Constitutional Heritage Foundation and we are cohosting this event with the Federalist Society. In his new book, speed defender in chief, mr. John yoo states, and i quote, if friends have told me january, 2017, i would write a book on donald trump, i would have questioned their sanity. Indeed, a few months in, he wrote an oped in the New York Times entitled executive power run amok. However, upon reflection, he writes boy was i wrong, the campaign, like a populist but governs like a conservative. There are others like harvard law professor who said gays into the trump presidency, i would say that he is crashing through it. The president s detractors have not changed their mind or their rhetoric instead. Like yesterday on cnn representative clyburn compared donald trump to mussolini, puzzled constitutional scholars, but in terms of his actions, not his rhetoric had the president respected the constitution or trampled on it. We are very fortunate today to have with us analysts including john yoo to discuss the constitution has fared during the Trump Administration. They will give brief remarks followed by moderating and then there will be plenty of time for questions from the audience comes to please feel free to enter those into the tab section. First well hear from john yoo. The professor of law and director of the law center and California Constitution Center and the public program. He is also a visiting scholar at the American Enterprise institute and a visiting fellow at the hoover institution. After graduating from Harvard College and before attending law school, he worked as a reporter in washington, d. C. And after graduating law school, he clerked for john on the dc circuit and for justice thomas. Hes previously served as general counsel on the Senate Judiciary committee as a Deputy Assistant attorney general in the office of legal counsel, where he worked on issues involving Foreign Affairs, National Security and separation of powers. Hes been a visiting scholar in several different law schools and the author of many books including one they are going to discuss today which is defender in chief. David rivkin is on the International Environmental team and serves as a cocreator in the practice. He has extensive experience in constitutional administration. He got his undergraduate and masters degree fromasters degrn and his law degree from columbia. Like john, david has held several significant positions in the government including Deputy Director of the office of policy development at the Justice Department, Legal Adviser in the office of the Vice President , association at the department of energy, associate white house counsel, and as the associate executive director and general counsel of the president s council on competitiveness. David has also published hundreds of articles, oped, book chapters on a variety of issues and publications across the country, and hes also a commentator. With that, i will rest my voice for a moment and john, turn it over to you. John, thank you very much. I am sorry to see that you are not doing well. I trust that its because youve been doing lots of interviews about my new book. Your voice sounds like minefields. I want to thank the Heritage Foundation for cosponsoring this event, and im thrilled to be here with john. John and i have known each other for almost 20 years now. We worked in the Justice Department together. Its great to be here with david rivkin, who i am and there is to say ive not even longer. We go back 30 years and sometimes have the pleasure of debating and sometimes beyond pleasure [inaudible] it is really good to talk about this i think as function sponsored by the Heritage Foundation and Federalist Society because this is all their fault. If you go back to the 2016 campaign, many conservatives have thoughts, including myself, about President Trump and what he might do to the constitution. And a key moment in the primary when it was only trump and ted cruz left trump did a remarkable thing for the first time ever. As a candidate, he came out with a short list and said he would only pick a Supreme Court justice from the list of ten and later 20. And he put out broadly that he didnt know any of the people on the list. Only people, john malcolm and the Federalist Society. So, it is all their fault. [laughter] they didnt put me on, im still ticked off about that, but they could rivkin on the list, so we have talking to do. [laughter] let me start by saying, that scene, however, about trump and the constitution has been won, and its not just liberals that have been attacked. Take President Trumps recent tweet about whether the elections should be postponed because of widescale fraud with mailin ballots. Henry olson, a founder that cited the washington post, quote, the single most antidemocratic statement any sitting president has ever made, end of quote. Stephen, the conservative northwestern law professor, and also one of the cofounders of the Federalist Society quoted in an oped, the latest tweet is an impeachment ground. This is very similar. At least at frisson dissipates the consistent theme that has been raised for about the trump presidency, also most notable by the liberal critics. He was impeached for violating the constitution. At the time, speaker pelosi, for example said, quote, if we allow one, any president no matter who, she or he to go down this path, we are saying goodbye to the republic and hello to a president king. Mind you but th the same time, s today have a somewhat contradictory