Was centered around the following proposition, the constitution prescribes the president take care that the laws be faithfully executed and swears an oath to that effect on taking office. Many believe that the constitution says the president has discretion in handling his office. Norms have developed to control the exercise so that the tooldency is not used as a to punish enemies or reward political friends. The questions our panelists will be addressing our how does the rule of law constrain and protect the president . . Hat role do these norms play have norms eroded . If so, why . What role has congress, the media, social media, and other factors played in the exercise of president ial power . Our distinguished panel of speakers begins with a professor from harvard law. You see in your virtual programs, the bios for each of our speakers are very long. I will cut to the chase. He is a senior fellow at the hoover institution. Of his most recent wellknown books include after trump and in hoffas shadow. Our next speaker will be a partner at a washington dc law firm. Firmshe founder of the Crisis Management and constitutional law practices. He was solicitor general of the u. S. From 20012004. 19801984, he was an assistant attorney general. Times, he hasse been practicing independently. Our next speaker beyond that a litigation partner with a distinguished record of public service, including a number of senior government roles. He was white House Counsel to president obama. Career, he served as associate general counsel to president clinton. He has broad experience in the privatend in legal services. He clerked on the Supreme Court. And we recognize ambassador. Strategyaw and specialist. He worked in the white house for 12 years as counsel to Vice President bush during the Reagan Administration and as white House Counsel to president George H W Bush. He was counsel to the regulatory area ince on relief, an which she has had a professional interest and tremendous impact for many years. He was the u. S. Ambassador to the eu and special envoy to europe. He is on the board of directors of the atlantic council, the federal society, and others. Warrant, chiefa justice of the Supreme Court of the United States. Thank you. Thank you to the Federalist Society for inviting me to be on this distinguished panel. The conventional wisdom is that, during the Trump Administration, the laws and norms that regulate the limitation of the president s interference on the Law Enforcement process and that regulate supervision of that process have been disregarded, damaged. There is a large element of truth to this. In whichblished a book five chapters are devoted to suggesting reforms. Today i want to take a different tack and suggests that the norms and laws have been more prevalent than many people have appreciated. Asking bout so by the extent to which norms and laws have operated terry the Trump Administration during the trumpet ministration. It is hard to find economical definition of what unitary executive is. Describedeneral barr it generally as the idea that executive powers must be exercised. They are all vested in the president. Unitary executive has many components. Part of it is about the president s control over the administration. Part of it is about the supervision of Law Enforcement. That is what i will focus on. They will execute the law and a specific manner. You said that because of the design, the president can order the end of any investigation, even one into his own white house. That the practices under the Trump Administration do not work with these definitions and widely held views of the unitary executive. Reporttwo of the mueller , where the most extraordinary element is that the president tried to rest badly desperately to get his senior orordinates to fire mueller stop them from continuing his investigation. Because thoseled subordinates would not carry out his wishes. We dont know exactly why they did not. It probably had to do with some combination of law. Maybe they were worried about obstruction of justice. Or maybe political concerns. It is a remarkable episode. There are examples that involve attorney general barr. He is obviously a proponent of the unitary executive. At his confirmation hearings, he acknowledged that a president ial preventsent testimony would be an injustice. In his famous obstruction of justice memo, he said the president would commit obstruction of justice if he destroys evidence or impairs the availability of evidence. In response to win attorney aneral barr recommended shorter sentence for roger stone , the president tweeted in favor of that. The attorney general went on television and said, i will not people lead or influenced by anybody, including the president. I think it is time to stop tweeting about the department of justice criminal cases. Example is his to removeary failure Geoffrey Berman from the Southern District. They were not able to remove him or replace him with either of their choices. So, attorneyd general barr issued an extraordinary statement where he norm against proper interference was recognized. He said if any actions like that , the Inspector General of the Justice Department should be notified. The Inspector General would examine any such claims. Notrney general barr is following through on the wishes of the president to prosecute his political enemies. There are a lot to say about these examples. All hard to square with the casual wisdom about the unitary executive. They recognize that congress can restrain president ial power. Norms can constrain the president. Respond by saying the president still has the firing power of the unitary executive. He can fire everyone involved in these acts. You might think that shows the president has ultimate control. It is true that the president r for thee fired bar actions i just described. Mcgahn ands that don thesearr believed in constraints. This appears purely theoretical. Loves to fire people and loves to have executive powers. He acquiesced in these developments. There is more to say, but i am out of time. Thank you. That was very interesting. I have been reading your book. Up the bookld hold so everyone can see it. Book a very interesting written by you. Aboutof the book talks violations of norms that have been attributable to president s over time. You discussed many president s beyond President Trump. We make a number of with respectns that might be made. I will talk a little bit about that. One thing i would mention, with respect what you just described the violations of the concept of the unitary executive, where the president may have expressed something one day and the people who work for him, either in the white House Counsels office or attorney general barr, didnt do what the president seems to want to have done when he made those statements. Think anybody who has observed President Trump over this period of time knows he tends to speak whatever is on his mind at a particular time, sometimes in an interview, sometimes in a speech, sometimes in discussion with the press, sometimes on tweets and things like that, and sometimes he means them and sometimes he doesnt, and it is difficult for those of us who on the outside you are on the outside to know if he means them. I think don mcgahn and