Dwight D. Eisenhower. So if you remember the Little Rock Nine, it was at the Arkansas National Guard was preventing those students from getting to their school.

Eisenhower uses the Insurrection Act to federalize the Arkansas National Guard and then orders them to stand down. The federal troops then escort those students into the school. You all remember the pictures. You all know the story, but you may not know that it was the Insurrection Act that he actually used to do that. The most recent usage of it was by George H.W. Bush in the Los Angeles riots around Rodney King.

In response to requests from the local authorities. So without further ado, let's talk to them. Let's jump right in. Jack Goldsmith, Bob Bauer, y'all published this incredible book a couple of years ago after Trump reconstructing the presidency. And in it, you had 50 proposals for fixing the presidency, the office of the president. One of them was the Insurrection Act. I want to do a little survey of all of them at one point. But can we just start with when we're at this point where Biden and Trump are, for all intents and purposes, tied in the polling and both sides believe it will be an existential threat if the other one gets this massive executive power that

now comes with the presidency, why isn't everyone talking about your book and wanting to implement all 50 of these changes to presidential power? I mean, shouldn't y'all be the, you know, leading topics on every news show ever? And from both sides, this should be the most bipartisan thing ever, like you two are. Well, we certainly think our reforms are important and should all have been enacted. But the reality is otherwise. The reality is that, you know, members of Congress have not seen this as a high priority, even though it was foreseeable that these problems would arise again. In my view, the Biden administration has not made this the priority it should have. We're just talking about the reforms generally. And with regard to

the Insurrection Act in particular, that is an issue that could come up with regard to any president, including the next president, as norms continue to diminish, as threats of violence increase in the country, as obstreperousness vis-a-vis federal law enforcement increases, it's foreseeable that any president would use the Insurrection Act. As David has written in the New York Times, it's a very dangerous statute. So there should be an interest in our view in both sides enacting many of these reforms. Congress did miraculously come together a few years ago on Electoral Count Reform Act, and one would like to think that that would be a model for other reforms. So, as you noted, I wrote a piece with

a very subtle title that really kind of hit the ball, in my opinion. It said, it's time to fix America's most dangerous law. So I'm not a fan, but what, am I right? I'm not going to ask you to say, is it most dangerous, but am I right? Is this dangerous? And why is this so dangerous? What about this is so dangerous, the Insurrection Act? Well, first of all, I agree with you. It's probably difficult to say what is the most dangerous statute on the books, but any sort of unconstrained presidential use of force, and in this case, force turned domestically with no safeguards, no clear definitions, antiquated terms, no congressional consultation, no time limits, virtually no anything to stop a president from drawing on these antiquated terms to immediately deploy troops for who knows what purpose domestically. Now, in theory, of course, it was meant to address insurrections and rebellions and outbreaks of domestic violence that federal and state law enforcement couldn't address. But as a practical matter, in fact, as a drafting matter, the statute does not impose those constraints.

And so dangerous to be sure. And I certainly agree that it is something that both parties and frankly, people who are not affiliated with both parties should take an active interest in if they're worried about an overreaching president. This was an 1807 law. Has it been used since then? Has it been amended since then? Have we just been sleeping on this? It actually goes back to 1792. And it's been amended many times, most recently in the late 19th century. Presidents, it's been invoked 30 to 40 times, depending on how you count, probably with regard to 30 or so events. Presidents have, for the most part, been responsible in using this power. And it was used to enforce civil rights after the Civil War, during the civil rights movement in the 50s and 60s. violence and when law enforcement can't handle the situation. For the most part, presidents, especially in recent years, in recent decades, have used it responsibly. But, you know, we've learned a lot in the last decade or so about how much we depend on responsible presidents exercising power responsibly.

And as Bob said, the letter of the statute is amazingly broad in giving the president unchecked power to use the military in the domestic sphere. Okay, so this was used to enforce desegregation when you had intransigent states and local officials refusing to do so. That seems like a thing I'm in favor of. And I'm curious how your reforms would prevent the bad things, but keep the good things. No question that the president should have authority in extreme cases where there's been a breakdown in federal and state law enforcement to enforce federal law. And in particular, in cases where domestic violence, there are threats to public safety and security, domestic violence on the order that overwhelms federal and state normal law enforcement response, the president has to have this sort of authority. However, it needs to be defined in the first instance.

