Lawfare Archive: 'The President Who Would Not Be King'

Summary

Summary of The Lawfare Podcast Episode: "Lawfare Archive: 'The President Who Would Not Be King'"

Release Date: April 20, 2025

Introduction

In this archived episode of The Lawfare Podcast, hosted by the Lawfare Institute, Carolyn Cornett introduces a discussion featuring Jack Goldsmith and Michael McConnell. The episode delves into Michael McConnell’s book, The President Who Would Not Be King: Executive Power under the Constitution, exploring the historical and constitutional underpinnings of presidential power in the United States.

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1. Purpose and Motivation Behind McConnell's Book

Timestamp: [01:59]

Michael McConnell outlines two primary motivations for writing his book:

• Historical Insight: McConnell believes there is a scarcity of detailed analyses focusing specifically on the formation and drafting of the presidency within the Constitutional Convention. He emphasizes that while broader works cover the Constitutional Convention, few isolate the presidency’s creation and evolution.

• Nonpartisan Analysis: He stresses the importance of examining the presidency without the lens of contemporary political biases. McConnell aims to present an objective perspective, avoiding the "whiplash" that often accompanies partisan views on presidential power.

Notable Quote:

“This book makes a scrupulous attempt not to be colored by the identity of the president.”
— Michael McConnell [04:05]

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2. Challenges in Understanding the Framers' Conception of Executive Power

Timestamp: [05:15] – [08:42]

Jack Goldsmith highlights the significant challenges McConnell addresses regarding the incomplete and potentially biased records from the Constitutional Convention. McConnell responds by focusing on:

• Actions Over Words: Prioritizing the tangible decisions and successive drafts produced during the Convention over the incomplete or tendentious records of debates.

• Historical Context: Connecting the framers' decisions to their experiences under British constitutionalism and the practical needs of the early Republic, such as Washington’s role as commander in chief.

McConnell underscores the framers' struggle to create an executive branch that was independent and effective without resembling a monarchy.

Notable Quote:

“The presidency was one of the most amazingly creative and successful things that the delegates did.”
— Michael McConnell [11:27]

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3. The Committee of Detail and the Creation of Article 2

Timestamp: [13:08] – [19:59]

McConnell details the pivotal role of the Committee of Detail during the Convention:

• Reconstruction of the Presidency: Contrary to the committee’s name suggesting merely fine-tuning, they significantly redefined the presidency by reassessing British prerogative powers and redistributing them between the executive and legislative branches.

• Vesting Clause Interpretation: McConnell introduces his thesis that residual executive powers vested in the President through Article 2’s vesting clause are not traditional prerogative powers. Instead, these powers are subject to congressional limitations and oversight.

Notable Quote:

“They give a lot of those powers to Congress… the President can move forward without first getting congressional authorization, but is subject to congressional authority.”
— Michael McConnell [19:59]

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4. Modern Interpretations vs. Historical Intent

Timestamp: [20:42] – [31:08]

The conversation shifts to contemporary interpretations of the vesting clause and executive power:

• Contrast with Conservative Views: McConnell critiques the modern conservative legal interpretation, which often views the vesting clause as granting broad, almost unchecked executive powers. He argues that such interpretations neglect the framers’ intent to balance and limit presidential authority through congressional powers.

• War Powers Debate: McConnell emphasizes that historically, the framers intended Congress to hold significant authority over war declarations, a principle increasingly undermined by modern administrations. He cites examples like President Obama’s intervention in Libya without explicit congressional approval as departures from this original intent.

Notable Quote:

“The framers did not believe that the President should be able to take the nation into war. They gave that power to Congress.”
— Michael McConnell [37:37]

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5. The Evolution of War Powers and Congressional Responsibility

Timestamp: [37:37] – [48:19]

McConnell and Goldsmith discuss the expansion of presidential war powers, correlating it with the growth of the standing military:

• Historical Dependence: Early presidents sought congressional approval for military actions due to limited standing forces, ensuring checks on executive power.

• Modern Shift: With substantial military capabilities, presidents can engage in conflicts without direct congressional authorization, a shift not anticipated by the framers.

• Political Dynamics: McConnell argues that Congress often prefers to delegate war-making authority to the President, avoiding the political and financial responsibilities that come with declaring war.

Notable Quote:

“Congress loves simply to hang back and put its finger to the wind, see how public opinion will go, see how the war goes.”
— Michael McConnell [43:06]

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6. Impeachment Powers and Contemporary Implications

Timestamp: [49:40] – [53:44]

The discussion addresses the scope of the impeachment power, particularly:

• Inclusion of the President: McConnell affirms that the impeachment clause unequivocally includes the President, as evidenced by Constitutional debates and historical precedents.

• Late Impeachments: Drawing from British practices and historical impeachments like that of Warren Hastings, McConnell suggests that impeaching a president after they leave office is constitutionally permissible.

