← The Lawfare Podcast
Loading summary
Transcript51 lines
- [00:01]
Ben Wittes
The following podcast contains advertising to access an ad free version of the Lawfare Podcast. Become a material supporter of lawfare@patreon.com lawfare that's patreon.com lawfair Also check out Lawfare's other podcast offerings, Rational Security, Chatter, Lawfare, no Bull and the Aftermath.
- [00:32]
Caroline Cornett
This is a mini meditation guided by Bombus. Repeat after me. I'm comfy. I'm cozy.
- [00:40]
Quinta Jurecic
Cozy.
- [00:40]
Caroline Cornett
I have zero blisters on my toes.
- [00:42]
Quinta Jurecic
Blisters.
- [00:43]
Caroline Cornett
And that's because I wear Bombus the softest socks, underwear, and T shirts that give back. One purchased equals one donated. Now go to bombas.com acast and use code acast for 20% off your first purchase. That's B O M b-s.com acast and use code Acast at checkout.
- [01:03]
Quinta Jurecic
Hey, you know what would make your customer service help desk way better? Dumping it and then switching to intercom. But you're not quite ready to make that change. We get it. That's why fin, the world's leading AI customer service agent, is now available on every help desk. Fin can instantly resolve up to 80% of your tickets, which makes your customers happier and gets you off the customer service rep hiring treadmill. Finned by Intercon, the leading customer service AI agent now available on every help desk.
- [01:44]
Caroline Cornett
I'm Caroline Cornett, intern at Lawfare, with an episode from the Lawfare archive for April 27, 2025 in his first term, President Donald Trump tested the limits of executive power, threatening norms such as investigatory independence. Since his second term began, Trump has once more asserted an expansive view of presidential power, claiming authority to violate statutes passed by Congress and appearing to defy court orders. For today's Archive episode, I selected an episode from April 11, 2022, in which Benjamin Wittes, Quinta Jurassic, and Andrew Kent compared the flurry of congressional action to reform executive branch power after Watergate to the lack of similar reforms after Trump's first term. They explored the disparity, the reasons for it, and whether any of the legislative reforms proposed at that point had any prospect of passage.
- [02:44]
Andrew Kent
I'm Benjamin Wittes, and this is The Lawfare Podcast. April11 the period after Watergate and President Nixon's resignation saw an unprecedented barrage of congressional efforts at reforming the executive branch. The period after Donald Trump's departure from office has seen no comparable spree of legislative action, at least not yet. In a recent Lawfare article, quote, quinta Jurecic and Andrew Kent explored the disparity, the reasons for it, and they analyzed whether any of the legislative reforms that have been so far proposed have any prospect of passage. They joined me in the virtual jungle studio to talk about why things are so different today than they were in the late 1970s, what happened in. In that period, and whether Congress will actually be able to do anything now. It's The Lawfare podcast, April 11, the legislative dog that hasn't barked.
- [03:58]
Ben Wittes
So I want to start with what I think is an embedded assumption of this article you guys have written, which is this, the assumption that this would be a period of substantial legislative reform related to the presidency. That assumption may seem obvious, but in light of the gravamen of the peace, maybe it's not obvious. So, Andrew, get us started. Why are we assuming that a new administration and a new Congress would come in and want to pass a lot of legislation about reforming the presidency?
- [04:38]
Andrew Kent
Thanks, Ben. Yeah, it's a good question, because in general, sitting presidents often are not particularly interested in reforming the presidency. But I think there's probably a couple reasons why you correctly say that the piece Quinta and I wrote does assume that this might well have been different. One of them, I think, is the magnitude of the abuses of office under Trump and the really, I don't want to say unanimity, but it's got to be near unanimity among Democratic Party leaders, the kinds of folks who sit in the elected offices and staff those offices on the Hill, in the White House, that there were a substantial number of abuses, that we know what they are, and that there are things that plausibly could be done through legislation to fix those. I think another reason is historical. Our piece draws the connection to the 1970s, the period that it's easy to say kind of post Watergate, but it wasn't just Watergate abuses that were being reformed. But you have things related to war powers because of Vietnam, things related to the hoover tenure at FBI. But in any event, the sort of mid-70s period was a time of very substantial activity both in Congress and in the executive branch for forming the presidency. And I think there are a lot of reasons to think that this current time might well parallel that.
- [05:59]
Ben Wittes
All right, so, Quinta, give us an overview of the legislative agenda that you guys would have thought that, you know, but for whatever reasons, you would have thought the new administration and the new Congress would have come in with. With. With respect to executive authority.