bill barr developed in a poor a rapport and relationship with the president that allowed them to respect certain judgments as to whether they wanted to follow through, knowing full well the president could fire them if he was unsatisfied with the fact that he did not comply with his wishes. Bob berman in new york city, at first of course the president firedhave a have the attorney general and the Southern District of new york. Maybe berman did, maybe he didnt get the person he wanted to substitute for berman. Attorney general barr may have said, i am paying no attention to, i am not being bullied by anybody, but he did change the recommendation of the Justice Department with respect to the sentencing, and as far as i know, as far as i can recall, the judge actually changed the sentencing from what was originally proposed by the staff who was so unhappy about that. It seems to me, and i should acknowledge a bias, having served as assistant attorney general for the office of the legal counsel, a bias in favor and as solicitor general favor ofias in the unitary executive and president ial powers, and i might echo what bill barr said last november, that there have been many, many instances over time where congress has limited or purportedly limit the power of the president. Good ofssarily to the the unitary executive and in many respects, doing great damage to that concept. You talked about the potential removals of president subordinates, he should have the power to be able to do that if he is going to execute the law faithfully according to his judgment. He ought to be able to remove subordinates. Congress has created the whole concept of independent agencies, which restrict, which contain restrictions on the powers to remove those officials, which are inhibitions on the president s ability to enforce the law. President roosevelt, if we go back, president franklin roosevelt, go back as far as that, says the government was too complicated. It was difficult for him to manage the government and if the president is supposed to manage the government by faithfully executing the law, he needs to be able to remove the people who have responsibility to enforce the law. President kennedy famously said at one point in answer to a question at a press conference, the reporter asked him something and he said, well, i agree with you, but i dont know if the government will. Many, many other examples of the inhibitions on the part of the president to do his job. One of them stands out in my mind, it was mentioned and discussed in detail by attorney general barr last year, was the entire concept of oversight by congress, congressional committees, into every aspect of what the president and his subordinates or her subordinates. O someone calculated the number of committees that oversee the Defense Department, and it goes on and on and on. Congress requires reports from executive Branch Agencies to explain what is being done, what isnt being done, why it isnt being done. Sometimessubpoenas to administration to come and testify. Sometimes they are very substantial and it takes a great deal of time to do that. There are theatrical events, in many cases. They are highly partisan. They are theatrical and they are not terribly constructive. Then theres the whole idea of special counsels, independent councils, and things of that nature, which we know over time have interfered with the ability of the president to exercise his or her responsibilities. Then there is the investigations of president ial actions, which lettersseen in bold during the Trump Administration. Those investigations that are terribly intrusive and i am not saying that they have not justified, but when there is a constant investigation going on fro going on of the president , from the time he takes office to the time he leaves office, when he has to respond to leaks from investigations, and sometimes there are and sometimes there are not, that is an enormous distraction to the presidency and a distraction to the president s ability to enforce the law. Then theres the advice and consent situation, where the congress and the senate not permitdoes president ial appointments to the executive branch to be confirmed in any reasonable period of time, leaving vacancies. I did a calculation on the was invoked during the George H W Bush presidency. During the clinton presidency, 10. During the george bush administration, four, during the obama administration, 17, and i dont know if everyone is keeping count of that, but that is about 30 altogether. Administration, 344. It has been very difficult for the president to fill his executive branch with people that work for him. I have gone on a long time, but i have seen erosion of the power of the presidency, and i have looked through jack and bobs many and i see many, additional restrictions being suggested, and i dont think thats necessarily a good thing for the presidency or for the constitution. I am turning it over to neil edison at this point. You. Ank ed, right . You, judgeted, thank jones, for your introduction at the beginning. I am honored to have been invited to be a participant on this panel by the Federalist Society. It is quite a distinguished panel, and the topic is timely and quite important. For those of you who did not pay any attention to my biography when it was red, i want to remind people that i have worked in the white house for two president s. I worked in the first term of the Clinton Administration as well as this president , obamas white House Counsel, in that role i got to know Vice President biden quite well. Indeed, his office, his west wing office, was immediately below mine in the west wing, and i saw him quite frequently. As i have thought about this topic, and im going to focus on the topic first and probably come back to some of the issues that people talked to at the end of what i have to say, although i might run out of time, i have thought about the rule of law i really do think that the overarching principle that is articulated by judge jones is that the instruments of government must be used for the benefit of the country and not for the benefit of the occupants or the fight house benefit of the occupants of the white house or their political party. To refer to some of this as norms, and as to certain aspects of it, i agree it is a norm, but i think the fundamental concept is more than a norm. I think it is enshrined in the actual language of the constitution, and although this president ignored it, it should not be ignored. That is the embodiment of the take care clause in the constitution too, saying the President Shall take care that the laws be faithfully executed. That is one of his duties in article two of the constitution, and i believe the faithful execution of a lot requires him to make decisions and execute those laws and make decisions and manner of benefit to the country and not of benefit to himself personally. In addition, i want to remind people that the oath of office is actually set for a specifically forward specifically in the constitution. The framers and those of you who have read the constitution had the same reaction i do, when you go back to the amendments and the original constitution, there is not much language in there, but the framers decided to