• Show Notes
  • Transcript

On this week’s episode of Stay Tuned, “The Post-Trump Clean-Up,” Preet answers listener questions about the hypothetical pardoning of President Trump, the presidential native-born citizen requirement, and the process for impeaching a Supreme Court Justice. Then, Preet is joined by legal scholars Bob Bauer and Jack Goldsmith, authors of After Trump: Reconstructing the Presidency, to discuss their ideas for strengthening the rule of law and reforming our government. 

In the Stay Tuned bonus, Bauer (who reportedly played President Trump on Biden’s debate prep team) gives his observations of the first presidential debate, and Goldsmith offers his concerns about the line of presidential succession. To listen, try the CAFE Insider membership free for two weeks and get access to the full archive of exclusive content, including the CAFE Insider podcast co-hosted by Preet and Anne Milgram. 

Sign up to receive the CAFE Brief, a weekly newsletter featuring analysis by Elie Honig, a weekly roundup of politically charged legal news, and historical lookbacks that help inform our current political challenges.

As always, tweet your questions to @PreetBharara with hashtag #askpreet, email us at [email protected], or call 669-247-7338 to leave a voicemail.

Stay Tuned with Preet is produced by CAFE Studios. 

Executive Producer: Tamara Sepper; Senior Editorial Producer: Adam Waller; Senior Audio Producer: David Tatasciore; Audio Producer: Matthew Billy; Editorial Producers: Sam Ozer-Staton, Noa Azulai, David Kurlander. 

REFERENCES & SUPPLEMENTAL MATERIALS

Q&A: 

  • Natural Born Citizen Clause: The U.S. Constitution, Article II, Section I, Legal Information Institute
  • River Donaghey, “Arnold Schwarzenegger Would Have Run for President This Year If He Could Have,” VICE, 10/24/2016
  • Ken Rudin, “Could Gov. Granholm (b. Canada) Serve On The Supreme Court?” NPR, 5/14/2009
  • Alexander Hamilton, “The Federalist Papers: No. 78,” The Avalon Project, 1788
  • The U.S. Constitution, Article III, Section I, Legal Information Institute 
  • Richard Garnett and David Strauss, “Article III, Section I: Common Interpretation,” National Constitution Center

THE INTERVIEW: 

  • Bob Bauer and Jack Goldsmith, After Trump: Reconstructing the Presidency, Lawfare Press, 2020
  • Bob Bauer and Jack Goldsmith, “Why We Wrote ‘After Trump,’” Lawfare, 9/15/2020
  • Bob Bauer on Stay Tuned, “All the President’s Lawyers,” CAFE.com, 11/29/2018
  • Jack Goldsmith on Stay Tuned, “Targeted Killings: Suleimani & Hoffa,” CAFE.com, 1/9/2020
  • David Priess and Benjamin Wittes, “Publishing ‘After Trump,’” Lawfare, 9/16/2020
  • Nancy Franklin, “Bauer Power,” The New Yorker, 2/6/2006

VIOLATING NORMS 

  • The Emoluments Clause: The U.S Constitution, Article I, Section 9, Clause 8, Legal Information Institute 
  • “The Hatch Act: A Primer,” Congressional Research Service, 4/20/2020
  • Bob Bauer, “Trump and Barr Are Out of Control,” New York Times, 2/12/2020
  • Jack Goldsmith, “Here’s a better way to protect our inspectors general,” Washington Post, 6/1/2020
  • Zach Montague, “What Is the Hatch Act? Is Trump Violating It at the R.N.C.?” New York Times, 8/26/2020
  • Jeremy Venook, “The Trump Administration’s Conflicts of Interest: A Crib Sheet,” The Atlantic, 1/18/2017
  • Matthew Kahn, “The Law of Classified Information: A Primer,” Lawfare, 6/25/2020

TAX DISCLOSURE

  • Bob Bauer, “Americans Must Know if Their President Is a Crook,” New York Times, 7/10/2020
  • Richard Painter and Norman Eisen, “Trump’s ‘blind trust’ is neither blind nor trustworthy,” Washington Post, 11/15/2016
  • Abbey Marshall, “Trump botches a boast about giving away his presidential salary,” Politico, 10/21/2019
  • Brian Faler, “Inside the IRS’s audits of the president,” Politico, 7/19/2019

THE PARDON POWER

  • The Pardon Power: The U.S. Constitution, Article II, Section 2, Legal Information Institute
  • The Take Care Clause: The U.S Constitution, Article II, Section 3, Legal Information Institute
  • Mary Lawton, “Presidential or Legislative Pardon of the President,” Department of Justice Memo, 8/5/1974
  • Jack Goldsmith, “A Smorgasbord of Views on Self-Pardoning,” Lawfare, 6/5/2018
  • Bob Bauer and Jack Goldsmith, “How to Reform the Pardon Power,” Lawfare, 2/26/2020
  • Bob Bauer and Jack Goldsmith, “The House Moves to Regulate Pardon Power Abuse,” Lawfare, 7/23/2020
  • Jacob Frenkel, “Nixon Era DOJ Memo Provides Roadmap to President Trump Self-Pardon,” Forbes, 6/11/2018
  • Sarah Wheaton, “Obama Flexes His Pardon Power,” Politico, 12/19/2016

DOJ INDEPENDENCE 

  • Bob Bauer, “The Survival of Norms: The Department of Justice and the President’s ‘Absolute Rights’” Lawfare, 1/1/2018
  • Jack Goldsmith, “Independence and Accountability at the Department of Justice,” Lawfare, 1/30/2018
  • Eric Lichtblau, “Prosecutor’s 2006 Firing Won’t Result in Charges,” New York Times, 7/21/2010
  • Ari Shapiro, “Prosecutor To Probe Firings Of U.S. Attorneys,” NPR, 9/29/2008
  • Isaac Chotiner, “A Former Justice Department Lawyer Reads Robert Mueller (and William Barr’s) Conclusions,” The New Yorker, 3/24/2019

PROSECUTING TRUMP

  • Zack Stanton, “Is Prosecuting a Former President Worth It?” Politico, 10/1/2020
  • Randolph D. Moss, “A Sitting President’s Amenability to Indictment and Criminal Prosecution,” Office of Legal Counsel, 2000
  • Walter Dellinger, “Indicting a President Is Not Foreclosed: The Complex History,” Lawfare, 6/18/2018
  • Laura M. Holson, “‘No One Could Believe It’: When Ford Pardoned Nixon Four Decades Ago,” New York Times, 9/8/2018
  • Donald Rumsfeld, “How the Nixon Pardon Tore the Ford Administration Apart,” Politico, 5/20/2018
  • Peter Baker, “Bolton Says Trump Impeachment Inquiry Missed Other Troubling Episodes,” New York Times, 6/17/2020

BONUS

  • Brooke Singman, “Biden debate prep: Bob Bauer revealed as Trump ‘stand in’ for practice sessions,” Fox News, 9/28/2020
  • Shane Goldmacher and Katie Glueck, “How Joe Biden Is Preparing for the Biggest Debate of His Life,” New York Times, 9/28/2020
  • “3 U.S. Code § 19: The Presidential Succession Act of 1947” Legal Information Institute
  • Jack Goldsmith and Ben Miller-Gootnick, “A Presidential Succession Nightmare,” Lawfare, 3/25/2020 
  • Akhil and Vikram Amar, “Is the Presidential Succession Law Constitutional?” Yale Law Journal, 1996
  • Lynette Rice, “Why the virus story line on Netflix’s Designated Survivor was too heavy for ABC,” EW.com, 4/2/2020

Preet Bharara:

From CAFE, welcome to Stay Tuned. I’m Preet Bharara.

