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.

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]

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]

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]

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]

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]

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]

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]

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]

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]

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.