Take tax returns, for example: Whereas previous presidents made their tax returns public to assure the country they brought no financial conflicts of interest to the Oval Office, Trump declined to follow this tradition. Similarly, he issued pardons to a variety of personal friends — including Roger Stone, Steve Bannon and Paul Manafort. This too departed from presidential norms.
In “After Trump: Reconstructing the Presidency,” legal scholars Bob Bauer and Jack Goldsmith offer a blueprint that the government could follow to correct those weaknesses.
The pair advise amending laws so that, contrary to practices established by a Justice Department memo, it’s crystal clear that US presidents are subject to obstruction of justice charges while in office. They also recommend that when Congress authorizes a president to use military force abroad, that authorization should be subject to a two or three-year “sunset” clause. This would end so-called “forever wars” like the conflict in Afghanistan and prevent incidents like Trump’s 2020 drone strike in Iraq, which escalated tension between the US and Iran. And among their other ideas are proposals to address Trump’s misuse of the president’s power to appoint “acting” officials who are not subject to confirmation.
The analysis and proposals in “After Trump” address ways that both the Justice Department and any special counsels appointed to conduct investigations can be protected from political pressure when faced with such scenarios, and it’s hard to imagine two authors better suited to the task.
Bob Bauer is a former Obama administration White House counsel, a scholar in residence at New York University’s law school and co-chair of President Biden’s commission to study the Supreme Court. Jack Goldsmith was head of the Office of Legal Counsel in the George W. Bush administration and now teaches law at Harvard. He’s also a senior fellow at Stanford’s Hoover Institution and co-founder of Lawfare, an influential online journal devoted to national security.
Although their book is circulating on Capitol Hill, and many of their ideas are already being considered by lawmakers, a conversation with the authors revealed their concern that more immediate crises in Washington might stall the effort to patch vulnerabilities Trump exploited — which would allow a future president to pick up where Trump left off.
Below is a lightly edited Q&A with the authors.
Michael D’Antonio: Bob was White House counsel to President Obama, and you, Jack, were in the George W. Bush Justice Department. At first, you two were going to collaborate on a book about the counsel’s office, right?
Jack Goldsmith: We blocked out a whole day to basically go through and plan that book. And over the course of that day, (we) kept coming back to current events and the extent to which the Trump presidency exemplified the gaps and limitations of the rules and norms of presidential accountability.
The great (post-Watergate) reforms of the 1970s, which were so important in establishing the rules for presidential accountability, had done a great job but had kind of run their course. Or at least their weaknesses had been exposed by the time of the Trump administration. By the end of the day, we basically decided that’s the book we should write.
D’Antonio: Some of the history you cite shows presidents conforming to unwritten standards for how to wield presidential power. For example, presidents have generally relied on Department of Justice screenings and recommendations for pardons and grants of clemency. What leads presidents to accept these constraints when a decision is being made?
Bob Bauer: These are questions that are fundamentally influenced by the kind of (legacy) that a president wishes to leave behind, the legacy a president believes that he or she is establishing. And that will include circumstances in which the president, for example, could have exercised legal authority and chose not to do so.
For example, the use of the pardon power to reward friends and punish enemies, or to use it for brazenly political purposes. The choice isn’t one that is, for the most part, dictated by constitutional or other more formal considerations, but simply by what the president believes should guide any chief executive’s exercise of this authority.
D’Antonio: Presidents have gotten into controversies involving pardons issued as they leave office, but the pardon power seems quite absolute. What do you make of that?
Goldsmith: Congress can’t stop the president from pardoning someone. The pardon power is absolute in that sense.
But Congress can punish both the president and the recipient of a pardon after the fact, if that pardon was given to (obstruct) justice, or if that pardon was part of a bribe to secure some benefit from the person who received the pardon.
We propose that Congress make very clear that those types of pardons would be criminal. We also propose that Congress prohibit self-pardons. Most of what Trump did in terms of pardoning his cronies, assuming there was no bribe, cannot be stopped without a constitutional amendment. But on the most egregious examples of pardon for bribe, for obstruction of justice or self-pardon, we do think Congress could take some action.