- [06:24]
Quinta Jurecic
Absolutely. So before I do that, I think it's also worth mentioning, building on what Andrew said, that Biden himself had indicated that he would be open and even potentially enthusia about reform of the presidency post Trump. He talked about it in sort of general terms. But we also wrote a piece together during the 2020 presidential primary looking at how various candidates on the Democratic slate did or didn't incorporate talk of post Trump presidential reform into their agendas. And Biden was actually one of the people who talked about that the most. So there was reason to think that, you know, that this was a president who would potentially be really open and enthusiastic about the slate of reforms. So in terms of what reforms, that's a really big question. Just because so much went wrong, not to put too fine a point on it, under the Trump administration. I definitely direct listeners to the excellent book After Trump by Bob Bower and Jack Goldsmith, published by Lawfare, and the podcast of the same title that Lawfare also put out that sort of goes through Bob and Jack's assessment of all the different things, all the different legislative proposals, the different policy changes that could be made within the executive that they think should be changed post Trump to sort of protect the Constitution, protect democracy from an abusive president like Trump. And the fact that we were able to put together a book and a podcast series, I think indicates just how much there is on the table. So the flagship piece of legislation here that was put forward by House Democrats initially in the fall of 2020 incorporated a lot of these proposals, though not all of them, and also differs. It's certainly it's not the same as Bob and Jack's agenda differs in a lot of ways, but I think it's also representative of the sort of broad scope here. So it's called the Protecting Our Democracy Act. I think we refer to, we're going to refer to it as POTA just because it's a bit of a mouthful. It sort of tackles everything from limiting the president's ability to pardon without handing information to Congress in certain cases, strengthening protections for whistleblowers, bolstering enforcement of the Hatch act, preventing foreign election interference. There's really a huge grab bag of material here. And the Democrats kind of put it forward in fall of 2020 as a sort of, as a campaign measure. I think it's fair to say to, you know, be able to put this on the table and say when you vote for Democrats, you should vote for Democrats to reject Trump to kind of rebuild post Trump. Now, POTA is not exhaustive. As I said, there are other proposals on the table as well. And we can also talk about how a lot of material that is in POTA was previously introduced in Congress in other forms, including sometimes by Republicans but that is really the kind of flagship piece of legislation. It's gotten the most attention from Congress, from advocacy groups. It's the piece of legislation that the White House has weighed in on directly with some pretty lukewarm language. And we can talk about that. So I think that that's kind of the thing that we focus on in our piece. Although as I say, it's definitely not the be all and end all of reform reform.
- [09:38]
Andrew Kent
You know, it's not just the Trump presidency that has generated calls for executive branch reform. And that's yet another reason why a lot of people thought that this might be a time ripe for it. Because calls to reform, various aspects of presidential power had been building up, I mean, in some cases over a couple of decades. We mentioned a couple in the piece, but there's certainly many examples of this. But your concern about the extremely open ended nature of the post 911 force authorization statute and the way it had been used quite creatively by the Bush and then Obama and then Trump administrations to, you know, to wage war on terrorists in various parts of the world, you know, just, just as one example, a lot of, there have been a lot of concerns across a variety of dimensions of presidential power that predated the Trump years. And I think part of the thought underlying our piece and underlying some of the hopefulness that you heard from various interest groups and people, you know, on the Hill about that, you know, that something might finally pass was just because it felt like the, you know, you know, there had been pressure building up for, to do something over time and then maybe the kind of, you know, scandalousness of the Trump years would finally present an opportunity.
- [10:50]
Ben Wittes
So I want to ask you both, and I don't want to assume you have the same opinion about this, but what were you realistically expecting? I mean, Jack and Bob wrote this big, big book with an ambitious set of reforms, although many of them quite measured. A number of other groups published reform proposals that were more ambitious and arguably less realistic legislatively. What were you actually expecting was likely to happen and not happen? Andrew first and then Quinta.
- [11:33]
Andrew Kent
Yeah, that's a good question. Try to think back and not just have the benefit of hindsight, but I guess a couple things. I guess I thought that especially because what Quinta said, that Biden seemed unusually among presidential candidates interested in reform because he came from the Hill and for such a long time in the Senate. I think I expected that he might see things not solely from a White House perspective, but also see the need for some balance between Congress and The White House. I guess the first thing I thought is that internally, not in terms of legislation, but in terms of sort of executive branch self reform, that we would see more than we have. And in particular, I thought because the Justice Department had been such a locus of problems, I thought we would see more there in terms of legislation. I mean, we can outdo each other with our. Our skepticism about Congress getting big things done. And, you know, certainly I had a lot of skepticism about that, but I guess I thought that there were some things that had long standing bipartisan support that would have gotten through by now. You know, just to take one example, in the George W. Bush administration in the second term, when there was all of the, you know, concern about the politicized firing of U.S. attorneys, you know, apparently because they were not prosecuting, you know, alleged voter fraud by Democrats actively enough, you know, there was bipartisan activity in the Judiciary Committee, you know, produced a bill that, you know, again, had strong bipartisan support, including from some very conservative Republicans like, you know, John Cornyn, to, you know, basically provide some monitoring, both internal to the executive branch and also to the congressional committees, of potentially inappropriate communications between the White House and the Justice Department. And that showed up again in pota. And it was things like that that I thought that kind of had long standing bipartisan support that might actually get through. And so in some ways, I guess I wasn't skeptical enough about Congress's ability to legislate Quinta.