Notable Quote:

“The Senate is able to take up President Trump's impeachment…”
— Michael McConnell [50:30]

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7. Congressional Investigative Powers and Historical Practices

Timestamp: [54:08] – [58:28]

McConnell explores early congressional investigative authority through the case of General Arthur St. Clair:

• Initial Stance: During early investigations into military defeats, Congress preferred requesting documents and testimony through the President rather than issuing subpoenas.

• Practical Enforcement: Until modern interpretations, Congress did not assert a legal obligation for the President or executive officers to comply with investigative demands, relying instead on political pressure.

Notable Quote:

“Congress would ask for the papers, the President would say either yes or no… they did not claim that they had the authority to demand papers over the President's objection.”
— Michael McConnell [58:28]

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8. Methodology and the Importance of Historical Foundations

Timestamp: [59:43] – [61:35]

In concluding remarks, McConnell emphasizes the foundational role of historical analysis in constitutional interpretation:

• Original Foundations: He advocates for understanding executive power based on the historical context and framers' intentions as a starting point for contemporary debates.

• Open to Analysis: While acknowledging other interpretive sources like subsequent practice or pragmatics, McConnell insists that these should be built upon the original constitutional framework established by the framers.

Notable Quote:

“What I believe is that we should take the original foundation as our starting point. And then if anyone wants to make an argument that there are specific things in subsequent history or in pragmatics… let’s consider that argument on its merits, but at least see what the common starting point was.”
— Michael McConnell [59:43]

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Conclusion

Jack Goldsmith praises McConnell’s work as a masterful examination of the presidency's constitutional foundations, recognizing it as the most comprehensive study on the creation and meaning of executive power in the United States. The episode underscores the critical need to return to historical intentions and original frameworks to address modern challenges in executive-legislative relations.

Notable Quote:

“It's the best book I've ever read on the creation of the presidency and the meaning of executive power. So congratulations.”
— Jack Goldsmith [61:35]

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Final Notes

This episode offers an in-depth exploration of the constitutional design of the U.S. presidency, highlighting the tensions between historical intent and modern practice. It serves as a crucial resource for understanding the evolution of executive power and the ongoing debates surrounding its appropriate scope and limitations.

Transcript

[Lawfare Host]

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[Michael McConnell]

Foreign.

[Carolyn Cornett]

I'm Carolyn Cornett, intern at Lawfare, with an episode from the Lawfare archive for April 20, 2025. In the first months of his second term, President Donald Trump has tested the limits of executive power. Trump has claimed authority to remove heads of independent agencies, impound federal funds, ignore court orders he views as infringing on his prerogative to conduct foreign affairs and and more for today's Archive episode, I selected an episode from January 26, 2021, in which Jack Goldsmith sat down with Michael McConnell to discuss his book, the President who Would Not Be Executive Power under the Constitution. They talked about McConnell's approach to interpreting presidential power under Article 2, the proper understanding of Article 2's vesting clause, contemporary implications of Michael's reading of Article 2. More.

[Jack Goldsmith]

I'm Jack Goldsmith and this is the Lawfare Podcast. January 26, 2021 I sat down with Michael McConnell, Richard and Francis Mallory professor and director of the Constitutional Law center at Sanford Law School, a senior fellow at the Hoover Institution, and the author of the new book the President who Would Not Be King, Executive Power under the constitution. We discussed McConnell's textual historical approach to interpreting presidential power under Article 2, the many novel elements of executive power embodied in Article 2, and the proper understanding of Article 2's vesting clause. We also talked about contemporary implications of his reading of Article 2 for war powers, the unitary executive, and late impeachments. It's the Lawfare Podcast, January 26th. The President who Would Not Be King. Michael, there's so much written about Article 2 of the Constitution, about the nature of the American presidency and of executive power vested by Article 2. Why did you write this book? Why was there a need to write this book?

[Michael McConnell]

Well, Jack, there are two reasons. One is that I actually do not think that there has been enough written about the history of the formation of the presidency looking at how it was drafted and why. I think this is the first time anyone's told that entire story. Now, of course, there are books about the entire Constitutional Convention and so forth, but not zeroing in on the presidency. Perhaps more importantly than that, the, though, is that I think it's really essential that we think about the presidency in nonpartisan terms. So much that is written about the presidency is driven by approval or disapproval of whoever is in office. And when that flips, it's almost like whiplash. All the people who are worried about presidential power under Trump will be will delight in presidential power under Biden and vice versa. So this book makes a scrupulous attempt not to be colored by the identity of the president.

[Jack Goldsmith]

And I think you succeed on that score, and I certainly agree with you. As a scholar of the presidency, I've never examined the sources that you examined in the detail. You do, and the book is masterful at examining these sources, clearly presenting them, noting the gaps and what to do about the gaps and the like. Speaking of gaps, you talk about right up front about the challenges to our understanding of the Founders conception of the presidency. You note that Madison's notes of the Constitutional Convention are incomplete and in some places perhaps tendentious. Many of the executive power provisions were crafted in committees whose deliberations were not recorded and were not debated on the floor of the convention in a serious way. The ratification debates, you note the debates in the states to ratify the Constitution are spotty, and the elements or remnants that we have discuss executive power in general terms. So you state all that up front. That seems like A large challenge to figuring out the Framer's conception of executive power. How do you deal with those problems?

