Presented in your new book . Guest thanks for inviting me to come on with you and im looking forward to this conversation and as you know ive been an admirer of your work on executive privilege and this would be fun. I started out wary of President Trump and i was not a supporter of his in the 2016 election and what worried me was that he was a populist and a constitution seemed designed to stop populists. Its fairly antidemocratic in nature, in a lot of ways, like the senate and the judicial review and the Electoral College and the presence of the states as important part of the constitution so i was worried when trump came in as a populist who wants to achieve and agenda that he feels he received and he would strain against and go beyond the constitutional restraints on his power and i was worried at the beginning he was doing that and things like the travel ban, threats to build a border wall without congressional approval and in that early piece i urged them to try to use as president ial powers primarily for National Security and Foreign Affairs and instead to understand Domestic Affairs that his role is really to enforce the law and then to work with congress to get legislation passed. I think what happened since 2017 bill today is that i found his critics have become the ones who have, i think, gone too far in trying to stretch the constitution because they think so trump is so a gratis and they launched attack after attack on his legitimacy. Terms critics for example who have talked about getting rid of the Electoral College and who have talked about packing the Supreme Court to add six new members to get us to 15 and who want to return us to a world with permanent statutorily protected independent councils which, i think criminalize our politics. They want to nationalize large parts of our economy for a green new deal. The effect of that has left trump who is undeniably using the constitution more of a shield or using the constitution to pursue his own selfinterest but that leads to him to rely on more tradition interpretations of the constitution so i argue that either intentionally or unintentionally he has become more the defender of the traditional constitution and his critics. Host thank you. There are number of topics you cover here from executive orders and pardons and the border wall and impeachment process and i will try to go to some of these and get your take on the president s exercise of executive authority in these areas. Starting with the impeachment i do get the point you make that the president did not yield and did not apologize and attacked the legitimacy of the process but you also dont hold the president blameless for how he handled the controversy over phone call or that ukraine matter altogether. My question is is it really a win for the institution of the presidency and an affirmation of trumps defense of constitutionalism if he is defending his position in a situation that he himself created never should have happened in the first place . Guest i think he does, in the sense, at least in my mind, it reaffirms how the constitution intends us to deal with executive misconduct or abuse of power. Even though, as you say, may be trump created the problem in the first place by his unconventional approach to Foreign Policy or even as some people claimed his mixture of the Public Interest with his own private political interest in the deeper constitutional question, i thought, was how does the constitution try to constrain executives and i thought it really does it in two ways. The election process, i think, is foremost in terms of the framers view, how you constrain an executive and who you think is abusing powers and you elect congressional majorities and eventually you get him out of office. I thought the mistake that occurred here was that impeachment was being used for activity which fell short of the constitutional standard. Im not one and as i explain in the book i dont think impeachment requires a crime and i think high crimes and misdemeanors does include abuse of executive power but it has to be a serious one and it seemed to me the kinds of accusations that were being levied against President Trump were really designed for electoral process and wasnt one of those serious levels of treason or serious bribery with the bribery of the congress of the king of france had been paying off the king of england during the 17th century. That is what the framers had in mind and i thank you can see that in the founders requirement that the senate get to two thirds before it actually would remove a president even though it put impeachment in the hands of just a simple majority of how they wanted to make it difficult to remove a president to impeachment and that would then funnel the kinds of fighting we saw take place which would be properly funneled into the electoral process. Host let me go back deeper into some of the circumstances that led to that. The president likes to talk a lot about the deep state of officials who he believes and you give them some defense here in the book that did not accept this the legitimacy of the 2016 election and in the president s view they have acted to try to undermine a duly elected president and my ask here is that you address the very common gated issue of the principal loyalties of people who swore an oath to the constitution and not to their branch of government or to the president and who believe they have an obligation to honor that by bringing to the attention of authorities whether it is internal oversight or committees in congress and potentially illegal or unethical behavior. Guest i think this issue arrives twice, not just impeachment but with the russian collusion in both cases eddie raises a philosophical question and im not claiming trump is thinking deeply about political theory but i think his pursuit of his rational clinical selfinterest is advancing his creator constitutional good which is more tied to the 18th century constitutionals let me describe what he is