Thank you for taking this opportunity to discuss your new book. To have a little that of time and with those overreaches with those powers and now you are presenting him as the Constitutional Order regarding president ial powers. What changed your view . How did you move from where you were before to what you have presented in your new book . It with your work on executive privilege this would be fun. I wasnt a supporter of his of the 2016 election and it worried me he was populist and it seemed designed to stop populist it was really anti democratic with the electoral college. So coming in as a populist to achieve an agenda to receive that mandate for to restrain to go beyond the constitutional restrictions on his power. And i urge them to use the president ial powers for National Security and Foreign Affairs to understand Domestic Affairs but his role but i found his critics because they think trump is so outrageous a large attack after attack on his legitimacy. His critics for example have talked about getting rid of the electoral college. Or to pack the Supreme Court or return us to permit statutorily independent councils which i think criminalizes politics. Nationalized to large parts of the economy. And using the constitution to pursue his own selfinterest but then he relies on interpretation of the constitution. So unintentionally or intentionally he as a defender of the traditional constitution and his critics. Thank you. And with executive authority and the president did not yield or attack the legitimacy of the process so my question is is it a win for the institution of the affirmation of constitutionalism to defend his position in a situation that he created and never should have happened in the first place . And it reaffirms how the constitution intends us to feel with misconduct and abuse of power. Maybe he created the power in the first place with his unconventional approach to Foreign Policy with his own private political interest the deeper constitutional question to constrain executives . I thought it does it in two ways. In terms of the framers view of how it abuses powers and eventually you get them out of office. And impeachment doesnt require a crime. High crimes and misdemeanors includes abusive executive powe power. It seems to me the kinds of accusations lobbied against President Trump were designed for the electoral process. For the serious level of treason that the king of france to pay off the king of england during the 17th century. And we can see that the founders requirement the senate get to two thirds before remove the president even though it put hands of impeachment wanting it to be difficult and that would funnel what we saw into the electoral process. Let me go deeper. The president talks about the deep state and to point out the legitimacy of the 2016 election and in the presidency you have acted to undermine a duly elected president. To address a very complicated issue with the constitution and not the branch of government or the president and to believe to have an obligation to honor that whether internal oversight or committees in congress with unethical behavior. With that im not claiming he is thinking of political theory and then to describe he was fighting against with the fbi or the Headquarters Staff for the members of the Foreign Service and permanent National Security council staff. And the deep state it comes from turkey more as a progressive bureaucracy that those are technical or scientific or professional. You want to delegate power to those experts and insulate and redo switches Woodrow Wilsons fault and had a great impact on our constitution. We see that in the fbi with the Foreign Service. Trump embodies a more 18th century view and is the only one charge with executive power to enforce the law and everyone that conducts foreignpolicy enforcing the law does it as an assistant to the president has a much more political vision they are responsive to the president and we hold him accountable through politics thats it happened in the impeachment and russian collusion with Foreign Service or the fbi to conclude the president is unfit for office. And then in their branch. That there is the impeachment system and has the power. Thats why i think impeachment was off. That they were using with a high crimes and misdemeanors. I that they were much more appropriate for oversight and ultimately this will be before us and that is the solution. With those prerogatives and trump defending the presidency starting with executive orders of course that president has the authority to reverse action by executive order or earlier. So if we have a President Biden next year i would imagine he will reverse a large number of executive orders. And with that negotiation and building consensus and then to say i did a lot of things to thats a great point. It is approaching at the same way that you did but the president has the power reversa reversal. Is interesting and he is playing his achievements to simple reversal foraging on dash President Biden and working with congress to make the statutory change with longlasting impermanence. President trump like president obama frustrating by the infighting so naturally they will turn to executive orders. But i dont think its permanent so long as the constitution says to reverse any use of unilateral executive power by predecessors. And then in the book i went through all the implications and then to reverse the daca program. So let me look at the contemporary application of that. And then as he said