Bob Bauer:

The presidency is a full-time job. It should be performed full time, not split between business supervision and executive branch management.

Jack Goldsmith:

The reason we wrote the book is that we worry about a more competent Trump presidency in the future.

Preet Bharara:

That’s Bob Bauer and Jack Goldsmith. Bob and Jack have both served as top executive branch lawyers. Bob is White House counsel for President Obama, and Jack is the head of the Office of Legal Counsel for President Bush. Both have also been guests on Stay Tuned. It’s a special treat to have them on together this week to discuss their new book, After Trump: Reconstructing the Presidency. It’s hard to find two people more knowledgeable about the institution of the presidency, and after these past four years, they’ve got some ideas about how to reform it.

Preet Bharara:

That’s coming up. Stay tuned.

Preet Bharara:

Let’s get to your questions. This question comes in an email from Bob who asks, “Michael Cohen has suggested that if President Trump were to lose the election, he would resign, and then President Pence would pardon him. Is a pardon specific to a crime, or is it a blanket covering all crimes? Thanks.” This question comes up from time to time, Bob. Thanks for asking it. Well, among other things, as you’ll hear in my conversation with Bob Bauer and Jack Goldsmith, there is still some question in certain circles about whether or not the president could pardon himself.

Preet Bharara:

In that scenario, if he were to lose, maybe he would take the position, and he can pardon himself going forward. That’s point one. Point two is a pardon can be specific to a particular crime, or it can be broad. In some instances, a pardon or commutation is issued by a president with respect to a particular crime for which someone has been convicted. But in other instances, it can be broad and sort of a blanket coverage, as you suggest. That’s, of course, what happened in 1974 when President Ford, the new President Ford, pardoned Richard Nixon preemptively and in advance because he had not yet been charged with any federal crimes for all crimes possibly relating to his time as president.

Preet Bharara:

In that case, it was a blanket coverage. Something I should remind people of, a pardon by the president of the United States only covers crimes against the United States, meaning only federal crimes. If there’s a criminal case for which someone is convicted in a state or municipality, that cannot be pardoned by the president. This question comes in an email from TJ who writes, “Hi, Preet, we have a few things in common. Both of our families moved to the United States from India when we were very young. I was 10 months old, and we became citizens at a young age as well.”

Preet Bharara:

“However, as it currently stands, neither of us could ever run for president of the United States. Do you think the requirement that a person be a natural born citizen in order to run for president is too strict? I know I have a clear bias on this, but I personally believe this. If governors, Senators, members of Congress and Supreme Court justices can be born outside the U.S. and still serve, then I think the presidency should be the same. I’d love to hear your thoughts.” Well, thanks, TJ, for sharing your presidential aspirations with us.

Preet Bharara:

Maybe that’s why you only gave me your initials. From time to time, this issue comes up. Usually, it’s related to a particular high rising politician. For example, when Arnold Schwarzenegger became the governor of California, he obviously naturalized citizen born in Austria. I think there was some discussion when Jennifer Granholm rose to become governor of Michigan. She was born in Canada, also a naturalized citizen of the United States. But as you know, constitutional amendments are very hard to pass.

Preet Bharara:

There are a lot of people like you and me who think there should not be that requirement, given how much you can serve in a very high ranking capacity in other areas. You can be a cabinet secretary. You can be a Supreme Court justice, all of which require loyalty to the country and a belief in American values, which can be demonstrated through the election process, demonstrated through the track record of being a judge, demonstrated through confirmation process.

Preet Bharara:

My view is it’s long overdue to change that provision in the constitution. Do I expect it to happen anytime soon? I don’t.

Preet Bharara:

This question comes in a tweet from Twitter user EyesBlueNYC who writes, “Hello. How can Roberts be replaced as chief justice? He clearly does not honor the USA’s Constitution. Can a new president make another justice the chief justice, #Asprey?” Well, the short answer to your question is no. John Roberts was nominated for and confirmed for the position of Chief Justice of the United States. The Constitution is very specific with respect to life tenure for all federal judges, not just the Supreme Court, but also the appeals courts and also the district courts.

Preet Bharara:

The purpose of that being obviously to insulate the judiciary from political considerations and to provide them some mode of independence, so they can’t be intimidated by particular politicians, or swayed by political winds. They don’t have to stand election, and they can do what they think is right pursuant to their oath, wearing the robe and without fear of losing their position. In fact, article three section one of the constitution says, “The judges, both of the supreme and inferior courts, shall hold their offices during good behavior, and shall at stated times receive for their services a compensation, which shall not be diminished during their continuance in office.”

Preet Bharara:

The phrase during good behavior is taken to mean for life, so there’s no removal. Now, you ask an interesting… If you’re a federal district court judge, appeals court judge, or justice on the Supreme Court, you obviously can’t be removed from that position based on the constitution. The only way you can leave is if you retire, you pass away or there is a provision for removal by impeachment. It would be the same process by which President Trump was impeached, but then acquitted in the Senate. There have been judges who had been impeached before and removed that way, but that’s the only provision for removing a justice or a judge.

Preet Bharara:

Your twist on the question of whether or not Chief Justice Roberts could just be demoted from the chief spot to an associate spot is a little more interesting. I have two reactions. One is I’m not sure that would make a whole lot of difference. If you have the view that it seems you have that he doesn’t follow the constitution, not everyone thinks that. He would still be a vote on the Supreme Court. He wouldn’t be able to guide some of the discussions in the cases, and wouldn’t be the one assigning opinion. Obviously, he would lose some influence, but he would still have an enormous amount of influence on the court if he remained on the court.

Preet Bharara:

Some constitutional scholars may have a better argument along these lines, but I take article three section one to provide that not only can a judge or justice not be removed from the position all together, but cannot be demoted and cannot have their compensation changed. For that reason, the action taken by George W. Bush in nominating John Roberts for that position, the chief justice position and his confirmation, ensures that he will be there unless and until he resigns, passes away or is impeached.

Preet Bharara:

It’s time for a short break. Stay tuned.

Preet Bharara:

Bob Bauer and Jack Goldsmith are my guests this week. Bob and Jack are two of the country’s top experts on presidential power, and they’re out with a new book about how to restore the institution of the presidency after Donald Trump.

Preet Bharara:

Jack Goldsmith, Bob Bauer, welcome back to the show.

Bob Bauer:

Thank you.

Jack Goldsmith:

Thanks for having us.

Bob Bauer:

Thanks for having us. Pleasure to be here.

Preet Bharara:

We’ve been referring to you internally as Jack Bauer. I hope that’s okay. It can’t be the first time you’ve gotten that.

Bob Bauer:

It is the first time.

Preet Bharara:

Saving the world on that old show 24. I know that was based on reality. Jack, you did a lot of national security law work, totally accurate depiction of how national security was handled, right, in the Bush administration?

Jack Goldsmith:

Certainly comported with my experience, yes.

Preet Bharara:

Congratulations on your new book that you have co authored-

Bob Bauer:

Thank you.

Preet Bharara:

… After Trump: Reconstructing the Presidency. I note that it is a book published by, I think, a new imprint, law fair press or friends of law fair. What’s next, video games, the expanding empire of law fair? I want to get to the book and a lot of the thoughts you have in it. Your table of contents alone suggests a whole host of areas where there might be some improvement or reform. Some of those include Justice Department Independence, the role of the White House Counsel, financial conflicts of interest, tax disclosure. We can’t get to all of them, but I want to get to some of them.

Preet Bharara:

But before we get to those, are there things that you made a decision about not including in the book in terms of proposals going forward, reform statutory recommendations, because there’s nothing to be done about them? In other words, one of the questions that we have been dealing with in our task force with the Brennan Center is which norms need to be codified so that they cannot be trampled again. But then was there some subset of things that you are not happy about with respect to this president and this presidency, but that, nonetheless, you can’t reduce to law?