- [13:39]
Quinta Jurecic
Well, I think, as you both know, I'm pretty pessimistic by nature, so I don't think my expectations were that high. And I will also say that one of the things that I think I personally learned from the Trump era is that it's generally a good idea never to try to predict the future. So I don't think I had a firm diagnosis of what I thought would happen or what would or wouldn't happen. I do think, again, kind of trying to put myself in the headspace of where I was at the beginning of the Biden administration or in the last months of the Trump administration, I wouldn't have expected that the full package of reforms would have come through sort of for the reasons that Andrew identifies. You know, it's getting something big through Congress is always like herding cats. There are sort of difficult partisan dynamics at play, and we can talk more about those. I think for me, it was seemed pretty clear that some of the really far reaching proposals that are in pota, so some concerning presidential pardons, for example, might run into trouble just insofar as they were so tightly linked to Trump that it would be really hard to get Republicans on board. I would have expected, frankly, that more would have happened by now. I mean, one thing that I've been kind of complaining about to anyone who will, who will listen, so apologize to all the lawfare team, is that one of the major issues that the Mueller report flagged in the criminal law is that it is not clear whether the obstruction statutes apply to the president, at least if you listen to the Office of Legal Counsel's opinions on the matter, because the obstruction statutes don't clearly state that they apply to the president. President that's a really easy fix for Congress to make and it seems like kind of a no brainer. So that's something that I sort of look at and I say, you know, why is this in podo? Why hasn't anyone done this yet? This should be so easy. It's, you know, adding a couple words. It doesn't need to be particularly, you know, made particularly partisan. And yet there's been no movement. I should also say, you know, I think it is easy to forget what we thought the political landscape might look like in, say, August of 2020, you know, looking forward, what our predictions might have been, because the predictions at the time for the 2020 election were along the lines of it, I'm oversimplifying slightly here that either Trump would win and we wouldn't know what Congress would look like, but if Biden won that, we could probably expect a significant Democratic majority in both houses. And keeping that in mind, you know, if you imagine not only a strong Democratic hold on the House, but also on the Senate, that just makes a world of difference. I mean, not not only for reform legislation, but for every single part of Biden's agenda. And so the fact that the, that Congress is navigating extremely tight margins here, I think not only shapes what reforms they're willing to go out on a limb for, but it means that, you know, the room for error elsewhere is constrained as well. If you really need to get everybody in line to pass President Biden's social policy bill or the infrastructure bill or the ndaa, you just don't have the kind of money to burn, essentially, that you might need to get through some reforms that might be unpopular. And so I think that we're really operating in a world that is maybe the hardest dynamic for the Biden administration to push something through, if it even wanted to push something through.
- [17:19]
Ben Wittes
Yeah. And the incentive for any administration to push through limitations on its own Authority is, to say the least, minimal. So I want to contrast the current legislative record with the legislative record that Andrew referred to from the mid-1970s, because I think the contrast is pretty dramatic. So, Quinta, walk us through, if you will, what has and hasn't happened in the year plus since Donald Trump left office in this department. And then Andrew, walk us through what happened in the period immediately following Richard Nixon's departure from office legislatively.