put the language of the oath of office specifically in the constitution that the president had to give when he was sworn in. People may run number that when president obama was first sworn in, there was a little mixup between him and chief justice roberts, and they did it again the next day. I think there was some concern i was not in the white house then, but if he hadnt given the oath exactly as it was in the constitution, would there be a claim later that he had never actually been sworn in . The take care clause, and both jack and ted know this better than i do, is frequently cited as essentially an expansion of the power of the president. Whenever i got a memo from them on National Security issues, the power of the president , National Security issues, i knew i was going to read about three parts of the constitution that provided the president with power to do whatever they were seeking to do in the National Security space, and thats the take clause and the care clause. The take care clause was signed as an expansion of the power of the president. I dont think, frankly, that is the way the framers thought about the take care clause. The listhe fact that contains the language that the im sorry, that i will faithfully execute the office of the president of the United States. I think the take care clause was intended to be a constraint on president ial power, not an expansion of president ial power. Of us, a view that our originalists in this part of the audience, this panel, the historical record which show that more than today, actually, the concept of the oath was quite important and quite founderst the time the in the drafting of the constitution, and it had more significance probably then it really does today. So, thinking about the point i wanted to make was much of this you can think of as norms, but the constraint in the constitution that the president take care that the lobby faithfully executed, in my view, is not ignored, it is a requirement of the constitution, and a solemn obligation of the president that the president of each to when he took president agreed to when he took the oath of office. It means the president should not be calling for the department of justice and the f ei to prosecute his opponents in a president ial election days before the election. It means the president should not be firing the director of the fbi in order to take pressure off the russian investigation. It is not being contemptuous of the hatch act. When you think about it, the hatch act essentially mirrors the take care clause in so many ways. The taxpayer dollars, the dollars paid by all the taxpayers, regardless of which party they are supporting, which pay the salaries and rent and electricity of the white house and various parts of the executive branch, should not be used to influence the outcome of an election, particularly in favor of a person who is currently in the white house. Part of the respect for the take care clause is not being contemptuous of the hatch act, and i think it also means at directing to withhold crucial military aid to an ally if unless that ally announces an investigation of the president s opponent. Talksresponse, he just off the cuff, he said things and does not always mean them. Jack says, he didnt always get people fired. He didnt always follow through. Wereof people on this call not thrilled with the interview by lesley stahl, but she said one thing that people have to agree with. He is the president , not somebodys crazy uncle. When he speaks, people listen and pay attention. I think we have seen that over the last several years. Address jacks unitary executive argument, just for a second, and i think the basic principle has been that the president tried to do a lot of things that members of his administration will not go along with and would not let him do. I have to tell you, and i think we have already seen certain aspects of this in the last week i am pretty think right that if the president had been reelected to a second term, we would have seen very different people at the senior levels of the executive branch and people who would have followed those commands by the president. He has already fired mark esper and number of other people. Much of the Senior Leadership at the Defense Department are now gone. Iis happened all after, believe, he lost the election. We will see a number of andtional firings to come, i think, jack, i have to say, it may be that he made decisions about this in the first term that i think if he had been elected to a second term, we would have had a very different sort of composition of the Senior Executives at the various different agencies, who would have been much more willing to follow through on the tweets and commands and the like that the president would have continued and probably would have increased the frequency and volume of those. Just a few other thoughts, i thed ted talk about investigations and how. Ebilitating it can be ted and i are old enough to remember the Clinton Administration. I was involved, essentially, with their first term, but because of the whitewater investigation, throughout the second term president clinton was under investigation from day one to the final day of his administration, and subpoenas showed up every day. In some ways, President Trump simply decided not to cooperate and ended up litigating all these various different issues court, e supreme through the d. C. Circuit and up to the Supreme Court. In the last point i want to talk about, the reference to the various different filibusters, and let me just say, ultimately, the filibuster route has been loaded down and abandoned. I can offer my views on the snow. And havee interested wondered if people in this organization or other conservative organizations would have talked about the president s pension for using acting appointments and performing the duties of appointments to fill out the senior ranks of his administration. These, since the filibuster, he has not nominated anybody. There is no more filibuster. The constitution require the president nominate people for these positions so the senate can provide advice and consent. The theory is in the constitution. There is a constraint on the president s power to fill out the senior ranks of the various different agencies, and that is explicitly in the constitution. That is not made up by somebody else, and the president has sought to avoid that. I am sure we are going to get a panel that knows and most of the people in the audience probably thomas in hisice concurrence, i guess . I cant remember if it was a dissent or a concurrence, but Justice Thomas commented on whether any kind of acting appointment would be constitutional because of the explicit provision in the seniorution that the executives be nominated by the president and subject to advice whichnsent by the senate, are explicit terms in the constitution. I very much have appreciated this and look forward to the discussion later, and i will turn it over now. I thought i muted myself. This is a great honor to be on. His panel the panelrybody on he was a born and bred southerner, and if you knew i was on this panel, he would have said son, you are [inaudible] that is what i feel about it. I want to talk about an area of , talk about an area