recently with evictions he might like to do even though Congress Approved the temporary moratorium. Is an appropriate use of the executive order or shed he go through the lawmaking process as well or even bow issuing the executive order banning t16. Im sure a lot of parents want the president to have that power right now. [laughter] so this power that president obama creates with daca by not fully enforcing the law. And it has certain limits. I havent studied closely but evictions is a state law issue i see how the federal government by restraining its own discretion and with those eviction waivers and with the traditional spending and also with tik tok that is a traditional use of the executive order the use of inherent executive power but also the more common executive order is the execution as congress has given a huge amount of power to regulate economics for National Security reasons. So that President Trump bands tik tok then that is constitutionally straightforward. And without congress the president doesnt have the International Economic sanctioning abilities. I know you are not writing during the pandemic and the last was cited february of this year. Guilty. [laughter] this is the biggest challenge of president ial leadership of our time and then dont turn to the unforeseen and unprecedented and in this particular case and it becomes a domestic crisis and the president has an obligation to establish leadership and has been hungry for that. And in the book to lay to rest before the pandemic he didnt have a chance to approach the leadership. He defended trump is a strong and National Leader but where was that during the outbreak to say you are on your own. That they were pleading for some help help getting equipment enemy cant ignore the pandemic what are you going to say when you discuss the pandemic and this president s leadership . As the chapter i wish i could have written afterwards but during this presidency things just keep happening to see the full presidency over and over. Its a not thing people are criticizing trump for being a dictator having too much executive power and then people say why are you doing more . Is not really the separation of powers but federalism and constitution no matter what the president s powers are what he can or cant do he still has limits this is where you would have gone along with my thesis trump has been respecting the federalism only to his own detriment into set closing dates for every business in the country. And for social distancing the constitution doesnt give that power it is one of limited federal powers and we long have the Understanding Public Health and safety is a state and local issue in the federal government can come in as support. But the frontline the trench warfare will always be city and state local authorities so they are doing what they are supposed to do to provide equipment and personnel and resources and fund a vaccine with Technical Research but it doesnt have the people the actual mechanisms of government to take care of a nationwide pandemic. How many people does it have with a social distancing system . The entire fbi workforce is smaller than the new york police department. The real agencies of government or the public power of this widespread pandemic has to come from the state government. Its interesting because with the constitutional limits who would go beyond that . And then to stay within those boundaries. Can you imagine fdr saying in a situation like this thats a bother so many people to be big and powerful and authoritative. How difficult is it to say wear a mask . [laughter] this is where argue the founders created the presidency. Why have the independent executive branch . Why not the parliamentary system where the chief executive is the leader like it would be nancy pelosi or paul ryan. Because to act quickly and swiftly in time of emergency with unforeseen circumstances. We expect president s to do that. Thats easier with an enemy attacking or a Natural Disaster where the president can use his own constitutional powers that provides that emergency power. Its a great social problem they can use the bully pulpit and say please were masker peacefully socially distant the federal government cannot really create the a lot and enforce it to make you wear a mask or stay 6 feet away. May be they make this as an indictment that we are not well suited for handling this crisis and nonetheless look at the other federal systems like germany and australia for example are canada. Is there something inherent that led us to the situation were in right now . And the president was constrained and the tools he had available to solve the problem or some other democracy . President biden or president Hillary Clinton and of the outcome would be all that much different because there is a constraint on the president and the federal government. Compared to the performance of other systems hours is a little different from germany and australia its also that trump has appointed justices and judges to the bench. And in other areas. This is been going on since reagan. But you are right. And that someone is slow. Why do you have to go to 50 states for policies . And then get the right answer right away. And with the competition between governments and to be deeply suspicious of human nature and is not easily assume to get the right answer right away so i would they impose that immediately upon the country and to say it is slow and chaotic and making mistakes by omission and failing to act although we will make a lot of