Preet Bharara:

From CAFE and the Vox Media: Podcast Network this is Stay Tuned In Brief. I’m Preet Bharara. American democracy has never been a given. It has been tested, strained, and at times nearly broken. Some of the greatest threats have come not from foreign adversaries, but from within, from presidents who sought to expand their power beyond constitutional limits. In his newest book, The Presidents and the People: Five Leaders Who Threatened Democracy and the Citizens Who Fought to Defend It, political theorist and constitutional scholar Corey Brettschneider explores these moments of co crisis and resistance offering lessons for our own time. I recently sat down with Corey at a live event at The New York Historical Society to discuss his book, the dangers of executive overreach, and the role of civic engagement in protecting our democratic institutions. And here’s our conversation.

Thank you. Welcome. It’s great to be here. Corey, congratulations on your book, The Presidents and the People: Five Leaders Who Threatened Democracy and the Citizens Who Fought to Defend It. I’m very excited to be here for a lot of reasons. It’s a very relevant book. So I have so many questions to put to you. Obviously this book is about the past, but as all good analyses of history are, it’s also about the present. But before we get to the present, let’s talk about how you thought about which five you were going to pick. Certainly there weren’t only five occasions where American presidents have sought to threaten or have threatened democracy. What was your litmus test or threshold for inclusion in the book?

Corey Bretschneider:

It’s a great first question, and it is unfortunately relevant because I think each of the five capture a moment or aspect of what we’re facing right now. And as I was looking throughout American history and thinking about the question, there’d be different ways to do it. You could find the presidents with the most awful beliefs or those who engaged in a single action, for instance, that were the most horrific. But what I wanted were presidents who really had an institutional attack on some fundamental aspect or aspects of democracy. And what I found as I started to read about these presidents and came up with my candidates was that the danger really wasn’t just in the action, it was in the philosophy.

And what you see really in the book is presidents who not only threatened some fundamental idea of democracy, free speech for instance, or equal protection, or the idea even of a rule of law, that we’re governed by laws that we have no king or dictator, that the danger came in the philosophy that they also embraced. And so part of what made these five individuals so dangerous and as dangerous as the moment is right now, I’ll be arguing tonight that each of these five really had that heaviness to them. It was the philosophical authoritarianism that runs through each of them and that they were willing to read the Constitution in a way that would destroy democracy. That, as much as any single action, I think is what makes them so uniquely dangerous.

Preet Bharara:

I should mention for folks who have not yet read the book that the catalog of presidents is John Adams, Buchanan, johnson, Nixon, and Wilson. I jumbled the order a little bit. When you’re thinking about what the cut would be to be in the book. So FDR, who is widely admired, one of the great presidents in America, no one else has been elected four times, he was responsible for the internment of the Japanese. Was that on your list?

Corey Bretschneider:

I include him and I talk about the internment, but-

Preet Bharara:

He doesn’t get his own chapter.

Corey Bretschneider:

He doesn’t get his own… Well, he gets his own. He’s part of the question of why in the story of Wilson, why is there not a recovery that begins, for instance, with FDR. And the threat to democracy posed by Woodrow Wilson that FDR never really responds to is a kind of nationalization of the idea of white supremacy. I talk about Woodrow Wilson not as the first white supremacist president, he certainly was not, but he’s the first to take the idea of white supremacy culturally and also in government and try to spread it throughout the nation. And he has an ideology, an idea of the Constitution that’s really based in the German model. He looks to Bismarck for instance. And he sees efficiency. National efficiency is the thing that matters. And the opponent of national efficiency, he thinks, is what he calls friction. And now what is friction? It’s integration.

So really at the core of the philosophy is this notion of spreading white supremacy. And you might think, “Didn’t FDR do something about it?” And although Eleanor Roosevelt really tried to prevail on him to reverse course, that’s not what happens during his presidency. And in fact, during the New deal, many of the aspects of segregation really initiated nationally through Wilson are actually increased rather than decreased. And then of course the interment, I think it’s a moment that is horrific in American history and certainly among our worst constitutional moments in the case. Of course, Korematsu, upholding that interment is, to the great shame of the Supreme Court, one of its worst decisions. Yet the ideology really that he’s spreading and continuing isn’t initiated by him, I’d say it’s initiated more from his hero, Woodrow Wilson.

Preet Bharara:

Yeah. You mentioned some cases, I hope we’ll have time to talk about Dred Scott, which you talk about in the book, Plessy v. Ferguson, which you talk about in the book. But going back to your overall premise, there are five presidents that you talk about in the book mainly and the crises that they fomented with respect to democracy and their threat to democracy. That’s the bad part. The good part is, in your phrase, “There are recovery presidents, recovery individuals, recovery citizens who bring us out of that.” And in some cases there were multiple recovery agents. You say in the book, “This is the part where we should all be happy” because it’s this word that we need to hear more of, hope. You write, “If history is any guide, today’s crisis,” and we’ll talk about today’s crisis as well, “Today’s crisis makes this a time ripe for constitutional recovery. In that sense, this book offers hope for current citizens seeking to restore democracy.” We’ll get into some examples in a moment, but talk generally about your thesis of crisis and recovery.