where, i think is a conservative, the president has too much theoretical authority. That authority is being waged by what might be called the Fourth Branch of government, beyond the control of any branch of government. Of thethe question delegation of legislative authority to the executive branch. Jack goes into a little bit of this in the discussion of the in 76 and 77 if we dont like what the president is doing, we gave him the authority and we should take it back. I dont view those emergency issues as anywhere near serious is a much broader question of questionwholesale of legislative power that they can interpret in ways that the current law says the courts really can secondguess or judge about the fact that the thetitution had the and administrative procedure act require the courts to adjudicate what the law is. Im talking about the nondelegation doctrine, which i suppose [inaudible] going back to the roosevelt era, it has been used frequently and thats a good thing, but we have a situation where the president of the executive branch has been given too much authority, too much ambiguity, too many gaps, which they then rush into fill, and it is very hard for any president , given the limits of the size of the white house it is very, very difficult for any president to ofitor the tsunami regulations that come spewing out of these agencies and the courts have no basis of form wayh to make a judgment one or the other as to if they comply to congressional content, because there is not enough guidance as a statute to understand, to use, to utilize, to apply. I think this is a major cause of current discontent. I think it has disenfranchised the benefit of the big guy that can cozy up to the big bureaucracies, and the big bureaucracies like the big are easy to they boss around, and the big guy on the outside has the big guy that the agency probably has in most cases, and we have some very bad examples, which i will get two and a second, of where the agency is andoff with the power [inaudible] just do what they want to do. Not what the constitution provides. The constitution provides the separation of powers and its duty to provide the executive branch what law to apply, not give it the power to determine what the law is and then to apply it, which is what we have our currentatio situation. The damage that is done to people who dont have access lobbyists to these agencies, they get cut out. So we have this difficulty of agency supporting semi very,lization, which is very bad for wealth creation, for theon, and very bad foresight for administrations of the law. The law being properly applied with the tsunami that can turn it over to the agencies. Is there a way to do this . I think yes there is. I think the Supreme Court is ready and now has the votes to , ande a few statutes down i think [inaudible] taking back some of the ponsibilities as responsibilities it has totally abdicated. This might sound counterintuitive to this panel, but i believe it is the source , and very badsion liberty. Markets and it is a question of separation of powers, it is a question of branchese three operate as they should, and it means the courts might have to kick congress around a little bit, but it is hard for the president to manage when congress has totally abdicated. Jack, i hope you will address in a future edition of your book this area of delegation. It is not emergency powers, it is the power over Everything Else that we do, over everything that we do, and it is a freeforall. I hope you will address that and others on this panel will address it. As my judge pointed out, i have spent my life worrying about. His [inaudible] it is something that is very, very important. With that, i will turn it back furtherudge for proceedings. Yes. We can go in regular order, or if someone has something particular to say jack . Can i respond to a few things . Thanks. I agree with you about delegated powers of the administrative state, and i dont remember if you remember, but we were present you were present when presented the gnarly draft of this book, and you urged us to address it then. It would have taken a whole other book. We sliced off emergency powers, war powers, but i agree with what you are saying about the administrative state. I want to respond to a few things that ted said. I to believe in a powerful presidency and indeed, a powerful presidency, maintaining a powerful presidency is a premise of the book that bob bauer and i wrote, but i dont believe that a powerful presidency or the most powerful is an accurate description of our presidency, and i think the Trump Administration shows that. I would say that the idea that the criminal law is constrained and the president is not is an idea that is new to me. It began with deputy a general , and whether they are reflected well enough and congressional statutes is another question, but there are constraints on the president s power to enforce the law when he gets in certain areas. Unitary executive theory needs to come to grips with that. I think these constraints are good and important constraints. As for the norms, my point was simply that i think we have seen in this administration that was supposedly violating norms, we have seen as an extraordinary reading reaffirmation of them. It is hidden among the flurry of rhetoric, but we have seen an extraordinary reaffirmation of them, and i think attorney general barr explained why. He made what was in my view a perfectly legitimate suggestion overruling the subordinate recommendation, and that was going to be controversial enough. When the president weighed in and said way to go bill, great job, way to listen to me. Thatpeared that barr said undermined him, because it did make barlow little call. Like it wasing a legal political and it undermined what barr was doing. A similar example was when then president obama intervened in the clinton email investigation and said in the middle of it, violating the same norms we are talking about now, that i dont think she meant to do anything to harm National Security. Jim coming later said he viewed that as undermining him, as prejudging the case, and gave it as an example for why he took some of the extraordinary steps that he took. So i think there are good reasons for these norms, related to political expectations of our society. I think they go back to watergate and conservatives starting with bob borks firing of archibald cox. I think there are important constraints that need to be taken into account. If i could say a few quick words about the book that ted conley mentioned, the book is not all about president ial power. In several instances we argued for enhancing the power of the attorney general and ultimately the president. Two examples are, we think the Mueller Investigation showed that attorney general barr did not have adequate control of legal interpretations for the executive branch, that the regulations were not adequately clear on that, and that needs to be clarified. We also think it was a huge mistake, that it wasnt clear in Justice Department policies that the attorney general has to make the hard call, not the fbi director. And a whole slew of things, criminal opening up investigations for the president. In some issues, theres been a 50 year consensus that certain