Jack Goldsmith:

I’ll start on that. There are a whole host of problems with this presidency that we don’t even begin to get at, and that can’t be gotten that by law. Most of the things that Trump does and his verbal behavior and his tweeting, which are so discombobulating and destructive to our institutions, and which we try to have backstops for both in law and norms when we think they go too far into hitting rule of law issues, but most of that really corrosive rhetoric and the exercises of hard constitutional powers that derive from article II, the core of the pardon power.

Jack Goldsmith:

There’s just a whole bunch of things that result from whom the American people elect and that just can’t be gotten at by law. There are issues that we don’t cover nearly everything Trump has done bad or wrong, if that’s what you’re asking.

Preet Bharara:

Not to begin in a negative note. I just think it’s sometimes interesting for people to consider. People say, “Why can’t we just pass a law to stop Trump from doing…” I’ll give you an example, and if you have a thought on this. I don’t think I saw a direct addressing of this in the book. As many people have observed, if I or you, either one of you, all of whom have served in government came into the security clearance process with all the baggage that President Trump has, we probably would not have gotten a security clearance.

Preet Bharara:

People sometimes ask the question further to the ends of your book and some of the projects that I’m working on, why don’t we have a test for the president too? Why does the president get a security clearance when he wouldn’t get one if you’re going to become a line assistant U.S. attorney or go into the Office of Legal Counsel or the White House Counsel’s office? My answer to that is because the president of the United States, whatever you think of him, needs to have a full security clearance so he can protect the homeland. Do you have any thoughts on that, for example?

Jack Goldsmith:

Yes, I would go even further than that, and say, yes, that’s a huge problem, but it’s not just that the president needs security clearances, our whole understanding of classified information derives from article two in the president’s power. That whole issue, it can be regulated to some extent by Congress, but the whole issue is bound up in a core and perhaps exclusive presidential power. That issue and so many other issues that we’ve encountered under the Trump administration, it really just highlights how much we assumed that just about every president until now would have a modicum of reasonableness, responsibility, understanding of the office, and the like.

Jack Goldsmith:

I mean, whatever you think about the differences, for example, between George W. Bush and Barack Obama, they fell easily within that range of having those characteristics. Trump is just so far outside of that range that the basic things that we assumed a president would do competently and responsibly, he just doesn’t do. It’s absent kind of a major reorganization of the nature of the constitution and of article two, which we don’t propose. There are a whole bunch of issues like that, that are hard to get to. We try to get at some of them, but they’re hard to get at.

Bob Bauer:

Yes, I would add a link to that, that there are some indirect ways we get at that certainly. For example, if you had robust financial conflict of interest regulation, then I think that would help address some concerns about some issues in the president holding office in a way that potentially jeopardizes national security. Similarly, foreign influence, say, foreign interference in the president’s electoral fortunes, some political alliance between the president and foreign powers, those obviously raise significant security issues, and there are some statutory controls.

Bob Bauer:

It’s not a direct attack on the president having the security clearance because he or she is president, but it’s a way to at least address those issues. The one area, which is less dramatic, that we did not take up in the book, and we’ve been asked about it are hatchback related issues having to do with the political use of resources and authority in the White House by the president running for re-election. Obviously, the most astonishing example of that is the decision that the White House made to have the president deliver his convention acceptance speech from the South Lawn of the White House.

Bob Bauer:

It’s quite remarkable. I can’t imagine any White House in recent decades that would have ever approved that. I don’t know how it would have ever gotten past the White House Counsel, but some of the issues-

Preet Bharara:

Well, because the Rose Garden… Bob, because the rose gardens are not part of the White House.

Bob Bauer:

I see. I see.

Preet Bharara:

Wasn’t that the argument?

Bob Bauer:

There was an argument about which space the president essentially personally controls that is not used for the conduct of official business, et cetera. Look, I think everybody recognizes at a minimum that violated a norm. The larger concern, of course, in discussing these issues is that presidents are candidates for re-election at the same time that they hold the office. There’s a whole host of political activities that are permitted to the senior staff of the White House under specific conditions, also political activities they can engage in in support of the president’s re-election, very few controls on what the president himself or herself can do.

Bob Bauer:

It’s such a murky area, and it doesn’t lend itself to very clean legal resolutions. As a result, we really left it to the operation of norms and existing law, and did not propose any major reforms in that area. I mentioned that is one example of a topic that we consciously laid aside and decided not to address.

Preet Bharara:

Can I ask you a further question about it, even though it’s not in the book just because you’ve brought it up? As a former White House Counsel, you can answer this question. If this had come up during the Obama administration, and let’s say you were the White House Counsel in 2012, and the people around President Obama or President Obama himself said, “We want to do the Democratic National Convention from some part of the White House,” and a deputy to you had provided a memo that could justify doing what President Trump just did in 2020.

Preet Bharara:

What would have been your reaction? What would you have done, and what would have been the result for you personally and professionally if President Obama insisted on doing it over your objection?

Bob Bauer:

Let me begin by saying I can’t imagine it convincing legal analysis on this point, so I would like very much to see what the White House Counsel might or might not have had a deputy right on the topic, but I can’t imagine it would have held together very well. But if somehow you could get past that, there are a whole set of norm-based considerations that I think would have been upheld most White House Counsels to strongly recommend against this. I can’t imagine, and again, I’m going back to administration’s both Democratic and Republican, that any prior administration would have cleared this.

Bob Bauer:

That is to say prior White House Counsel or senior staff would have acceded to this. I certainly know it is not something once advise against it that President Obama would have ever considered doing, ad he wouldn’t have considered proposing it in the first place.

Preet Bharara:

Would you have resigned over it in the hypothetical?

Bob Bauer:

As I think about it, I mean, I’d have to think about that very carefully, but it certainly would be… I’ll explain why very, very briefly. I would have two concerns if the president had proceeded with it. One is that it would have been a decision to disregard advice that I think is relatively central to the responsibilities of the White House Counsel. It was not a question of whether or not among various legal alternatives he selected one that I just favored against other alternatives that I acknowledge were open to him, and so I would have been very concerned that it just reflected something in the relationship that wasn’t going the way it should.

Bob Bauer:

I think that is certainly a concern that I would have had, and this is related to it. It would have raised questions for me about what sort of value I could have for a president who approached the decision making in relationship with the White House Counsel in that way. I think it would have absolutely had me thinking about whether it was time for me to go.

Preet Bharara:

That makes sense. Let’s get to some of the particulars of things that you are suggesting for reconstructing the presidency. One norm that we’ve had not since the beginning of the union, but since the Nixon era, at least, and it’s born of, I think, Nixon trying to hide his financial entanglements. But every major party candidate has disclosed to the public some subset of tax information, tax returns and the like, until Donald Trump. We have made the recommendation that is aligned with yours, but I want you to describe, Jack, perhaps, what is it you think needs to be done and codified with respect to financial disclosures for someone running for president and then after they become president.

Jack Goldsmith:

Preet, I think you should let Bob answer that. I could give you an answer, but he’s literally the world’s expert on that.

Preet Bharara:

All right.

Bob Bauer:

Not sure I’m the world’s expert, but I’ll give it a shot. What we wind up proposing are a set of requirements. It begins with a disclosure of tax returns to which we devote a separate chapter. We devote a separate chapter to it, because we try to build that proposal out in some detail. We don’t leave it just as a requirement that the president disclose his or her tax returns. We talked about the timing, the enforcement mechanism, the breadth, the application of this requirement to candidates who may not be major party candidates, but are on enough ballots to potentially obtain 270 electoral votes.