- [18:11]
Quinta Jurecic
So focusing on legislation, the answer is not much, but a little bit. So the when we were trying to keep track of where things were, the main thing that has gone through Congress is actually a set of Potter reforms that are referred to in the bill as reasserting Congress's power of the purse, which limit the ability of presidents to decline to spend appropriated money or divert it to other purposes. So those reforms are actually inserted into the major appropriations bill for fiscal year 2022, which Biden signed on on March 15. So you might say, well, great, that's a win. Unfortunately, those reforms are only going to last for one year. So it's a reform, but it has a pretty sharp time limit on it when it comes to other things. So the House passed Pota in late 2021. And then the question is, okay, so what's going to happen in the Senate? And I think it was always clear that the plan was to kind of break up the bill in the Senate and see what could make it through, you know, see which pieces could could get support. Some things are pretty clearly dead in the water. Like I mentioned, the pardon power reforms, I haven't seen any movement on those in the Senate. But there are other proposals, though, that are in POTA or other post Trump reforms that that were passed by the House that are moving forward in the Senate. So POTA contains various proposals protecting inspector generals, many of whom Trump fired after they started looking into his administration. And as of November 2021, the Senate Homeland Security and Governmental Affairs Committee advanced bipartisan legislation that would have implemented other protections for inspectors general, though it didn't go quite as far as pota. And after that happened, the committee chairman Gary Peters and ranking member Rob Port introduced it as an amendment to the NDAA, the National Defense Authorization act for Fiscal Year 2022. What happened then, I think is representative of a couple other reforms where it may have been able to get a vote on the Senate floor and actually become law. What happened, unfortunately, is that there wasn't a vote on the Senate floor for the NDA because of an extremely complicated entangled circumstance that has to do with Marco Rubio wanting to force a vote on certain provisions having to do with Xinjiang, the province in China. And so a bunch of these amendments that had post Trump reforms in them that could have gotten a vote never actually got one. And so the result is that there's now, on a couple of these questions, sort of legislation that is kind of floating around in the Senate, maybe ready to be tucked into bigger omnibus legislation and become law, but it hasn't gone anywhere yet.
- [21:02]
Ben Wittes
And Andrew, walk us through how this compares to the legislative activity in the wake of Nixon's departure from office.
- [21:12]
Andrew Kent
So I guess the first thing I should say, Ben, is just that to be fair to, to the current Congress, nothing, you know, happened, you know, instantly in the 1970s. And so perhaps we should relax our, our concern or our skepticism about today a little bit just, you know, by reference to the 70s. We see it sometimes took, you know, three or four years.
- [21:37]
Ben Wittes
Okay, so wait, let, let, let me pause on that because I think that point may be a very important one. We are comparing realistically what happened in one year and a bit post Trump to what happened in sort of five years, six years post Nixon. Is that right?
- [22:02]
Andrew Kent
Yeah. And I guess I should say that some of it was not even post Nixon because reform of the executive branch was so widespread across so many issue areas in the 1970s that, for example, reform in the war powers and covert operations areas, which was extremely important part of Congress's agenda then, started while Nixon was in office. Nixon actually vetoed the War Powers Resolution and then Congress repassed it over his veto. So some things were happening even before he left simply because Congress, the problems in the war in Indochina had already shown themselves. Congress was already exercised about that even before Nixon left. But some things waited until after he left, in part because the problems really came to light as a result of Watergate and the investigations of those or as the result of both sort of revelations by the FBI about what had happened and press reporting about what had happened during the Hoover years. Hoover died in 1972, and it wasn't immediately that all the information came spilling out about everything bad that had happened there. So there was sort of staggered periods of reform. But yeah, it was over, you know, five, six year period or so that most of it, most of it passed. So we, you know, we should be aware that, you know, we are a little bit comparing apples and oranges in terms of the, in terms of the time frame here.
- [23:30]
Ben Wittes
That said, let's compare apples and oranges because I think unfair though it may Be, the comparison is pretty dramatic.
- [23:36]
Andrew Kent
It's. It's enormously different record in the 1970s. So, you know, this is going to sound like, you know, a bit of a grab bag, but really that's, you know, that's sort of what it was. I mean, there was, you know, the Nixon administration and previous administrations had sort of used, politicized, you know, fishing expeditions into people's tax returns to go after political opponents. You know, there was a strict law passed about that. You know, there was really serious campaign finance abuses during the Nixon years. And so the campaign finance regulations were strengthened enormously. The Freedom of Information act, which had been passed earlier in the 1966, but got substantially strengthened in part because of the concerns about the misuse of Americans information by the FBI and other agencies. You know, the independent counsel mechanism was set up to investigate high level wrongdoing in the White House or, you know, the other upper reaches of the executive branch in response to, you know, the Saturday Night Massacre, you know, during the, you know, during the sort of beginning of the end of Nixon's time in office. The. Those watchdogs that Quinta referred to, the inspectors general who report both to Congress and to agency heads about waste and fraud and abuse and illegality within executive branch agencies. Those were created in the 1970s. You know, I mean, I really. I could go on for another couple minutes here, and I, and I won't, but just, you know, the scope of statutory reform in the 70s was dramatic. And I don't think it's at all an exaggeration to say that, you know, kind of the legal structure that has, you know, served in general very well to keep the executive branch substantially more compliant with the law and substantially better at, you know, shielding people in the United States from abuses by their government. You know, that was largely a creation of the 1970s.
