On September 21, with the final stretch of the 2020 presidential election in full swing, Professor of Practice and Distinguished Scholar in Residence (on leave) Bob Bauer, former White House counsel to President Barack Obama, and Professor Jack Goldsmith of Harvard Law School engaged in a virtual discussion of their new book, After Trump: Reconstructing the Presidency. Sudler Family Professor of Constitutional Law Richard Pildes joined a conversation moderated by Emily Bazelon, a New York Times Magazine staff writer and senior research fellow at Yale Law School.
After Trump offers more than 50 specific proposals for reforming the institution of the US presidency. The discussion participants considered a subset of those potential reforms related to matters such as foreign influence in elections; the exertion of presidential authority over the Justice Department; presidential immunity from prosecution; the abuse of presidential pardons; the role of a special counsel in making the executive branch publicly accountable; and possible revision of the Insurrection Act, which authorizes the president to deploy troops within the US to quell civil unrest.
“It does seem to me rather odd that we would have, on the one hand, an executive branch rule that immunizes presidents from prosecution while in office, and then when they leave office, a norm to the effect that the prosecution of an ex-president is too divisive and that national healing requires that, in effect, they receive mercy—whether it’s clemency in the form of a pardon or, if by any chance they are prosecuted and convicted, maybe clemency in the form of commutation of a sentence. To me, that means either in office or out of office, we have a president who is genuinely above the law.”
“It seems to me that [President Ford’s pardon of Nixon] is a lesson that we need to learn something from: that…an ex-president should be held accountable and that the best that we can do here [is] to balance all of the considerations, including the national impact of the prosecution of an ex-president and the dangers of setting off a cycle of retribution in which each party winds up prosecuting an ex-president from another party, which we don’t want to have happen. That we need clearer process and standards…. But I don’t think that we ought to have an understanding that it’s just too dangerous for an ex-president charged with serious crimes to be prosecuted when leaving office.”
“There’s the large question of having one administration do a criminal investigation of a prior administration. It wouldn’t be limited to Donald Trump. It would be basically his whole senior administration, because you couldn’t investigate Trump without calling forth all of his senior advisors, ultimately before the grand jury. It would be a spectacle that would consume the Justice Department, that would consume the [new] administration. And I just think that all of those costs—especially when you set a precedent in a world in which we are in a kind of cycling, norm-violating, downward, tit-for-tat spiral—setting the precedent that one administration is going to judge the prior administration through the lens of criminal law, given all those costs and the unlikelihood of some satisfactory resolution, I think it’s not worth the candle…. There are a lot of Republicans who believe that the Obama administration committed crimes, and whether they did or not…this is a bad path to go down.”
“There’s a point at which reform runs out and, in my judgment, the dignity of the office, and so much of whether these reforms will be successful and whether the prestige of the presidency and the dignity of the presidency will be respected, is not going to depend on legal reform. It’s going to depend on the identity of the person who’s the president. So not everything can be done by law. Some things need to be done by elections, and the personality and commitments of the next president are absolutely the most important consideration for all of these reforms and for restoring the dignity of the office.”
Posted November 11, 2020