Corey Bretschneider:

It is a book about hope. And as much as I want to be honest about what happened throughout American history, and we’ll talk about what’s happening now, it isn’t a book that leaves you cold or that leaves you thinking that there is no way to recover from what we’re facing. The part of the thesis is about the danger of the presidency. And we’ve begun to speak about this not just in the examples but in the structure. At the founding, Patrick Henry, who’s of course known as a revolutionary hero, warns against ratification of the Constitution. And his argument is that structurally the presidency is a kind of loaded gun such that we’re assuming George Washington or somebody, a virtuous president, but what if you get a bad president? And then in fact-

Preet Bharara:

What if.

Corey Bretschneider:

Yeah.

Preet Bharara:

Let’s contemplate that hypothetical.

Corey Bretschneider:

And then it gets even more on the nose because he says, “What if you get a criminal present?”

Preet Bharara:

Hypothetically, what if you get a guy who’s been convicted on 34 counts? It’s also hypothetical.

Corey Bretschneider:

His argument for not ratifying is that the supposed checks on power, the Supreme Court, which is supposed to engage in judicial review and strike down unconstitutional or illegal acts by any member of government including the president, impeachment. His argument is those traditional checks that we really all learned about in grade school and middle school and high school, they’re not going to work. So that’s his argument against ratification. But the argument of the book, to go to your question, the hope comes from the fact that there is a check that has worked throughout American history. And it’s specifically not just citizens rising up against an authoritarian idea of the Constitution and reclaiming in a kind of common sense way a Constitution of we, the people, a democratic Constitution with a right to dissent, with equality, with the rule of law, but winning.

And the way they win is not in court, but by forming what I call democratic constitutional constituencies that coalesce around recovery presidents. And it’s not that they just, out of the goodness of their heart, that these crisis presidents are followed by recovery, it’s that these citizens demanded it and succeeded. And you see that throughout American history, the recovery from John Adams in the Sedition Act, partly with Jefferson, but really with Madison, the recovery from Buchanan, partly in Lincoln, but really in the Grant presidency, the prosecution of more than 1,000 white supremacists, including the Klan.

And the long recovery that we began to talk about from Wilson that comes at… The recovery, I should say, in the grant era. And from Lincoln comes from the Frederick Douglass wing specifically of abolition. And the recovery from Wilson comes from early heroes in the civil rights movement like William Monroe Trotter and Ida B. Wells, and handing off to subsequent figures. So we see that it isn’t the checks and balances that we learned about in school, it is an impeachment, which has never really worked. We’ve never impeached and removed a president formally. And it isn’t the Supreme Court as much as we are taught that there’re supposed to be the true check on power. In fact, they often make things worse.

Preet Bharara:

You talk about that in the John Adams chapter.

Corey Bretschneider:

In the John Adams chapter.

Preet Bharara:

So we don’t have time to go through all of the presidents. Among my favorite sections of the book is the one that’s the most old because I feel like I knew less about that or I’d forgotten more about that. So John Adams, second President of the United States of America, who is generally probably thought of by historians as pretty good. But in at least one area, not so good, as you write. And that was in the area of free speech and the First Amendment. Which by the way, at the time that you write about the conduct and the actions of John Adams, the First Amendment was how old?

Corey Bretschneider:

Very recent.

Preet Bharara:

It’s like it was a baby.

Corey Bretschneider:

It’s in the first Congress.

Preet Bharara:

And so to me it was fascinating because 200 years on when there’s a threat to democracy, the argument can be, the democracy is made of pretty firm stuff so it has a chance of withstanding the threat just because of its age and its acceptance by people for so many generations. But here you have a new thing, other countries don’t have a First Amendment. People forget this. We don’t have free speech in other countries to the same degree. Describe quickly what the problem was in your view with Adams and then what Jefferson did.

Corey Bretschneider:

I mean you really have this question from the beginning of what this thing means. There is a text, and it talks about the fact that Congress shall make no law abridging of freedom of speech. But Adams has not just an authoritarian, but really he is a monarchist. Not an absolute monarchist, but a constitutional monarchist. And he thinks that there is an analogy between the rights and powers of a king and the rights and powers of the president. And so when it comes to the question of sedition, of criticizing the king, there is no right of sedition certainly in England, and he thinks that in many ways what we’ve done is take the common law understanding of speech, which includes things. He does think the First Amendment, for instance, prevents prior restraint, but it doesn’t include the right to criticize the President of the United States. So when he finds himself under-

Preet Bharara:

That was not a radical view-

Corey Bretschneider:

No.

Preet Bharara:

At the time, correct?

Corey Bretschneider:

Yes. It’s shared by certainly the Federalists. And most importantly to go to how we got on this theme, Samuel Chase, the most important Supreme Court justice arguably at the time not only supports the law, but goes to Congress. And lobbies for it and then goes and sits on the… He’s a Supreme Court justice, but he goes and sits on one of the trials, the trial of Thomas Cooper to make sure he can’t even raise the issue of free speech. When Cooper says, “I have a First Amendment right.” He essentially says, “I’m not going to hear that.”

Preet Bharara:

Did he also take free vacations on jets and yachts? Because that was totally missing.

Corey Bretschneider:

I’ve seen the parallels.

Preet Bharara:

Totally missing from your books, so you need to do a little bit more research. So it’s unclear how the First Amendment will be embraced at the start of our republic. He does what he does, as you’ve mentioned in brief. And then Jefferson does what?

Corey Bretschneider:

At the behest of the editors, there’s a reaction. Not everybody buys this Federalist or Adams view of this monarchical idea of a limited free speech, the editors who find themselves prosecuted. And by the way, part of why people had thought that this was a side note to history, these prosecutions, is because the numbers worth something around 30. But we now know that the prosecutions number more like 126. It was a total assault on the opposition party, on newspaper editors and others who criticized him, including a sitting congressman, Matthew Lyon from Vermont who was prosecuted in one reelection from prison.