- [25:26]
Quinta Jurecic
I do think that one thing that is useful when we're comparing apples and oranges, which to be clear to a certain extent we are, is that the dynamics of Congress look really different from then to today in a number of ways. But the one I want to focus on is that, you know, in the, in the 1970s, you see a solid Democratic lock on both houses of Congress for, I mean, decades. They're sort of in the middle of that period right now. The reason why Andrew and I were sort of taking the current moment to step back and look at where reforms are headed is that we're now in a period where Congress sort of flops back and forth between the parties. And history has shown us that the President's party usually does quite badly in the midterm elections. So the Democrats have control of both houses of Congress now, albeit an extremely narrow majority in the Senate. But with the upcoming midterms, I think it is probably more likely than not that Republicans will likely take control of the House and perhaps the Senate as well. And so the window for reform that we see now will have closed. So another, you know, sense in whispers, apples and oranges is just that there's not as much time today as there was then that the the clock is is ticking a lot faster, as it were.
- [26:49]
Caroline Cornett
When you're starting off with something new, it seems like your to do list keeps growing. Finding the right tool helps. And that tool is Shopify. Shopify is the commerce platform behind millions of businesses around the world and 10% of US e commerce. And best yet, Shopify is your commerce expert with world class expertise in everything from managing inventory to international shipping. If you're ready to sell, you're ready for Shopify. Sign up for your $1 per month trial at sh shopify.comretail Go to shopify.comretail Thumbtack presents the ins and outs of caring for your home Out Procrastination, putting it off, kicking the can down the road in plans and guides that make it easy to get home projects done. Out Carpet in the bathroom. Like why in knowing what to do, when to do it, and who to hire, Start caring for your home with confidence. Download Thumbtack today We all belong outside. We're drawn to nature. Whether it's the recorded sounds of the ocean we doze off to or the succulents that adorn our homes, nature makes all of our lives, well, better. Despite all this, we often go about our busy lives removed from it, but the outdoors is closer than we realize. With alltrails, you can discover trails nearby and explore confidently with offline maps and on trail navigation. Download the free app today.
- [28:15]
Ben Wittes
All right, so I want to explore with you guys possible explanations for this disparity, with the assumption that some portion of the disparity maintains itself over the next next few years. 1 One possibility is that it simply reflects a polarized, dysfunctional Congress. Another possibility is that it reflects a very savvy Congress, which has figured out that the only things that it can do that actually would pass constitutional muster aren't actually very dramatic or effective, in contrast to, you know, a bunch of stuff from the 70s which actually got struck down like big parts of the campaign finance laws. A third possibility is that it actually is a reflection of the point that Andrew made that we're comparing apples and oranges and stuff hasn't happened yet, but is still very likely to happen over the next few years. And a fourth possibility is that the executive doesn't want it to happen. Even Joe Biden, whatever he may have said when he was a candidate, and that Republicans don't really want it to happen because they're gonna. They expect to have the presidency again one day. And so just as we all assume that, you know, gosh, these are things that behind the veil of ignorance, both parties wouldn't want the presidency to do, we're actually getting that exactly backwards. And behind the Rawlsian veil of ignorance, both parties are rubbing their hands with glee at the thought of being able to do these things. And, you know, behind every senator is a would be president. So I'm interested in both of your thoughts on what the best explanation is or what portion of the explanation falls in these various categories or in some other category that I haven't thought of. Quinta, go first.
- [30:34]
Quinta Jurecic
I think one major factor here, and I'd be interested to hear Andrew's thoughts, which is something that we touched on only briefly in the piece, but which I do think is important, is just that if you, as you kind of said, but if you look at the, the ambition, I guess you could say, of the reforms that were on the table and that were passed into law or proposed post Watergate and the relative ambition today, I mean, it's really striking. I mean, Jimmy Carter wanted to create an attorney general who couldn't be fired by the president. Now, he didn't actually do that because I believe OLC said that that would be unconstitutional. But that's blue sky thinking compared to what we have today where, you know, currently there's a fight, for example, over whether or not inspector generals can be protected from the President's removal or whether that would be unconstitutional to limit removal to good cause only. And Andrew has a section about that in the piece. So. So one way to read it is that simply mainstream understandings of the scope of Article 2 power, especially within OLC and the executive branch, have substantially expanded since Watergate, such that things that seemed possible under Watergate or maybe a little out there, but within the realm of possibility, are now just completely unthinkable. And so you see Congress sort of taking smaller steps now. I think there's a decent argument that if you're going to pass a reform, you should try to pass a reform that will actually hold up in the courts and particularly will hold up before the current conservative Supreme Court, which has a robust view of Article 2 power, rather than sort of going out on a limb and passing something that might get struck down and then you're, you know, right back where you started. But I do think that that's an important part of the dynamic here. Another thing that I do think is important, I mean, and that you touched on, Ben, is just the complexity of the inter branch dynamics here. I mean, we think of separation of powers and institutional incentives on the part of both branches. And we certainly see that in how the Biden White House and the Justice Department is sort of protecting its own prerogatives here in not supporting some proposals that it feels encroached too much on executive power. But what we're not seeing is a kind of equal and opposite push from a Congress that is concerned with establishing its own institutional power irrespective of the political party who happens to be in control of Congress or the White House. Instead, you see a Democratic majority that is really aligning itself with a Democratic president, both in the sense of, you know, it's not pursuing legislation that the White House is kind of lukewarm on. They're sort of marching in lockstep as much as they can. But also, you know, there's been reporting that there's concern within Congress that, for example, if Congress passed legislation that made it easier to enforce congressional subpoenas by civil suit, that that could be used by a Republican House against the Biden administration. And so I don't know whether the dynamic is quite, you know, every senator looks in the mirror and sees a future president or more result of the sort of dynamics of political party loyalty taking priority over institutional loyalty. But that does strike me as a major factor.
