Time was up. We had to follow the schedule called for by the constitution and our laws. Host we take you live down to a discussion hosted by the Federalist Society on the presidency and the rule of law. This is on the powers of the executive office and the limits of those powers. Panelscussion among the was centered around the following proposition, the constitution prescribes the president take care that the laws be faithfully executed and swears an oath to that effect on taking office. Many believe that the constitution says the president has discretion in handling his office. Norms have developed to control the exercise so that the tooldency is not used as a to punish enemies or reward political friends. The questions our panelists will be addressing our how does the rule of law constrain and protect the president . . Hat role do these norms play have norms eroded . If so, why . What role has congress, the media, social media, and other factors played in the exercise of president ial power . Our distinguished panel of speakers begins with a professor from harvard law. You see in your virtual programs, the bios for each of our speakers are very long. I will cut to the chase. He is a senior fellow at the hoover institution. Of his most recent wellknown books include after trump and in hoffas shadow. Our next speaker will be a partner at a washington dc law firm. Firmshe founder of the Crisis Management and constitutional law practices. He was solicitor general of the u. S. From 20012004. 19801984, he was an assistant attorney general. Times, he hasse been practicing independently. Our next speaker beyond that a litigation partner with a distinguished record of public service, including a number of senior government roles. He was white House Counsel to president obama. Career, he served as associate general counsel to president clinton. He has broad experience in the privatend in legal services. He clerked on the Supreme Court. And we recognize ambassador. Strategyaw and specialist. He worked in the white house for 12 years as counsel to Vice President bush during the Reagan Administration and as white House Counsel to president George H W Bush. He was counsel to the regulatory area ince on relief, an which she has had a professional interest and tremendous impact for many years. He was the u. S. Ambassador to the eu and special envoy to europe. He is on the board of directors of the atlantic council, the federal society, and others. Warrant, chiefa justice of the Supreme Court of the United States. Thank you. Thank you to the Federalist Society for inviting me to be on this distinguished panel. The conventional wisdom is that, during the Trump Administration, the laws and norms that regulate the limitation of the president s interference on the Law Enforcement process and that regulate supervision of that process have been disregarded, damaged. There is a large element of truth to this. In whichblished a book five chapters are devoted to suggesting reforms. Today i want to take a different tack and suggests that the norms and laws have been more prevalent than many people have appreciated. Asking bout so by the extent to which norms and laws have operated terry the Trump Administration during the trumpet ministration. It is hard to find economical definition of what unitary executive is. Describedeneral barr it generally as the idea that executive powers must be exercised. They are all vested in the president. Unitary executive has many components. Part of it is about the president s control over the administration. Part of it is about the supervision of Law Enforcement. That is what i will focus on. They will execute the law and a specific manner. You said that because of the design, the president can order the end of any investigation, even one into his own white house. That the practices under the Trump Administration do not work with these definitions and widely held views of the unitary executive. Reporttwo of the mueller , where the most extraordinary element is that the president tried to rest badly desperately to get his senior orordinates to fire mueller stop them from continuing his investigation. Because thoseled subordinates would not carry out his wishes. We dont know exactly why they did not. It probably had to do with some combination of law. Maybe they were worried about obstruction of justice. Or maybe political concerns. It is a remarkable episode. There are examples that involve attorney general barr. He is obviously a proponent of the unitary executive. At his confirmation hearings, he acknowledged that a president ial preventsent testimony would be an injustice. In his famous obstruction of justice memo, he said the president would commit obstruction of justice if he destroys evidence or impairs the availability of evidence. In response to win attorney aneral barr recommended shorter sentence for roger stone , the president tweeted in favor of that. The attorney general went on television and said, i will not people lead or influenced by anybody, including the president. I think it is time to stop tweeting about the department of justice criminal cases. Example is his to removeary failure Geoffrey Berman from the Southern District. They were not able to remove him or replace him with either of their choices. So, attorneyd general barr issued an extraordinary statement where he norm against proper interference was recognized. He said if any actions like that , the Inspector General of the Justice Department should be notified. The Inspector General would examine any such claims. Notrney general barr is following through on the wishes of the president to prosecute his political enemies. There are a lot to say about these examples. All hard to square with the casual wisdom about the unitary executive. They recognize that congress can restrain president ial power. Norms can constrain