Reforming the Presidency

In a new book, Jack Goldsmith and Bob Bauer analyze the Trump administration and propose the first major reform agenda for the nation’s highest office since Watergate

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Credit: Ellen Weinstein

book coverArguing that President Donald J. Trump has significantly departed from institutional norms established by U.S. presidents going back to George Washington, Harvard Law School Professor Jack Goldsmith offers in his new book more than 50 proposals to reform the nation’s highest office. Co-written with Bob Bauer, who served as White House counsel for Barack Obama ’91, “After Trump: Reconstructing the Presidency” is a comprehensive analysis of the Trump presidency and systemic deficiencies in the executive branch that the authors believe Trump’s tenure has exposed. The book focuses on three areas: conflicts of interest between the president’s public duties and his personal interests; the president’s relationship with the Justice Department; and what the authors see as excessive delegations from Congress to the president, including war powers and emergency powers.

A scholar of the U.S. presidency, Goldsmith served in the administration of George W. Bush as assistant attorney general in the Office of Legal Counsel. His other books include “The Terror Presidency: Law and Judgment Inside the Bush Administration” (2007) and “In Hoffa’s Shadow” (2019). Goldsmith spoke with the Bulletin in September about the most effective approach to regulating the executive branch, “the absolute low point” of presidential relations with the press, and the one issue on which he, an independent, and his co-author, a Democrat, could not agree.

Harvard Law Bulletin: You began writing this book less than a year ago and published it through Lawfare rather than a traditional publisher so it would come out before the election. Why was that important?

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“We wanted the book … to be part of the debate about what Trump did to the presidency and what should be done in response.”

Goldsmith: We’re not the first to propose reforming the presidency after Trump, but this is the first serious, comprehensive effort to think about reforms, put reforms in historical context, and explain what Trump did. We wanted the book out before the election because we wanted it to be part of the debate about what Trump did to the presidency and what should be done in response. We wanted to set the terms of what we knew would be an important debate both before and after the election. Convincing people about our particular proposals for reform is less important than explaining the context. That’s really the ambition of the book.

We went with a nontraditional publisher so we could keep up with events right up through publication date. I hope that everyone involved in reform in Washington will read the book.

You discuss what you believe to be a number of serious systemic problems that the Trump presidency has exposed. How did the U.S. get through 45 presidencies without noticing these enormous holes in our system?

They are holes that didn’t seem like holes until Trump. The 1970s, after Nixon, Watergate and Vietnam, saw the first really serious systemic reform of the presidency on a whole range of issues. These reforms worked remarkably well for 50 years. I even think that, given the nature of Trump’s attacks on the system, the system held up pretty well. For example, [Special Counsel Robert] Mueller was actually able to get his report out, all those people whom Trump told to stop Mueller wouldn’t do it, and Trump has been perpetually frustrated with the people he’s appointed in the Department of Justice, at least until [Attorney General William] Barr.

I’ve been studying the presidency for three decades, [but] I didn’t appreciate the extent to which the operation of the presidency depended on a sense of decency and reasonableness and self-limitation, and a basic belief in institutions. It’s not that there were obvious gaps in the law that weren’t closed; it was that, given the nature of the presidents we had, what we had before was enough. Now we see that it wasn’t enough. There’s a danger that we will have future norm-breaking, demagogic presidents, whether that’s on the left or the right, so it’s important to rethink what happened in the ’70s.

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“We don’t believe in fundamentally chopping down the presidency. But we do believe in having proper constraints and accountability checks.”

Your proposed reforms don’t include constitutional amendments. Why not?

First, we are not proposing constitutional amendments and we are accepting Article II of the Constitution as currently understood because we are trying to operate in the realm of the possible. Amending Article II is not within that realm. It’s not going to happen. Second—and this will be a controversial point for some people—both Bob and I believe that the modern American political system demands strong presidential leadership and a strong presidency to work, so we don’t believe in fundamentally chopping down the presidency. But we do believe in having proper constraints and accountability checks on the presidency so it doesn’t get out of hand.

What are your proposed reforms regarding foreign influence on campaigns and the presidency?

This is one of the most technical and law-heavy parts of the book. The basic idea is that there is money and influence all over the place in presidential campaigns, and we have two or three reforms that are more scalpels than axes. For example, it’s quite clear, especially in [Donald] Trump Jr.’s meeting in the Trump Tower, that the Russians were trying to influence the Trump administration and the Trump administration was open to that. The campaign finance laws prohibit you from receiving a thing of value but that’s mostly thought to be money. We would close that loophole and make sure that opposition research from a foreign government is understood to be a thing of value. We also suggest disclosure requirements. If a campaign or members of a campaign have certain kinds of relationships with a foreign government or foreign agents, they should have to disclose those relationships on pain of penalties.

