Professor of lauper he served in all three branches of the federal government to the Justice Department office of legal counsel, and the Senate Judiciary committee and Justice Clarence thomas prayed the previous books include crisis and command a history of executive power from George Washington to george w. Bush. His newest book the subject of todays discussion is titled defend her in chief, Donald Trumps fight for president ial power. John thanks for joining us today. Spivey entrance. Guest thanks adam and thank you its hard to believe ive been a scholar here for almost 20 years. I think im one of the oldest people on the staff. Its great to be here again to talk about a book and it would not be possible without having relationships like those i have aei. So terrific lets jump into the book. The end of the books introduction you summarize the overall argument and theme of the book. You say that President Trump has returned to the framers original vision of the presidency as an office of unity, vigor, and independence. In securing the benefits of ending executive for his predecessors trump moved in the greatest service. Why dont you elaborate on that and describe the overall argument in the book. Guest thanks. Thats great writing. As like i should have taken one third of the words out of that. That was a long sentence. Its a fair summary of the book. Got to say when trump ran for president and 2016 i was wary of him. He was not my first pick for president. And one reason i was wary of him is because hes a populist. In the constitution fears populace. Click you look like an fdr and Andrew Jackson even Abraham Lincoln their people who think they have the popular will behind them. In the constitution is often seen as an obstacle cruelly true people like fdr. You wouldve thought President Trump would come into office and he would find the constitution a hindrance, an obstacle to what he wanted to do but instead the last three and half, four years what i have seen as his opponents who really want to abandon change constitutional traditions and institutions. Its his opponent. And you look at the Electoral College is his opponents who want to pack the Supreme Court from nine to 16 members which i think would be terrible for Judicial Independence and the rule of law. They are the ones that support special councils and prosecutors to fight off partisan political battles or support the idea of independent bureaucracy like the fbi and jim combing who can decide who is fit or not fit to hold office, not the voters who want to nationalize the economy and create this a vague Green New Deal in this Global Warming. He was a populist, hes turned out to be the one who is defending a think more often than fighting with traditional constitutional understandings, our institutions. Thats not to say he hasnt changed, which he has, the norms and politics of the office of the president. I think when it comes to constitutional powers, he actually has not been this great destroyer, the great shredder of the constitution of which he is been accused often of his critics. Host in the opening you pointed President Trump with his critics and opponents you started beginning with his election on the electoral council. Lets jump to chapter two of president s duty and what that means with his Law Enforcement. He mentioned the case the conflict with james comey. So thats great, i think the founders that the two most important functions of the president and they say so protecting National Security and enforcing the law. They wanted to leave the president to be independent of congress because they thought having congressional control is the very definition. So trump comes into office in one way i understand the Mueller Investigation, i understand what happened with jim comey is almost a revolt of the Law Enforcement bureaucracy. I used to be part of it in the Bush Administration in the Justice Department. But you had this revolt by the fbi and the headquarters and jim comey ultimately set against the elected leadership of the country against the person the constitution says it is the president that takes care of the laws are faithfully executed. And under our system again this is a traditional understanding, President Trump has the right to fire, not just jim comey but anyone involved in Law Enforcement because as the Supreme Court is long said all of those people are assistance to the president in performing his constitutional responsibility to take care that the laws are faithfully executed. Rather than taking some great constitutional disaster and trump firing comey, but i argue it is the president restoring the Traditional Law through the power to remove anybody who is involved with prosecution or investigation because they are all people who have to help the president in achieving that duty to make sure they are faithfully executed. So he said to those think the president should not be in full control of Law Enforcement, the only thing worse than that perhaps it be the president not having full control and having something as important as the prosecuting power or Law Enforcement powers scattered among a variety of offices that are not actually accountable to the people of the president. Guest he said that about the independent counsel sometimes a wolf comes disguised in sheeps clothing. But this time the wolf comes disguised as a wolf. And its not really even discussing that of the bigger issue, the political theory a lot of