mistakes by omission. One of those federalism issues is a sanctuary city in the president s threat to withdraw federal funds from those localities. Do you care to comment on that and how that jives with a deep respect for the institution at the state and local level to have their autonomy dealing with issues . Its important to separate the political rhetoric with the constitutional actions. He hasnt tried to compel state and local officers to do the federal governments bidding. The Supreme Court has issued a series of decision anti commandeering that officers cannot enforce federal law because they are not within the executive branch so the president cant tell them how to enforce federal law. So the court has said this is why state officers are their own government dont enforce federal law and dont have to cooperate. So what comes out of the obama care case that the federal government can use bribery to get them to cooperate with immigration or Drug Enforcement and so when it comes time to move state policy and the federal direction he seems to rely on the traditional tools. If you dont cooperate then we will not give you as much money. The court said that is okay in Obama Administration not just a huge amount but the amounts of the Trump Administration has not been that high. To try to override the decision that this was a convenient way of executive power. What happened is that Congress Gave the president quite a bit of power. Once there is a National Emergency. Can the president declare a National Emergency. At a specific event its more like a problem i had meant to band aid country or event. If its a National Emergency to control the Sensitive Technology abroad president obama declared a National Emergency to define what an emergency is before hand, just as going t yes therea lot more flexibility for the next president and i could say climate change. Host is that the danger in other words president s create a presumption of audacity they dont have established the standings of any language of the constitution itself for the evolution of the constitutional law and judicial decisions. Guest we probably think about it differently. It seems when they put the phrase of executive power in the constitution, and this is being guided more by Alexander Hamilton in federalist papers they wanted to face emergencies and crisis but they also left a somewhat undefined because this is something they struggled over how do you design a government to handle everything thats going to come at it. So the president is supposed to be there to declare national emergencies. To try to circumscribe because you dont have the problem is going to be a to essentially say we are not going to review whether this is a National Emergency in the statute. But if there is going to be a limit it is going to be congress. The founders were pretty clear they said they expect the mission to counter attacked and accused the powers to fight the circumstances in a growing country that people demand trump handled the pandemic. Why isnt he getting more about the pandemic. Hes going to want to expand his powers to address that. Thats been going on for about 100 years, this kind of federal political pressure. And i think the main check on this kind of amorphous executive power is fighting back against it and i think congress has ample power to pull the rug out from under a president that goes too far to the border wall for example congress doesnt have to put any money into the building accounts trump is using to transfer money they would rather blame the president for the mishandling or going too far with this order in the streets. Host are you comfortable with moving from the defense to the border wall in other words the president thinks the argument i have a mandate and congress didnt give the appropriations i asked for to fulfill my thomas. Guest but you started out with the permanence and the nature of the executive power. To give the longlasting funding if they do nothing they cant get more money each year. They have to put more money into these accounts, and they continue to do this so that they choose not to choose them. Let them take all the heat its a bad idea. Guest let me turn to the military force in the wake of 9 11 nearly two decades after it was effectively eliminated when did these military authorizations and industry consider the war on terrorism now the Limitless Authority to use force . Is there in endgame where we can say this isnt needed anymore and can be withdrawn . Guest i was involved when i worked for the bush administration. I made an argument at that time on behalf of the Justice Department at a broad level that these attacks were so unprecedented and we didnt really know at this time there would be in the future and congress didnt pass the draft that had that kind of limits to it but congress could have passed the statute and we are thinking about and talking about it. If you look at the authorizations as the alternative force, they dont have the sunset date either and in particular this is something that came up in vietnam. Its whether to put the sunset date and if they chose not to so i dont think that its the president s extending their constitutional power to far when it Congress Continues to provide the money for those military operations. I think that from a political accountability standard, the congress has the ability to cut off the initiatives to rob them of that legacy in the permanence youre asking about simply by not refilling every year to the things they pose and on the one hand