things like conflicts of interest, corruption, text disclosure, these were things conservatives were always in favor of, but assistant attorney generals glia said that even though at the time the conflict of interest statutes didnt apply to the president , of course every president would want to comply with them and were simply suggesting those norms be converted into law. The last thing i would say is that i agree with ted about the senate and the confirmation process. We have a chapter on vacancies where we suggest that the vacancies President Trump is not the first to exercise his power broadly, as we make clear in the book. We do suggest tightening up the president s discretion on vacancies but we acknowledge the point ted made, is not just a question of the senate not confirming, the senate has now or congress has now required 800 exec the brents positions to be senate confirmed, and the combination of the senate growing increasingly recalcitrant about confirmations and having higher numbers, there shouldnt be a deal come there shouldnt be a result reduction in president ial discretion and thats the only deal that is conceivable there. Thank you. Ed, would you like to Say Something . Of course i would, thank you, judge. I will say first of all that jack and bobs book is terrific, because it goes through so much history, and in so many different administrations. I dont think they expect everybody to agree with every one of the recommendations. I do acknowledge that in some respects, it talks about further liberation or further freedom for the president. The example that he gave about the allocation or the assignment of power to mueller wasnt sufficiently explicit and need to be improved, and so forth. Those are Justice Department they should fix them. I am big skeptic about special counsel investigations. They tend to go on forever. They tend to create their own bureaucracy. Incentivize excessive use of Prosecutorial Authority but going after friends and associates and anybody having anything to do with the subject matter of their investigation, so that they can prosecute people for events that have nothing to do with the purpose of the investigation, in order to coerce cooperation from those individuals. I could go on and on because ive had personal experience with independent counsel investigations. Onls comment about it going for eight years during the Clinton Administration, i dont know the degree to which that inhibited president clintons ability to be an effective president. I wouldve thought that it did, and i thought that president clinton felt that way. It wasas it the investigations of various members of his cabinet and administration and it seemed to me to be tremendous distraction. Of as impeachments part of the process that inhibits the power of the president , if they are not well grounded, and im not making any judgment about any of the impeachment proceedings, but most types of things that take away from the power of the article too come the executive power shall be vested in the president. The president needs to be able to do that. Im skeptical of a lot of the , although jack and bobs book sfo Something Senate other than reforms. It has a lot of reforms and includes dealing with the press and other things. Im skeptical about these things because frequently these reforms come along and then they are worse than a disease, and they never go away. And the framers of the constitution, and maybe i will stop at this point. Well, maybe two more points. The framers of the constitution do that this government was going to be implemented, executed by individuals, that the individuals were flawed, that there were they were sometimes not acting in the best interest of the country. Hence the separation of powers, the division of legislative congress, and frequently doesnt do what it should do with respect to congressional enactments to authorize enforcement of certain laws, because members of congress dont like to vote on anything controversial because someone might not like it, and it might hurt their subsequent elections, so they vote for noble phrases like fairness and things like that. Theyhe framers, because separated the powers, because they thought, they knew that individuals would be flawed, they put in lots of checks. And we just experienced one with this election, to the extent that the citizens of this country did not like the manner in which President Trump spoke or the manner in which he threaten people or the manner in which he executed the laws, they exercised franchise, and i do believe the election is over, we do have a new president , and we do because a large number of people expressed disapproval. Whether one agrees with that or not, of the manner or style and techniques of this particular president. So we do have a constitution that works pretty well, at the end of the day. We are going to have flawed individuals holding that office, and the people ultimately have the responsibility and opportunity to make a change when they feel it is appropriate. Neil, . Do you have anything . Quick. Ll be quite ill end up agreeing more than disagreeing with the Panel Members on this one. Agencies independent have seen a lot decided just a couple of months ago reaffirming essentially how the executor in the circumstance itself supposedly revisited the law. , theagree with you delegation issue really needs to be looked at. I suspect no legislation is going to get through this congress, but i would look at the National Emergencies act, the National Security tariffs, which just provide an enormous amount of unchecked discretion to the president. And i think those are all pretty problematic. Jack will know the details of this better than i do, but a number of these were initially the case the pre where the Supreme Court essentially said that congress had to act through both houses passing a bill and the president signing it and couldnt have essentially like a one House Congress thought it was going to have this checked of being able to have a house vote and overturned whatever the president did. Fore were struck down and number of those that discretion remain. There are number of areas that need a pretty serious look because theres such a an ted, i didnt mean to suggest that president she very much impacted them. Maybe i was responding more to things that President Trump had said about hes the most investigated president ever, and i think, having lived through the clinton investigations, i wouldpresident clinton significantly disagree with that characterization. ,e had lots of investigations handfuls of subpoenas every day. I dont think the statute is ted, i dontnal, agree with Justice Scalia is dissenting opinion on morrison v olson. I do think it is a bad idea. I think the statute puts improper motivations on people, as ted said, and i think frankly, we saw that particularly with respect to walshwalls in the judd and in the clinton era investigations, which were both unseemly, in my view, an exorbitant. There are some other examples. I represented alexis herrmann who had independent counsel appointed by ralph lancaster, prominent lawyer, based in maine. , very a very professional investigationkey and did not use it as an occasion to enhance his own stature. In that sense, like so