people are interested in, is that the independent counsel also represents eisai the pinnacle of the idea of the Administrative State. The idea of Teddy Roosevelts idea of fdr, really interested in these issues Public Policy questions were not about politics they were scientific, managerial issues. So even prosecution is up to the experts. So you should create special councils were who are insulated and protected from politics so they can do their professional jobs. They can do the expert function functions. Glad jungle head. The constitution creates a direct political control over Law Enforcement. The founders would not of accepted this idea that Public Policy questions are questions of expertise alone. We elect the president and that president is the one who is in charge of Law Enforcement. And hold them accountable and responsible thing to selection. Speech i just want to tell the audience by the way you want to submit for the audience q a portion of todays discussion, you can send them into ways. You can either submit your questions on twitter fender in chief. Or you can send in by email to the Program Director for aei department of social cultural and constitutional studies nicole penn thats an i see ole. Pen and at aei. Org. Don of this point youre just elaborating on the Political Tension between that accountability and technical expertise. That is a theme with the discussion on Law Enforcement of sorry but on these broader questions of bureaucracy and the president. His conflict with the state department, his conflict with the National Intelligence apparatus of the country and so on. This is not just limited to Law Enforcement birth is a broader challenging governments. Its what is elected to lead. Guest these are questions you and i are both interested in. I think it really expresses too, not just trump fighting to win his battles everyday but expresses his conflict between two different visions of government. I think trump is trying to turn us back even though he may not realize he doing it but consciously doing it, but his own self interest causes him to want to bring us back to that more spartan limited idea of the government that the founders had prayed the idea that the branches would have separate. That they would not cooperate all the time. Theyd be constantly fighting. That is how individual liberties result. Instead you have this other vision this progressive vision of cooperation between the branches. Why cant they get over the separation of powers by creating this Administrative State. On that Administrative State will be filled with permanent bureaucrats with expertise in constantly creating new laws and adjudicating constantly growing and acting in government. Again i think is the opposite of 18th century constitution. I think trump interestingly, he is pursuing his political selfinterest obviously when he fights with muller, coma hes trying to save his political hide. But i try to argue in the book, the founders constitution tries to channel that rational selfinterest into a greater constitutional good by hopefully causing all of these competing interests into fighting each other. Madisons famous phrase ambition must counteract ambition in the interest of a man should be the interest of the place which is in the institution. And by that constant struggle that government, that will limit government more effectively than the bill of rights and that space that is left without government will be where our individual liberties are. I dont have trump knows hes doing that or thanks hes doing that but the constitution by channeling trump self interest. Many ways its likely free markets another 18th century around the time of the 17th century. Guest suppose part of our system is the fact that no president is supposed to be a constitutional scholar. Rather the president occupies. [laughter] the last may had was woodrow wilson. [laughter] so but that is right. And so you have a president is exercising an office occupying an office and his ambition is channeled through that office and attach to the offices same way the ambitions of say members of congress are channeled into their office. And our system presumes they will do get out so to speak through politics. And that is how these institutional values are advanced and achieved. You go on to describe an interesting term you called the president s power to reverse. And i suppose it is that in a system where president s have vast powers not just through the constitution but through the statutes that have been delegated that of delegated powers to administrations over a century or more. That the president is an immensely consequential policymaking decision and therefore we need to leave maximum space for each president to move forward after an election and reverse policies of the previous administration. You write about that. We both written a little bit about how that is bumped up against the courts in this administration. Want you tell us about the power to reverse and how thats fair in the Trump Administration. Guest thats a great point. I think i tried to explain one of the real limitations on the presidency but also under the president s power is the power to reverse prayer we dont really think of it that way. When Congress Wants to repeal a law passes a new law trend law. Once there reverse their reverse by the Supreme Court decisions. But how does a president change policy . Its obvious you would think. The present reverses