Officials on the presidency and law. Ule of the Federalist Society hosted the 90 minute event. Judge jones good afternoon. And i am ajones judge on the fifth Circuit Court of appeals. This conferences on the powers of the executive office into the the powersce is on of the executive office. Constitution prescribes that the president will make sure the laws are effectively executed and swears an oath to that effect upon taking office. Norms have developed the control the exercise so presidency is not used as a tool to punish enemies or reward political friends. The questions our panelists will be addressing is how does the rule of law constrain the presidency, what role do these norms play, have norms surrounding the president s and ife of power eroded so, what role has the media, publicmedia and the played in the our guests jack goldsmith. He is a senior fellow at the harvard. Professor at to have his most recent wellknown books include after trump reconstructing the presidency and inhofe is a hoffas shadow. Our next guests is guest is ted olson. Theas solicitor general of 04. Ted states from 2001 to he has been practicing consistently with great distinction at gibson dunn. He has argued 65 cases before the Supreme Court. Next guest is the honorable neill gholston eggleston. He was white House Counsel to president obama and earlier in his career served as associate general counsel to president clinton. He has broad experience in broughtnt and experience in government. Warren on the for sprint car. We finally recognize boyden 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 h. W. Bush. He was counsel to the Regulatory Task force on regulatory , a field in which he has professional interest and tremendous impact for many years. He was the u. S. Ambassador to the eu and the eu and special envoy to europe. He is on the board of directors at the Federalist Society among others. Clerked for earl warren, chief justice of the United States. We begin with . Goldsmith. We begin with jack goldsmith. Sen. Sanders thank you jack thank you. The conventional was dumb is during the Trump Administration wisdom is during the Trump Administration, the norms have been thrashed and there is a large element of truth to this. I have just published a book, are chapters of which dedicated to assessing this. Today i want to suggest to the norms and laws have been more present than we may have appreciated. I want to ask about the extent normsch the way laws and accordance with the unitary executive. It is difficult to find a canonical definition of what the unitary executive is. As therr described it idea that executive powers, all exercised under the president s supervision. The unitary executive has many components. Part of it is about the president s control over the administration. Part of it is about Law Enforcement. That is what i am going to focus on. ,yu, in his book essay they wrote, he can President Trump ultimately order the end of any investigation, even one into his own white house. Practices in the white house do not comport with these widely held views of the unitary executive. I will give you six examples. First, volume two of the mueller ort, the most shocking of revelation of which is the president tried to get his andrdinates to fire mueller utterly failed because those subordinates would not carry out those wishes. Not, not know why they did but it probably had to do with some combination of law, the interference noninterference in the white house. It is a remarkable episode. I will give five examples that involve attorney general barr, who is obviously a proponent of a broad conception of the unitary executive. At his confirmation hearings, he acknowledged a president ial pardon to prevent testimony for criminal obstruction of justice. In his famous obstruction of justice mama, he said the president can commit obstruction of justice if he destroys evidence, induces a witness to testimony nge obstruction of justice memo, he said the president can commit obstruction of justice if he destroys evidence, induces a witness to change testimony. Tweeted it in favor of that. Willttorney general said i not be bullied or influenced by anybody, including the president. I cannot do my job without of tweeting. Ground is trumpsmple extraordinary failure to remove Geoffrey Berman at the Southern District, the u. S. Attorney in the Southern District whom the president did not appoint. They did not remove him or replace them with either of their choices. After they did so attorney general barr issued a statement where he said that the norms of let me get this right that he recognized the norm against a case. He said if any actions like that occurred, the proper persons in the u. S. Attorneys office should notify the Inspector General of the Justice Department, another attorney my last example is attorney general barrs simply not following through on prosecuting the president s enemy, which the president has called for enemies, which the president has called for many times. They suggest that even in an administration of lawyers committed to the unitary executive, they recognize that executive range norms can and do constrain the president and his subordinates. Makeesponse that one might is that the president still has couldring power, and he fire anyone involved in these acts of noncompliance with his wishes. It is truew that the president could have fired mcgannon and bar for the mcgahn and bill barr, but it shows they believed in these concepts. President s the power to fire while it is it is purely theoretical. This president failed to exercise them in all six of the examples i used and he acquiesced in these developments. I believe any theory of the unitary executive has to use development. Interesting. Very i have been reading your book. Someone should hold up the book so that everyone can see it. After trump reconstructing the presidency. It is an interesting book