[Michael McConnell]

So true. And so what I do is to focus on what was actually done at the Convention less than what was said. Now, of course, where we do know something about what was said, that can be relevant, but to focus on what they actually did, what were the successive drafts, which we do know a great deal about, even within those committees that were meeting behind closed doors, but then to connect what they did to what had happened before. Every bit of the Constitution, and especially Article 2, was driven by the experience that they had had under the British constitutionalism, in particular, and to some extent, early independence. For example, Washington's performance as commander in Chief had a lot to do with the way the commander in chief power was put together. So looking back to what their experience was, what the problems were, to their choices about what was good and bad in the practice before, and then also looking ahead to the early years of the Republic, in which many of these provisions were put into effect and hashed out and see what they thought they meant, what the disagreements among them were about, what these provisions meant, and see what lessons we can get from that.

[Jack Goldsmith]

So you described the central challenge. You just mentioned that the Framers were deeply influenced by their experiences and what they understood about executive power in England and the colonies, to some extent under the Articles of Confederation, even though there wasn't a standalone executive. And you described the central challenge that they faced as follows. Quote, how could the delegates achieve the independence vigor, secrecy and dispatch necessary for an effective executive without rendering him an elected monarch? And one of the great things in the book is you describe how this was just an enormous challenge and they didn't really have models to build on. Can you give us a sense of that?

[Michael McConnell]

Yes. This is so difficult for them, other than reconciling the balance of power between large and small states. This was the most difficult thing. And the delegates spent more time on the presidency than they did anything else. And it was just such a challenge because there had never been an extended republic before with a republican meaning smaller republican, of course, executive. They had the experience of a king, and that presented some, you know, many contra. They didn't want to recreate that. You know, just read all the attacks on George III and the Declaration of Independence. If you wonder why, even worse than the king, were the colonial governors who were like little monarchs within the colonies and not accountable to the will of the people. But there was an emerging model in England at the time that in many ways they liked even less, which was ministerial government. As the king was evolving into a constitutional monarch, but almost a figurehead. The real power in Britain was devolving upon not the Parliament as a deliberative legislative body, but rather on the parliamentary leadership in their capacity as prime minister and the various other ministers. And to many of the Framers, this looked like the worst of both worlds, because these ministers were able to rule in the name of the Crown, but without any of the checks that you get from a real deliberative assembly. And in fact, because they were essentially the prime minister and the leading party leaders of the Parliament, they were not checked by Parliament in any significant way. It took a very rare upheaval, a political upheaval, for Parliament to stand against its own leadership in their capacity as the ministers. And so in many ways, they thought this ministerial government was the worst of all. And their own state governors after independence were pitifully weak. Most of them had very few powers, most of them elected by the legislature for an extremely short term, without powers of appointment, without powers of veto, they really had nowhere to turn. And I think the presidency was one of the most amazingly creative and successful things that the delegates did.

[Jack Goldsmith]

Can you give us a sense of how self aware they were that they were charting a completely new course? Was this something that they stumbled into, or were they self aware that this was. They needed something entirely new?

[Michael McConnell]

The awareness is really almost comically clear. This is why the title of the book is the President who Would Not Be King. And this comes from, in addition to a reference to the movie, but it comes from the very first day of debate over the presidency. It's the third substantive debate day at the convention when the Virginia plan for the presidency comes before the delegates and they see what it is, and without even yet talking about it, one of the youngest delegates, Charles Pinckney of South Carolina, you could practically hear him gasp in the pages of Madison's Notes. And he says, why, this will create a monarchy of the worst sort, an elective monarchy. And he was right about that. The initial draft would have created a president with all, essentially all of the powers of the king, the only difference being that he would be elected rather than elected at that time by the Congress, but elected rather than hereditary. They then cast about for the next three months for how to create a presidency that would be strong enough to do what they needed from it, but not so much like a king.

[Jack Goldsmith]

So there is a lot in the book, many chapters, that give the rather dramatic account, actually, of the path that led to Article 2. I know this is an impossible task, but can you just describe the basic moves that led to Article 2? And in particular you have a chapter called the Audacious Innovations of the Committee of Detail, which I didn't know much about. If you could include that as well. That's important. I think.