All the opportunities for abuse have to be trimmed back. If not, maybe it's not possible to limit it. It's all together, but trimmed back. The old terms have to be cut out. Terms like unlawful assemblages, unlawful obstructions. Those are some of the triggering language. That's some of the triggering language in the statute. And nobody has any idea what it means.

And so the idea would be to focus it very clearly on the imperatives in these kinds of cases to have the president in a position to enforce federal law and to address violence that cannot be managed in the ordinary course of federal and state law enforcement. And to that end, the purpose is to have the president be more accountable, to have to consult with Congress, to have to consult with the states in which the deployments would take place, to have to face time limits on deployment that could not continue without further congressional authorization. Those are some of the measures, procedural constraints that would enable, as you put it, the good things to continue when they unfortunately have to be addressed, that is to say, when bad situations have to be addressed, but curtail potential abuse. So I'm the let's talk political constraints or political, the political dynamic here, because it was very interesting to me that Congress was able to get out of its own way,

at least to a limited extent, to pass reforms to the Electoral Count Act. We had just seen its abuse. We had just seen how its abuse could be catastrophic. in the House where there is active sort of thinking on the part of the Trump, a potential Trump administration to enact the, to invoke the Insurrection Act on day one for certain purposes. So it's hard for me to see the House majority at this point going along with Insurrection Act reform. But prior to that, do you have any insight as to why that just wasn't, didn't seem to be on the radar screen?

It really does seem like it's difficult to make the case on the merits that we should delegate such absolute discretion to a president to call out the troops. Any sense was this on anyone's radar screen, any kind of progress towards amending the statute? Is it the kind of thing that if there's a political change after 2024 could happen, or is it just we're talking on a podcast about it? A very powerful podcast. Very powerful. Yes, yes. I'll say a few things about that, and Bob might want to follow up. First of all, there have been proposals to reform and narrow the Interaction Act going back for a long time, not just academic proposals,

but government bodies who studied the question in the late 60s after all the violence and early 70s after all the violence in the country. So there have been proposals to reform it. It has not gotten a lot of traction in Congress. There's no reason in theory why both sides shouldn't be interested in this. Just like the Electoral Count Reform Act, this is a statute that both parties would benefit from depending on who is the president. It can be abused by presidents of either party. And really interestingly, there's bipartisan support right now in the Congress, and there has been for years, and there's reason to think that may end up in a bill enacted by Congress for emergency powers reform generally, which is a cousin of this. These are the 135 or 40 or so statutes that

the president can invoke to exercise emergency powers. Conservatives in the Congress in both houses are concerned about this, and they should be about that type of presidential authority. And the Insurrection Act is a cousin of that and should be of interest to them for the same reasons, especially since, especially to the extent that conservatives in Congress worry about the politicization of the military, worry about states' rights. But that's, as you say, theoretical. Whether in reality it can get traction this year is another question. We point out in our book, Donald Trump is not the only person who charted a path toward the

abuse of presidential powers. We have other presidents before them that paved the way, however more aggressive and straightforward and non-apologetic he might have been about his assertions of unbounded Article II authority. What is freezing this debate so often, we got past an electoral count reform, and we could presumably get past it in the case of the Insurrection Act, is that as soon as one of these reform discussions take place, it is immediately interpreted through the lens of whether it is for one side or against the other. Is it anti-Trump? Is it, you know, is it pro-Trump? All of a sudden, it just gets forced into that frame in a way that makes a meaningful conversation very difficult to have. One of the virtues of the work that the American Law Institute has been encouraging through a working

group like the one that Jack and I co-chair, both on electoral count reform and also on the Insurrection Act, is that we create an environment in which those conversations can take place in the first instance behind closed doors, where no one's looking over their shoulder at potential critics from, quote unquote, their side. And the conversation can take place meaningfully on the merits, which is not to say, by the way, that it will always be successful, but it probably has to take place in a frame like that for anything meaningful to occur. All right, let's bop through some of these other we're not going to get through all 50, obviously, I wish we could. And maybe we'll just make this a, you know, reoccurring segment, more reforms to the executive branch. A theme of this podcast has been that the executive has ballooned in power so much while Congress has shrunk that it is actually dragging in the courts into political fights and undermining that institution in a way it was never intended to be used because it was

the power was supposed to be in Congress, not the executive branch to begin with. So I like the entire idea of all 50 reforms, just the idea that the executive branch has grown too powerful vis-a-vis the other branches. And then individually, I think several of these are really fun. Let's start with one that's in the news quite a bit right now. Pardon power abuse. You want me to take that, Bob? So please go ahead.