Bob Bauer:

We talked about the extension of that requirement to family members of a president who have senior White House or executive branch positions. Then we try to flesh out the requirement and one other respect, and that is the IRS currently conducts audits of the president’s tax returns. That’s been in effect since the Carter years, and the public never sees those audits. We believe those audits also ought to be released to the public. That isn’t to say the results of those audits ought to be released to the public.

Bob Bauer:

That’s one set of recommendations around tax disclosure. A second has to do with the president’s business interests more generally. We propose that there not be a blind trust option for the president. There needs to be complete transparency about the financial interest that the president has, complete separation of the president from his or her business interests. The reporting requirement for those interests has to fall eventually with the businesses that the president is going to be completely separate from the business and will not have access to the information.

Bob Bauer:

Then the businesses in which the president has an interest would have to have a disclosure requirement. We talked about all the enforcement mechanisms for that including a certification subject to criminal penalties that the president has to make every year that, in fact, he or she did not have any involvement in the supervision or operation of the business. Along the way, we address the particular questions that are raised under the alignments clause about foreign source income from foreign states that the president is prohibited under the constitution from accepting without congressional consent, and we specify what we think that congressional consent procedures ought to be.

Preet Bharara:

When you say disassociation from business, does that mean full divestiture?

Bob Bauer:

No, it means complete separation from those interests. By the way, along the way, that would mean well to do presidents might want to do what Trump has done and say, “Well, I’m not going to accept my government salary, which I will turn over to other federal government agencies. I’ll help close the deficit. I’ll underwrite governmental functions out of the goodness of my heart and rely on private source income.” We don’t think a president should be permitted to do that.

Bob Bauer:

Obviously, a president could receive a salary that he or she chooses not to use, but we don’t believe a president should be permitted a tax deduction for any charitable donation of the presidential salary, nor should the president have the option of providing that salary to a government agency as a show of public spiritedness. Short of it is the presidency is a full-time job. It should be performed full time, not split between business supervision and executive branch management.

Bob Bauer:

The president should have no role whatsoever in the management of any business interests that he or she maintains.

Preet Bharara:

Explain how that would work with respect to enforcement for folks. Donald Trump, I think, has made the statement, he makes a lot of statements that are subject to scrutiny, that he’s not involved in his businesses, but there has been reporting, and there have been other bases to believe that he doesn’t really follow what he claims to be doing in part because he’s got two flesh and blood members of his family.

Preet Bharara:

His son’s running some of that business. Wouldn’t that always be a risk if the business is not divested from, that some person could have offline communications with the commander in chief about how the business is doing, and there could still be some oversight of that business?

Bob Bauer:

Well, you’re quite right about the reporting. There’s been reporting that, first of all, the president and his family have acknowledged he receives regular briefings. I don’t recall whether they’re still quarterly or not, from one of his sons about how the business is faring. That wouldn’t be permitted under our proposal at all. Any knowledge he’d have about his business, he would have to glean from any public sources he could find. He couldn’t obtain any inside information about it.

Bob Bauer:

Again, the separation from the business that we’re proposing in the book would be enforced through an annual certification you would have to make subject to criminal penalties. The stakes we raised very high if he tried to get around it in some way, and do what Trump has done, which is to have continued communications not just with his children, but as reported with employees of his company as he checks to see how his properties are faring.

Preet Bharara:

Well, you said subject to criminal penalties a couple of times. Do you mean that would only apply after that hypothetical president left office, given that the LLC opinions that are still operative in the Department of Justice say that the president can’t be indicted? Did you also propose-

Bob Bauer:

No, but the president can certainly be investigated for conduct in office. Even if the prosecution can’t take place while in office, the president would be inviting the appointment of a special counsel on a criminal investigation, which is all presidents really relish if you decide to disregard the statutory prohibition.

Preet Bharara:

When they get exonerated at the end as the president claims, but let me ask you the question straight away. Maybe this one is for, Jack, who was a former head of OLC. Do you think that given how much attention was paid to conduct by this president, that there should be a revisiting in a new administration of that OLC opinion about the indictment of a sitting president?

Jack Goldsmith:

I mean, I think that there will be a reexamination of that, but I don’t think that that opinion is wrong. This is actually something that Bob and I have somewhat different views on that we didn’t air in the book. I don’t think that opinion is wrong. The last one was written by Randy Moss, who is an outstanding lawyer, head of the Office of Legal Counsel in the Clinton administration. I think that the constitution matters. That’s probably the right answer.

Jack Goldsmith:

The President can be fully subject to indictment and prosecution afterwards. The point is that the criminal prohibition on the president that we will be using to enforce the business disclosure rule, I mean, the idea is not just that it’d be subject to prosecution, but that the president would be given pause from doing it in the first place, and the people around him would… Norms would develop around it. They would restore the norm practice that was in place before Trump was in office.

Preet Bharara:

It presumes a norm of a commander in chief president of the United States who had shame and cares about these things?

Jack Goldsmith:

No, it doesn’t. That’s why we have a criminal penalty. That’s why we have a criminal penalty. But as you know, I think it’s important to make clear that even given this norm breaking president, that he has not been able to accomplish much of what he wanted to do via breaking norms throughout his government, because others with whom he needs the cooperation to carry out his ends have not been willing to cooperate fully to carry out his end. These are fights at the margins.

Jack Goldsmith:

There’s the after the presidency prosecution possibility. There’s the impact on people that he works with in the government while he’s president that we think can make a real difference.

Preet Bharara:

Bob, do you have a different view?

Bob Bauer:

I do as Jack knows. We didn’t discuss it in the book. I think neither of the OLC opinions in 1973 or 2000 are either well reasoned or credible. I realized it’s a hard issue, by the way. If I had been called upon, had I been a lawyer in the OLC to address the issue, I certainly wouldn’t have found it easy. I don’t want to minimize the difficulty of the effort that those lawyers had to make in any way, but it’s not a tenable proposition.

Bob Bauer:

As we discussed later in another context in the book, we now have this strange confluence of law and norms in which a president is protected by law from prosecution while president, and protected, at least in the view of many by norms, from prosecution after he or she leaves office on the theory that is really not good for the country. It prevents healing. It distracts from the pursuit of the national agenda for an ex-president to be subject to prosecution, and so perhaps that’s something we ought not to have happen.

Bob Bauer:

I think that is just not a structure for holding the president to the rule of law that I think is tenable or coherent, but it begins with the OLC opinions, which I do quarrel with. Yes.

Preet Bharara:

Maybe we’ll come back to that after we talk about some other particular areas. The conversation we just had, I guess, leads me to a question that maybe is impossible to answer, because it depends on the particular personality of the human who gets elected to the office of the presidency, but I wonder if you have a general view of both norms, laws, and human nature to address this. Do you think it’s the case, following the example of Trump that future presidents will take the lesson to be…

Preet Bharara:

Look, you gotta honor norms. Let’s presume in this also that Donald Trump gets defeated at the election in a few weeks. Will they take the lesson that, “I better go back to the old way and have shame and observe norms, and not have the convention in the Rose Garden, et cetera, et cetera, because it did not inure to the benefit of the person who broke all those norms, Donald Trump?” My greater fear is, “Will you have someone who might take the lesson from Donald Trump’s behavior?

Preet Bharara:

Look, he got away with a hell of a lot. He got away with stuff, couldn’t get impeached or convicted following impeachment. Special counsel wasted a lot of time energy, nothing really came of that. Maybe this is a hard question to answer. What do you think will be the lesson people will take from what has gone on over the last four years?