D’Antonio: It makes sense to address bribes and obstruction of justice where pardons are given, but where do you come down on investigating presidents and their actions after they leave office?
Bauer: Throughout the whole book, we talk about the risks of the legal process being weaponized; that is, something that is meant to address significant systemic issues for the operation of the government winds up being turned into a weapon to score partisan points. But this cannot mean a pass for presidents who are appropriately investigated for serious violations of the law. So there are risks either way: weaponization of the law or a major failure to enforce it.
D’Antonio: But there have been cases when an investigation might have been useful.
Bauer: We probably would have seen a significant number of questions (answered in) the investigation of Richard Nixon, but it was cut short by the pardon that was issued so rapidly after he left office.
Goldsmith: Bob is right that Nixon almost certainly would have been investigated had (President Gerald R.) Ford not pardoned him. And other presidential administrations have been investigated at the margins. These examples show both that it’s possible to do so and that there’s hesitancy to do so. And of course, Trump raises all of these issues in the extreme.
D’Antonio: The aftermath of Trump’s presidency caused you to propose a host of new laws. For example, you propose that Congress require that presidential candidates disclose their tax returns. But the January 6 attack on the Capitol and the Covid-19 pandemic have distracted us. Are you concerned that the moment to correct what Trump revealed is passing or is some of the process going to take place in the justice system?
Bauer: There is an (ongoing) Manhattan district attorney’s office investigation … (but) a number of these investigations and legal matters don’t involve his acts as president. Some occurred before his political career and some occurred during his candidacy, like the hush money payments scandal. So I don’t think that the legal tale is complete yet.
Goldsmith: If Trump is discovered to have committed prosecutable crimes, and if Attorney General (Merrick) Garland believes that he can make a case, he’ll have a question about whether he should do it. He might say yes, and he might say no, but he’ll think through the consequences of whether to prosecute or not. And that’s a legitimate function for a prosecutor to go through.
D’Antonio: Trump’s violation of so many presidential standards could be an argument for the need to clarify what’s expected of the president. Without those changes, would we be depending on officials to act with integrity, or fidelity to norms, in a way that Trump did not? And does the public have faith in their institutions?
Goldsmith: We do think that institutional reforms of the presidency help to maintain its legitimacy. So a lot of the changes that we propose for the Justice Department are designed to help the institution demonstrate more credibly that it’s acting with integrity.
One of the controversies that arose related to the (2016) FBI investigations of both Hillary Clinton and the Trump campaign was that the FBI did not have a lot of concrete guidance for decision-making in those very contested, highly political contexts. A lot of the controversies and problems that (surrounded) the legitimacy of what the department was doing could have been avoided if there were clear and intelligent rules in place.
Another example is that (Trump administration) Attorney General (William) Barr would often comment publicly on an ongoing investigation in a way that was really harmful to the department’s credibility and to the credibility of that investigation. This was inconsistent with things Barr himself had said about the way attorney generals were supposed to behave, but the norm about not commenting on ongoing investigations in the Justice Department did not clearly apply.
D’Antonio: After Watergate, there was a bipartisan effort to address presidential abuse of power, and as you say in your book it did work for a while. With Trumpism dominating the Republican Party, right now that doesn’t seem likely. But are there some things you think may be possible?
Bauer: I do think you see that, for example, in areas like war powers there is the basis for some bipartisan agreement to address some of the abuses that we discussed in the book. Trump has forced a reckoning with how serious this problem can be, and what would happen if somebody came into power, Democrat or Republican, (who was) more cunning than Trump, more experienced in the use of levers of power, (and) who could do even more damage than Trump has done.
Goldsmith: It’s a very important time to try to achieve some of these reforms. If Congress can exercise its presidential reform muscle, hopefully a few times, it will get stronger. It’s a really important year coming up. And so we plan to do whatever we can to help move the process along.