the president. Respond by saying the president still has the firing power of the unitary executive. He can fire everyone involved in these acts. You might think that shows the president has ultimate control. It is true that the president r for thee fired bar actions i just described. Mcgahn ands that don thesearr believed in constraints. This appears purely theoretical. Loves to fire people and loves to have executive powers. He acquiesced in these developments. There is more to say, but i am out of time. Thank you. That was very interesting. I have been reading your book. Up the bookld hold so everyone can see it. Book a very interesting written by you. Aboutof the book talks violations of norms that have been attributable to president s over time. You discussed many president s beyond President Trump. We make a number of with respectns that might be made. I will talk a little bit about that. One thing i would mention, with respect what you just described the violations of the concept of the unitary executive, where the president may have expressed something one day and the people who work for him, either in the white House Counsels office or attorney general barr, didnt do what the president seems to want to have done when he made those statements. Think anybody who has observed President Trump over this period of time knows he tends to speak whatever is on his mind at a particular time, sometimes in an interview, sometimes in a speech, sometimes in discussion with the press, sometimes on tweets and things like that, and sometimes he means them and sometimes he doesnt, and it is difficult for those of us who on the outside you are on the outside to know if he means them. I think don mcgahn and bill barr developed in a poor a rapport and relationship with the president that allowed them to respect certain judgments as to whether they wanted to follow through, knowing full well the president could fire them if he was unsatisfied with the fact that he did not comply with his wishes. Bob berman in new york city, at first of course the president firedhave a have the attorney general and the Southern District of new york. Maybe berman did, maybe he didnt get the person he wanted to substitute for berman. Attorney general barr may have said, i am paying no attention to, i am not being bullied by anybody, but he did change the recommendation of the Justice Department with respect to the sentencing, and as far as i know, as far as i can recall, the judge actually changed the sentencing from what was originally proposed by the staff who was so unhappy about that. It seems to me, and i should acknowledge a bias, having served as assistant attorney general for the office of the legal counsel, a bias in favor and as solicitor general favor ofias in the unitary executive and president ial powers, and i might echo what bill barr said last november, that there have been many, many instances over time where congress has limited or purportedly limit the power of the president. Good ofssarily to the the unitary executive and in many respects, doing great damage to that concept. You talked about the potential removals of president subordinates, he should have the power to be able to do that if he is going to execute the law faithfully according to his judgment. He ought to be able to remove subordinates. Congress has created the whole concept of independent agencies, which restrict, which contain restrictions on the powers to remove those officials, which are inhibitions on the president s ability to enforce the law. President roosevelt, if we go back, president franklin roosevelt, go back as far as that, says the government was too complicated. It was difficult for him to manage the government and if the president is supposed to manage the government by faithfully executing the law, he needs to be able to remove the people who have responsibility to enforce the law. President kennedy famously said at one point in answer to a question at a press conference, the reporter asked him something and he said, well, i agree with you, but i dont know if the government will. Many, many other examples of the inhibitions on the part of the president to do his job. One of them stands out in my mind, it was mentioned and discussed in detail by attorney general barr last year, was the entire concept of oversight by congress, congressional committees, into every aspect of what the president and his subordinates or her subordinates. O someone calculated the number of committees that oversee the Defense Department, and it goes on and on and on. Congress requires reports from executive Branch Agencies to explain what is being done, what isnt being done, why it isnt being done. Sometimessubpoenas to administration to come and testify. Sometimes they are very substantial and it takes a great deal of time to do that. There are theatrical events, in many cases. They are highly partisan. They are theatrical and they are not terribly constructive. Then theres the whole idea of special counsels, independent councils, and things of that nature, which we know over time have interfered with the ability of the president to exercise his or her responsibilities. Then there is the investigations of president ial actions, which lettersseen in bold during the Trump Administration. Those investigations that are terribly intrusive and i am not saying that they have not justified, but when there is a constant investigation going on fro going on of the president , from the time he takes office to the time he leaves office, when he has to respond to leaks from investigations, and sometimes there are and sometimes there are not, that is an enormous distraction to the presidency and a distraction to the president s ability to enforce the law. Then theres the advice and consent situation, where the congress and the senate not permitdoes president ial