But what those editors said, and this gets to the Jefferson idea, is this is a right to dissent, a right to criticize the president, the right that we see on Saturday Night Live every week. They claimed it for themselves, and then they used… Presidents didn’t campaign then, Jefferson gave like one speech. It didn’t go well. And so he was mostly home. So the editors really step into the void and use the election of 1800 to say, “Our prosecutions should be a symbol of what needs to change.” And when they push that election to be about a right to dissent, Jefferson celebrates them in his first inaugural when he says famously, “We’re all Federalists, we’re all Republicans,” he’s really saying there’s not going to be a renewal of this Sedition Act.

Preet Bharara:

Did that happen because he was so principled and had these strong views, or was it politically helpful to him?

Corey Bretschneider:

I think in the case of Jefferson as opposed to Madison, it’s really more raw politics. These constituencies-

Preet Bharara:

So this great thing was not necessarily principled, but we benefit from it?

Corey Bretschneider:

And he secretly does, for instance, seek the prosecution of his enemies. He’s too embarrassed to do it publicly. He doesn’t have a federal Sedition Act return. But the real hero of that cluster, and often recoveries are like this, they’re partial, and that was certainly a partial recovery. But in the Madison presidency, even during the War of 1812, when there are calls for his own party, for a new Sedition Act, he refuses to do it. The norm takes hold and sort of gets placed into the ether.

Preet Bharara:

Let’s talk about Buchanan quickly, the next one. What was his problem? What’s up with Buchanan?

Corey Bretschneider:

He pretends when he-

Preet Bharara:

Not held as high esteem in the canon-

Corey Bretschneider:

There’s some understandings-

Preet Bharara:

As John Adams.

Corey Bretschneider:

I think that’s right.

Preet Bharara:

Okay.

Corey Bretschneider:

He gives an inaugural address where he says, “Look, the Constitution should be in the hands of the court. And there’s this pending issue about slavery. I’m not going to get involved.” And what he’s secretly doing actually is lobbying the court to decide the opinion that’s going to be known as Dred Scott in the worst possible way. And at his behest with his encouragement, the Supreme Court decides that Black Americans have no rights under the Constitution. It’s why the Dred Scott Case is, I think, our most evil in American history, and it is all at his behest.

Preet Bharara:

When you say he’s lobbying, was he texting them? How is this-

Corey Bretschneider:

Letters. We have-

Preet Bharara:

And was that considered… So that wasn’t known at the time?

Corey Bretschneider:

Interestingly, Frederick Douglass, the hero that we’re about to get to of this part of the book, in the same way the editors push back and really lead to the election of Jefferson and Madison, it really is Frederick Douglass and his wing of abolition that push back. He raises that suspicion that he… And it turns out we now know through the evidence and have the materials that that was correct, he was lobbying the court to decide this case in, again, the most evil way possible.

Preet Bharara:

So the recovery agent, one of the recovery agents, and you have several that you talk about in the book, one of them is Frederick Douglass.

Corey Bretschneider:

Yes.

Preet Bharara:

I have a question about recovery agents generally and what we can think about for the future, as I mentioned backstage, but can you describe Frederick Douglass and what he meant and how powerful a voice he was for the uninitiated?

Corey Bretschneider:

I call him in the book, I defend him as really the true founder of American democracy. And as much as so many of these figures are essential, he stands out because he was really the person who teaches America, including Lincoln, I argue, how to read the Constitution. There is a dominant idea in abolition that the Constitution is a pact with the devil or an agreement with hell, as Lloyd Garrison said, and the Dred Scott Case shows it, this is an evil document that we should just get rid of. And Douglas is really the one who says, “No, it can be saved if you read it in the right way.” Take its preamble, it doesn’t say we the white people. It says a principle of democracy, we the people. Take the ban on the corruption of blood, the idea that you would inherit the sins of parents in the next generation. That’s banned under the Constitution. What is it, but a ban on slavery?

And then he takes most importantly, the idea of the Declaration and says, we have to read this idea of equality, which he reads broadly when it comes to race and gender and read it throughout the American Constitution. He really deserves credit for innovating that way of reading our document and spreading it in a way that today speaks to its democratic roots.

Preet Bharara:

What struck me was your analysis of how, I didn’t say it this way necessarily, but that Frederick Douglass, Black man in America, was less radical in his philosophy and in his rationalization for slavery’s evil because he believed that it was rendered such in the Constitution, which is less radical than the white abolitionists who were the most famous at the time. Do I have that right?

Corey Bretschneider:

I’d say it’s certainly right when it comes to the idea of whether or not we should abandon the Constitution. And he disagrees with his former mentor, Lloyd Garrison, about that. He thinks this document can be saved. But his radicalism comes in this way, he really is willing to fight for the Constitution. So when it comes to John Brown, he thinks he’s misguided in his plans, but he certainly collaborates with him. So I would say he’s both in our terms, a non-radical in that he wants to save the Constitution, but his actions were heroically radical for the time.

Preet Bharara:

We’re just going back to strategy. So he says, “We can fight against slavery within the Constitution,” and the most prominent white abolitionists at the time says, in good faith, “Slavery is a horrible evil that we have spewed into the country and we need to abandon the Constitution for that reason.” How much of Frederick Douglass approach and strategy was strategy and an understanding that that might be the way his advocacy might actually find some purchase with the public?