The aim is to close these legal loopholes but it’s also more generally to establish best practices and norms within campaigns. That’s really the most efficacious way of regulating the executive branch and presidential campaigns, so we hope to spur broader norms to constrain the presidency.

What about presidential attacks on democratic institutions—in particular, the press?

Literally beginning with George Washington’s administration, there has been an antagonistic relationship between presidents and the press. In many ways Trump was not the worst. Lincoln and his generals would shut down elements of the press during the Civil War and arrest people publishing things they didn’t like, so this is not the absolute low point of presidential-press relations. But it’s the low point since Nixon, who also tried to retaliate against the press. It’s not a new problem, but on the other hand, Trump’s tweets and his overt, public, vicious attacks on the press are unprecedented. The main thing we worry about is that the president will use the extraordinary legal powers of the presidency to actually retaliate against the press, to actually harm members of the press by prosecuting them or, for example, by stopping the merger that [Time Warner and AT&T] wanted, as Trump was threatening to do simply out of pique.

We proposed what we think could have a normative impact on the executive branch and future presidents. One proposal is to have Congress make it explicit that the inspector general has the authority to review any credible instances of press retaliation. It might never be exercised but it creates normative expectations inside the executive branch that really change behavior. Another idea is to regularize and put on a due process basis the handing out of press passes.

What reforms are you suggesting to minimize presidents using the office to promote their own financial interests?

I would put this in the top five outrageous things Trump has done. No other president is even close in terms of mixing his personal and business and family interests. The president is supposed to serve the national interest, and there were mostly norms in place to make sure the president did, and every president since [Jimmy] Carter has paid attention to these norms. But Trump just didn’t care. We have a whole bunch of very complicated proposals to fix this, including various transparency requirements and a bar on any presidential supervisory role in his businesses, enforced with criminal penalties.

We have a number of other transparency requirements to make sure a president is not mixing public and private business. It’s another area that’s hard to regulate and where we think targeted laws might induce norms.

Your description of President Trump’s actions might seem circumspect compared with those in some other works examining his time in the White House. Why did you take that approach?

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“There are dozens of examples of us trying to fairly put into context what Trump did that was wrong and unusual.”

We wanted this to be a credible book. We try very hard not to exaggerate. Some of the things Trump did are not as extreme as his predecessors, and some were. We tried to be sober about what he did that was new, and we tried to be less breathless [than some critics] about the nature of the Trump presidency. We think [his actions] are very serious but we think it’s important not to blow them out of proportion.

“There are dozens of examples of us trying to fairly put into context what Trump did that was wrong and unusual.” For example, Trump was less aggressive on the use of traditional war powers than [Presidents Barack] Obama and [George W.] Bush. Our reforms in that space are a response to a systemic problem in the presidency that predated Trump. Of course, for many people, Trump made this power more worrisome because he’s so unstable, but the truth is it was abused more by Obama and Bush than by Trump.

How hopeful are you for the success of your proposed reforms?

First, very few if any will happen if Trump wins the election. Second, half of these reforms depend on Congress and half depend on the next president and attorney general. Some of these reforms are easy and have the potential for bipartisan support, for example, reforms we suggest on conflicts of interest and tax disclosure. Some of these reforms will be really hard no matter what. We’ve already been in touch with people on Capitol Hill, mostly but not exclusively Democrats, and there is a ton of interest. There are already bills out that reflect ideas in the book, and more bills coming out. I’m not naive about any of this—in fact I’m cynical and pessimistic—but it’s possible.

In a time when our nation is particularly polarized politically, you wrote this book with someone whose politics are quite different from yours. Was there anything you two disagreed on?

I’m really proud that Bob and I wrote it together. He was a lawyer for Obama, I was a lawyer for Bush, and although I’m actually not a Republican anymore and have become an independent, I’m certainly more conservative than Bob is. We disagree on political things but we worked hard, in a bipartisan spirit, to think about what is best for the country and the presidency. The one thing we disagreed on—and it was such a friendly disagreement that we decided to put it in the book—was on whether Trump should be prosecuted and pardoned when he leaves office. Bob lays out the case for why he should be prosecuted and I lay out the case for why that would be bad for the country.

It was satisfying to work through problems with someone I didn’t agree with on everything. I changed my mind on some things; Bob changed his mind on others. As Cass Sunstein says in one of his books, and it’s true, “Members of a democratic public will not do well if they are unable to appreciate the views of their fellow citizens, if they believe ‘fake news,’ or if they see one another as enemies or adversaries in some kind of war.”