The framers of the Constitution thought long and hard about the risks of imbuing the presidency with too much power.
But for all their concerns, most of them assumed that, in the words of Alexander Hamilton, future presidents would be constrained by a “sense of responsibility” and would exercise such awesome power with “scrupulousness and caution.” The “dread of being accused of weakness or connivance,” Hamilton wrote, would “beget equal circumspection.”
After four years of Trump, I think we can say that Hamilton’s optimism was misplaced. The current president is not burdened by a “sense of responsibility” — something that’s become all too clear in this interregnum — and he’s arguably the least scrupulous human being ever to hold that office. The failsafes built into our Constitution, moreover, have proven unreliable in the face of a president with no regard for the health of the republic.
So how can we fix the system to guard against future presidents who might overreach or ignore the laws and norms that make our democracy work?
A new book by law professors Bob Bauer and Jack Goldsmith, called After Trump, is one of the first attempts to answer this question. It’s a close look at the “gaps and ambiguities” in our constitutional process and how the Trump era has exposed them. The book, in their words, is a blueprint for “reconstructing the presidency” after Trump vacates the office.
Both authors served at high levels in previous administrations — Bauer as Obama’s White House counsel, Goldsmith as George W. Bush’s assistant attorney general in the Office of Legal Counsel — and their analysis is as even-handed as it is incisive.
I spoke to Bauer, who is now an adviser to the Biden campaign, about how destructive (and revealing) the Trump presidency has been, whether it’s accurate to call him the “most dangerous president in American history,” what urgent reforms we need moving forward, and why we’re headed for another crisis if Congress doesn’t find the political will to reform the presidency.
A lightly edited transcript of our conversation follows.
You make what may be a surprising point at the beginning of the book, which is that Trump’s “law-breaking bark” has been far worse than his bite. Do you still feel that way now that he’s actively challenging the election results? Has the bite caught up with the bark?
In the first three years of his term, he repeatedly went on and on about firing special counsel Robert Mueller or having Attorney General Bill Barr prosecute his opponents, to take a couple of examples. He couldn’t do the first thing, and he’s been unable to do the second thing — and there’s no indication that he can. So Trump has often made noises about what he wants to do or can do, but in reality, he hasn’t had the authority or ability to do it.
Clearly, as he rages over his losses, he is being more aggressive. And he can, of course, fire officials who don’t do his bidding. So I don’t want to minimize the dangers of his behavior or his norm-shattering or his indifference to legal restraints. But I also think it’s important to separate out the bluster from what in fact he’s been able to accomplish, or the threats that he’s been able to execute on.
If Trump’s talent for bureaucracy and governance matched his talent for demagoguery, how different might the last four years look?
Well, this is a point we make in the book. It’s a source of real concern when you think about an institutional reform of the presidency.
We have these fissures, which have been exploited before, but never on this scale and never across the board in the way that Trump has. But we certainly do posit that someone more experienced in government, someone who was more thoughtful in picking the people around him, who can execute on what he wants done, who can execute with more sophistication, who’s just as malicious as Trump and just as indifferent to legal constraints but more competent — that person could do phenomenally more damage. And that’s taking into account how much damage Trump has already done.
Is the perception of Trump as the most dangerous or lawless president in American history wrong or overstated in your opinion?
No, I don’t think it’s overstated. I think that’s his inclination. I don’t think he understands institutions. I don’t think he has respect for the rule of law. There’s a very telling moment in Bob Mueller’s report in which Trump is raging about Mueller and the threats that he sees from all sides and he says, “Where’s my Roy Cohn?” [Cohn was a high-powered New York lawyer and Trump ally who made a name for himself as Sen. Joe McCarthy’s legal attack dog in the 1950s.] And in the book, we talk about his model for the sort of lawyer he thinks the president needs, or someone in the business world needs. It’s very telling.
He has an entirely instrumental view of the law, and it’s an extension of his overall amoralism. He doesn’t understand what lawyers actually are supposed to do, and he doesn’t understand the importance of listening carefully to lawyers and legal advice. He views these as impediments that could be swept away if you put in place the right people who will enable you to do whatever you want, irrespective of norms and law.
A lot of focus in the book is on the role of “nonlegal norms” in constraining and guiding the presidency over the years. You just alluded to Trump’s indifference to those norms and his corruption — or attempted corruption — of institutions that relied on them.
Can this sort of damage be undone?
It can be undone, but a reform program is critically important. To take a leading example, the damage that Trump has done to the credibility of the Department of Justice and to the idea of apolitical law enforcement is truly extensive. We’ve never, not since Watergate certainly, experienced anything like this. So I do think there has been a significant amount of damage done.