written by you and bob bauer. A lot of the book talks about violations of norms that have been attributable to the over time and do you discuss many president s other than President Trump. You make a number of recommendations with respect to changes that might be made in the powers of the president or limitations on the powers of the president. One observation that i might make with respect to what you ase just described to us violations of the concept of the theary executive where president may have expressed something one day and the people who worked for him either in the white House Counsels office or attorney general barr did not do what the president seemed to want to done when he made those statements. I think anyone who has observed President Trump knows that he tends to speak whatever is on his mind at a particular time, interview,n an sometimes in a speech, sometimes in tweets, and sometimes he means them and sometimes he does not. It is difficult for those of us on the outside to tell whether he means them. Mcgahn and bill barr developed a rapport with the president that allowed them to ifrcise certain judgments on they wanted to follow through knowing that the president could fire them if he was unsatisfied. This business about berman in new york city, of course he inld have fired the attorney the Southern District of new york, but he didnt. He put pressure on the situation so that berman left. Maybe he did, maybe he didnt get the person he wanted tos to replace berman. R said i ameral bar not being bullied by anybody but the sentencing. As far as i can recall the judge sentencinganged the from what was originally proposed by the staff who was so unhappy about that. Seems to me and die shade i should disclose a bias in of the unitary executive, a bias in favor of president ial powers and i should will echo ,ome of what bill barr said that there have been many instances over time where congress has limited or purported to limit the power of the president , not necessarily thehe good of the idea of unitary executive and did many respects doing great damage to that concept. You talked about the removals of president ial subordinates. He should have the power to do tot if ea if he is exercise his powers. Powerndent agencies exert and the bishop is on the president s ability to enforce inhibitions ont the president s ability to enforce the law. If the president is supposed to manage the government by faithfully executing the law, he needs to be able to remove the ple who have rough responsibility to enforce the law. President kennedy famously once said in response to a question at a press conference ginkgo i agree with you but i dont know buther i agree with you i dont know whether the government will. Me thing that stands out to is the entire concept of oversight by congress, congressional committees into what theect of president and his or her subordinates do. Someone calculated the number of committees that oversee the Defense Department and it goes on and on. Congress requires reports constantly from executive Branch Agencies to explain what is being done, what is not the and done, why it is not being done. If there are subpoenas sometimes to members of the administration to come testify. The number of times people have to testify are very substantial and it takes a great deal of time to do that. Those are theatrical events in many cases. They are highly partisan. They are theatrical and not terribly constructive. Idea ofre is the whole independent councils into things of that nature, that we know over time have interfered then theres the whole idea then there is the investigations of president ial actions, which we have seen in bold letters during the Trump Administration. Those investigations that are terribly intrusive and i am not saying that they have not always been justified, but when there is a constant investigation 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 arent, 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 frequently does not permit president ial appointments to the executive branch to be confirmed in any reasonable period of time, leaving vacancies. Of time, leaving vacancies. I did a calculation on the number of times i did a calculation on the number of times culture was invoked during the george h w ai 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 and various parts of the executive branch, should not be used to influence the outcome of an election, particularly in favor of a person who is currently in the white house. Part of the respect for the take care clause is not being contemptuous of the hatch act, and i think it also means at directing to withhold crucial military aid to an ally if unless that ally announces an investigation of the president s opponent. Talksresponse, he just off the cuff, he said things and does not always mean them. Jack says, he didnt always get people fired. He didnt always follow through. Wereof people on this call not thrilled with the interview by lesley stahl, but she said one thing that people have to agree with. He is the president , not somebodys crazy uncle. When he speaks, people listen and pay attention. I think we have seen that over the last several years. Address jacks unitary executive argument, just for a second, and i think the basic principle has been that the president tried to do a lot of things that members of his administration will not go along with and would not let him do. I have to tell you, and i think we have already seen certain aspects of this in the last week i am pretty think right that if the president had been reelected to a second term, we would have seen very different people at the senior levels of the executive branch and people who would have followed those commands by the president. He has already fired mark esper and number of other people. Much of the Senior Leadership at the Defense Department are now gone. Iis happened all after,