what the last president in the same way by issuing an executive order or firing someone pardoning someone. If you look at the formal powers of the government, a lot of them have to do with reversing what the last president did. It seems it trump really likes to use those powers. His favorite tagline is youre fired. [laughter] it is a reversal of a joint decision by the president and the senate shall hold an office pretties also terminated treaties, pulled us out of the iran deal, he pulled us out of the paris Global Warming accord, is now been pulling us out of i think becoming somewhat obsolete bilateral arms control treaties with the former soviet union now russia. You could say trumps favorite executive power is this an pardoning. But the fate of it is interesting, adam, i wouldve thought this would have been an obvious aspect of the executive power. But as you know the Supreme Court three weeks ago and the daca decision. I was quite astounded the Supreme Court said no actually the president doesnt have this kind of immediate reversal powe power. Think about what that could do. I actually think the decca policy is a good idea. But the constitution clearly said Immigration Laws under control of congress. Congress is not created a category four the dreamers or their parents to stay in the country. The president has the power to faithfully execute. Just by not enforcing Immigration Laws seems to me President Trump upon taking office has a power of reversal. He can say no start enforcing those laws again. But what is remarkable i think was that the Supreme Court said no, you have to file the administrative procedure act to take anywhere from one to four years to use to undo president obamas decision in the present obama did not use the procedure act pretty just that im using discretion of prosecution i started asking that back in 201212 the power of nonenforcement he could radically change Immigration Law people or people who bring millions of dollars in investment and american businesses. They can create the own decca Program Search and replace children and parents of children with stem degrees or assets or skills, certain skills. I dont see why there should be some special constitutional law that limits trump on the other hand the Supreme Court has simply different rule that only benefits other president s. Your argument on this it comes back to the take care clause of the constitution you say at one point year old the book before they decided that case you knew is on its way and you said it cannot be the case you cant force a present this is in your book that cannot be the case the courts meagan force the president to continue to enforce in a policy in fact is unconstitutional. Thats the bigger issue a hind the daca issue which unifies the court as a selfconfidence view of the constitution it superior to that of the president or congress. This one has come as a shock to the founders people look at the beginning of the country it is the president and it is the congress that deals with the constitutional issues in the beginning not the Supreme Court. And if you think about the result of decca President Trump comes to office and immediately says is unconstitutional. Should they not going to force this policy is only reason i need to and it you see whats happened it is ordered the President Trump to keep enforcing it unconstitutional policy not just that trump is unconstitutional but the lower courts have found unconstitutional twoparty think its quite remarkable. Its yet another example of this is seizure from the political branches from the president for their right to interpret the constitution by the courts. Its not a partisan thing is not a conservative liberal thing. All the justices love to do this when it suits them. So is a little bit about this the book was coming out you wrote some more about it and the national review. For me this particular issue seem to be a consequence of the administrative procedure act which in and of itself a broad overlay on executive power which raises challenging questions it always has about the extent to which congress can legislate procedures upon the president or that the courts can enforce those legislative procedures. But the way you describe the conflict between the Trump Administration and the roberts court, it brings them back to earlier point we talk about the branches having ambition and checking and balancing one another. How should these sorts of moments play out when an ambitious president is by himself bumping up against what may be an ambitious court of a sort . So its interesting braid this is something that actually divides trump lets add six new justices to the court then. If we dont like what its doin doing. Its been rejected in the past i think what President Trump is been doing is morgan the traditional approach which is gradually trying to change the direction of the court by putting new judges on. Trump didnt say lets expand the Supreme Court to 11 or 12 people he replace the vacancies that have occurred in his presidency and he picked people who were conservative, who shared his ideology. Actually a remarkable thing talk about little bit in the book is President Trump see first one to issue a list of nays and say i will only pick from this list of nays and almost delegate the power to come up with the list to will know conservative groups like the Heritage Foundation on the society. Adam otto how we got shut out of that aei. How come