[Michael McConnell]

Yes, that's really central to the story because after Charles Pinckney made his observation about the elective monarchy, the delegates voted to create an extremely weak president with very few powers. And then they left it like that for a month and a half and they didn't touch the powers of the Presidency again. And then the draft, as it was working, working on the floor of the Convention, was sent to a committee misleadingly named the Committee of Detail. When you hear the name, I think a lot of historians over the centuries have tended to assume that this committee didn't do anything very important because it was called the Committee of Detail. They're just working out the details, right? Well, not right. This committee, not only did it create the Presidency almost afresh, but it also created almost our entire system of state and federal balance of power. It was an extraordinarily audacious move because they weren't charged with creating a new constitution, they were just charged with putting together a draft based upon the decisions that had already been made. But their membership were extremely self confident and quite representative of the nation. So the five members of that committee basically felt free to scrap what the delegates had done to that point and come up with a new scheme. And what they did for the presidency is they began working from. This is my theory, but I'm very convinced that it is what happened that they began working from either mental notes or maybe even the physical book, the from Blackstone's Commentaries on the list of Prerogative Powers of the King in Blackstone. And they address out of about 42, depending on how you count them, how you lump them together, roughly 42 separate prerogative powers of the King. And let me explain what a prerogative power is. It's a power that is vested in the executive by virtue of, of his office and not by virtue of parliamentary or legislative act or delegation. And the prerogative powers are, at least in a formal sense and even realistically and to some extent impervious to parliamentary or legislative second guessing. So these are absolute powers of the King. Now they were limited in their scope, so the King couldn't go beyond them, but within their scope, the King had full discretion with respect to them. And the Committee of Detail went through every one of Those, and I believe every one, with one really important exception, they either explicitly or implicitly assigned, but they didn't give them all to the President. Many of those powers were explicitly assigned to Congress instead of the President. In fact, Roughly out of 27 powers that are explicitly given to Congress in Article 1, Section 8 and elsewhere, some 13 of those were actually royal prerogative powers under the British Constitution. So they gave a lot of those powers to Congress. And many of them are extremely important, such as the power to declare war, the power to decide how appropriations are going to be spent, really important powers, a lot of the foreign affairs powers as well. So they assign some of them to Congress, some of them they assign to the President. But almost without exception, they then sort of restructure the powers given to the President and limit them in important ways, either by giving the Senate the power of advice and consent or by limiting the scope of the powers. And then a number of the prerogative powers they deny to the new federal government altogether. So that's what they do is they go through. It's essentially they use the British Constitution as an outline of the existing state of governmental power and then they allocate it, but in a way which makes the President significantly less king like than under a Blackstone. But then they do one other thing which is very creative, which is that they give the residuum of unassigned executive power to the President through what we call the vesting clause. It's the first sentence of Article 2 and it says that the President is vested with the executive power under the Constitution. But it is my thesis in the book, and I hope readers are persuaded by this. I am persuaded by it, that those residual executive powers are not understood to be prerogatives anymore. They're kind of halfway in between. They are given to the President by virtue of his office, but fully subject to limitation regulation override by the legislative branch. So the President can move forward without first getting congressional authorization. But if Congress passes a law saying no, you have to do it some other way, we don't like what you're doing. The President is subject to congressional authority insofar as Congress has an enumerated power over that subject. So that is in a nutshell, how the committee of detail created a President that was going to have a lot of flexibility, a lot of ability to move quickly, but to be subordinate to both the legislative branch and to the ultimately accountable to the people.

[Jack Goldsmith]

So let me ask some follow up questions about that. This is a theory of the vesting clause that is like some modern theories of the vesting clause, but has some important changes as well. I want to start off by asking what is the relationship between the residuum of powers given to the President in the vesting clause of Article 2 and the specific but rather thin list of allocated powers and duties in the rest of Article 2? Because, as you know and as you note in the book that that small number of powers and duties given to the President has always been seen. Robert Jackson basically said this as a reason not to give content like you do to the vesting clause. So how do you deal with that issue?

[Michael McConnell]

So I see the explicitly allocated powers as being primarily they are prerogative in their nature, so that, for example, the veto power, the President has the right to veto, he can do it for any reason, no reason at all. It's totally within his discretion. It's a fully prerogative power. The power to appoint, choose appointees to the offices of the government is a limited prerogative power. That is, the President can name whoever he wants, but it's subject to the check of advice and consent by the Senate. The same thing for treaties. Presidents can make treaties with foreign countries, which is the most important aspect of foreign affairs, but the Senate can say no. And in fact, it takes a two thirds vote of the Senate to accept one of those treaties. So the vast majority of the Article two explicit powers are prerogative powers. There are I don't know how much we want to go into this, but in Section 3 of Article 2, there are a series of duties, mostly duties to Congress or duties of various sorts that also imply powers. But these are not I don't think these were conceived of as prerogative powers in quite the same way. So I think that Justice Jackson's error, and I think a lot of folks since then have repeated this error, is to think that all powers have to be either prerogative in nature or they have to be powers that are actually congressional and have to be delegated first. They just, I think, overlook the possibility of this category of executive powers which the President is empowered to take but subject to the countervailing decisions of Congress.

[Jack Goldsmith]

And how do you deduce that the powers vested residually in the vesting clause are of that sort.