Now it is also true that the president has had various norms asserted against him over the course of his administration. But he keeps on battering those norms and undercutting the institutions defending them. And one of the ways he does that is by weeding out of the government people with experience and integrity, who are attentive to those norms, and replacing them with people who are enablers or who share his contempt for the norms. That’s something you’ve seen steadily occurring over the course of his presidency.
Trump doesn’t want to hear from people who tell him things he doesn’t understand, and he doesn’t want to hear from people who get in his way. So a huge problem begins to emerge when you have a president recruiting people into government who will serve his interests and undermine the institutions themselves.
What other problems has Trump exposed in our system?
You see it across sort of a broad range of issues, but let’s take a straightforward example. There’s the problem of being involved in a business and being the president at the same time. This is a president who said, from the beginning, that he was not going to take the norms around financial conflicts of interest seriously the way previous presidents have done. And of course he famously became involved in a dispute with the head of the Office of Government Ethics, who eventually resigned.
Presidents are not subject to the same conflict-of-interest regulations as other senior executive branch officials, but they have overwhelmingly complied with them. Trump didn’t want to do that. Not only did he not want to do that, he set up a structure that at the outset lacked credibility as a protection against conflicts of interest. And then he didn’t comply with the fundamental commitments that he made. He spoke at one point of separating himself totally from his business. He clearly has not done that.
So it’s very clear that something needs to be done. And we lay out an extensive reform program. It certainly begins but it doesn’t end with mandatory disclosure of tax returns. We also see a constitutional basis for regulations around financial conflicts of interest for presidents. We even think there may be Republican support for these regulations after Trump is gone and this isn’t viewed as a direct attack on him.
You’ve mentioned AG Bill Barr and the Department of Justice. I think most observers agree that the DOJ has been compromised under this administration. What reforms do we need on this front?
One thing we propose [is] additional requirements for the qualification of an attorney general to be confirmed to that post — to prevent, for example, someone who had a senior position in a president’s campaign organization from becoming the attorney general. That would’ve applied to Jeff Sessions, but not Bill Barr.
But then there are a series of other steps that could be taken to constrain a Department of Justice from wandering into troubled territory under pressure from a president like Trump. They include clarifying that the obstruction of justice statutes apply to the president and identifying the circumstances in which, constitutionally, they can be applied to the president. There are also internal rules that govern how investigations are conducted at the DOJ that can be revised to ensure investigations aren’t politicized or launched with the intention of affecting the outcome of an election.
We just saw Trump commute GOP operative Roger Stone’s sentence in what appears to be a reward for his non-cooperation in the Muller probe. So do we need to rethink the power to pardon? Is this an outdated institution or does it just need to be reformed?
I think it could be heavily reformed. We’ve made a couple of proposals and actually just consulted with the House Judiciary Committee about them.
Two of our proposals did end up in their presidential accountability bill. I think it’s called the Protect Our Democracy Act. It has a number of other provisions in it, but I think Congress has to be clear that a president cannot self-pardon. And the so-called bribery statute has to be amended so that the president cannot use a pardon corruptly — for example, to silence a witness in order to undermine a judicial proceeding. These proposals are in the House Judiciary Committee bill, and they’re the sort of reforms we need to constitutionally prohibit corrupt uses of the pardon.
Apart from what you said earlier about financial conflicts of interest, how can we guard against foreign interventions in presidential campaigns?
It was a big issue in 2016. It’s even more of an issue in 2020. The intelligence community tells us we need to brace ourselves for more of this, both the sowing of misinformation on the internet and the possibility of direct attempts to disrupt voting processes in the US. Lots of reforms are possible, and some are pretty basic — for example, the question of whether a foreign power providing useful research to a campaign is illegal. Campaign laws could be clarified to make this obvious, and it would have removed an impediment that Mueller clearly encountered in his investigation into the infamous meeting at Trump Tower.
But there are two other reforms that we suggest are important. One is that a campaign that is contacted by a foreign power with an offer of political support has to report it to the FBI. And a second and critical reform is a prohibition on entering into that kind of a political alliance. We don’t think that this problem is solved entirely by amending the campaign laws to prohibit contributions or expenditures from being made. A fundamental understanding between a campaign and a foreign power for mutual support, meaning the foreign power will help the candidate be elected and the candidate will owe that power afterward, whether it’s explicit or tacit, ought to be regulated.
We have an extensive discussion of how that could be done by amending some current laws that are frankly not used very often, but that provide a good platform for that kind of reform.
If none of these reforms are even considered, much less passed, where does that leave us?
In a bad place. Trump is leaving, but he is not taking the problems with the presidency with him. They remain there to flare up again in the future, and potentially at the hands of someone far more deft at exploiting these institutional weaknesses.