Coauthored book unmaking the presidency Donald Trumps war on the worlds most powerful office. A conversation with Jack Goldsmith. I would like to invite you to visit online, harvard. Com, so you can learn more about events in and around harvard. Our spring event season is off to a great start. Paul krugman and dan pfeiffer, we would love to see you there. We conclude the program with your questions, we are pleased to have cspan booktv, we ask anyone participating in q and a step up to the microphone. The signing line will start at this ill with copies of unmaking the presidency Donald Trumps war on the worlds most powerful office at the back of the hall. Thank you for writing books, awardwinning author series possible and into the future of the local independent bookstore and finally a quick reminder before the talk begins. I invite tonights speakers, susan hennessey, executive editor, devoted to sober and serious discussion of hard National Security choices, general counsel of the lost air institute. To the brookings fellow, prior to joining brookings, in the office of general counsel of the National Security agency. Benjamin wittes is here fellow in government studies at the brookings institution. He cofounded and is editorinchief, as a lot analyst is ms nbc. Jack goldsmith is professor at harvard law school. The assistant attorney general, office of Legal Counsel, 20032004, in 2003. He is author of the terror presidency, law and judgment in the bush administration, limited International Law and who controls the internet, illusions of a borderless world. They will be discussing unmaking the presidency Donald Trumps war on the worlds most powerful office, a meticulously researched and sobering addendum to the crowded marketing place of trump coverage that attempts to locate this rogue presidency in a context to understand how it accepted conventions permanently. As Jack Goldsmith said, they pinpoint trumps fundamental threat, his conscious effort to substitute personal interest in womens for the institutional norms that long restrained executive action and channeled it toward the National Interest. Tabatha south writes devastating in its understated message, this may prove to be the most important book about the Trump Presidency. Please welcome susan hennessey, benjamin wittes, and Jack Landman Goldsmith iii. [applause] thank you for coming to discuss this great and important book. Let me get organized here. I want to start off by making an argument there is nothing to see there with the Trump Administration. Is not a big problem here. This is what the argument would look like, an argument i heard Trump Supporters make and theres some truth in it. Trump hasnt been the kind of serially lawbreaking president he is made out to be and many think he is. He doesnt have the characteristic excesses of his predecessors, for example, he doesnt, like george w. Bush, in important context exercise the commander in chief laws to disregard laws and unlike barack obama hasnt engaged in aggressive exercise of interpretations of delegated lawmaking for congress to do executive lawmaking, despite the Soleimani Killing he hasnt been as aggressive in using the war power and the argument goes he is rude, he is crude, he is brash, yes he is shameless, yes, he is cruel but that is just fluff, that is just rudeness, not substance. Do you accept that premise and if so what is the problem . This will surprise some people but yes, i accept a lot of that premise, not all of it. I do think the history of the Trump Administration does involve a certain amount of serial lawbreaking although it tends to be lawbreaking of a personal sort rather than lawbreaking of executive power sort. But look. The basic claim that donald trump is not in a systematic way pushing the edges of president ial power is right and that is what makes them so interesting. The abuses that constitute the core of the Trump Presidency are not the abuses at the margins of president ial power, not Abraham Lincoln suspending habeas corpus or harry truman seizing the steel mills. It is not these big sweeping actions that you say is the presidency actually capable of doing that . The abuses of donald trump are abuses at the very core of president ial power where the power of the president is uncontested. Nobody doubts the authority of the president to fire the fbi director, including the fbi director who responded to being fired by saying the president can fire me for any reason or no reason at all. Nobody doubts the authority of donald trump to dismiss Jeff Sessions as attorney general including Jeff Sessions because Jeff Sessions displeased the president because he recused himself but these were profoundly abusive things donald trump has done. Nobody doubts the authority of the president to tweet, to speak his mind, 95 of the abuses of donald trump is not rudeness. It is speech. It is the president using speech in a fashion that is radically different than any president has done before. Not doubting the authority to do it and get if you put all these normative differences, the way the core powers i used together in this is the basic thesis of the book, you have a proposition for a very different presidency. When i say that i dont mean he is like Woodrow Wilson, a theoretician who imagined a different presidency but he is in a systematic way proposing to use uncontested powers in a fashion that is sufficiently different that hes putting a different vision of the presidency on the table and the goal we had in this project was to take that vision seriously, to try to imagine, describe the presidency he is imagining and looks like in practice, how it plays out across a range of areas of president ial authority and