criticism of President Trump. At the same time, people also i would say attacking President Trump for not seeking the powers in response to the pandemic. People were demanding that he imposed a nationwide mask mandate or shut down and reopened all the businesses in the country. And so on. But it really is trump the main means that he spent violating the constitution, he is a proverbial ball in the china shop, and although i started with the same doubts come at the end of the four years of the first term in s. John quoted me, i was wrong. I think trump has actually been a more stout defender of the constitution as president that has critics. You wouldnt have thought so at first because hes a populist. Trump appeals to a broad, popular basis. And the populist historically, if you look at Andrew Jackson or fdr, populist usually are people who are against it and want to overcome the constitution, and often are the sparks for a largescale change for the constitution because they are so interested in achieving their mandates. Trump is a different kind of creature i think. Trump is a populist politically, but Good Governance and constitutional conservative. Its not trump, for example, that his critics that have discussed seriously getting rid of the Electoral College. It was a large number of democratic president ial nominees who talked about increasing the size of the Supreme Court from nine to 15. There are trump critics today, at least one columnist in the New York Times oped page who called the use of federal Law Enforcement in response to the recent disorders as an occupying trump army and declared it a time to call fascism yet. His critics want to have more permanent independent counsels. It concerns the political disputes into the lawenforcement matters who supported the rise of a permanent Law Enforcement and National Security bureaucracy who believe they have more rights to say who should and should not be president than the voters of the country. His critics are calling for nationalization of the Energy Transportation sectors in order to achieve the goals of the pre new deal. In contrast, i would say trumps achievement is not just from stopping all those things from happening, but also from the battles hes had to fight during his presidency. We get wrapped up i think in the daytoday political trench warfare, the investigation, the impeachment. But if you take a step back and look at what was the broad constitutional media, i think i would argue its an effort to restore the understanding of the constitution instead of the 20th Century Progressive vision of the constitution and i will explain what i mean by that. In the collusion investigation the market for we learn about it the more it looks like the investigation was baseless and essentially, i dont question if it was good motives or bad, but the Headquarters Staff at the fbi thought he posed a threat to National Security. They thought as an independent theocracy they thought there should be an independent theocracy. They have the right. The constitution makes the president , the chief Law Enforcement officer of the country everybody in executive branch is an assistant that works for the president , the President Trump wanted to use the favorite line youre fired. I would say the same thing is true of the impeachment fiasco. Those that are in the Foreign Service side believe they have the right to decide how it could be conducted. Lastly i would say the impeachment also reflected the ability to protect the right of any president to be independent of congress. People during the impeachment often complained about the fact that tenet had to vote by two thirds to remove and how somehow that was unfair or unjust but that was actually by the framers designed to make sure the congress couldnt the president under its thumb. They are specifically worried about the idea that subject to removal because they knew that the power to remove was the cover to direct. So of all these cases i would point out President Trump pursuing no doubt his own personal political interest of selfpreservation, survival, trying to be reelected. But it was set in the separation of power ambition must be made to counteract and they expected people to pursue their political thoughts and cursed. Just as they expect in the congress and the judiciary. Their idea of constant fighting you would have a broad constitutional good. That may never even intended to achieve or are aware of, which is the limitations of the government and maintenance of the individual freedom. Where does trump said in the broad constitutional history . He has been disrupted into political marks of the office, not the constitutional marks. The disruption may or may not be appropriate lincoln, fdr, where weve had such an interested over powerful, yet at the same time obsolete bureaucracy and government to lead a revolution. This might be the possibility if there wont be a second term, to the new questions of the 21st century cannot keep defending a government that was designed in the new deal to handle the problems of the 20th century. Thank you for the opportunity to talk about some of the things i look forward to hearing davids comments and johns questions. Thank you very much. Is a pleasure to be with you into read and comment on the excellent book. His comments pretty much covered all of the key issues, but they would spend a few minutes perhaps giving another emphasis. Sometimes, unusual rhetoric, behavior was the case but obviously the political