appointments to the executive branch to be confirmed in any reasonable period of time, leaving vacancies. I did a calculation on the was invoked during the George H W Bush presidency. During the clinton presidency, 10. During the george bush administration, four, during the obama administration, 17, and i dont know if everyone is keeping count of that, but that is about 30 altogether. Administration, 344. It has been very difficult for the president to fill his executive branch with people that work for him. I have gone on a long time, but i have seen erosion of the power of the presidency, and i have looked through jack and bobs many and i see many, additional restrictions being suggested, and i dont think thats necessarily a good thing for the presidency or for the constitution. I am turning it over to neil edison at this point. You. Ank ed, right . You, judgeted, thank jones, for your introduction at the beginning. I am honored to have been invited to be a participant on this panel by the Federalist Society. It is quite a distinguished panel, and the topic is timely and quite important. For those of you who did not pay any attention to my biography when it was red, i want to remind people that i have worked in the white house for two president s. I worked in the first term of the Clinton Administration as well as this president , obamas white House Counsel, in that role i got to know Vice President biden quite well. Indeed, his office, his west wing office, was immediately below mine in the west wing, and i saw him quite frequently. As i have thought about this topic, and im going to focus on the topic first and probably come back to some of the issues that people talked to at the end of what i have to say, although i might run out of time, i have thought about the rule of law i really do think that the overarching principle that is articulated by judge jones is that the instruments of government must be used for the benefit of the country and not for the benefit of the occupants or the fight house benefit of the occupants of the white house or their political party. To refer to some of this as norms, and as to certain aspects of it, i agree it is a norm, but i think the fundamental concept is more than a norm. I think it is enshrined in the actual language of the constitution, and although this president ignored it, it should not be ignored. That is the embodiment of the take care clause in the constitution too, saying the President Shall take care that the laws be faithfully executed. That is one of his duties in article two of the constitution, and i believe the faithful execution of a lot requires him to make decisions and execute those laws and make decisions and manner of benefit to the country and not of benefit to himself personally. In addition, i want to remind people that the oath of office is actually set for a specifically forward specifically in the constitution. The framers and those of you who have read the constitution had the same reaction i do, when you go back to the amendments and the original constitution, there is not much language in there, but the framers decided to put the language of the oath of office specifically in the constitution that the president had to give when he was sworn in. People may run number that when president obama was first sworn in, there was a little mixup between him and chief justice roberts, and they did it again the next day. I think there was some concern i was not in the white house then, but if he hadnt given the oath exactly as it was in the constitution, would there be a claim later that he had never actually been sworn in . The take care clause, and both jack and ted know this better than i do, is frequently cited as essentially an expansion of the power of the president. Whenever i got a memo from them on National Security issues, the power of the president , National Security issues, i knew i was going to read about three parts of the constitution that provided the president with power to do whatever they were seeking to do in the National Security space, and thats the take clause and the care clause. The take care clause was signed as an expansion of the power of the president. I dont think, frankly, that is the way the framers thought about the take care clause. The listhe fact that contains the language that the im sorry, that i will faithfully execute the office of the president of the United States. I think the take care clause was intended to be a constraint on president ial power, not an expansion of president ial power. Of us, a view that our originalists in this part of the audience, this panel, the historical record which show that more than today, actually, the concept of the oath was quite important and quite founderst the time the in the drafting of the constitution, and it had more significance probably then it really does today. So, thinking about the point i wanted to make was much of this you can think of as norms, but the constraint in the constitution that the president take care that the lobby faithfully executed, in my view, is not ignored, it is a requirement of the constitution, and a solemn obligation of the president that the president of each to when he took president agreed to when he took the oath of office. It means the president should not be calling for the department of justice and the f ei to prosecute his opponents in a president ial election days before the election. It means the president should not be firing the director of the fbi in order to take pressure off the russian investigation. It is not being contemptuous of the hatch act. When you think about it, the hatch act essentially mirrors the take care clause in so many ways. The taxpayer dollars, the dollars paid by all the taxpayers, regardless of which party they are supporting, which pay the salaries and rent and electricity of the white house an