[Michael McConnell]

So the main reason is because it's evident when you look at very specific debates in the convention that the delegates believed that increasing the scope of Congress's enumerated powers had the effect of reducing the corresponding scope of presidential power and vice versa, that these are reciprocally limiting Powers, they're not separate, they're not overlapping, they're not contradictory, but they're reciprocally limiting. So for example, in the area of war making, there are certain measures short of war that founders called mark and reprisal. And even after Congress had been given the power to declare war, the delegates realized that the President was still left with this residual power of authorizing these limited war like measures. And so they had to go back and give Congress that power so that it would not be exercisable by the President. But when you think about that, why did they think it was exercisable by the President? It's not given to him, not in so many words. It must be part of the executive power, the residual power that's vested in the vesting clause. And there are just countless examples of this when you look for them.

[Jack Goldsmith]

So you embrace, you argue for quite persuasively a theory that builds on the vesting clause. But I think it's fair to say you depart from a lot of conservative lawyers view of what the vesting clause means. You deduce a presidency that is very powerful and that we can explain why the President has a whole array of powers, like power to conduct diplomacy, even though it's not explicitly in the Constitution. But, but as you note, it's also a presidency that is quite seriously constrained. And I'm just wondering, conservative administrations and conservative lawyers especially, but not only them have read the vesting clause to confer much broader exclusive, maybe even called prerogative powers. How does your view of Article 2, if you could generalize, differ from that view of presidential power that has been a part of mostly Republican administrations, I would say, for the last four decades.

[Michael McConnell]

So I would quibble with that. I think that it is true that starting with the Reagan administration, but really not before that, that conservative legal theorists have tended to embrace a more powerful presidency. That was not the historic position of conservative or capital R Republican thinkers before Reagan, but since Reagan it has been. Now Democratic counterparts tend not to be as open or transparent in their views of executive power. But when you look at what they actually do and how they justify actions, the differences are not that great. But back to the theory, you were right, that these Republican and conservative lawyers have tended to look at the vesting clause saying the President has these powers, but then to assume that those powers are prerogatives, that is that if they fall within the executive power as defined by the vesting clause, then the Congress can't do anything about them. So this came up most dramatically, I Think in the George W. Bush administration when the question arose whether the executive, by virtue of the commander in chief power, had control over the methods of interrogation that would be used by the armed forces and the intelligence agencies, even in the face of congressional enactments of a couple of statutes that we generally refer to as the anti torture statutes. And the Justice Department under your predecessors, Jack, your immediate predecessors, and this is something that you reversed when you were at the Justice Department, and I commend you for that. But your predecessors took the view that because questioning enemy forces was traditionally part of warfare and part of the commander in chief power, something that then General Washington did during the Revolution, that that meant not just that he had the power to undertake those measures without specific authorization, but he could also ignore statutes that Congress had passed which purported to limit that power. Well, I think that's a misunderstanding, that just because the President has a power, it doesn't make it a prerogative power. It may be, and I think in that instance was a residual power. And to determine whether Congress has the power to limit the President's authority within those areas, what you really need to look at are the scope and limits on Congress's power under Article 1. Because if Congress has the power to enact these laws and they fall within this residual category, Congress wins the conflict. And so I don't think there was much doubt that those statutes having to do with interrogation methods were within Congress's enumerated powers. Very specifically, Article 1, Section 8 gives Congress the power to make rules for the regulation of the conduct of the armed forces. Well, I don't have any doubt that the CIA falls within that category. And that means that Congress was intended to pass laws that would regulate how the armed forces would behave. In the book, I actually go into some historical detail about how that evolved because of the, I mean, the, the problem of the armed forces, the standing army, you know, oppressing the domestic population was a very serious problem and led to, you know, the standing army was regarded as one of the terrible instruments of oppression. And the Congress was given the power to regulate their conduct for a very good reason. And then it may be that for 150 years there wasn't a big debate about that, not much dispute about it, because the President and Congress are more or less on the same page. But then in the war on terror under President George W. Bush, they were no longer on the same page. And the question became, which of the branches of government would prevail? And the Justice Department said it would be the President because his powers he didn't use the word prerogative, but essentially the logic of their opinions is this. Since this is a presidential power, it is a prerogative power, whereas I think the answer to this is no, it's not. It's actually a residual power subject fully to congressional regulation. I don't know when you reverse those opinions. I don't know to what extent you were thinking in these categories, but what you actually did was consistent with the argument in the book.

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[Michael McConnell]

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[Carolyn Cornett]

Switch upfront payment of $45 for 3 month plan equivalent to $15 per month required intro rate first 3 months only then full price plan options available, taxes and fees extra. See full [e-mail].

[Jack Goldsmith]

Yeah, I wasn't thinking in quite those categories, but all of the constitutional arguments were, in my view, of such a broad and unqualified nature that I knew they were wrong. And the whole thing was the opinion in my judgment was far, far broader than was necessary for the task at hand. So I didn't need to get into that level of detail to decide that the opinion could not be stood by. Let me ask you a related question where your conclusions also depart from modern Justice Department opinions of both Democrat and Republican administrations, and that is the war power, the allocation of the war power, and the President's authority to use military force absent Congressional authorization. Tell us how the framers of Article 2 and Article 1 basically saw that problem and how it differs from the view that prevails in the Justice Department today.