So President Trump used the pardon power very, very aggressively, and some presidents before him used it controversially and aggressively, although more narrowly. president has the power to pardon and Congress cannot limit his power to pardon. But we do believe that Congress could criminalize pardons that were done for purposes of bribes or for purposes of obstructing justice. But we think it's vitally important that if Congress wants that to happen, the general bribery statute and the general obstruction of justice statute won't work, that they need to specify that it applies to the president and to the extent they can define the acts that it would apply to. So that's our basic proposal there. And the idea is that it would, at the margins, deter a president who wanted to basically dangle pardons for either to obstruct justice or for purposes of bribery. Just to be clear, even that reform would leave the president with massive power to pardon.

The president could still pardon his friends because they're his friends. He could still pardon, engage in massive pardons for whatever whimsical purpose the president wanted. But we hope to aim for the kind of more abusive uses of the pardon power, and we think it's achievable. And I would only add to that self-pardons. We also propose that the Congress lay down a marker, if you will. I mean, there are arguments on both sides of this issue about whether presidents can constitutionally pardon themselves. I think the better part of the argument is that they can't, but Congress can challenge it. And we thought a congressional marker laid down on that issue together with the building the pardon power,

abuse of the pardon power under the bribery statutes would be a pair of reforms that would be potentially productive. You think Congress has standing to challenge a president who pardons himself? No. Oh, sorry. I misunderstood. I thought you meant you meant Congress has the power to challenge that as in to lay down this marker, not Congress has the power to legally challenge the act itself. We propose that Congress should declare that self pardons are unlawful. And that wouldn't be binding on any court. It would be a constitutional question, but it would at least, you know, weigh in with the views of the first branch of government. No, all I was going to say is it's not impossible to imagine knowing how these things go. In answer

to Sarah's question, the Congress would try to challenge in certain circumstances a self-pardon. I think Jack was responding to the likelihood of success on the Americans. Yeah, exactly. So let's talk for a minute about a subject that I've been thinking and writing a ton about over many years, war powers. So to what extent, let's just sort of begin with a broad question. The War Powers Act, which is currently existing law,

requiring notification on the use of force, presidents notifying Congress upon the use of force, 60-day time limit if in the absence of a congressional authorization for that force with a 30-day withdrawal period. It's been on the books for a while. The longstanding position of the executive branch is that's unconstitutional. It's almost while presidents will often comply with it, not always, they'll still maintain that it's unconstitutional. Where are you all on the state of the war powers debate and the balance between the president as commander in chief and the congressional power to declare war?

Is the War Powers Act constitutional? What else needs to be done? So if I could just correct one thing, not every administration thinks the War Powers Resolution is unconstitutional. The Obama administration didn't, and I don't believe the Biden administration does. But you're right that many presidencies have taken that position. Let me just say, to start the conversation, last week, President Biden blew through the limits on the War Powers Resolution and no one noticed. And that really tells you everything you need to know about the War Powers Resolution. In regard to the engagement with the Houthis, it's been 90 days since those hostilities began. There was a New York Times story about it.

No one in Congress responded. This was about a month ago. I haven't seen any hearings or anyone say anything. I'm sure the executive branch has an internal construction because it's pretty loophole-filled law that allows them to continue in the hostilities. But that tells you the basic problem. The War Powers Resolution is full of holes and it can't work unless the Congress wants it to work. I mean, it's just that simple. And Congress doesn't seem to show any interest in doing that. We make some fairly modest proposals on the War Powers Resolution. The main one was we think that it shouldn't be, that some of the definitions should be tightened

up. We think that there's a way to tighten it up so that the executive branch won't be able to drive a truck through it. We think that certain uses of force should be ruled out. For example, humanitarian intervention, we don't believe the president should have the unilateral authority to do that. And the Congress should just say that president can't engage in that. And that's not something that I think is a core article to war power. Those are the main reforms we make about the war powers resolution. But, you know, I have to say I've grown even more cynical about the WPR since we wrote that, given that Congress is so completely disengaged mobilization and the risk that America will be committing troops on the ground. Right. In large numbers.