Corey Bretschneider:

I think it was both. And that’s what’s amazing about each of these figures, that they’re both strategic political actors. And the reason they win is because of that strategy, prevailing on these recovery presidents. But I believe that he, like the others, are sincere in the same way that the editors as they find themselves prosecuted, appeal to the idea of not just a right to free speech, but a right to dissent. He sees this document as a sacred text because it is a vindication of his humanity and his rights. So I would say it’s both. It’s strategic, but it also is principled. And when we think about the document today and our arguments against it, and as I see it, this book is really a defense of the American Constitution read in the correct way. I think that’s both strategic, but also a matter of principle.

Preet Bharara:

So I’m going to poke you a little bit as I told you I would backstage. So the premise is wonderful and inspiring and hopeful. You have these presidents, John Adams, Buchanan, and others that we’ll talk about who threaten democracy by some action or conduct. And then you have these recovery agents. Now, some of the recovery agents you mentioned are presidents like Lincoln and Jefferson. You have a line here in the book, “The relationship between Douglas and Lincoln exemplifies how a citizen can successfully prod a president to transform his constitutional understanding.” Okay, how many citizens can transform the constitutional understanding of a president? Again, hopeful, but the people you’re talking about are the recovery agents. Jefferson, Lincoln, Frederick Douglass, LBJ, JFK, these are among the most astonishing citizens that our country has seen in our history. Who we got now?

Corey Bretschneider:

I love the question. One thing I would say is that in retrospect, of course we see Frederick Douglass that way, but when he was an enslaved person thinking about his own freedom, no one would imagine that he would become that figure. And I’d say the same is true even early in his oratory career where he was really an acolyte of Garrison. It’s over time that he in the moment saw these opportunities including the opportunity to prevail on Lincoln. And I think in the beginning Lincoln too didn’t think that this was something that was going to happen. They were opponents. But over time, the combination of the moment, and yes, in his case a kind of genius helped it happen. But more often than not, these citizens are using common sense.

So I had the chance to talk to three of them on the phone, as you know, in the Nixon chapter, it’s really the average citizens of the grand jury that are the heroes who demand the prosecution of a president. In fact, they voted in a straw poll for the indictment of Richard Nixon. I argue that we still need to continue this attempted recovery that they began. But people have never heard of them. I’ll tell you their names, Ethel Peoples and Patricia Woodruff. These are not household names, and in fact, their families didn’t even know what they had done. But when I asked, “How could you engage in such a heroic act of actually, unlike Frederick Douglass, seeking the even beyond what he did, seeking the prosecution of a criminal president, voting to prosecute him?” They said, “He did wrong. And we saw the evidence. And so we used our common sense.”

And others like William Monroe Trotter, I think you saw it the same way. They weren’t celebrated in their own time. In fact, Trotter died by suicide thinking he had lost the battle against Woodrow Wilson, and yet he had this sense of justice. And that’s really what you see, that often the authoritarian presidents are the most learned. Adams celebrated partly because he was a premier constitutional thinker of his time, Woodrow Wilson, a premier constitutional thinker, and what prevails against them and what we need in our own time, what these citizens bring is common sense. And that’s true of Douglas too. Part of his genius is using common sense to articulate these textual parts of the Constitution that had so badly been misread.

Preet Bharara:

Hear more of our conversation in just a moment.

When you write the next version of this book in 30 years and you have the benefit of hindsight and the lens of history playing off what you just said right now about participants in a criminal adjudication and system, how do you think you will write about Bob Mueller and the jury that convicted Donald Trump in Manhattan and other folks like that?

Corey Bretschneider:

There are these attempts that we are in the midst of to try to for once and for all to guarantee a principle that I think we were taught in grade school is part of the American Constitution that we still believe is, and that’s the idea that no person, not even a president, is above the law. And there’s a parallel I think between what we saw with Trump and what happened with Nixon. There was this attempt, as I said, by the grand jury to indict him. And here was the pushback by somebody who is I think celebrated maybe a little too much, Leon Jaworski. Jaworski said, “If you try this, two things might happen. One, the president might have immunity as a sitting president.” I’m not sure about this and maybe not, maybe. We now have a Supreme Court that said there is immunity not just for sitting, but in some cases for former presidents. And he also threatened that there would be a kind of coup that the president might surround the White House with troops and that this grand jury would be responsible for that.

Now, that grand jury tried to make a deal. They believed that Nixon would be indicted after he was stepped down and after the impeachment process took place, and when he resigned, they demanded it. The pardon blocked all that off. So we don’t know their histories. And I think unfortunately, if we would’ve seen that prosecution, things might have played out differently. With Trump, we might’ve had a public that really demanded a clearer set of laws, an independent prosecutor, for instance, that would’ve allowed those prosecutions. So the story’s still playing out, but my hope, and that’s part of the hope of the book, is even though we didn’t recover during the last Trump presidency and during the Biden presidency that we will eventually.

Preet Bharara:

Did you think, as you had these ideas in your head, obviously long before the last year or two, did you think that post-Trump won that Biden would be a recovery agent like the ones you write about in the book?

Corey Bretschneider:

We met, I think eight years ago. I was interviewing you at Brown University and we talked about that. I would say I was hopeful and that I was trying to, and I know you were too, and have been putting ideas out there about how he could have been, but that isn’t the way it turned out. There really weren’t a set of reforms to the pardon power. There wasn’t a creation of a new office of the independent prosecutor, as Jimmy Carter signed, that would’ve allowed for an independent investigation and maybe even a prosecution of a former president that would’ve been successful.