Jack Goldsmith:

I think that entirely depends on who the president is, but I will say this, the premise of the book is, the reason we wrote the book is that we worry about a more competent Trump presidency in the future. One of the things that has prevented Trump from doing a lot worse damage than he has done is frankly, his fecklessness, that wielding executive power within the bureaucracy to get it to do the things he wants to do, to hiring the right people, putting them in the right place and understanding how to wield the softer tools of executive power to get done what he wants to do, which is not to say that he hasn’t done a lot of damage, it’s just that he could have been a lot worse.

Jack Goldsmith:

He’s grown smarter on how to use these tools over time, so the answer yo your question depends on who the president is. I think it also depends on the issue. But on the whole, we do fear and we state this pretty clearly up front that given the nature of American politics right now, we could have populist demagogic presidents of the left or the right in the foreseeable future. In some sense, the whole book is written on the premise that we need to take steps when we have the chance to try to prevent those potentially worse consequences to come into bear.

Preet Bharara:

It seems to me that if Trump loses, you will have… There’s a debate about this. You will have the consciences, either real consciences or pragmatic views of various republicans freed, liberated, right, because they don’t have to worry about a feckless president who will retaliate against them. When I was asked a question along these lines recently, I gave a very optimistic answer about the possibility of reform, and there are some bills, as you know, that have been circulating particularly in the house, that Republicans none of whom will support these things now.

Preet Bharara:

May in the future, support them once Trump is gone, because they will want to have these safeguards against a potential future democratic demagogic populist, shameless leader. Was I correct in expressing optimism about that? Is that how you think Congress will think about these reforms going forward when they’re not about Trump, but about the future?

Jack Goldsmith:

I think so on many of the issues. A lot of these issues had bipartisan support before Trump became president. Republicans have not really questioned the norm of tax disclosure or prevention of conflict of interest between the president’s public office and private business interests. They haven’t really supported a terribly abusive pardon power. I think, and obviously, we hope that once Trump has gone from the scene, as a Democrat president in there, that there will be a lot more republicans who are willing to place what we think are perfectly appropriate restraints that presidents had agreed to before but they were embodied in norms and not in law.

Jack Goldsmith:

Some of these issues is going to be harder. It really, really depends on the issue, but things like conflict of interest, foreign influence operations, it’s not clear why a good chunk of the republicans would want to not tighten that up. It really depends on the issues. A lot of these issues, I should emphasize, a lot of the reforms we’ve proposed don’t require congressional implementation. They could be done by the executive unilaterally. Obviously, what can be done by the executive can be changed by the executive, but it’s also true that setting patterns of behavior and expectations of one administration can have an impact in the next.

Jack Goldsmith:

That was true even for the Trump administration.

Preet Bharara:

Is there a particular issue you think is the trickiest to get bipartisan support for?

Bob Bauer:

I suppose that it would be in the area of foreign policy and war powers. I think that may present as it has in the past some real challenges for obtaining bipartisan support of the particular resolution. I certainly would put that on the list of ones that I don’t think fall into the same category of what one might call low hanging fruit like tax disclosure or financial conflict of interest.

Jack Goldsmith:

If I could generalize from that, the issue is in part three of our book, which are really about that Bob just mentioned an issue where there’s a natural split between Congress and the president. That’s an issue on which it’s going to be hard to get a democrat president on board. The same with the issue of vacancies reform. It’s another issue where there’s a real separation of powers question. The problem may be less getting republicans, democrats on board in the Congress than getting the branches on board for some kind of agreement.

Jack Goldsmith:

Also true with emergency powers, also true with our proposal on subpoena enforcement, so the issues that raised classic separation of powers, disputes and clashes of authority between the president and the Congress, where there have been traditional clashes in the past, those are going to be the hardest, but not because the republicans may… That’s because republicans may not be on board, then just because there’s a competing interest between the two political branches.

Preet Bharara:

Can we talk about another issue that I find interesting that I care about also, the pardon power, perhaps the most unfettered power that the President has in the constitution, unreviewable, very little you can do about it, short of a constitutional amendment? My first question about it is, maybe I’m guilty of this also, do we spend a disproportionate amount of time thinking about the pardon power? Even the case of this president, how infrequently it is used, and given how much other discrimination and lack of equal treatment there is throughout the criminal justice system, is that something that people like you folks and me spend too much time on, or is it worth the time we spend on it?

Bob Bauer:

I think it is well worth the time we spend on it. I look at it as a question, not the number of pardons granted. Some people are concerned, obviously, about whether presidents are adequately or inadequately using their pardon power. But the nature of the exercise and particularly the politicization of the pardon power, and the invitation that someone like Trump is certainly tempted by to use the pardon power, really, in his personal political interest or the personal or political interest of allies.

Bob Bauer:

I think that if we are trying to beat back the notion that at least in some areas, there is nothing a president cannot do, I think it’s productive to challenge that within the sphere of the pardon power as anywhere else. I think it has effects elsewhere. The challenge there, I think, connects to a larger reform program of putting constraints around the presidency. He has tried to make it appear and persuaded a lot of people that it is true, that the pardon power is unfettered, that he can use it for any purpose whatsoever. He has, and Jack has written a very interesting material about this, about what is really exceptional about his exercise in the pardon power.

Bob Bauer:

He has definitely used it liberally for political purposes and for personal purposes, really on personal impulse and to achieve political objectives, but it is not accurate, as I think he would like to believe that he can do anything whatsoever that he wants with it. Congress can step in, and I think [inaudible 00:33:56] some controls that would have both a disciplining effect on those particular actions but also a disciplining effect overall. It’s a line in the sand that I think is beneficial not just to the pardon power, but across the board.

Jack Goldsmith:

If I could just add two points to that, the first point is the question is well taken. He’s only issued 45 or 50 pardons or commutations. But I would just say two things, one, the area that we focus on just to underscore what Bob says, is the corrupt use of the pardon to corrupt law enforcement in a self protective way. That is the area of the pardon power that is the most dangerous and is worth taking seriously. We do take it seriously.

Jack Goldsmith:

We think that there is statutory reform that can get at that. The second thing I would say is that it’s premature to say we’re on to speculate whether we’re under reacting, because I think one thing we should be prepared for is a massive and extravagant use of the pardon power after the election.

Preet Bharara:

Coming up. Coming up. Some people might find it surprising to learn your collective view. I think it’s a view of both of you that on the question of whether or not the president can pardon himself for any and all federal crimes, that’s unsettled. He said it, and a lot of legal experts went on television and said absolutely not. There is some, I believe, but we’ll see guidance. That’s not very thorough. That suggests based on the old principle that you cannot be a judge in your own case.

Preet Bharara:

You can’t exercise the pardon power with respect to yourself. Could you explain what the landscape is on that, and what can be done about it?

Jack Goldsmith:

Sure, I’ll explain the landscape. As you just said, OLC in a one sentence throw away with no analysis in the Watergate era strongly implied that the president could not self pardon. I wouldn’t throw the post on Lawfare called a Smorgasbord of Views About Self-Pardoning. I canvassed about 20 people who went from absolute yes to absolute no. The constitutional arguments are technical, but basically on the he can do it side, the pardon power is one of the broadest powers given to the president. It doesn’t contain any limitation for subject matter or persons.

Jack Goldsmith:

It extends to all federal crimes, and therefore, since there’s no textual limitation, the president can pardon himself. That’s the basic view in the paper. The view against is a combination of a functional argument that OLC made, that it’s just inconsistent with the rule of law and the take care clause, which says the president shall take care to faithfully execute the law, for the president to be able to basically immunize himself from prosecution. The argument is also that its intention with the impeachment power, since the impeachment power contemplates prosecution of a president that some people think would not make sense if the president can pardon himself.

Jack Goldsmith:

The truth is there’s not… Here’s the bottom line, there’s not a single set of set. There’s no settled law on it at all. There’s not a single court decision that speaks to the issue. OLC does.