[Michael McConnell]

Well, the framers did not believe that the President should be able to take the nation into war. They gave that power to Congress and across the board, all the way from Hamilton on one side of the ideological spectrum to Jefferson on the other. I mean, there were differences between them. I don't want to minimize their differences. But across the spectrum, they interpreted the President's power to unilaterally begin combat as being extraordinarily limited. Not zero. No one thought that. But they believed that it was limited to defensive measures when the other side had started the conflict. And this was easy to enforce at the beginning because there was no substantial standing army through the Washington administration. The standing army was less than a thousand people there, and there was no navy. When President Adams thought that he was going to need to go to war against France in the 1790s, he actually went to Congress for authorization to engage a 10,000 man army, but that took appropriations and Congress debated it. They actually gave him his army. But there was no practical way in which a president back then could take the country into war without going to Congress because he needed the wherewithal with which to do it. He needed the appropriations. Fast forward and contrast that to modern situations like President Obama's undeclared war against Libya, which was not a defensive war in any way, which lasted for approximately eight months, which expended billions of dollars, in which many people, fortunately not many of them Americans, but many people, died. It was in every realistic since a war. And he did it without going to Congress. And he did not need to get additional appropriations because the military apparatus was already there. All he had to do was to deploy it. And his lawyers in the justice department, ironically, on April 1st, I actually recall the very day I read this opinion justifying this war, just happily said it was just fine. But they did not look at the original history. They paid no attention to the debates over the declare war clause or what they meant. They made no reference to the early history in which people like Washington and Hamilton and Adams and Jefferson fleshed out a view of the extent of the President's war powers. Instead, they look to recent experience Since World War II, since the Korean War even. And what has happened is that the Justice Department has justified one war after another. And each time there's a new one that's justified, that's treated as a precedent for the next one. And the only limitations they say are that it has to be. It can't be too extensive. And in some cases they say it can't involve any intention of occupying territory. And in some instances they say, well, it can't involve boots on the ground, although that is not always true. But interestingly, the very limitations that they, the only ones that they recognize would have made the wars engaged in by Adams and Jefferson, that would have been permissible, even though both Adams and Jefferson concluded that they had to go to Congress for authorization. So I think the modern Justice Department view is almost exactly opposite from the positions that were held across the ideological spectrum among the early Presidents.

[Jack Goldsmith]

I agree with that. And I just want to underscore one thing you said in passing, because I think it's so important. You mentioned that there was a legal check or a legal understanding about the allocation of power between Congress and the President embodied in the declare war clause primarily. But there was also this practical check that the President literally couldn't use military force unilaterally because he didn't have one. I mean, as you said, there was a tiny standing army under Washington and a Adams had to actually get authorization to build ships so he could use them in the Quasi War and the like. And my sense is that over American history there's almost a one to one correlation between the generic rise in the size and scale and power of the standing army and the president's exercise of unilateral military powers. I don't know if you have a comment on that.

[Michael McConnell]

Well, it's true. And there's also the political dimension because I do not think Congress actually wants to step up to the plate. One of the reasons why it makes sense to require a congressional declaration of war is that we should go to war. Rarely. But when we do go to war, we should be united and committed to the war, not divided. But Congress loves simply to hang back and put its finger to the wind, see how public opinion will go, see how the war goes. Right. And then decide to criticize if it's going to be politically advantageous after the fact. And so I think this presidential usurpation of the authority to go to war has actually been sometimes Congress pretends to complain about it, but I think actually Congresses of both parties are pleased that this is taken off of their backs, that they're not going to be responsible. And I don't want to name names here, but a few days after the Libyan, the Justice Department opinion and the Libyan war came down, I had occasion to be speaking to a, shall I say, very prominent leader in the House of Representatives. And I said, I've just read this opinion and it is appallingly bad and you should know that this war is really not constitutionally authorized. What are you going to do about it? This person figuratively patted me on the head and said, well, Michael, don't worry about that. You know, it was perfectly obvious to me that it made no difference whatsoever that this was an illegal war. Congress would wait and if it went badly, they would criticize and if it went well, they would take credit and the entire check on war making. And the intent was that Congress would be on the hook. Right. That's the idea of the of the Constitution, is Congress will be on the hook. Not just the president, but Congress, when you go to war, is going to war is such an important and dangerous proposition. Congress should be on the hook, but they do not. Congress doesn't like being on the hook and they especially are perfectly happy that the presidents of both parties parties have taken this on. I say both parties, though, but actually it has not been. The Republican presidents have actually not been as aggressive in the use of this slack as the others. So George W. Bush did get authority. He went and got an authorization for the use of military force in Iraq. Whatever we may think of the wisdom of that war, it was certainly not a illegal war. So it isn't as if this is always disobeyed but too frequently. I mean, we've got Libya, we've got Bosnia, we've got Somalia, we've got Yemen, and arguably the war in Syria. It was justified by the Obama administration based upon the idea that it still fell within the authorization for use of military force that George W. Bush got to fight Al Al Qaeda, which is a highly dubious interpretation of that congressional measure.