Preet Bharara:

There was no Frederick Douglass.

Corey Bretschneider:

There was no Frederick Douglass. There was no Jimmy Carter. There was no-

Preet Bharara:

There was also no… I’m trying to think of the examples of this in your book of… There are. In the Nixon scandal, members of the democracy-threatening, president members of his own party standing up and doing and saying the right thing. And we didn’t get that this time. How come?

Corey Bretschneider:

There were small examples of it. In the last Trump administration, at least there were officials who refused to go along. So for instance, there was an attempt that I talk about to fire Robert Mueller and-

Preet Bharara:

Don McGahn, the White House counsel.

Corey Bretschneider:

Don McGahn refuses to carry it out. It was an attempted Saturday night massacre. I think the real tragedy of what we’re facing right now is that Trump is onto that. He knows that there’s a danger that members of what he calls the bureaucracy, we really are the civil servants, we’re supposed to carry out the law that they might stop him, and he has figured that out. And so the mass firings that we’re seeing, the Saturday Night Massacres of the last week or so are in attempt to ensure that once and for all, we don’t recover, that he, unlike Adams, is able to establish authoritarian presidency with no real checks. Now, my hope is, and the hope of the book that that won’t succeed, but I don’t want to underplay the danger either.

Preet Bharara:

This question is going to sound maybe peculiar certainly to this audience. There are lots of people in this country who believe, if they were thinking about it in the terms that you use in the book, that the democracy-threatening president in recent times was Joe Biden, and that the recovery agent is Donald Trump. And the things he’s doing, I know you don’t like this, but he became the president for a reason. What do you say to those people and what do you say about that phenomenon?

Corey Bretschneider:

I think that’s been true throughout American history. I talk about, for instance, the Andrew Johnson presidency that follows Lincoln. Really many of the members of the Klan and related groups saw him as a hero that was going to restore slavery under a different name, a kind of second-class citizenship. They saw that as a restoration of, in their minds, the true Constitution. So I don’t think it’s appeals to the Constitution per se that define whether or not someone is a recovery president or a crisis presidency. We have to get into what the groups are demanding, constituencies and the presidents. And people like Andrew Johnson and certainly Donald Trump are not democratic in their views of the Constitution, they are authoritarian. And how do we know that? You can just look at Trump’s own language. He says, “I have an Article II, it says I can do anything I want.” That is almost a perfect definition of an authoritarian idea of the Constitution.

Preet Bharara:

Can we go back to the beginning again? So most debate and discussion about democracy doesn’t distinguish among various forms of democracy because democracy is great, American democracy is great, democracy in Europe is great, but there are very different forms of democracy. And you cite someone else’s work, I’m going to mispronounce the name, Adam Przeworski. You cite his research which finds that among all forms of democracy, presidential systems have proven the most brittle, they fail at the highest rate and they’re almost twice as likely to collapse as parliamentary democracies. Is that the original sin? Did we screw up going down the presidential democracy path? This is the parliamentary democracy?

Corey Bretschneider:

I’m not sure I would choose a purely presidential system if we were to do it again. It is the system that we have and I’ve written a guide to how we can use it and make the best of it.

Preet Bharara:

Because we never talk about… I never hear discussions about that. We talk as if Britain and the US have the same system because they both are nominally democracies. Why is the presidential system so brittle? And given the research that you have done and the stories you tell about these presidents, how might these things have unfolded differently if we were a parliamentary democracy?

Corey Bretschneider:

It’s a great way to put it, and I think it’s years of research in comparative politics in particular looking at how the British have a Westminster model, a parliamentary model that allows for a no-confidence vote, and there’s a flexibility as opposed to the brittleness of the American system, four years in power. And not just in power, a very powerful executive to go back to that warning of Patrick Henry. The reason the presidency is so dangerous is because it’s so powerful and because over those four years, a lot of damage can be done. And except for impeachment, which as I’ve said has never worked, we’re stuck with this person.

Now, what you’ve seen throughout Latin American countries that have used the system is literal collapse and often not through military attacks or coups in that sense, but through internal destruction. And the idea of the self-coup or the auto-coup is a description of many Latin American countries where what happens is that the president, the executive in power usurps the other branches, either through formally dissolving those other branches or through doing other things that really are a claim on power. And the idea of the powerful executive, I think that’s the danger. And that’s not an accident that we see these crisis presidencies in these battles for recovery. It has to do with the power of one person, and that’s the President of the United States.

Preet Bharara:

So this is a hard question to answer and it’s an unfair question, but putting aside the form of democracy, parliamentary or presidential, what’s the right level of power and strength that the chief executive should have, prime minister or president, such that we maintain a through-line of appropriate democracy?

Corey Bretschneider:

The story I think of the last two decades has been worrying about what Wilson was worried about, inefficiency, friction. Now, friction can take different forms, some more benign than the really horrible concerns that he had about integration. But I do think that we are at a point where the presidency is too powerful and we see this, and I’ll just take one case and one example that to me really sums it up. And it’s the idea that not only a sitting president but a former president acting when he or she is at his or her most dangerous, they’re official capacities, can’t be prosecuted for a crime. Can’t even be indicted for a crime. That creates a really dangerous set of incentives and disincentives, especially for a non-virtuous person. And I think it’s fair to say Donald Trump is not a virtuous person. It encourages a kind of criminality. And I think that danger that we’re seeing there really is the evisceration of the idea that no person is above the law. So cases like that.