Preet Bharara:

Because it hasn’t come up.

Jack Goldsmith:

It’s never come up, exactly.

Preet Bharara:

It hasn’t come up.

Jack Goldsmith:

It’s never come up and-

Preet Bharara:

People need to understand who are non-lawyers that people want to know what the answer to something is. Well, if something has never come up, and there is a straight face, even if long shot argument that can be made about it, that’s unsettled then, right?

Jack Goldsmith:

It just means that there’s no precedent one way or the other, and it has to be answered from first principles. The text of the Constitution just doesn’t speak clearly to the issue. I mean, it says the president has the pardon power, and it doesn’t put any overt limitation on it. Frankly, I couldn’t find any example in American history of any president even suggesting it before Trump. I couldn’t find an example of Nixon or Clinton, who would have been the most obvious cases suggesting that they would do it.

Preet Bharara:

You’ll know better than I, because I haven’t looked at this closely recently. What was the cause for that one sentence OLC guidance to come about? Wasn’t that because someone worded or speculated that Nixon had the question, “Could he pardon himself?”

Jack Goldsmith:

I can’t now remember the opinion. It was a very short two-page opinion, and the sense was almost out of context. It was just a throwaway. Of course, no one can be the judge in his own case or something like that. I just don’t remember the context, but it definitely was in the context of the Nixon administration, that maybe he was thinking about it. I just couldn’t find any evidence in the memoirs or anything else like that, but it was a serious possibility, a lot of possibility.

Preet Bharara:

With the power so broad in the Constitution, and there’s no textual limitation in the Constitution short of an amendment to the Constitution of the pardon power, what do you think people can do to make sure that the president cannot pardon himself or others close to him?

Jack Goldsmith:

Congress, we definitely think that Congress has a good chance of sustaining a legislative prohibition on self pardons. That’s well worth they’re doing so. Then let’s get back to the question you asked me earlier about whether it’s a White House, or whether White House Counsels resigned over the president’s decision to hold political convention activities on the White House grounds. Let’s assume that the president decides to pardon himself. Where will he if he even looks for the authority, obtain the authority as an OLC opinion, which well, it’s very slight, seems to suggest that he can’t.

Jack Goldsmith:

Is he going to go to the White House Counsel and ask the White House counsel to provide him with an argument, because he can? Will a White House Counsel agree to provide that argument? Certainly, that would be a resignation issue for me, for sure. We’ll see. The question is whether it will be enabled in this effort.

Preet Bharara:

Maybe this is a dumb question. What is the requirement under the Constitution law or otherwise, apart from norms, for a president to seek guidance before issuing any pardon, including a pardon of himself?

Bob Bauer:

Pre norms. I mean, you’re right. There’s a pardon attorney in the Department of Justice. Trump has very [crosstalk 00:39:31].

Preet Bharara:

That person doesn’t have much to do lately.

Bob Bauer:

Has very little to do lately.

Preet Bharara:

That’s [crosstalk 00:39:35].

Bob Bauer:

By the most controversial pardons in history or in recent history, I don’t want to over generalize, most of the controversial pardons, George W. Bush’s, Bill Clinton’s, Donald Trump’s have been issued without regard to any involvement by the pardon attorney. It’s been handled entirely out of the White House. Now typically, presidents are going to look for some support for what they’re doing. I don’t know whether in this case that would be true. But typically, on something like this, if not finding friendly faces anywhere else, the president would go to the White House counsel and say, “Can you gin up a memorandum that says I’m well within my constitutional authority to pardon myself?”

Bob Bauer:

Then we can see what the White House counsel in place at the time is made of.

Preet Bharara:

Is there any argument that the pardon power has outlived its usefulness, and causes more rancor because of bad pardons than justice?

Jack Goldsmith:

I don’t think we’re there yet. Maybe we’ll be there by January 20th after we see what Trump does in the interim, but the pardon power was very important to the founders. It was meant to be an element of grace written into executive power. President Obama used it very aggressively to pardon thousand commute sentences for thousands of people that he thought had been wrongly convicted or excessively sentenced. Madison said, “I think of the first amendment that anything, any power worth having is always subject to abuse.”

Jack Goldsmith:

I think to date, it has not… It’s still worth keeping, because it does serve important and useful purposes, even if it can be abused, and it has been abused in the past and caused great controversy. But again, I really suspect that Trump is going to go crazy with it, and I think we may be having a different conversation next year about this.

Preet Bharara:

I think that’s definitely right. Another area, broad subject matter area, near and dear to my heart, the independence of the DOJ to which you dedicate an entire chapter. Briefly, could you explain how you think that can be addressed post Trump?

Jack Goldsmith:

Sure. I’ll take that one. First of all, I mean, we really addressed an entire part to it. We have a chapter called DOJ independence, but in some sense, the whole part two on White House Justice Department relations is about justice department independence. We have the special counsel, which we propose reforms to, and that’s in some sense about protecting this special counsel when he’s investigating the president. We have reforms that address the Durham investigation, which is another element of independence.

Jack Goldsmith:

But basically, as you know, Preet, I mean, you’re more expert on this than we are, so I’d be interested on your views about this. We basically in the-

Preet Bharara:

There’s nothing on the other side of some communications, right?

Jack Goldsmith:

Exactly. Well, you’ve got many different experiences in this regard. Look, the problem, it’s a very hard problem to address, the core problem of how do you prevent politicize law enforcement. As I say, we come at this from about five or six different ways, but I’ll just tell you what we say in that one chapter. There, we basically propose to elevate. We start off by explaining, and this needs to be explained that it’s important, that you can’t depoliticize the Justice Department, that law enforcement has an appropriately political element.

Jack Goldsmith:

In many ways, I mean, the president gets to set law enforcement priorities, and it would be wrong to say that all political considerations never enter into law enforcement. The problem is when it goes too far, when it goes from political considerations to politicization, so to speak. Basically, in that chapter, and again, there are other things that we say we basically propose reminding basically two things to remind justice department officials about their duties of not politicizing the law enforcement process.

Jack Goldsmith:

One is to elevate norms that have been articulated in certain investigations that have not been made clear throughout the department about the strong prohibition on politicization. A second is to remind everyone that DOJ officials enforcing the law can be subject to criminal prosecution for obstructing justice. This became clear growing out of the Bush administration firings of the U.S. attorneys and the Dannehy investigation afterwards.

Jack Goldsmith:

She didn’t ultimately recommend that there have been obstruction of justice from interfering with a local prosecution to influence an election, but she made clear that it could apply. We propose this may seem slight, but we think it’s important that the qualifications for the attorney general will exclude people who served in a political campaign. We have other criteria for the attorney general. That’s one slice of it. Again, that’s not the only thing. I mean, we spend a whole chapter coming at this from different levels, but that’s what that chapter is about.

Preet Bharara:

Bob, did you want to add anything?

Bob Bauer:

No, I think that covers it. Well, I’ll just add something about the approach overall in the book, and that is we need to attack this problem from different directions, which is why three are different parts, including a part on the White House Council. There are some of these effects, I think, that can be achieved through statutory change, some effects by internal regulation that shore up or reinvigorate norms, some within the department from outside the department as in the White House.

Bob Bauer:

The efficacy of the reform program has to be judged as a whole from all the component parts coming together.

Preet Bharara:

No, I think that’s absolutely right. I mean, what is disheartening to me, and this is a theme of this conversation, in any conversation about this kind of thing, that you can fix some things. You can codify some things. You can have certain rules. You can have certain reminders. But at the end of the day, it is very difficult to stop certain kinds of things that we’ve seen.