[Jack Goldsmith]

So I agree with all that. You left out Kosovo, which was 99, which was really a turning point in the understanding of unilateral executive power for humanitarian intervention.

[Michael McConnell]

Yeah. And I might add, particularly shameful on the part of the House of Representatives, which on a single day, if my memory serves me, I haven't checked up on this recently, but if my memory serves me, on a single day they voted down measures authorizing war, forbidding war, and leaving it up to the President.

[Jack Goldsmith]

Right.

[Michael McConnell]

It's like every possible outcome they voted against.

[Jack Goldsmith]

But I want to stay on this point just one more round. So I agree with you completely that there's a kind of devil's deal today between the Congress and the President where the Congress provides the President with this huge military. The President feels both the responsibility and often a desire to use this military as he wishes to achieve policy aims within some very broad and loose political constraint. A political constraint that I think is further diminished by the fact that we have an all volunteer military service, which means that the vast majority of the country is basically not impacted and not paying attention. It's hard for me to think of a greater failure on the part of the framers in terms of the gap between what they thought they were doing with the war power and what it actually became. Is that fair? And I don't even know if there's an answer to this question, but how did they go so wrong?

[Michael McConnell]

So it's true, but not fair. Because what they did actually worked until relatively recent times, until the Korean War and its aftermath. It is true that there were a variety of little skirmishes, like, you know, chasing Pancho Villa across the Mexican border and gunboat diplomacy and various small matters, but there really wasn't a full scale war, what we all call a war fought without a Congressional authorization until Korea. And I think that they counted on the appropriation power we know they did, at least for getting out, because there was a little part of the debate in which Gouverneur Morris believed that Congress needed to be given a formal power to get out of the war, because he described cutting off appropriations as a disagreeable method. Disagreeable, of course, because it means you have Fighting men out there in the middle of a war who suddenly don't, you know, have the bullets to shoot with. Highly disagreeable. This is the way we got out of Vietnam and it certainly was not a pretty sight. But I don't think you can blame the framers for things that work extremely well for 150 years.

[Jack Goldsmith]

Fair point. Let's go in a different direction. Let's talk about the impeachment clause and you talk about the origins of the impeachment clause in the book. There are two issues that are teed up today and this week and this month about the scope of the impeachment power. One is whether late impeachments, that is having a trial in this case for President Trump who was impeached recently, the second time, but having a trial, the Senate trial for President Trump after he leaves office, a so called late impeachment. And then there's a question about whether the disqualification clause in the impeachment power is limited to appointed officials or also applies to someone running for President of the United States States. And I wonder if you, if any of the original materials, in your view, shed any light on that.

[Michael McConnell]

So this, the second one is easier. I don't think there's any doubt that the president is included within the disqualification provision, although the impeachment clause applies to, you know, lots and lots of officers. If you look at the debates at the convention, almost the entire debates are about the presidency. I don't think there's anything about impeachment in the Constitution that doesn't apply to the president. But the late impeachment question is somewhat difficult. There is evidence going both ways. I think if you look just at the text of the Constitution which talks about impeaching the officer, it's not clear to me that Congress could impeach somebody. I mean, a private person. Under British practice, private people could be impeached. It's possible to read the Constitution to say that as long as the House of Representatives impeaches somebody while they're still an officer, it is then fair game for the president to convict and decide what the consequences will be. I think that's probably the best reasoning. And if you look at the experience that they were looking at, there had not been very many impeachments in recent British history, but there was a very important one going on exactly as the Constitution was being drafted. And this was the impeachment of Warren Hastings, who was the former Governor General of the East India Company. This was a huge deal in Britain and our framers were following it. It's even referred to in the debates over our impeachment clause. Well, Hastings was in fact impeached after he had left office, and no one made a comment that there'd be any problem with that. It's also true that the previous impeachment, which had been many decades before of one of Queen Anne's ministers, he was also impeached after he had left office. And again, no one referred to this as being a problem. I think if this had been an issue, if they had sort of sub silentio intended for our impeachment clause to be more limited than that, we probably would have heard something, that somebody would have said something about it. So, although, you know, I think there is evidence both ways, I do believe that the Senate is able to take up President Trump's impeachment. And when they do, the disqualification clause will be the principal issue. Now, I have heard an argument that all it takes is a majority in the Senate. If what they're going to do is disqualify, I think that's wrong. It takes a 2/3 vote of the Senate to convict on the charge of impeachment. And then the Senate decides by a majority vote whether to attach disqualification from future office as part of the penalty for the conviction.

[Jack Goldsmith]

Another contemporary point of debate that you discuss in the book at length is the Congress's power to compel testimony. And you have a fascinating episode, which I, I think I barely knew about, if at all about Arthur St Clair in the early days of the Republic, which seems remarkably on point and has implications for modern debates. Can you tell us about that?