And then when I think too about the idea of the unitary executive, what might have in the 1980s when it became popular in the Meese White House, the idea the president should have power over hiring and firing in the executive branch. When you start thinking that that might mean the end of the protections of the civil service, the end of the Pendleton Act, the end of the existence of independent agencies like the FTC, which are charged with carrying out laws regardless of what a president wants to do. Those together, the hiring and firing power, the unitary power, plus the immunity, that has just created a presidency that is way too dangerous. And there are ways to reform that through legislation, through I mentioned the Independent Counsel Act, through respect for the idea of the civil service.

Preet Bharara:

You miss the Independent Counsel Act. Most people don’t.

Corey Bretschneider:

I do, miss it. And I think we should come to realize that Carter, when he signed it and subjected himself and his staff to the investigations and said basically, “If we did wrong, put us in prison.” George Washington says in the second inaugural, it’s the shortest ever given, he says, “I just took the oath of office. If I violate it, I want you to subject me to criticism or [inaudible 00:35:47]. And if I really violate it, subject me to constitutional punishment.” Carter really said that.

Preet Bharara:

But by whom? By an independent counsel, what if the independent counsel is a council is a jerk?

Corey Bretschneider:

It’s possible. And certainly in Ken Starr we had that example. We had great independent counsels like Welch. But in Ken Starr, I think that was the example. And the way I’ve been balancing them, I’ll give you my line and you could tell me if you agree, I would rather have 10 Ken Starrs than one Donald Trump. The danger of the independent counsel is nothing compared to the danger of a criminal president.

Preet Bharara:

You got one guy.

Corey Bretschneider:

No.

Preet Bharara:

You got a whole bunch of support. Okay, so I’m going to go back to my hypothetical of you writing this book, the next version in the future, let’s say 10 years from now. Which of the things that Donald Trump has done in the first five weeks will be the main drivers of the chapter about him?

Corey Bretschneider:

I think the one striking thing that I think historians, including myself, will have to write about is the use of the supposed benign power of the pardon, the benign prerogative as the framers sometimes called it, to pardon the people who engaged in an attempted insurrection and who took that insurrection through these pardons and turned it into something less horrible. It really was a moment in American democracy in which the whole thing almost tumbled. And now we have the president power trying to revive the idea that wasn’t so bad. That is not just a threat to democracy, it’s a threat to the whole system. So I think I’d begin with that.

Preet Bharara:

Interesting. So obviously there’s a message of hope.

Corey Bretschneider:

Yes.

Preet Bharara:

But hope doesn’t mean complacency. And you say, I think soberly, given the examples that you talk about in the book, Adams, Buchanan, Johnson, Wilson, Nixon, you say, “These examples show there is no ironclad guarantee of recovery. Instead, they show the need for citizens vigilance and readiness to take up the mantle of democracy even when it seems hopeless.” My question is, at this moment, do you think that American citizens are overreacting to the issue or the threat that I believe we have from Donald Trump, underreacting to it, appropriately reacting to it? How do you think that the citizenry is doing at the moment?

Corey Bretschneider:

I think we’re starting to see the horror of it, but many people voted for him. In this time, of course, he won an electoral majority. And so we haven’t come to the public agreement that we need to come to, which is that this is a walking threat to democracy and to constitutional democracy and to the system. So no, I think we are not yet fully aware of how dangerous this is. And part of the problem is this strategy of flooding the zone and seeing all these cases, I understand it’s exhausting. We see case after case. But when you add it up, I think what it is an authoritarian threat to democracy. And when you look in history, you can see that we’ve seen these threats before and that we can recover. The worst thing that we can do is be hopeless and think, “What can we do and we can’t win this time and the courts aren’t going to back us up.” And the lesson of the book is we have been here before and citizens have risen up and we’ve prevailed.

Preet Bharara:

So I’m going to start… You can clap. Thomas Jefferson fought for your right to clap. So these are great questions. We won’t get to all of them, and so I’m going to steal some of these to answer on my podcast. Stay tuned with Preet. You should listen to the podcast. Was the failure to prosecute Nixon a mistake?

Corey Bretschneider:

Yes. What the book is about is the attempt to do so. These grand jurors who I talked to engaged in a straw poll. In fact, Elayne Edlund, the legal secretary, as she described it, many of them raised two hands when it came to the decision to indict Nixon.

Preet Bharara:

Like touchdown?

Corey Bretschneider:

Just like that. That’s how enthusiastic they were. And they were convinced not to do it, to delay. And when Nixon resigned, after they actually heroically dug up the material and then through something called the Roadmap handed over to Congress, that led to his impeachment. He wasn’t impeached by the full House, I should say. There were articles of impeachment voted up by the Judiciary Committee and then that led to his resignation. They were ready for the indictment. And the crimes that were being investigated at the time included, of course Watergate, but it also included things like as I talk about in the book, the attempt to incapacitate Daniel Ellsberg on the Capitol steps. Things that we now know about could have been part of it, like the attempted break-in at the Brookings Institution, including a plan to blow it up, to get materials that were in the safe that Nixon thought implicated him. We don’t know about those crimes because of the pardon, and the pardon really hid I think that idea of how important it was to criminally hold the president who had committed crimes to account. So yes, it was a huge mistake.

Preet Bharara:

Totally different context, but you do praise Thomas Jefferson for speaking about reconciliation. Do you not credit Ford at all with doing something that was harmful to him and his own political prospects that he in good faith may have thought was a step towards reconciliation?