- [34:06]
Ben Wittes
Andrew, what do you think?
- [34:07]
Andrew Kent
So, you know, I agree with what Quinta said and I think there's probably additional stuff going on too. There's, you know, in some ways our piece is just and this and this and this and this, you know, just a series of lists of all the, all the problems and all the things that are, that are causing hold, hold ups here. So among some things that we wrote about but that, you know, Quinta didn't hit yet, there does seem to be this dynamic where anything that appears, any legislation, you know, that's proposed that appears to be sort of directly responsive to abuses that are specific to Trump, from what we could tell, that's, you know, essentially kind of DOA with, you know, on the Republican side of, of Congress just not, not, not interested in doing that.
- [34:53]
Ben Wittes
And to be clear, do you think that's because Republicans would regard that as passage of such legislation as some kind of admission that they, that they tolerated stuff from Trump that they shouldn't, or because they actually don't mind that Trump behaved that way and want him to behave that way in the future?
- [35:22]
Quinta Jurecic
I mean, if, if I can break in, I, I do think that some of it is honestly just that it's become a loyalty test, and there's anxiety that, you know, if you vote in favor of something that could be construed as anti Trump, congratulations, you've just given yourself a primary challenger. I don't, I don't know to what extent, you know, any given senator has deeply held views about the proper scope of presidential power and, you know, the fact whether Trump properly exercise that power. But it just strikes me that, you know, Trump's kind of reign of terror over the Republican Party is such that people might not want to step out of line. Does that sound right to you, Andrew?
- [35:58]
Andrew Kent
Yeah, I agree. And, you know, and in some ways, you know, some of these maybe are not. I mean, I guess if we get Trump again, it would have been good. It would have been good to have enacted them, but if we don't, some of these reforms that, you know, that we are putting in this box here, you know, are maybe not the most important ones, just because, you know, most people are not as flagrantly abusive of the office as, as Trump. So, you know, we're talking about things like, you know, Congress passing a statute that says you can't pardon yourself, and if you pardoned a close family member or a close political aide, you know, those documents are going to be turned over to the Judiciary Committees, for example.
- [36:35]
Ben Wittes
This just isn't perceived to be a prospective issue with Nikki Haley.
- [36:40]
Andrew Kent
Yeah, I mean, yeah, I think, you know, even Nixon didn't, you know, didn't try to pardon himself. But, you know, from what we can tell, Biden would be happy, you know, happy enough to sign a lot of this kind of Trump specific stuff. And, you know, what we concluded was that's probably because he doesn't see it as, you know, stopping him from doing anything that he would plausibly want to do. So that's, you know, that's a, you know, that political dynamic is certainly another reason, you know, that just there's the overlap of stuff. That's. The stuff that Biden would happily sign is in some ways kind of the lesser useful, again, unless we get Trump second term. But also just the stuff that Republicans are, you know, seem to have absolutely no interest in going for.
- [37:22]
Ben Wittes
I want to ask you whether you think the log jam has any prospect of breaking. So, you know, one possibility is that, hey, Biden has had other priorities for the last year, you know, the build back better bill and the voting rights stuff. And so this is kind of 10th on his priority list. Reigning in his own power, not being the highest thing on anybody's priority list. But as you get closer to the possibility of, first of all, if you had a Republican House, and so there were actually incentive on the part of the House to rein in the current president's power, that could really force a negotiation. But secondly, as you get closer to the possibility of, of Trump coming back, that, you know, concentrates the mind like a hanging in Congress. And so I'm curious from both of you what you think the prospects are as you get closer to the midterms and then get closer to the 2024 presidential election. Does that change the legislative landscape in a fashion that is more or less conducive to reform, or does it make no difference at all?
