Summary of "The Lawfare Podcast" Episode: Lawfare Archive: The Legislative Dog That Hasn’t Barked
Release Date: April 27, 2025
Host: The Lawfare Institute
Introduction
In this archived episode of The Lawfare Podcast, Caroline Cornett introduces a discussion originally recorded on April 11, 2022, featuring experts Benjamin Wittes, Quinta Jurecic, and Andrew Kent. The conversation centers on the contrasting legislative responses to executive branch abuses following two significant presidencies: Richard Nixon post-Watergate and Donald Trump after his first term. The hosts delve into why a flurry of congressional reforms emerged after Nixon's resignation, while similar initiatives have stalled in the aftermath of Trump's tenure.
Legislative Context Post-Watergate vs. Post-Trump
Ben Wittes (02:44) sets the stage by highlighting the unprecedented congressional efforts to reform the executive branch after Watergate, a response not mirrored following Trump’s departure. He references a Lawfare article where Quinta Jurecic and Andrew Kent analyze this disparity, exploring historical contexts and legislative prospects.
Andrew Kent (04:37) explains that while sitting presidents typically show limited interest in self-reform, the magnitude of Trump's abuses created near-unanimous support among Democratic leaders for substantial reforms. He draws parallels to the mid-1970s, a period marked by significant congressional and executive branch activities aimed at restraining presidential power.
Quinta Jurecic (06:23) adds that President Joe Biden had indicated openness to presidential reforms post-Trump and references the "Protecting Our Democracy Act" (POTA) introduced by House Democrats in 2020. POTA aimed to limit presidential pardon powers, strengthen whistleblower protections, and prevent foreign election interference, among other measures. However, she notes that POTA is not exhaustive and lacks the breadth of other proposals like those in the book After Trump by Bob Bower and Jack Goldsmith.
Comparative Analysis of Legislative Action
Andrew Kent (21:12) compares the legislative activity post-Nixon to the current landscape, emphasizing that Nixon's reforms unfolded over five to six years, influenced by revelations from Watergate and the Hoover era. In contrast, only about a year has passed since Trump left office, making direct comparisons challenging.
Quinta Jurecic (22:01) points out that while Nixon's era saw comprehensive reforms across various issue areas, the current period lacks similar momentum. She underscores that Congress now experiences significant partisan shifts, with tight Senate margins and the potential for Republican control in upcoming midterms, which could stifle reform efforts.
Barriers to Executive Branch Reform
Ben Wittes (28:15) proposes several explanations for the legislative stagnation post-Trump, including a polarized Congress, strategic legislative limitations, the ongoing nature of reforms yet to be realized, and executive resistance.
Quinta Jurecic (30:33) highlights the reduced ambition of current reforms compared to the 1970s. She argues that modern reforms are cautious, ensuring they withstand judicial scrutiny, especially given the conservative Supreme Court's expansive view of Article II powers. Additionally, she notes the complexity of inter-branch dynamics, where political party loyalty often trumps institutional loyalty, hindering bipartisan support for significant reforms.
Andrew Kent (34:07) concurs, emphasizing that Trump-specific abuses render related legislative efforts "dead on arrival" within the Republican caucus. He suggests that the reluctance stems from a strategic avoidance of admitting past tolerances or endorsing limitations that could undermine future Republican presidencies.
Prospects for Future Reforms
Ben Wittes (37:21) and Quinta Jurecic (38:50) explore the potential for overcoming legislative gridlock. Quinta mentions lingering legislative pieces, such as inspector general protections and reforms to the Authorization for Use of Military Force (AUMF), that remain unresolved in the Senate. She speculates that upcoming political events, including the influence of the January 6th Committee and potential shifts in political control, could either advance or further impede reform efforts.
Andrew Kent (40:05) remains cautiously optimistic about targeted, moderate reforms that might gain bipartisan support, especially if they align with Republican interests, such as enhancing inspector general protections without significantly curbing executive authority.
Roles of the Executive Branch and Legal Constraints
Ben Wittes (45:02) questions whether the Biden administration views executive power as problematic or merely a matter of personnel changes, suggesting a belief that replacing "bad actors" can rectify systemic issues. Quinta Jurecic (46:40) critiques Attorney General Merrick Garland's institutionalist approach, arguing that while necessary for stability, it may insufficiently address the expansive nature of presidential powers that allow abuses like those witnessed under Trump.
Ben Wittes (48:57) posits that Garland might recognize the paradox where legal restrictions disproportionately constrain law-abiding presidents while offering minimal deterrence against potential authoritarian leaders. Quinta underscores the dependency on electoral outcomes to choose law-abiding presidents, highlighting the limitations of legislative reforms in the face of entrenched executive powers.
Conclusion
The episode concludes with reflections on the complexities of enacting executive branch reforms in a highly polarized and strategically constrained legislative environment. Ben Wittes (50:20) and his co-hosts acknowledge the multifaceted challenges, including political incentives and institutional inertia, that impede the passage of comprehensive reforms aimed at curbing presidential overreach.
Notable Quotes
- Andrew Kent (04:37): "There are things that plausibly could be done through legislation to fix those [abuses]."
- Quinta Jurecic (09:38): "It's going through a process that is not only new life breathed into the idea of reform but specific reforms on the table."
- Ben Wittes (43:25): "Any reform you pass this year to empower Congress against a future Trump may be used next year by Jim Jordan against you."
- Quinta Jurecic (35:21): "Trump's kind of reign of terror over the Republican Party is such that people might not want to step out of line."
Conclusion
This episode of The Lawfare Podcast provides an incisive analysis of the legislative challenges in implementing executive branch reforms post-Trump, contrasting them with the robust actions taken in the wake of Watergate. The discussion underscores the interplay of political dynamics, institutional incentives, and strategic calculations that shape the prospects of meaningful reform in safeguarding democratic norms and legal constraints on presidential power.