Corey Bretschneider:

I think he wanted to move on with his own agenda, he wanted to move the country forward. I think he also had a lot of sympathy for the president and his family and the president had phlebitis.

Preet Bharara:

You didn’t think it was so pure.

Corey Bretschneider:

But I think that when it comes to the principle that the thing that triggered the pardon, and this is my argument in the book, and this is uncommon to argue, was the knowledge that this indictment was coming and that the American people were going to learn the truth about the extent to which the president had engaged in criminal action. And that isn’t something I can brush over. I think it was a colossal mistake and it led to a moment in which we didn’t see the presidency as the danger that it really is.

Preet Bharara:

This is a completely and totally hypothetical question from a member of the audience with very good handwriting. What do you think the best protection is against presidents not observing term limits?

Corey Bretschneider:

It is so frightening, and this I think is part of a series of questions that we can ask about the president refusing to obey the law and refusing to obey judicial orders, which is a conversation we’ve been having over the last two weeks. And as I said, it was an issue that came up with this grand jury. In fact, Jaworski raised that issue that the president might not step down if he was indicted and being prosecuted and even convicted. In the end, it really is a system of demands by the people of the United States that the law be respected. One thing is to make sure that we don’t get to that point, that we get commitments early on. So the Vice President of the United States, just to give you one example, is the person who’s going to be charged in the next presidential election with certifying that election. It might be an election of himself or of if Donald Trump tries to run again, despite the fact that there are term limits and shouldn’t be allowed to.

We need to have a guarantee that that vice president won’t engage, as Mike Pence was pushed to do, in a form of cheating. The system is so vulnerable, the Electoral College that the thing that protects us really, I don’t think in the end is one court or a series of courts, it’s respect for the law. We’ve got to hold this president to account now when it comes to the smaller matters.

Preet Bharara:

So it all depends on JD Vance?

Corey Bretschneider:

It is frightening. In the first presidency-

Preet Bharara:

That’s all I got for tonight, ladies and gentleman.

Corey Bretschneider:

The first presidency, John Adams party realizes that this election can be stolen. And one of the reasons for the prosecutions under the Sedition Act of an editor named Duane is that he uncovers the plot, which is that there will be a committee formed in the Congress that will deny certification of electoral votes so that the election is thrown to the House of Representatives where the Federalists can steal it. That vulnerability that we’re seeing in the Electoral college has always been with us. And wow, that JD Vance is the person that we’re relying on is a problem or the fact that we had to rely on Mike Pence last time who did come through.

Preet Bharara:

He did.

Corey Bretschneider:

It’s a kind of miracle, I think.

Preet Bharara:

So here’s a question from the audience, and then I’m going to ask my own version of the same question. I ask my own version first. Did you participate in those polls done of historians that rank the presidents?

Corey Bretschneider:

I haven’t done one of those yes.

Preet Bharara:

But let’s assume you did.

Corey Bretschneider:

Yeah.

Preet Bharara:

The question here is, the premises, we’ll come back to it. Do you think that the legacies of the presidents you discuss in the book should disqualify them from being remembered as good presidents? And then my gloss on it is if a president made your book Five Leaders Who Threaten Democracy, if you did that poll, do they have to be at the bottom?

Corey Bretschneider:

Part of what I’m trying to do is really reorient-

Preet Bharara:

Because John Adams you put at the bottom.

Corey Bretschneider:

Yeah. I think that’s right. And if you look, the stars are bent to symbolize how worried we should be about them. But so much presidential history frankly is zooming in on the virtue of a particular person. So let’s take Adams in particular since you asked about him. Why is Adams so highly regarded? He had a great miniseries. I loved-

Preet Bharara:

Paul Giamatti.

Corey Bretschneider:

Paul Giamatti is terrific. He plays you in a more recent series.

Preet Bharara:

Different show.

Corey Bretschneider:

Different show. Going back to Adams. Why is he such a hero? One reason is that he wrote books and was learned. And in fact, he was regarded as one of the premier thinkers of his time. And I read these books, they’re pretty good, not amazing in the way that they’re made out to be. They’re certainly scholarly. But that’s a confusion, the idea that you are a great president because you were a thinker or because you led in a certain way. Really I think we have to reorient all of it and really ask this question that I’m asking, did you try to save our institutions? Did you further them or did you threaten them? And in the case of Adams, there is no question that as much as people want to brush it over trying to shut down the opposition party disqualifies you as a great president. Absolutely.

Preet Bharara:

So a lot of people have tuned out, not these folks, thank you, God bless you, because it’s difficult to handle and they’re doing other things. And some people don’t want to tune in altogether because they’re good citizens and they’re focused on the local state and local races. And that’s my lead in this audience question, how effective is running for local office in combating tyranny?

Corey Bretschneider:

Wow, that is a great question. And I’m going to really take a strong stance in favor of that it’s essential. Because one of the tools, and there are tools right now short of forming a democratic constitutional constituency that will get behind a recovery president. And in the meantime, and the Adams story actually shows this, local government can resist. We have a Tenth Amendment and it says that those powers not granted to the federal government are reserved to the states and local government. And those are tools that we can use and did use. And one of the most important examples is that Madison and Jefferson and their allies, as they’re watching these prosecutions decide they’re going to use the 10th Amendment by not cooperating with the federal government. When they come to shut down these editors or other opponents of Adams and the Federalist Party, they realize that you need local government to cooperate, to enforce tyrannical laws.