Preet Bharara:

For example, I don’t know how you stop an unethical president from tweeting and making it clear that he wants the sitting attorney general of the United States to go down as one of the best attorneys general only if he causes the prosecution of his adversaries and the people who started an investigation of him, and if he does that before the election, or prevents him, the president, from trying to have a private dinner with whoever the FBI director is at the time, and asks for personal loyalty. I mean, those are the kinds of things that you can’t pass a rule or a law against.

Preet Bharara:

It depends on the person who’s in office.

Jack Goldsmith:

I agree with that, completely agree, but there are things you can do to control the impacts. Again, it’s important to understand that we’re talking about marginal improvements and winning at the margins. I would also remind before I explain this that even as Trump was norm breaking and calling on those things, the Department of Justice in most instances was not following through or ultimately didn’t follow through, because there was some check on what he tried to do.

Jack Goldsmith:

While you can’t control and stop a shameless institution destroying a president from saying those things and encouraging those things, you can stop or at least check the impact of that in the Justice Department, and or at least help give the public greater solace that law enforcement’s not being corrupt. One very important change that we think that Congress needs to do is to make clear that which Muller struggled with and Barr has struggled with, and it’s just unclear that the criminal obstruction of justice statute applies to the president.

Jack Goldsmith:

This would be hugely important in stopping and addressing just those types of tweets, not necessarily because it would stop Trump, but it would make clear… We specify in three instances, when the president is obstructing justice with regard to himself or with regard to family members or in connection with an election. You may say, “Well, the president can’t be prosecuted, so that’s not going to be useful.” I just disagree with that, because the fact is that it will influence everybody else around him in the White House and in the Justice Department, who he’s asking to carry out these acts.

Jack Goldsmith:

It will give them pause, and it will therefore buck up the norms against allowing a president to push the Justice Department around to do those things. The most remarkable element of the Muller report was volume two, where Trump tried to get all sorts of close associates to shut down the Muller investigation, to obstruct justice in the like. He just failed. We don’t know why he failed, why they didn’t listen to him, why they ignored him, whether it was norms or whether it was the possibility of obstruction of justice or what it was, but those are the factors that we think should be bucked up and made stronger to ensure that a president who does these things can’t follow through.

Preet Bharara:

I agree with all that. When you talk to lay people who are thoughtful citizens, and when you give that answer, and I’ve given a version of that answer, it is very unsatisfying, particularly if you think about how it might play out. A president obstructs justice even under the new law in year one of the presidency can’t be prosecuted, gets reelected. Statute limitations may expire. Even if there’s some argument by which it doesn’t, as we’ve already discussed, unless some other reform is passed, he can pardon himself.

Preet Bharara:

It does seem to be this fundamental issue of this adage that we state all the time as if it has the force of reality, that no one is above the law. Senators say it. Professors say it. Judges like to say it. It’s not really true when it comes to the president of the United States. In various very concrete aspects, he is above the law. Fair?

Bob Bauer:

Well, setting aside for a second the OLC opinion and the disagreement we discussed earlier, let me just say, first of all, presidents don’t like to be investigated. I think that’s reasonably clear since we’ve not heard the end of it from Donald Trump about the investigation that he’s been through. Everybody understands it takes an enormous toll on their politics, on their public standing, arranging for lawyers. It causes all sorts of disruption to the administration, so the OLC opinion certainly permits those investigations to take place.

Bob Bauer:

In that sense, they’re not above the law. They’re actually subject to legal process, and it can be quite invasive, quite invasive and very impactful, point number one. Point number two, you can address the running out the clock problem with tolling limitations. That’s to say a congressional enactment that extends the statute of limitations so the president can’t run out the clock. Third, you can deal with the question of whether or not a president can in fact be prosecuted when he or she leaves office. He can right now.

Bob Bauer:

Clearly, there’s some resistance to that, and then of course, as you know, Jack and I had a debate in the book. That’s the only place where we actually do have a debate about how to picture what it means for a president to leave office and to face an investigation house or at least face prosecution on how that kind of prosecution of an ex-president should take place. I think it’s too much to say even under the general framework we currently have, and under the reforms we propose to supplement that general framework that the president is above the law.

Bob Bauer:

I recognize it’s not going to satisfy every one of the citizens who’ve expressed that concern to you, but that’s part of the answer that I would give to a citizen who says or asks, “Is the president really above the law?”

Preet Bharara:

Before we end, let’s talk about that debate, because I think it is going to be assuming that Trump gets defeated. By the way, that’s a big assumption, so everyone go vote. I guess it’ll be a question for years if not in a few months. Let’s assume it’s in a few months. Anybody who comes into the administration, particularly the next attorney general, is going to be asked the question, “What is the approach that is appropriate to take with respect to the conduct of not just Donald Trump as president, but the people around him living to his businesses, relating to things that happened in the Muller report, relating into a whole host of things, many of which I venture to guess, have not even come to light?”

Preet Bharara:

I know you’ve had a debate about it. I guess, could you reenact a little bit of the debate, and why you take the positions you do, because it’s going to be… This is not a hypothetical. This is going to be a really difficult discussion with, I think, people of good faith on all sides of this question. What do you think?

Bob Bauer:

My view is that… It follows from what I said earlier about the OLC opinion and this strange confluence of law and norm that seems to protect presidents. My view is that we need to learn from the Ford Nixon experience, that the public does have a certain expectation that the president will be accountable like any other citizen once he or she becomes like any other citizen and has left office. That means that while it is a serious matter, there’s no question, and you certainly don’t want to initiate around.

Bob Bauer:

Certainly, if you will, a cycle of political violence in which each administration starts to look at prosecuting the opposing party’s last administration, nobody is looking for that, but that through rigorous, transparent procedures, these fundamental questions of presidential misconduct in office are addressed. The Ford pardon was a very sloppy affair. The rationale for it was unclear. There were numerous rationals that he advanced to the public. Everything was done in secret and informally.

Bob Bauer:

Nixon never faced any legal process whatsoever. He was pardoned a month after he left office, and that had as much to do… Just the whole irregularity of pardon consideration and grant had as much to do, I think, with the decline in Ford’s popularity immediately thereafter as the issuance of department itself.

Preet Bharara:

I’m not a political scientist, but isn’t it the case that there has come to pass a general consensus decades after that pardon, that Ford did something a great political sacrifice to himself that was actually positive for the country?

Bob Bauer:

Well, I’ll answer that, and then turn it over to Jack for the opposing point of view on this, and then just conclude with the point that I was making about how you could structure something that did make sense and was consistent with rule of law expectations. Yes, there was a few years later that he made a self sacrificing move. It is also possible knowing how histories are revised in Britain, that 25, 30 years from now, the view will be very different. I think we have to stand at this particular moment in time and ask ourselves about the presidency of an institution, what we think is appropriate.

Bob Bauer:

In my view, the president should have rigorous standards for accounting to the public for any prosecutorial decisions that are made or not made. Those should be explained in advance, and the process should be completely transparent. If the president seeks a pardon at the conclusion, say, of the filing charges, then the president should be the one to apply for that. It should come to him automatically. He should have to apply and get the reasons why he or she believes in an act of clemency is appropriate.

Bob Bauer:

I don’t think that the Ford experience is dispositive in that sense. I think that the reaction of the public at the time was that something had gone very wrong. I think that would be the reaction if we short circuit any serious discussion of Donald Trump’s conduct in office. I’ll stop there and go to the opposing point of view with Jack.

Jack Goldsmith:

I mean, I take Bob’s points, and they’re right. The question is, “What are the costs on the other side?” My view in a nutshell is that the costs of investigating Trump’s crime and office crimes in office, I think it will be unbalanced, very, very bad for the country, very, very bad for the next administration. I’m not talking about I think that the investigations in the Southern District of New York and New York State and anything involving pre-presidential or non-presidential conduct or pre-presidential conduct should continue.