If there's no Vietnam War era risk and we have increased development of warfare by technology with little risk of American casualties, there's just less political likelihood that Congress will muster the will to challenge the president on war powers. The only second thing I would mention is Jack and I do propose, and I think this is helpful, it's also doable, and last but not least, it hasn't happened, and that is there's some cleaning to be done with outmoded AUMFs, with outmoded AUMFs, authorizations for the use of military force dating back to 9-11 and Iraq. We make proposals in the book for sort of some significant house sitting there

to update them in a meaningful way and to send messages to the executive about congressional participation in war powers. And secondly, there are some extant Office of Legal Counsel's opinions from the Bush era that have completely unnecessary sweeping statements of presidential authority to just sort of go on their constitutional permissions, if you will, and conduct military actions. We propose they be withdrawn, and that hasn't happened either. And one of the stories

that we just I was just noticing the other day when I was preparing for the podcast, we propose after all of the nonsense on both sides, repealing the Logan Act. And even that hasn't happened. Sing us a couple bars of what the Logan Act is for listeners. Well, it's just I thought of it is interesting because the the Democrats wanted to deploy it against Trump and the Republicans wanted to deploy it against John Kerry. This whole question of when a private citizen is illegally interfering in the diplomatic negotiations or sort of responsibilities of an executive branch, it's been lying there as a weapon. I think it's been one prosecution. I don't recall exactly the prosecution history, but it's extremely thin and it's very distant in time.

It just sits there. Seems like it's pretty simple. Either it should be reformed or repealed. It's still sitting there. All right. Now for my pet topic, David French. So sorry. So I'm talking to a former White House counsel and the former assistant attorney general for the Office of Legal Counsel.

and the former Assistant Attorney General for the Office of Legal Counsel, the two people best positioned, I think, to talk about the proliferation of special counsels in recent years. And so for listeners, quick primer, you had the Independent Counsel Act. That's what Ken Starr was. That, of course, expires. It's not renewed. That doesn't exist anymore. But now we have special counsels that are designated still within the DOJ structure. They're basically given the powers of a U.S. attorney and they're appointed from outside the government, but they still report to the attorney general. They owe him a private report. I mean, now I think at this point we all know quite a bit about special counsels, but there's plenty of people who think that the appointment of special counsels has run amok. Among those people are, for example, Rod Rosenstein, the guy who appointed

the special counsel in the Mueller investigation. I think if you talk to a lot of folks, there was just a piece by James Burnham, who was serving in the Trump White House about the need to reform special counsels. You would think that would get some attention from both sides at this point. They both feel like they've been abused by special counsels. What say you two? Well, we have a disagreement on this. Oh, I love it. Keep it civil. Keep it civil.

I'll start off. Bob and I wrote in our book that the special counsel regulations should be reformed to basically give the attorney general more authority and more control and responsibility for the conduct of the investigation. But to maintain the special counsel and give the special counsel especially room for fact finding, as we put it. I've since concluded, and I wrote about this in The Times a couple of months ago or a month ago or so, that the special counsel regulation is, and the institution of special counsel is not worth saving. The whole idea of special counsels was to help the Justice Department achieve the appearance and reality of apolitical law enforcement when involving especially senior members of an administration. And it has not worked. It didn't work during the statutory regime that you talked about through the 1990s. And frankly, it has not worked since. And we still have the same problems with special counsels under the regulations that

we had under the statute. Namely, special counsels are focused regulations that we had under the statute. Namely, special counsels are focused on one matter. They tend to be very aggressive. They tend to depart from Justice Department norms. The attorney general feels that the supervision that he or she is given under the regulations, they can't really exercise it because it seems like meddling. Special counsels write reports that are less designed to explain prosecution decisions than to explain and justify and do all sorts of other things in the public realm. And so that ends up getting politicized, and then Congress has the special counsels come up, and they become political footballs. Justice Department independence and the integrity of Justice Department prosecutions has not done well under this system. I'll stop there so Bob can tell me why I'm wrong.