And in our own time, and in my book The Oath and the office, I profiled Miguel Marquez in California and Santa Clara who saw this, the idea that we are not going to cooperate with ICE and that we don’t have to cooperate as local government. That is essential. That is one of our tools in fighting back against this attempted tyranny. And so when Eric Adams makes a deal to cooperate with the federal government, he’s doing nothing less than really abandoning what local government’s power is now to resist using the 10th amendment.

Preet Bharara:

One of the things that I think people find most disconcerting and frightening in the first five minutes of this administration is how Donald Trump is dealing with the military. And so this question is, have previous presidents tried to stack the military in their favor? Do we have bad examples of that that provide some model?

Corey Bretschneider:

It is frightening because so many of the laws that we’ve seen passed throughout American history that can be used for good and have been used for good can be turned and used in a way to create oppression. And you’re seeing a kind of reversal of the 1964 Civil Rights Act, which is the great achievement of Lyndon Johnson and Martin Luther King Jr. used to attack what? Civil rights. That’s what this administration is doing. The use of the Insurrection Act, for instance, to bring out the military to shut down civil liberties shouldn’t be allowed by the Supreme Court. We have a First Amendment free speech clause that stands above any law, including the Insurrection Act. What will this Supreme Court do? Will they uphold the First Amendment or will they uphold the president’s power to shut down dissent? After the travel ban and other cases, I’m not sure. So I think that’s a real danger.

Preet Bharara:

We have time for a couple more. I like this one. Has your opinion of Patrick Henry improved now upon reflection?

Corey Bretschneider:

I think we’ve got to take him seriously. It’s scary how much that warning about ratification. It’s true that there is a danger in the American presidency, but I don’t fully get on board with what he was saying, which is really that all is lost if you ratify this thing because of what’s happened throughout American history. I think the thing he didn’t foresee is that citizens could claim the democratic Constitution for themselves, they could resist not just a bad president, but even a criminal one. And we haven’t done the best that we can do in the Nixon example and certainly in the Trump example, but that’s part of my hope. It’s why I wouldn’t have written the book if I didn’t think he was in the end wrong. I think we can prevail even against the most dangerous presidents that we’ve seen.

Preet Bharara:

Can I interpose a question before we do a final question from the audience that has been on my mind? So lots of people talk about the problem in the country is a failure to engage in civic education, whether it’s at the school level or in adulthood. And we don’t have civic education. And I have been a fan of that argument and I believe in it, but it takes two things for an education to be received. You have to educate properly, but the person receiving the education has to be educable. I don’t know that everyone is educable about the values and virtues of democracy at this moment. That’s the sad conclusion I have come to. Do you have a thought on that?

Corey Bretschneider:

I’m more optimistic. I think that these victories, part of what they gave us, the victories of the newspaper editors defending a right to dissent the victory of Frederick Douglass giving us an idea not of we the white people, but an inclusive idea of we the people, and the attempt by the members of the grand jury that I talked about, and people like Daniel Ellsberg to ensure that not even a president is above the law. I think those principles are deep in our consciousness and that we just have to tap into them. And part of what a civic education has to do I think is not just teach the formal three branches of government and certainly not teach that the Supreme Court is a kind of Constitution police that will always save us, but has to teach us as Americans, as citizens to tap into that idea, that consciousness of these principles of democracy. And that kind of civic education I think is not only needed, but is crucial to saving the country.

Preet Bharara:

Final question, what do you think need to be the qualities of a recovery president in our time after this time is behind us?

Corey Bretschneider:

It’s a great question and we can look to some of the best and most unlikely that we find in American history. One who really always sticks with me is Truman. He is much less celebrated than FDR, who we began with. The NAACP approaches him knowing that he has a long history of using the N-word and they’re being told that this guy was chosen to replace a too liberal vice president and there’s no way he’s going to be a civil rights hero. But his openness to their stories as they tell, the not abstract principles, but the stories of soldiers returning home, Black soldiers being beaten really as they tried to re-enter America, it grabs something in him. And he really says to the NAACP, who are ready at that moment, “What do I need to do?” And that symbolizes what we’ve got to do next time. We have to be ready with an agenda of recovery and find the stories to prevail on whoever is elected to implement them.

Preet Bharara:

Professor, thank you for your book.

Corey Bretschneider:

Thank you.

Preet Bharara:

Thank you so much.

Corey Bretschneider:

Thank you.

Preet Bharara:

For more analysis of legal and political issues, making the headlines become a member of the CAFE Insider members, get access to exclusive content including the weekly podcast I host with former U.S. Attorney, Joyce Vance. Head to cafe.com/insider to sign up for a trial. That’s cafe.com/insider. If you like what we do, rate and review the show on Apple Podcasts or wherever you listen. Every positive review helps new listeners find the show. Send me your questions about news, politics, and justice. Tweet them to me at @PreetBharara with the hashtag #AskPreet. You can also now reach me on BlueSky, or you can call and leave me a message at (833)-997-7338. That’s (833)-997-PREET. Or you can send an email to letters@cafe.com. Stay tuned is presented by CAFE and the Vox Media: Podcast network. The executive producer is Tamara Sepper. The technical director is David Tatasciore. The deputy editor is Celine Rohr. The editorial producers are Noa Azulai and Jake Kaplan. The associate producer is Claudia Hernández. And the CAFE team is Matthew Billy, Nat Weiner and Liana Greenway. Our music is by Andrew Dost.

I’m your host, Preet Bharara. As always, stay tuned.