[Michael McConnell]

Yes. So the Constitution does not, in so many words, give Congress any investigative authority. And in fact, at the convention, they vote down the ability of Congress to be able to hold people in contempt, which is their enforcement mechanism for investigations. But very early on, this is in the early days of the Washington administration, there was a catastrophic military defeat against the native tribes in the Northwest Territories. And Congress was investigating, wanted to investigate the reasons for that and see whether there was something that could be done to prevent such things in the future. And they called for papers and testimony. This is an investigation of the person in charge was the governor there, General Arthur Sinclair. And so they demanded his testimony in papers. And then this was debated within Washington's Cabinet. And we have the minutes or the notes from what happened at that, because Jefferson kept them for his own personal purposes. So we actually know what the various members of the Cabinet said. And they came to several interesting and important conclusions. They concluded that Congress, although it's not expressed that Congress does have the power to engage in investigations pursuant as long as those investigations are related to their legislative power, that is their power to pass new laws preventing the problem from occurring again. But they concluded that the proper way to call for papers and testimony was to request them from the President himself. Not to subpoena the officer, but to request them from the President. He could then use his discretion in deciding which papers were in the public interest to disclose to Congress. So the Cabinet does this. They then communicate their views to Congress, and Congress revises what it was doing. And instead of demanding the papers directly from the Secretary of War, they request them from President Washington, who then gives them all the papers. So this is not actually a fight over whether to give the papers. It was the first. It was a discussion of what the proper constitutional means would be under which Congress would engage in investigations. The next investigation, they then make the request of President Washington, and he withholds quite a few papers so he does not just give them everything. So it wasn't pro forma. And this is from the Senate, and the Senate accepted this, and we're perfectly happy with the response that they got. And the Congress does not actually even purport to have a. They don't even claim the power to demand papers over the President's objection until relatively modern times. So for most of the American, most of American history, the way these disputes would go is that Congress would ask for the papers, the President would say either yes or no. If he said no and they didn't like it, they would then use various forms of political pressure to get to extract the document. So they would, you know, refuse to confirm appointees, they would cut off appropriations. They would do various things in order to put pressure on the President to change his mind, but they did not claim, they did not even assert that they had the authority to demand papers over the President's objection from executive officers and that there was any legal obligation on the part of those officers or the President obtained.

[Jack Goldsmith]

So I want to return with one final question, Michael, to methodology and the focus of your book. You focus in great depth on the historical background to the creation of Article 2, what the framers knew and were thinking about executive power, the influences on them. Extraordinary detail and clarity, I should add, on the actual debates and what we can discern from them. And then you look at the early historical practice. And so one question, you acknowledge in the book that there are other potential interpretive sources that may be relevant to the meaning of Article 2, including liquidation, subsequent practice, and maybe some other factors, and we've talked in a couple of examples, war powers and maybe some notions of exclusive presidential power being quite different. It's conceived quite differently today, at least by the executive than at the founding. So what is the role of this book and this project, given that I think you acknowledge it, it's not necessarily exhaustive of all the potential sources of meaning for the executive power. What is the relevance of this project?

[Michael McConnell]

So I didn't want to get into arguments or fights ultimately about how, say, the Supreme Court ought to interpret the Constitution. I get into those arguments elsewhere. But for the purposes of this book, I wanted people to be able to agree that this is where the text is, how the text came to be, how it was understood to operate at the beginning. And then I'm not really arguing that this modern day Supreme Court or the modern day Justice Department has to stay that way. Maybe there are arguments for a subsequent practice or even for questions of practicality, pragmatics to override that. But I do think that this provides the only the original foundation, provides the only common ground for us to begin a discussion. Because if you just start with what do pragmatics require? Well, that's really asking the question, what policy do we think? Do we like this idea or not? And that's just to recreate politics in the name of law. And so what I believe is that we should take the original foundation as our starting point. And then if anyone wants to make an argument that there are specific things in subsequent history or in pragmatics or international law or game theory or whatever sources they want to look at, if they want to make an argument that we ought to do something else, let's consider that argument on its merits, but at least see what the common starting point was.

[Jack Goldsmith]

Well, you did a masterful job in telling us what the starting point was. It's the best book I've ever read on the creation of the presidency and the meaning of executive power. So congratulations.

[Michael McConnell]

That means a lot to me coming from you.

[Jack Goldsmith]

Thank you, Michael. The Lawfare Podcast is produced in cooperation with the Brookings Institution. Please share the Lawfare Podcast and give us a follow 5 star review on iTunes. Go to thelawfairstore.com for brand new Lawfare pens, lanyards, T shirts and socks. The podcast is produced and edited by Jen Patia Howell and your audio engineer is Zachary Frank of Goat Rodeo. Our music is performed by Sophia Yan. As always, thank you for listening.

[Carolyn Cornett]

At Memorial Care Saddleback Medical center, future mothers are enjoying the journey of childbirth in private suites under the watchful eye of physicians, midwives, nurses, and a level three nicu just in case. Saddleback Medical Center. Caring is our calling.