There's a question, of course, that, you know, why do I think that having the attorney general in charge would be better? I do think that. But I just think that the system as it is now, it just has not worked and it's time to put it out of its misery. Counterpoint? Yeah, well, I certainly, I've had my experience with special counsels and I'll politely pass and not comment specifically on that experience. But I will say that I haven't been thrilled with the history either of independent counsels or special counsels. The only difference I have with Jack is that I think it's too late to give up the effort to do better with the regulations

that are currently on the books. I think there is a way that the regulations themselves could function as a disciplining force with less sort of confusion about responsibilities, the responsibility of the attorney general versus the responsibility of the special counsel. There are any number of things, I won't get deeply into the weeds, that I think could be done, and we lay them out in our book to improve the way the regulations operate and to really prod the principal actors to perform in accordance with clearly defined responsibilities under those rules. The one thing I just would say in defense of trying one more time, and one point I've made to Jack, which he's not found persuasive, is there were 20 independent councils before ultimately both parties agreed

to let that statute lapse. We haven't had a long period of experience with special councils, and so it seems like it might be too early to parachute out on it. But we do need to worry about one thing, which is the original notion behind the special counsel statute is that we wanted the attorney general of the United States or the president of the United States to not be in a position to rig essentially prosecutions in the defense of the president or the defense of the president's allies. We now have a concern with the weaponization of the Justice Department's powers to attack enemies of the president, to harass them, to hound them. And it seems to me that given that new concern, creating some pressures on the attorney general and the president to operate in certain ways where

those kinds of political pressures could very well influence the prosecution is still a useful goal to try to achieve. But I will say in Jack's favor, I will not say that I think even if even as reformed, I could predict that we would be tremendously successful. I just think it's worth the effort. I think that is a really thoughtful take. I wanted to argue back and take up Jack's mantle. I do think you're wrong. I think we've tried it the best we can, but I don't know. It's not crazy to say like one more time's worth a shot. Because I think that for me, the biggest problem is the single-mindedness that when you have a special counsel, it's treated so differently than any other potential subject of an investigation in the Department of Justice,

where an AUSA has, you know, 15 things they're looking into on any given day. And same with their FBI team and everything else. And so they're having to balance priorities. When you have a special counsel, they're told you've got one thing, you have infinite resources, quite literally, find the crime. And I just think that goes against everything else that the Department of Justice does. And I think that's part of what's been unhelpful and has undermined the results of special counsels. As you know, Professor Goldsmith noted, they're aggressive. I think that was a polite way and maybe not even an accurate way. It's

not that they're particularly aggressive. They're given nothing else to do. That's correct. And they're always looking over their shoulder in a way that on a day-to-day basis, AUSAs are not. At Congress, what is Congress expecting of us? What is Congress going to say at the conclusion that these independent and special counsels are dragged up before Congress to give a public accounting and not typically treated all that well by someone who's not or the party that's not happy with the outcome? They have to worry about that. And there's continuous press that they have to worry about as well. And everybody understands how sometimes those erupt right into the public space, as it did in the fight between President Clinton and Ken Starr in that in the independent counsel setting.

So, again, I would say one more round and be clear and better drafted. I just want to drop one more footnote here. It was striking to me that there were a couple of editorials in The New York Times when there were disagreements about the operation of the special counsel during the Mueller period. And a well-known lawyer in Washington would write op-eds, at least one, maybe two, that said, well, I know what the regulations mean because I wrote them. Well, that strikes me as sort of an unsatisfactory way to get at the legislative history is to have somebody who drafted it to explain to us what he meant at the time. So it seems to me some clarifying language might be helpful. All right, last one that we have time for. Emergency powers, generally, I mean, this includes the Insurrection Act, it includes all these other things. Are there any other big ones you want to flag that need to be reined in? And again, how do you get sort of both sides to see this as not, oh, this is meant to help the other team?