fighting against in a way which is whether it is the fbi or gym call or whether members of the Foreign Service and the permanent National SecurityCouncil Staff i dont think of it as a deep state the way i think the phrase actually comes from turkey and the turkish bureaucracy. I think of it more as a more progressive era bureaucracy and the idea of which was most important Public Policy decisions are technical or scientific or professional and so you want to delegate power over those decisions to those experts and insulate them from politics, not increase political control but i think this is very much Woodrow Wilsons thought and had a great impact on our constitution. I think we see that in the fbi, national deoxy and in the Foreign Service. Trump embodies to meet more 18th century view what the exact brand is about witches we the voters elect the president , using the elect oral college, but hes the owner when charged with electoral power and enforcing the laws and everyone conducts Foreign Policy and enforcing the laws they are doing it as an assistant to the president so its much more political vision of the bureaucracy. The bureaucracy is responsive to the president and hold him accountable through or her accountable through politics. To meet that is what happened in the impeachment and in the rush occlusion investigation is that you had permanent experts, Foreign Service or the fbi conclude that the president essentially was unfit for office and so they were, to me, that would not have competed to the founders is that they were challenging the head of their own branch is unfit and thats not really their job. I think youre right that as you say there is this impeachment system and congress does have the right. And the power to remove president s who abuse that power and they will gather some of that information from the executive branch and from people who work there. In that sense i dont think impeachment was off and in fact, i dont see how impeachment would run other than people saying the president misused his powers and those witnesses would be from the executive branch but it was the standard that the house and some members of the senate reusing is a high crimes and misdemeanors stands were not high enough. I would have thought all those things and impeachment were much more appropriate for oversight hearings to be brought out for spending cuts or the usual tools but congress uses two fights with the executive branch and ultimately put it before the voters as we willed this november. This will all be before us when we vote on the president this november. That is the better solution. You talk a lot about executive powers and prerogatives and tromped defending the institutional presidency and i wanted to go through some of the different powers of the presidency here. Starting with executive orders i think that is an easy one to talk about and of course the president has the authority to reverse actions by executive order or at least earlier executive orders but im asking that signing executive orders with president leadership, if we have a president ial joe biden next year i would imagine he will reverse or really a large number of executive orders and is there more of a legacy for a president to engage in the traditional process of negotiation, building consensus, getting compromise in congress and getting the wall street system that will have a greater deal of permanent permanency rather than just issuing willynilly large numbers of executive orders insane i did a lot of things . Guest i think that is a great point, mark. I think the book is approaching at the way you did but i think thats quite right. The way i think of it is that the president has this power of reversal and that was something i there are a lot of things president s can do unilaterally and they just reverse a lot of what the last one did but you are quite right, if the president only operates through executive orders he is laying his achievements vulnerable to super reversal when President Biden comes in generate 21. Only by working with congress to affect statutory change to you give it a kind of longlasting legacy and permanence. Quite agree with you that yes, President Trump like president obama had been frustrated by the inciting inviting a congress to get their agenda through it so naturally they will turn to executive orders but i dont think it is permanent so long as, i think the constitution says, as long as president had that power to quickly and neatly reverse any use of unilateral executive power by their predecessors which when we talk later but i think there was so much done by the Supreme Courts recent decision during the daca case which surprised me in the book is that i thought it would come out the other way and then i went through all the indications that would occur if the court actually did not allow present tromped to reverse the daca program. Host let me take a contemporary application then of this particular issue. Can the president issue an executive order to prohibit evictions as he said recently that he might like to do, even though it was congress that approved a temporary moratorium and would that be an appropriate use of an executive order . Or should the president simply work through the lawmaking process here as well . Let me add to that tiktok, can the president issue an exec of order banning tiktok . [laughter] guest im sure a lot of parents wish the president had that power right now. [laughter] what i think it is interesting. This president that president obama created an daca was creating a program by not fully enforcing the law. It leads to daca programs and has certain limits. For example, the rent eviction idea and i have not studied that closely but generally to me eviction laws is a state law issue so i dont see how the federal government by restraining its own prosecutorial discretion can have an effect on the states and whether they will evict people. Its not the same thing. Also, tik tok is more of a traditional use of