many impact on have an whether something is successful or not. In any event, thats what i have. Be turning it over for questions and just a minute or two, but i did think it is sort of interesting when all these accusations are made about the abuses of the trump presidency, that nobody understands, i think, are nobody has voiced the disbelief,at must be when a president learns that false warrants have been filed by the court in order to obtain ,ery significant surveillance what he called wiretapping, but surveillance of people involved with his campaign, and then that he was set up and interviewed by the former director of the fbi, and then the purpose of that was to leak something to the press over what was eventually considered a totally false dossier that had been funneled through many odd sources for use by governmental investigators, which became a totally baseless prosecution. Now, president clinton might feel that what transpired with him was essentially the same, but he was not subject as far as we know to the same level of surveillance and patent illegality by the levels of government. Doubt that the excessive delegation to independent agency has been. Xploited the last 20 years have demonstrated that in a major way. The Previous Administration before the Trump Administration to inflictt tremendous changes on our economy for the alleged purpose of environmental regulation, and the Trump Administration has tried to roll back a lot of those. The incoming president has already announced that he is going to change all those. Delegation of executive authority is leading ,o ratcheting uncertainty instability, and therefore what i fear is a very fundamental challenge to our economy going forward, even totally apart from the pandemic. Shutth that, i will just up, and if anybody wants to say anything in response to that, please feel free, or else i can attempt to start asking questions from the attendees. Jack . You dont see me . I see you now, yes. Its just an observation , the in keeping with that restraints that have been session, id in the think everybody on the panel will appreciate the fact that i think that the president and others involved have exercised extraordinary restraint in not doing anything with the Durham Report or otherwise pursuing any raised about the e dossier and the pfizer warrants. Just to remind people that walsh not withl referred to the kindest approval, i think. He effectively indicted the president five days before his reelection in 1992, and no president can survive an indictment five days before he is up for reelection, with early voting the way there is today. So i just want to make that comment, that theres a lot of restraint announcem supposed to for q a, that those who wish to attain cle should know the 27 ,word is scp passwordscp27. If you are participating by phone and wish to ask a. Uestion, you have to dial 9 i will first recommend recognize lee odom, one of the members of the board of the Federalist Society. Much, judge. So guess i do think the executive recognize but perhaps in a way that isnt sufficiently discussed that the authority that has to be reserved to the president is not an authority to dispense with following the law, but is instead authority to control discretionary decisions by other executive branch agents. Example,y, for wont be privilege available to protect evidence of wrongdoing. Just would like to get peoples thoughts about that , i think the devil may be in the implementation of that, but it does seem to me to be a pretty clear limitation of a says, because as neil i think point [indiscernible] which if the president has the Necessary Authority to take care of. That whats seem to me jack was pointing to as exceptions or reasons to doubt the theory and practice, which there may be some doubts that it operates fully. I dont think the proponents of the executive really doubt that the president has to follow the law and he cannot direct his subordinates to not follow the law. Jack . Jack i will respond to that. I agree with that to some extent , but it begs the question, and im begging the question, too, and let me explain why. The question is what laws can constrain the president . In far can congress go constraining the president when hes survived exercising his super very Supervisory Authority . As i said as at the outset of my , scholars and practitioners generally, the question is how far can congress go, how far has it gone, how far can it go in constraining the president s discretion when he is supervising Law Enforcement or prosecution . So yes, maybe the president cannot violate the law, but the question is how far can the logo in constraining him . The point i was trying to make, and there was a discussion about whether the obstruction of justice statutes apply to President Trump in the context of exercising his removal power. I agreed with attorney general barr in his preattorney general but in other circumstances, attorney general barr has recognized that the president can violate the bribery laws and the obstruction of justice laws by engaging in nevern actions, but barr explained why think so. I think the theory is that certain exercises of executive power, the theory that was picked up in some later not that the theory is the president cannot violate the law, but that certain exercises notresidential power are exercises of executive power and therefore the president is subjected to criminal penalties. If the president is subject to the bribery statute because he accepted a bribe, he could not be exercising executive power. But it is more complex than that. What if he was exercising a pardon in exchange for a bribe . On that question, attorney general barr said in his testimony that he thought the president could be subject to liability there. So i dont think the way you put it makes the problem go away. I think it enhances and highlights the problem. I dont know exactly where the line is as to how far congress can go in constraining the president s exercise of supervisory power over Law Enforcement. I do believe it can regulate to some extent. The court really has never addressed this in any meaningful way. Morrison didnt really get at this. So the question as to how far congress can go, its more complicated than just saying the president of course cannot exercise supervisory power in a way that violates the law. Will call next mr. Sean ross. I want to pick up on what mr. Goldsmith brought up, the 60 minutes interview with president obama in 2016. That he didnt think that the email server posed a risk to National Security, and that the was ongoingn which at that point, the fbi investigation, was an agenda for political purposes. Later it later we know was departmentalized information. We were server claims that unsecured emails, even not classified once, can be [indiscernible] that the Mueller Investigation concluded that there was no conspiracy pre early on in for about a year a half investigated obstruction of justice, and among the theories of obstruction of justice was that the president committed the material act mr. Ross, get to your point, please. Do you have a question . I certainly do, yes. My question is simply this. Is the theory under which the president was investigated for obstruction of justice apart from