- [38:51]
Andrew Kent
I guess I think it probably depends a lot, Ben, on the area that we're talking about. I mean, I guess I could imagine a scenario. For example, there's a pretty moderate inspector general protection bill, you know, that wouldn't try to limit the president's ability to remove inspector generals from office. You know, something that Grassley, for example, has been very interested in. You can imagine a situation, you know, Republicans take, you know, both houses of Congress. You know, Biden's therefore not getting any, you know, big items on his agenda through, you know, is he willing to sign some kind of compromise, pretty watered down, you know, inspector general protection bill that, you know, that Grassley and some other leading Republicans really like. Yeah, you know, I could, I could see that happening. You know, maybe there's a little bit of something along those lines on national emergencies, powers reform too, perhaps. But, you know, but I would think in each case it's probably, you know, an issue, specific area. And so we'd want to talk about, you know, are there leading Republican Senate, you know, senators or people in the, in the House who are, who are pushing it? Is there a version of the bill that, you know, that OLC and the White House Counsel's office wouldn't object to that doesn't seem to be unduly constraining on, you know, the executive branch, et cetera?
- [40:04]
Ben Wittes
Quinta.
- [40:06]
Quinta Jurecic
Yeah, I think that the, the proposals that Andrew points to specifically on inspector general reform and emergency powers reform, and there's there's also one of the other provisions that was meant to get a vote on the Senate floor with a 2022 NDA and didn't was reform of the 2002 AUMF. So not, not the 2001 AUMF, but the 2002 authorization for the Use of Military Force in Iraq, which the House has, has repealed as well. So those three pieces of legislation are just kind of hanging out in the Senate, like I said, and my understanding is that they can kind of be tucked into any bill at any point. There just hasn't really been a moment where it makes sense to do so. So I could definitely see it, you know, see a world where one or some or all of those make it through the Senate with even relatively little fanfare just because they're kind of ready to go. On the other hand, you know, with the war in Ukraine, it's also possible that there could be a lot less enthusiasm about, you know, dialing back presidential authority to use force and use emergency powers. So I think that's worth keeping in mind. I mean, the other thing is, you know, we haven't talked about the January 6th committee because we're, we're really focusing here on the legislation that is already on the table. But as I have written about with Molly Reynolds, I think partly as a result of the recent Supreme Court decision in Trump V. Mazars, the January 6th committee has really been pushing this idea of legislative purpose, that it is conducting this investigation in order to put forward, among other things, recommendations for changes in legislation. They've hinted at a number of possibilities, including changes to obstruction of justice statutes. Not the one that I have in mind, but if anyone's listening to this in the committee, they should put that in there and some other things as well. So, you know, the committee, I think, is, is probably going to wrap up its work or has to wrap up its work before January 2023 if they come out with a report and they say, you know, Here are our 3, 4, 5 proposals for legislative change in the wake of January 6th. Those are necessarily going to be, you know, speak to Trump's actions as well. And so at that point, you have not only kind of new life into the breathed into the idea of reform, but specific reforms on the table, reforms that are not linked to pota, so maybe it won't be dragging them down. On the other hand, anything that comes out of the January 6th committee is instantly going to be poison to the vast majority of the Republican caucus. So I don't know what that Means, I mean, maybe, as you say, Ben, you know, if the Biden administration is really staring down the barrel of Republicans in the, in the House or potential Trump victory in 2024, maybe they'll start pushing more for reform. But I think what you kind of see in the back and forth in my answer here is that you can look at all these dynamics and you can say, well, maybe it comes out in the direction that helps push forward reform or maybe it holds people back. There's sort of, there's so many factors and the strategic calculations are so complicated that I think it's hard to see how anything pans out.
- [43:26]
Ben Wittes
Right. I mean, one of the, to just to put flesh on the bones of what you're describing, any reform you pass this year to empower Congress against a future Trump may be used next year by Jim Jordan against you. Right.
- [43:48]
Quinta Jurecic
Yeah. And, and Republicans, including Jordan, have specifically said as much. So it is, it is not hypothetical at all. It is very much on the table.
- [43:56]
Ben Wittes
All right, so I want to talk about the White House's strategic choices here, because I think there is a, an evident strategic choice in, in the White House about a lot of these reforms, which is, hey, there's nothing wrong with the system, there's just something wrong with the people. And so if the president is, is Joe Biden instead of Donald Trump, the problem goes away. And if the attorney general is Merrick Garland instead of Bill Barr, the problem goes away. And if, you know, you don't have family members of the president in the White House, the problem running a hotel chain, the problem goes away. And so I guess my question, Andrew, is, is it clear to you that that is actually the fundamental judgment of the Biden administration that the problem is personnel, not policy.