executive orders you mentioned earlier. You inherit executive power but it can also be the more common executive order is the execution of delegated power from congress. Congress has given a huge amount of power to the executive branch to regulate International Economic security. Already i believe to have been National Emergencies declared in regard to china, a lot of it is companies and practices are under investigation by the fbi so if President Trump phantom, that seems constitutionally straightforward. It is a 1977 law that gives congress the president the sanction, national companies, transactions for National Security, if President Trump were to do it unilaterally without congressional sources, that would be a difficult question because i dont think without congress, theres no economic sanction power. Let me turn to another contemporary issue. The author i know, youre not writing during a pandemic, it was published late july but i was looking at your citation, i think the last source you cited was february less last year. Guilty as charged. [laughter] i think it is a good topic to bring up in regard to executive power because this is the biggest challenge of president ial leadership of our time. None of us expected this challenge and at one time, challenges at home are not unprecedented. Unfortunately, that is what happened in this particular case but. From china, it came from abroad. [laughter] well yeah, but it became a crisis in the president has an obligation to establish his leadership here in the country, theyve been really hungry for that. In the book, which you laid out the rest before the pandemic so he didnt have a chance for this manuscript to approach the president s leadership. Defendant trump is a Strong National leader but where was the leader during the outbreak when he said effectively, to the states, youre on your own. The federal government is not a shipping clerk. When governors were pleading for some help getting equipment and in this book, i dont think you could ignore the pandemic is a new chapter. President ial powers, what are you going to say in an exhibition when you discuss the pandemic in the president s leadership . That is the chapter i wish i could have done. I thought i would wrap up nicely, during his presidency, things just keep happening. It is interesting, and odd thing people are criticizing trump for too much executive power and then within a month, people are saying prior to doing more . I think its not the separation of powers thats the problem, it is federalism. No matter what the president s powers are in terms of billing and with the government can or cant do, the federal government still has limits. This is where it may be would have gone along with my thesis, trump actually has been respecting the federalism limits on his powers, even his own political detriment. They would have wanted to set standards or social distancing but the constitution doesnt give the federal government. The constitution is limited federal enumerated powers. Weve all had the understanding that Public Health and safety is primarily a state and local issue in the federal government can come in as a support. Frontline, the warfare of it fighting a pandemic or disorder is going to always be city and state local authorities so the federal government has been doing what its supposed to, it can provide money to the states, it can provide equipment and personnel and resources, it can fund a vaccine and technical research, it can spread information but the federal government doesnt really have the people, the actual mechanisms government to take care of the nationwide pandemic. Think about how many people the federal government even has, how can the and force of pandemic with social distancing . The entire fbi, the entire workforce is smaller than the new york police department. The real agencies of government, the public power in this widespread pandemic has to come from the State Government so it is interesting because i think of a president who wasnt conscious of those limits of power, when it tried to go beyond that. Political detriment has made within those boundaries. Fdr said in a situation like this, this is for the states and we are not a shipping corporation. I think thats what bothers so many people, they expect the president to be authoritative and how difficult is it to say, wear a mask . I argue in the book, thats why the founders created the presidency. Why even have an independent executive branch . When we have a system where the chief executive is just a leader of the majority party, the leader would have been nancy pelosi right now. It because they want a branch of government to act quickly and swiftly in time of emergency and unforeseen circumstances. We expect president s to do that and its easier to do that when you have an enemy attacking or natural disaster. Someplace where the president can use their own constitutional powers or invoke legislation that provides that emergency power but it seems to me, Something Like a pandemic is just outside the grasp of the national government. Its too large a problem, such a great social problem, it affects liberty. Please wear a mask in social distance. The president can create the law and enforcement. To make you wear a mask or stay 6 feet away from each other i hope its not a little walk. Handling this kind of crisis and some of the other systems, germany and australia for example, can theyve done a lot better than we have. Is there something in the system that led us to the situation were in right now with this pandemic in the president really was constrained the tools he had available to solve the problem in similar democracy . Mexico think President Biden had been president for hillary clinton, i dont think it would be all that different now just because of restraint on the president and the federal government comparing it to the performance of other federal systems, i think our system is a little different and there are so many governments. Trump is appoint