style or form, but substance only, is that the same that could have been used to investigate president obama for the 60 minutes interview . I will take that. Obama was president for eight years [indiscernible] and something that he said on one occasion. I think to compare that to what President Trump has done on virtually a daily basis, urging the department of justice to intervene, either to help his friends, to benefit people under investigation, or to prosecute biden days before the election, i think the comparison between those two is wildly misplaced. Just to answer the question, i would say that the comment that whichent obama may made had pretty much no impact whatsoever is wildly different from the seven or eight instances of obstruction of justice that bob mueller found in connection to support the president. Theres a fascinating discussion in the mueller memo or Mueller Report on this very issue, where the line is, on what the president could be indicted for an obstruction of justice, because essentially of the executive theory. Im not entirely sure i agree with where mueller draws the line. I think some of the examples jack gave are good, i completely agree with them, that the line is it very clear. I thought it was commendable of mueller to try to come up with a theory about where the line would be. And i do think that in response to what lee said, think the principles are basically the same, which is, the president doesnt have the power to violate the take care clause. President ,ting as hes acting as an individual. The take care clause in the i believe itand acts as a constraint. Talking about the application of the plain statement rule, im not sure how applicable that is to the obstruction of justice statute as it applies to the president. It seems to me thats a very different application. But anyway, that would be my thoughts on those issues. Speakers, if any of you want to comment, raise your hand, or else i will go on to the next question. Can you hear me . Yes. Thank you to the judge and to the speakers for your many excellent points. Of the powersall of the executive branch be concentrated ultimately in the hands of one person, that may make excellent since if the power of the federal government generally is limited in ways as it was at the time of the founding, but in the modern executive branch, the executive wields enormous power over all sorts of issues that were not thought to be within the scope of federal power at all at the time of the founding, just in the area of federal Law Enforcement authority. The biggest ones are immigration and the war on drugs in terms of the number of people that are affected, or imprisoned. Neither one of those was the reason we understood to be within the scope of federal power to anything like the same degree they are today. A if we accept nonoriginalist extent of federal power, its not clear aboute same time the question of the idea that all of this should be under the control of one person. It seems to me an executive branch which is vastly more powerful overall than it was under the original meaning, maybe the solution to that is to roll back the overall power of the executive branch, but if we are unwilling or unable to do that, then maybe we should be willing to bend on the idea that all of this should be in the hands of one person, maybe an executive branch as powerful as it is today, there should be room for congress to have certain prosecutors or certain other officials that have some independence from the white house, and also the risk of selfhealing by the white house is much larger in a situation where the amount of power within the executive branch is so much greater then it would have been at the founding. Thats a question, is the original idea of the unitary executive compatible with the very nonoriginalist to sense of the of federal power in general. I will take a little bit of a shot at that. It seems to me that the premise was that because the courts have federal government to exercise powers that may be were not contemplated at the time of the framing, that then the executive power should be limited accordingly. It seems to me that to the extent that congress is exercising its enumerated powers and the courts have upheld that, whether it be commerce clause, or immigration, or the criminal laws and things of that nature, those create opportunities to framersthe law, and the went through a big debate over the weekend over the fourth, fifth, sixth, seventh of june in 1787 about whether the executive , once it is created by congress, once congress has decided to act on enumerated powers to create laws, that whether the enforcement of those laws should be vested in a Single Person or in multiple likens, and the debate was ninefor Something Like that. I cant remember the exact number, that for various reasons, it would not put that power in the hands of multiple persons. So it seems to me that it is almost chronological, but the extent that it was a lawful exercise by congress of the power to create laws on the execution of those laws could be vested according to the first words of article two, and that a praise the didnt of the unit president of the United States and not multiple president and congress shouldnt be able to control that on the constraints to remove. I will say one more thing about the previous discussion of the president s responsibility to obey criminal laws. I dont agree that if anybody makes the argument that if the president is failing faithfully to execute the laws, that he is a criminal, because people argue all the time that the president should enforce this law in a certain way or should enforce this law. It has to be more complicated than that. I did write an opinion or testimony and when a president violates the criminal statute, he could be indicted while in office. I know there has been an opinion that says he cannot. I went through the constitution and i could not find a constraint on the authority to indict a president , if there was a clear violation of a generally applicable law. Not Something Congress comes up with because they want to constrain the powers of a particular president. Generally applicable criminal laws, i would think the process could be applied against the president. Thank you Say Something on that . Greg dolan . Im sorry, jack. Go ahead. Very briefly, i think what you described should happen, has happened. There is no doubt the president has garnered extraordinary power in a generic and increasing way the last 230 years. It has been rising and rising. Time, the kind of constraint ted was noticing in his opening remarks has been rising. Timeess has at the same has the discretion to implement laws and has imposed a bunch of in terms of inspectors general, oversight foia, and the like. Everything in bill barrs famous memo. Actually in addition to outsourcing lawmaking to the executives, congress has outsourced oversight to executives and private causes of action. I think what you just described has happened. Whether it happened in an optimal way instead of delegating and lawmaking and oversight to other institutions, congress should be doing it itself. I dont think it is a great outcome overall, but i think what you described has actually happened. Not sure i disagree with the