Jack Goldsmith:

They will continue, and I think it seems like he will be subject to accountability there. But I think that it’s very bad for one administration to absent really clear crimes, and I’ll explain what I mean by that in a second, for one administration to rummage around in the prior administration looking for crimes and prosecuting those crimes, even with someone as bad as Donald Trump. First of all, it’s going to be very hard when you get down to the nuts and bolts of prosecution to actually prosecute him, because it’s not clear what crimes he’s committed yet, but obstruction of justice statute, as we explained in the book, absent the reforms that we propose, it’s going to be very hard to prosecute him under that statute and, I think, under any laws that don’t specify that the president should be subject to those laws.

Jack Goldsmith:

The investigation itself will be spectacle. It won’t be limited to the president. It’s going to involve his entire administration, probably people in the White House and the Justice Department. It’s going to take up a lot of resources of the administration, a lot of airtime and political capital. It’s going to make it very hard for the Justice Department to present itself as a truly independent institution, because inevitably, it will be seen through the lens of going after the last president. We’ve had two rounds already of tit for tat, seemingly tit for tat investigations.

Jack Goldsmith:

We had the investigation of the Trump campaign. We had the Durham investigation of that investigation. Now, we’re threatening to have an investigation of this president. I think Trump is a terrible president. He may well have committed crimes, but I think that actually pursuing them and success is not going to work. Then worst of all situation, it seems to me, is if we have this circus and all this disruption, and then nothing comes of it and he’s not prosecuted. Now, having said all that, that’s easy for me to say.

Jack Goldsmith:

It’s going to be very hard for the next attorney general and the next president not to pursue these things. I think that it’s going to be very hard on the country, and I think we’re going to be suffering the costs of Donald Trump’s behavior for a very long time going forward.

Preet Bharara:

Most of the conversation from both of you has been focused on the question of whether or not there should be a criminal investigation, but there are some proposals to do something else. In other words, an independent commission or some other fact finding body to more do an excavation for transparency purposes and disclosure purposes to shine a light on on all sorts of misconduct that may have gone on, not necessarily with an eye towards criminal prosecution. What do you think about something like that?

Jack Goldsmith:

I think that’s an excellent idea. I’ll tell you why and how. I think it’s hard to do a truth commission or something like that, because the nation is so split, that it’s just hard to see getting that commission together and seeing it being credible, although I’m open to that. We actually have an institution that’s supposed to do things like this, and it’s called Congress. Congress under the guise of reconstructing the presidency and dealing with all the issues we’ve discussed and many more that were brought to light during the Trump administration can and should have comprehensive hearings, perfectly legitimate for them to do that, and through which using all the powers they can to find out what happened.

Jack Goldsmith:

We can have disclosure on that. We can have a minority view if it’s appropriate. I think that’s a great first step, and it also would inform reform. I think that avoids a lot of the concerns that I have. But again, I’m not sure that the next administration is going to be able to do that.

Preet Bharara:

I mean, look, that’s part of what happened after Nixon. One part of it was the pardon by Ford of Nixon, but the other part was a lot of reform with respect to a lot of different things, including law enforcement overreach and everything else.

Bob Bauer:

That’s true. Let me just enter with 400 pages of agreement between Jack and me. This is one area where we have a disagreement. Here’s how I view it. I think, first of all, if we’re worried about distraction from the governing agenda of the party, I think elaborate congressional hearings exploring Donald Trump’s conduct and seeking witnesses and documents and so forth is going to create a distraction in and of itself, not that it shouldn’t be done, but that it will. Secondly, by the time the hearing record has been compiled, it will almost certainly support calls for legal action against the president, so it will be tackled in the same place.

Preet Bharara:

It will take a long, long time.

Bob Bauer:

It will take a very long time. It’ll wind up. Then certainly somebody’s saying, “Well, on the basis of the evidence compiled by the Congress, a special counsel should be appointed and should prosecute.” As I said, by that route, we may be back into the same place. Then I’m just back to the fundamental point, which is as an alternative to thoroughgoing exploration of misconduct in office, it just leaves people, I think the citizen that you hypothesized earlier, asking, “Well, how come that alternative is not available to me?”

Bob Bauer:

I’d be glad to go through some sort of period of reeducation, if you will, if you’d avoid criminally prosecuting me, and then wonder why it is that the law doesn’t swing equally in all directions, particularly when a president is a private citizen like any other. I recognize the force of the proposal, but again, as you can tell, I have my reservations about it.

Preet Bharara:

My thought about all this is I understand the points made by both of you. I think it’s the case I detect in the way you’re talking about it, that the country is going to be in a bad way even if Trump gets elected, whether or not there’s accountability or not or whether there’s a particular kind of effort at accountability or not, because the country’s just torn apart, I think, largely because of the rhetoric and actions of this president. I’m not sure that anyone is going to have a choice.

Preet Bharara:

I don’t say this because I have any personal knowledge, but we are assuming at this moment on the question of whether you proceed according to how Jack thinks is best or Bob thinks is best, that we have the sum total of information about what conduct and misconduct has occurred. I’m willing to bet that as soon as Donald Trump leaves office, and all sorts of folks will refine their conscience and their moral compass and their spines and will be seeking to distance themselves from bad policy decisions and other kinds of more nefarious things, that there is a possibility there will be an avalanche of reporting and things in the public square about all sorts of things that would, in normal times, absolutely be things that federal prosecutors would investigate and pursue.

Preet Bharara:

When those new things happen, forget about the old stuff that people forget about and get past, but when new things come to light, particularly things that might happen during the transition period, I don’t mean to get ahead of ourselves. I don’t even know if this debate can even be possible, because the momentum towards looking at things and investigating them and getting behind them will be almost irresistible.

Jack Goldsmith:

I would say in support of that view, read John Bolton’s memoir where John Bolton, who is a conservative, a longtime conservative, he gave some examples that we didn’t know about and said that, this is almost a quote for Donald Trump, he appeared to engage in obstruction of justice as a way of life. I completely agree with you that other stuff is going to come up, and I think it’s going to be extremely hard for the next administration to resist not investigating and perhaps prosecuting.

Jack Goldsmith:

I’m just predicting that it’s going to be a nightmare, and that we will one day wish we had found a way to avoid it, even though I don’t know that anyone has the capacity to do that.

Preet Bharara:

Thanks, gentlemen. The book is After Trump: Reconstructing the Presidency, very important reading. I really appreciated it. I think it’s a public service, and I thank you both.

Jack Goldsmith:

Thank you so much, Preet.

Bob Bauer:

Thank you very much for having us. Thank you.

Preet Bharara:

My conversation with Bob Bauer and Jack Goldsmith continues for members of the CAFE Insider community. To try out the membership free for two weeks, head to cafe.com/insider. Again, that’s cafe.com/insider. Well, that’s it for this episode of Stay Tuned. Thanks again to my guests, Bob Bauer and Jack Goldsmith. 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 Preet Bharara with the hashtag Ask Preet, or you can call and leave me a message at 669-247-7338. That’s 669-24Preet, or you can send an email to [email protected]

Preet Bharara:

Stay Tuned is presented by CAFE Studios. Your host is Preet Bharara. The executive producer is Tamara Sepper. The senior producer is Adam Waller. The senior audio producer is David Tatasciore. The CAFE team is Matthew Billy, David Kurlander, Sam Ozer-Staton, Noa Azulai, Nat Weiner, Jake Kaplan, Calvin Lord, Jeff Eisenman, Chris Boylan, Sean Walsh, and Margot Malley. Our music is by Andrew Dost.

Preet Bharara:

I’m Preet Bharara. Stay tuned.