- [45:02]
Andrew Kent
So that's where our piece came out. And I think with a, at least on my part, Quinta. But you can tell me with sort of a note of sadness that for all the big talk during the campaign and for all the reasons that Jack Goldsmith and Bob Bowers book and in our piece and other things that have been written at Lawfare and elsewhere, for all the good reasons to think that, that we really should have been tackling some, some reform of the executive branch, it kind of does seem like Biden's view is, yeah, just swap out, you know, bad Trump people for, you know, for good hearted people who have the right, you know, the right values. The right will follow the traditional, you know, institutional norms, will follow the law. It does feel like that, that that is the Biden theory of, of presidential Reform.
- [45:53]
Ben Wittes
All right, one more question, Quinta. One thing that people will say is that, hey, the problem here is Merrick Garland, and, you know, you have all these good ideas floating around Congress, and then they run into the Buzzsaw, which is the Office of Legal Counsel, which basically says they're all unconstitutional, or some soft version of that, and that the Justice Department is just very institutionally conservative because it is actually, among other things, the guardian of presidential power. And I guess the question is, do you see a plausible scenario in which the Justice Department realistically plays a different.
- [46:40]
Quinta Jurecic
Role under a different Attorney general? Maybe. I mean, I do think Garland has got a lot of criticism. I think, as the three of us have written, some of it fair and some of it unfair. But it does seem to me, and Ben, you can tell me if you think I'm being unfair here, that Garland has taken a very institutionalist position as the Attorney General, which, to be clear, I think is exactly what he was hired to do. Nobody expected that he was going to come in and be a real firebird Brand. I think there are. There are kind of a couple different ways to think about being the Attorney General in a post Trump period or a period of following extreme crisis in the rule of law. One of them is to say, okay, what we really need to do is sort of shore up our traditions, our norms of integrity, you know, return to business as usual, and that's how we're going to restore trust in the department. Another way is to say, what we need to do is get rid of all of the dross that's been holding us down, sort of look back and figure out which OLC opinions do we need to rescind. How can we think differently about presidential power? And Garland has pretty clearly taken the first tack. I think both approaches are defensible, and there are arguments in favor of both. And I take the difficulty of that choice seriously. But it does seem clear to me that he's really chosen the first approach. And I think there are serious downsides to that. I mean, for exactly the reason that Andrew identifies. It's just. It's incredibly difficult to protect an executive branch that is built in such a way as to allow a president like Trump to do what he did. And for the answer of, well, how do we prevent this from happening again? Essentially to be, well, don't elect that guy. I mean, at the end of the day, that is the answer, right? There is a limited amount that the government can do to prevent a president whom the American people, under the existing system, the electoral college chose to elect as their leader. But it does feel mismatched, I guess I would say, to the, to the magnitude of the threat that Trump posed to the rule of law.
- [48:58]
Ben Wittes
I guess I would just say if Merrick Garland were here, I think what he would say in response to that is that the powers of the presidency are so titanic that the ties that bind the hands of the law abiding president are trivial to a Trump, but are serious to the law abiding president. And so what you end up, you end up with a paradox where you, you do these things that, that restrict the law abiding and don't actually affect the lawless president.
- [49:43]
Quinta Jurecic
Right? I mean, the problem of course is that that depends on, you know, the American people electing law abiding presidents going forward. And I do think that honestly one of the things that I was thinking of as we were writing this piece is, you know, if we're in a situation where we understand the powers of the presidency to be that vast, at what point is the problem actually also how we conceptualize the powers of the.
- [50:11]
Ben Wittes
Presidency, we are going to leave it there. Quinta Jurecik, Andrew Kent thank you both for joining us.
- [50:21]
Andrew Kent
The Lawfare podcast is produced in cooperation operation with the Brookings Institution. Our audio engineer this episode is Kara Schillen of Goat Rodeo. If you heard an ad or two in this podcast, that's because you haven't signed up for the Material Supporters program wherein you become a material supporter of Lawfare and you skip the ads. You can do that@patreon.com lawfare that's patreon.com lawfare the Lawfare Podcast is edited by Jen Patya Howell. Our music is performed by Sophia Yan. And as always, thanks for listening.
- [51:12]
Caroline Cornett
This is Paige, the co host of Giggly Squad. I use Uber Eats for everything and I feel like people forget that you can truly order anything, especially living in New York City. It's why I love it. You can get Chinese food at any time of night. But it's not just for food. I order from CVS all the time. I'm always ordering from the grocery store. If a friend stops over, I have to order champagne. I also have this thing that whenever I travel, if I'm ever in a hotel room, I never feel like I'm missing something because I'll just Uber Eats it. The amount of times I've had to Uber eats hair items like hairspray, deodorant, you name it, I've ordered it on Uber Eats. You can get grocery alcohol everyday. Essentials in addition to restaurants and food you love. So in other words, get almost anything with Uber Eats. Order now for alcohol you must be legal drinking age. Please enjoy responsibly. Product availability varies by region. See app for details.