Consumer Product safety commission, which has been referred to, has had its wings clipped a little bit. Thatt to remind People Congress has given away the basically the judiciary , it iso review a way like jupiter orbiting its own little orbit. And when the head of the group was called to congress, he was asked, how do you justify spending 200 million on a road novation renovation of your headquarters, his answer was what does it matter to you . Thats not a good situation for the president to be in, so congress has to step up and the courts has to give a little boost of congressional responsibility. Next person is gradually gregory dolin. Thank you. Thank you for a similar discussion on this panel. With the follow up opening remarks and just now, and perhaps turn it around from asking whether or not the president has too much power or notlittle, but whether or congress has been jealously guarding its own power from independent agencies that sell for a filibuster on nominations regardless of both parties, but also some congressional ability to hold nominees to account. It just seems to me that prior senators like senator burns probably would have never consented to it. My question is this. Can the rule of law survive when instead of jealously guarding, instead of each branch jealously guarding its own power, now branches are supposed to be accepted and look for policy whatat whatever cost and prescriptions might we have to restore the balance to the branches . Thank you. Who would like to take that on . Judge jones . The Supreme Court has been thinking about the degree to deferit will continue to to the judgments of executive Branch Agencies under the with difference and that sort of thing, it might be the Supreme Court renders decisions saying we will not defer to the exercise of the interpretations or regulations of administrative agencies or executive ranch agencies for that matter when they exercising power way beyond that which is explicitly delegated to the congress. So that is very true. What i said before is it comes out of the fact in clark because members of congress dont want to vote on anything controversial, so they vote on mush, which they then pass on to the executive branch or socalled independent agencies. Word never say the independent agencies without saying socalled. I keptfirst came to olc, looking at my constitution for article one, the Congress Article two, there president , and this Fourth Branch of talkingnt everyone was about. I could not find anywhere. To the extent the courts have given too much deference, where congress was not specific about what it intended or what ended it intended to constrain, i think may be congress and the agencies will simply have to narrow down the extent of the exercise of their powers. Else . One all right. The last question in the queue 4435 672869. Ne, identify yourself, please. [laughter] or unmute yourself. Youve got your hand up. 443 yes, can you hear me . Very good. Thank you very much. Time,ize we are short on so i will be brief. A potentialto solution, it seems like the ways the executives could be abused of the fundamentally if the congress concedes power through vague laws or allowing the state to fill in the blanks, that is one danger. The second seems to be fundamentally what could be thought of as prosecutorial discretion. I know there are some courtversy supreme decisions not to enforce laws on the books at this time. If congress were to reassert its for thend i realize political environment, both by number one, reasserting its power to write the log rather than allow it to go through the regulatory process and then prioritize and appropriate resources or prioritized enforcement with appropriate resources and then provide curious toi would be what extent that might address the problem. Ted . I would be happy to speak a little bit to that, but it is write down boy in sally bekins alley, yes, it would good for congress to do that, use the power of the purse. It would give it to the agency to write it out of the Federal Reserve money so there isnt any appropriation powers at all, but Congress Needs to do that sort of thing and hopefully there will be some impetus to go ahead and exercise some constraints or quit complaining about the fact that the laws are being enforced in ways they do not like. I think i have already said i do believe the courts are going to have to take the first step. Kicking out some of the statutes for the Supreme Court to do this. This statute which you consider vague, i think the courts have to take the first step. I dont think they can complete the job. It needs to be completed by congress. I believe firmly that the log raised withhas been chevron type issues. Doare way out of time, but i want to tell one little joke on scalia. Is one of those cases which i think is not going to survive this discussion to long. After the argument in the other discussed at great length, at the end of the argument, scalia turned over, over to thomas and said, you know clarance, you know arence, i think this was the worst decision ever by the Supreme Court. Thomas said back to him, and you wrote it. I think this is an effort to conclude on time, i think nobody else has 15 or 30 second remarks. I want to thank our distinguished panelists for a very highlevel discussion on the institutes of executive power and i think one thing history has shown us, at least of the early 21st century, is that these problems are going to be ubiquitous in the coming years as they have been in recent past. Thank dean reuter and julie makes of the Federalist Society for setting this up. I would like to invite everyone to be on call in 15 minutes at 6 00 p. M. Eastern time, when former judge Janice Rogers brown will deliver an address entitled love letter to the late, Great American republic. Our keynote speaker Justice Alito will do his speech at 8 00 p. M. Eastern standard time. Im sure we will all look forward to that, and again, professor goldsmith, thank you very much for us and thank you to the audience. Use your mobile devices, lap type or phone and go to cspan. Org election for easy access to 2020 election results, the latest video of the transition of power. Go to cspan. Org election. Cspans washington journal, every day we take your calls live on the air, and we discuss policy issues that impact you. This morning we will talk about the pentagon and president ial transition. Trump discussion about Campaign Election challenges with rebecca greene, law. Rofessor watch washington journal, live at 7 00 a. M. This morning. Join the discussion with your phone calls, facebook comments, Text Messages and tweets. Up, live on friday, nasa administrator holds a News Conference ahead of saturdays spacex crew launch at 10 00 a. M. On cspan. Her0 five, nancy pelosi on weekly briefing. At noon, Michael Chertoff and Janet Napolitano talk about theidential transitions and importance of peaceful transfer of power for National Security. Oncspan2, angus king telehealth during the pandemic. The Supreme Court heard oral s,gument in california v. Texa concerning the constitutionality of the Affordable Care act. The justices will decide if the individual mandate requiring each person to have elf insurance
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