we have members of congress complaining and they are happy to keep funding the operations at places like iraq and syria, potentially iran, afghanistan, so who is at constitutional fault . Host do you think they should end of the a ums . Guest this is another interesting thing in the part of the chapter on the politics may be the most difficult to write figuring out the trump doctrine there is still a loss of gravity and the hard thing was to step back on the everyday crisis and fighting and defending the larger motivation. Between the executive legislature Foreign Affairs you have a president that is trying to reduce. This was terminating agreements and congress is the one that was sustained. They didnt want to pull out of syria. They wanted these agreements like the paris accord. To me that actually showed the president does have those powers in the foreignpolicy that at least i always thought he did because congress was the primary branch of the Foreign Policy. Foreignpolicy. They were the only branch that could turn the key for the war and how can the president do all these things on the flipside and withdraw troops because the shows to be president did have to discretion all along but not to get us out of the obligations. Theres a lot of areas where you say the president has the ultimate Authority Even though critics complained of course, and id like to get at the issue of the president s base right to do something. So, trump for example can take the country out of international agreements. Was it wise to do so. People from different size elect Different Cases into some of the pardons that he issued just brought about a huge amount of criticism as to whether or not they work appropriate although that seems to power the president possesses is absolute in this area. So, im asking the question just because he can do it, because he does so in the face of challenges in the Party Establishment and from the foreign poverty establishment and congress, is that what makes him a great defender in the principles of the republic . Guest not at all actually and i think that view as a scientist or a better judge of the question. I do think that whether he is successful as a president or should he have enacted these policies than whether President Trump is defending the proper prerogatives of it for the benefit of his successor to enjoy the fruits of the battles hes going to be the next president because now there is a restoration of control. He will be able to use those to achieve policy. I do have to say i think kind of the argument in this book and another book i wrote about ten years ago what you are talking about is how we judge whether a president has great. Its not whether they use their constitutional power to a fault. Its the harder question that is tied up in the executive power which is the powers and the right circumstances. I think of this i this is the de between buchanan and lincoln. James buchanan, they are president s facing the same exact unforeseen emergency or crisis which is secession and slavery and buchanan just chooses not to use the president ial power. He says this is a problem for congress to solve and to study and they appoint a special commission. Lincoln comes in and says i have these Emergency Powers under the take care clause and im going to energetically beat the problem and the challenge of secession. He understood the circumstance demanded a matching response with executive power but if you are a president that uses those at the wrong time there could be two ways, a great emergency you do nothing. Thats what they say about trump and pandemic or maybe worse, there is no great challenge and you still invoke the powers of the office for these emergencies that can lead to catastrophe. He thought everything was a National Security emergency. Its the circumstance that is going to determine if it is successful. Most Companies Take on the issue here because the president has issued candidly some very controversial pardons, no doubt about that. Whats troubling to some traditionalists is that hes worked out of the traditional screening process in the department of justice. I would argue it is constitutional for him to do that. Theres nothing that says he has to go through the traditional screening process but i think it exists for the purpose of trying to protect the president from issuing illadvised pardons. So is the president why is to build circumstances like this and not go through the traditional framework before considering pardons . Guest i thought the part was illadvised, it was just a bad decision. It would be unfortunate and absolute. It does give the power to the president alone and then inspired by the Progressive Movement in the last century, at the beginning of the last century, to professionalize everything. It almost expresses this idea. Theres kind of a technical way to decide between good pardons and bad. This is an inherently political decision and we will judge whether its right or wrong. The voters vote on trump rather than say theres a professionally great answer. I would say i dont think that hes deserving of a party to violate the law and is obstructed in the congress. I dont think that it is a correct answer. Its more of a political decision that they have to have them accountable for, and i think that it was a bad decisi decision. Host that we talk about the institutional prerogatives of the legislative branch. You talk about the exercise of the president s authority and thyouve acknowledged the absole right and i agree with you there