norms. Pursuing the political interest because the way in which the framers designed to operate both his indeed own selfinterest which of course is something that the critics have been emphasizing as somehow unforgivable sin. I remember the discussion during the impeachment process about how i think eventually became pretty clear that it doesnt matter. He had a constitutional right towards ukraine in a particular fashion begets delivery of a military aide or seeking to obtain enforcement information. That was all fine. And somehow the benefit which of course is a silly argument, and i think the framers it cant be an impeachable offense. If the elected officials were expected to act in ways that were in the selfinterest. For the National Survival and i hope that he would do the same but the political interests are constant because where you sit is where you stand. On the congressional side that impulse has dissipated so we see instances where members of congress both have the power and surrender power to. I would say not only has he not done anything wrong when it comes to exercising the office at echoing the point john made a key doesnt write his own briefs or deliver his own arguments, but what is good and again, virtuous, the framers didnt expect, they expect the person to exercise the constitution and listen to his advisors and i would say ive probably read every major case and its not only that i agree with the positions they take. Im quite honest i cannot think about an assertion of executive power that would be immigration, despite my criticism, the use of president ial Emergency Powers delegated or any other matter. I cannot think about anything else that i would find particularly objectionable in the administration. The i think the winds are blowing one is the notion theres nothing trump can do this right so its a sort of never ending but its dangerous in the short run. If not dangerous in the long run because it doesnt represent the philosophies to elevate into some kind of new body of doctrine. But what i think is more dangerous as john yoo mentioned is the more fundamental constitutional norms of equal representation in the Electoral College of course. The federalism, which again the notion that somehow to exercise the powers i think to the extent the doctrine which i find quite objectionable is more on the left. I dont see any tendency on the right. Let me stop here. Hopefully there are some questions. I would love to hear what about this piece of legislation so we can get to some more granular examples. Thank you both for your comment. John mentioned some of the threat to that of the Electoral College acting in the Supreme Court. Referring to the Civil Servants and we could have others for the ability to control whether to continue to pursue a prosecution and in the Michael Fuentes there are calls that he gave to roger stone. You met with the president last week. You talked about questioning the president s motivations on the case and we will also see that in the litigation including some cases which the Supreme Court or the majority of them, so you have the Citizenship Question and what are the motivations behind the program and we talked extensively about the fact they come in and implement something and the other president has to make sure so all of this questioning of motivation challenging the party may be a ticket for this train ride only because of the anchor but it did have ramifications that will extend well beyond the presidency. It is a very difficult wideranging question. Let me start by saying one feature seems to run like this even though subject to changes. The opposition goes so far overboard in its claims and poses extreme constitutional arguments and as david was saying to make reasonable arguments based on the constitutional history, president ial practice and im afraid to say you do see theyve shifted to some of these remarkable. I did go and meet with President Trump last week and say here is this copy. But then i stuck around. One thing i will say is unlike others even george w. Bush wave after wave questioning his legitimacy i would have expected the impression some people in the media think he did. I came away thinking he was energetic. Hes a new yorker to his unfortunate credit. I didnt see this kind of negative pessimistic outlook that he is relishing in the return to the campaign. I would be exhausted after being president for one week in these last years. The second point is i think they do represent something new and they will either disable the jobs are it will be upon ticket for one train ride only. Take the example you just gave of the president ial motivation was first raised as the means to attack a president ial decision at the travel ban litigation in 2017. Never before have they fough tht they would go beyond an executive order then go behind it to search around for the animus in their decisions even though when trump versus hawaii they did uphold the travel ban it did suggest this mental state of the president. Then beth continued interest in this case you just mentioned and you might even argue what was going on in this case but i found completely incomprehensible as a matter of separation of power to say that a president could render the enforcement of the law to basically zero work around 6 million or so cases without any Congressional Authority to. What hes doing is unconstitutional. So the Supreme Court had to come in and say they are in violation of the constitution as you understand it and that is in