practice and ask the question how much of this, if any, is desirable, and how much is a problem . That is the project. I do accept a lot of the premise. I largely agree with that. The core of our argument is not that hes abusing the edges of executive power but is abusing the core. That makes the conversation about him particularly difficult. Really the most profound abuse in this presidency is the president misusing those authorities he indisputably holds. Primarily abuse of power rather than excess of power. I think primarily. When we talk about abuse or misuse, it is the notion that the core of trumps vision of the presidency is merging of the occupant with the office, and inability to distinguish between the interests of the individual president and the interest of the presidency in the interest of the office and there are a lot of areas donald trump is the continuation of a trend or culmination or stark manifestation but in this inability to separate himself from the officer recognize the conception of the National Interest that is not the same as his own political and financial interests, that is really novel, something weve not seen openly in the history of the presidency. One way you get at that, your first chapter after the introduction is i do solemnly swear and it is about a clause of the constitution we dont talk about very much, the oath clause. Why do you start with that chapter . It is the framing and most important chapter of the book that gets to the essence of the problem. We start with the oath chapter in part because the beginning of our thinking began with the oath and a series of posts about trump and the oath and the institutional mistrust in response. The idea here is the oath is the only place in the constitution where there are quotation marks, something the founders care about, they discuss it and care about getting it right. We have become accustomed to thinking it is a ceremonial formality, that it doesnt have concept and legal analysis to focus on, the take care clause and other functions, elements of article 2 but our argument is the oath actually matters, it does something. What is the oath by the way . What is he swearing to . Not only is he swearing to execute the office, faithfully execute the office to the best of his ability but also swearing to preserve, protect and defend the United States constitution. It is a promise to uphold a system that is larger than oneself and the crux of the covenant between the government and the people. There is no way to make a president act in the Public Interest so take pardons for example, something that has been in the news headlines, the unusual use of pardons. Founders talk about why they want a pardon power, the ability to temper justice with mercy, it is important through sacred solemn obligation. Alexander hamilton talks about you need it in the case of rebellion to move the country forward. They dont say it is a Political Party favor to hand out to joe arpaio because you like him and he says nice things about you on fox news but the oath is the only place in the constitution that embeds the requirements of civic virtue, the obligation that the president act in the National Interests. Our argument is the core, the fundamental flaw that we would describe, the core of the Trump Presidency is the absence of civic virtue which you dont notice until it is gone but the rest of the system doesnt quite work without it. You have an interesting count, the constitution was designed to ensure the president , that we didnt elect a demagogue, we elected someone with civic virtue and at the end of the book, why that is broken down. The much maligned Electoral College where if you read hamilton on the other side of the Electoral College he is proud of the Electoral College and the reason is the Electoral College will stand between the people and a demagogue, which hamilton would come in the founding era would have been derisively called democracy. What is standing in between is the Electoral College, intermediary actors choose the president and if the people really want a demagogue the Electoral Colleges will say no. Now we have inverted that entirely because in fact the people did not elect a demagogue, they rejected a demagogue by something over 3 million votes in the Electoral College, having lost faith in the original vision of it where it would exercise independent judgment, mechanistically installed the demagogue in the face of a popular rejection of it. It is actually quite i dont know whether the conclusion is hamilton got it wrong since he was imagining the Electoral College behaving in a different fashion than it did or if the point is intermediary institutions dont work as well, notably the other intermediary institutional used long after the Electoral College becomes something of a formality that played the same role as a Political Party system, you can select a demagogue because the parties, they would choose a reasonable human being, that system broke down as well. These intermediary institutions dont function the way they are supposed to. That is important to how a candidate who never got more than 40 of the vote in the republican primary becomes president of the United States. Trumps scenes are many and you have many chapters going through in great detail, in analytical detail about trumps scenes. The one i want to talk about next is his use of twitter and his speech and what that does. You talk about how dysfunctional the dysfunctionality inside the executive branch, nonunitary executive insubordination, the fact that people often ignore trump, he doesnt do a proper job running the executive branch, his war on truth, and White House Justice Department relations to undermine