but what about the high standa standard, the consensus of the house of representatives. Host [inaudible] he had advocated the impeachment of a sitting Supreme Court justice but it didnt go anywhere. Guest i argue in the book is that we have been accelerating this idea to interpret the constitution giving more and more favor and the cour court itself has done e things to reinforce the i do think there is some truth to the idea and when it comes to the high crime and misdemeanor the house doehouse does interpret to does the senate. I dont think ford was right to flip ove whatever the house or e senate thinks. Even the house and the senate have to apply their goodfaith effort to say what they think i cant misdemeanor actually means rather than just okay we can use it to impeach the other political party. So i think that would be a good test of why ford is wrong. But if democrats in congress say we can basically remove any president that happens to come from the other party. Thats also not really your job under the constitution. The founders at least what they really wanted to do was create an independent president and the impeachment power shouldnt be transformed into a kind of parliamentary system where the congress is using it as a tool because the power to remove with the power to control so thats why they had to present a High Standard conviction requirement. Host i know youve been talking to the president. Im not going to ask you to violate any confidence guest you are the expert on the executive privilege. You tell me what im allowed to talk about. Guest the advice from people inside and outside of the white house and the right not to answer peoples questions. So i will stand by you on that one. [laughter] anyway, are there areas where the president acted unilaterally to good advice and about anything we can do that in person to step back and try to build a consensus through Public Opinion and congress to get things done. Guest this is an issue for the white house immigration. I thought for the Supreme Court issued a more than a half ago the constitution says to take care that the laws are faithfully executed and that means they have to enforce all the laws. To recognize discretion for bringing cases to the Public Benefit we dont necessarily want to have the federal officers taking them every single persodown everysingle pea in their pocket. On the other hand i dont think that they could say im going to make, im going to send in person for this role to zero and i think that is a president obama did. So at the time of 2012, i thought im going to criticize a decision and expansion of daca. Daca. Id like cockatiel for children that are brought here to or parentappearance but have amerin children but themselves they are not here legally. I also think the link to the power to congress so i would have said until the Supreme Court opinion came out, president of trumps contract is a i dont have the power to. Im going to enforce the immigration laws because that is the policy choice granted to congress and their the better solution i think and i would like to see the love was lifted by two or three times their current level the only way to settle is a permanent solution on something that is unstable because president s can come and go and change it back and forth and set out a new visa category but that speaker for the recipient because youre never really sure if your status is legal because Congress Never made a decision so one president could always take it away. Host we have about four minutes left. Maybe a little bit of in out their question but if its a short answer we will think of another one for you. What president in history just President Trump most resemble . Guest he reminds me a lot of Andrew Jackson and i will explain why a. You were a clever interviewer because it goes back to the original scene. He was a populist. Jackson was the first populist. His campaigns are similar to trump and john quincy adams, harvard educated, conducting diplomacy at 13yearsold speaking so many languages we couldnt create a better caricature. He represents the rough and tumble population that overthrows to evade and jackson you expect would come in and try to overthrow everything because hes a populist but in the end they didnt have the votes so there were the efforts to defeat the bank. When jackson was almost giving it in a defensive way where he issues and outrageous faction saying it is a defense to what i did. He moved money out of the bank of the United States and into other banks. He used it as a defensive shield i dont know if he will go down like Andrew Jackson did but he is a disruptor and the political order at the same time that he is relying on the sport and president ial power and removal in law enforcement. Even before trump came out with his signature line of Andrew Jacksons should have been youre fired. Who do you think he most resembles . Guest host he is in the american presidency in the modern era towards the expansion of the unilateral independent powers. Ive been critical of some president s in the past and executive overreach and i am with trump as well. Some of the topics make for a good conversation but finding hiwho that would be i think that he is absolutely unique. Ive been given the one minute warning i think that this really wraps up the program. I enjoyed the conversation. Going back to the 1990s that minnesota law school. Congratulations on your books and i look forward to future conversations together. 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