I'll let Bob answer that latter question. I'll just say, I think that a very important, this is a technical thing, and it gets down a little bit into the weeds. But the application, we're going to, this is coming up in a case, well, it's implicated in a case either today or tomorrow in the Supreme Court, the obstruction of justice statute as applied to the January 6th defendants. But the whole question of the applicability of the obstruction of justice statute to the president is fraught because so much of what the president does under Article 2 potentially implicates the obstruction of justice statute. And yet it's also a font of the obstruction of justice statute. And yet, it's also a font of extraordinary abuse of the president. And we propose that Congress clarify the application of the obstruction of justice statute to the president. And I think that that reform, and it's really just a few words, would go a long ways towards disincentivizing not just the president, but more importantly, the president's advisors in using the extraordinary powers of the presidency abusively

in a way that is self-serving. I think that is a hugely important reform. We talk about it at length in the book. It's an easy reform. It involves a handful of words, but politically, it's quite difficult. Bob, do you want to explain the politics of that or anything else? Well, again, it's going to get caught up. It gets caught up in this suggestion that the reform is really a stalking horse for a particular political agenda. And then the conversation winds up stopping there. But I agree with you, it would be very important to try to build bipartisan consensus that clarity around the legal

accountability of the president is necessary. Let me return very briefly in response to Sarah's question to something less momentous, but I just want to sort of pay tribute to the world of low hanging fruit, but also underscore how difficult all this has been. We propose in the book, like many others have, in light of the experience during the Trump administration, the questions of, you know, how presidents can manage their business affairs while they're in office, to just finally put an end to the controversy and require the presidents produce their tax returns. And that seems to me also bipartisan. You know, there's no reason in the world not to do it. There's been a norm in

place that seems to have reflected a consensus that this information should be available. Donald Trump resisted the norm successfully. Seems to me like, again, every one of these steps is a message that the presidency is constrained in some material respect. And not as important as obstruction of justice reform. But it's an example of something where, gee, why wouldn't we be able to build bipartisan reform around a norm that for decades was honored because it was thought to be important? You know, it's striking when we think through a lot of these reforms and reflect on some of these statutes, which are often so broadly and poorly written, is the extent to which we

depended on the integrity of presidents from both parties and took a certain degree of integrity just entirely for granted. It was just not on very many people's radar screens that if I'm electing a president, I'm electing somebody who on their own initiative could order troops into my city. It's not something on somebody's radar screen because the power had not been abused, for example. And I think that's one of the most interesting lessons of this era is how much we had just depended on these norms that are now often so scorned. I just couldn't agree more. And another way of putting the point is the presidency is massively powerful. It's massively powerful because Congress has delegated so much authority to it. It's massively powerful because Article 2 is so robust. Most

presidents most of the time have constrained themselves. And we have implicitly depended upon that, those internal sort of checks and balances of the presidency and norms, as you put it. And we're now in an era when that's just not working as well as it used to. That was basically the premise of our whole book. And I couldn't agree more also. And I was reminded when you said that, David, of your very good column this morning about virtue. Oh, thank you. The importance of character in public leadership,

which directly relates to any chance we have of norms being taken seriously and honored. And with that, Bob Bauer, my professor, Jack Goldsmith. The book is called After Trump Reconstructing the Presidency. And y'all are out and about all the time doing, saying cool things. Just highly recommend everyone follow you guys. And yeah, thank you. Thank you, guys. Thank you. Thank you very much.

Enjoyed it. Well, that was fun, David. Yeah, yeah, it really was. You know, it's funny, Sarah, because one of my favorite things that I'm doing right now is I'm teaching a lifelong learners class, which is anyone who just wants to pay a small fee and you'll get five weeks of hour and a half lectures. For me, it's run through Lipscomb University where I teach, but it's a lifelong learning class on the two foundings of the United States, the initial founding and the Constitution, the Bill of Rights, and the second founding and the Civil War

Amendments. And one of the things that I've been walking the class through is how the American system was designed from the outside, from the outset to split up the traditional functions of the monarch. You know, the monarch traditionally in Europe was warrior, king, judge, priest. I mean, ecclesiastical authority in some circumstances. Now, of course, some other places, the monarch did not have ecclesiastical authority, but at the very least, your king was combining warrior, king, judge. That was what kings did.

And the result, of course, was tyranny, authoritarianism. And so the constitution, when you look at it, really is splitting all of that, those traditional functions of the monarch. And I feel like what we've been doing, Sarah, over the last 50 years is just sending all that back up to create a warrior, king, judge scenario in our own president. And it's putting our system under strain because that's not what we're set up. That's not the construct that's that we are that that has been set up in our Constitution. All right. For the next episode, we're going to talk about how the Trump trial started off and we'll have more Supreme Court opinions to talk about, as well as the Supreme Court argument over that obstruction statute that has been used to charge January 6th defendants and former President Donald Trump. So all that and more on the next Advisory Opinions.