the rule of law, Foreign Affairs and kingly powers on things like pardons. We cant go through all of them. I want to talk about one. The chapter on the rhetorical presidency and trumps unusual next level use of speech and how that is different from other president s and why we should worry about it. This chapter because i come to this from a background of studying law, i never thought of speech as a president ial authority. President s have the right to speak like we all have a right to speak. There is a large Political Science literature that thinks about president ial speech as a discrete president ial power which was a revolutionary idea to me and when we started thinking about the way trump speaks in that context, you realize hes using president ial authority in a fashion no prior president has done. Notably it is not the first time president ial speech was changed dramatically through the nineteenth century. President s didnt give policy speeches. What they did, they communicated about policy in writing to congress but to speak in public to the public about policy matter was considered demagogic. This changes with Teddy Roosevelt and decisively with Woodrow Wilson and that gives rise to the fireside chats a number of years later, the president ial press conferences. President ial speech is a fluid and dynamic thing and in some ways the best way to understand trump on this is he is the accelerant, acceleration to the absurd end point of directions president s were going anyway speaking much more, he speaks a lot of words, intermodal speech, the use of twitter as a constant barrage of president ial words, no prior president has done that. The integration of president ial speech with an ecosystem of affiliated news environment, these were things that were already happening but the best way to understand what trump is doing is a fireside chat that never begins and never ends. It is like a talk radio show that turns on in the morning and keeps going. The reason it is dangerous is to be perfectly a huge amount of it is disinformation. It is a state run disinformation and the reason it is dangerous is that it works and the question is what future president s will learn . Will future president s learn . Probably wont be as flamboyant as trump but the idea you should be hearing from the president all the time, a network should be amplifying everything the president says all the time. This is a revolutionary idea. Michael bennett, note that he did not get one of the vote in iowa, promised in a recent statement that if he were elected president you wouldnt have to think about him for two weeks at a time. That is a remarkable statement, and estimate about the way trump speaks. Two things on that. This is a particularly dangerous manifestation and most probable for expectation of the presidency. We already see it playing out in the campaign. The idea of president ial candidates trolling one other on twitter. This would have been on think in prior elections and we see candidate seizing on that because they understand there is something about this direct mode of communication that works. This is an area we have to acknowledge that in part trump is changing the presidency in a way that works and others are already following suit. There is another more pernicious manifestation of trumps careless use of speech and the constancy of the flow and that is the decoupling of president ial speech from executive branch statements. We see again and again the Justice Department going into court and argue in front of federal judges. He doesnt know what he is talking about. He didnt mean it. We dont know what he meant by that. This notion of the diss unitary executive, really undermines a core structural set up of the president being head of the executive branch and being accountable for his speech and the speech having content and operative affect and not something if that becomes an ordinary part of future presidencies. That will have more sort of significant longterm consequences. Particularly striking example of the point susan just made where mike pompeo was testifying in front of the Senate ForeignRelations Committee and was confronted with the president s statement on the subject and blurts out that is not policy. This is the secretary of state saying of the president the president s words are not policy. A senator calls him on it and says how can you sit here and tell us that the words of the president do not constitute policy . He has to backtrack. When he is asked that question he cant say what is in fact the policy of the entire federal government which is the president says whatever we wants and we do our thing and that is the policy of the federal government and the policy any time except when you are asked how can that be the policy . The reason you wrote the book and the main thrust of the book is wake up, people, there is a new proposal for the nature of the presidency on the table, trump has along a number of dimensions operated the presidency for dramatically differently than his predecessors and with disregard to what we think of as normal institutional norms and expectations and the claim seems to be that this is what is at stake in the 2020 election. I want you to i want to know what the mechanism is. On some of these matters trumps norm breaking or norm changing on twitter is part of a larger cultural political phenomena and. He certainly accelerated it. It has spread. It is hard to imagine the next president not using twitter very aggressively. In that front that norm is gone. That is our world. Other things, the election matters. What is at stake in the election . I think the election is hugely important, more so after the impending but inevita