Thanks for inviting me to come on with you, and im really looking forward to this conversation. As you know, aye been add an mirier of your work on executive privilege. This should be a lot of fun. I started out wary of President Trump. I wasnt a supporter of his in the 2016 election, expect thing that really worried me was that he was a populist. The constitution seems designed to stop populists. Its fairly democratic in a lot of ways. The so i was worried when trump came in as a populist who wants to achieve an agenda that he feels he received a mandate for, that he would strain against or even go beyond the constitutional constraints of husband power. And i was worried he was doing that in things like the travel ban, threats to build the border wall without congressional approval. And in that early piece i urged him to try to use his president ial powers primarily for National Security and Foreign Affairs and instead to understand Domestic Affairs that his role is really to enforce the law and then to work with congress to get legislation passed. I think what happened since 2017 to today is that i found husband critics have become his critics have become the ones that i think have gone too far in trying to stretch the constitution. Because i think trump so end rages them. Theyve launched attack after attack on his legitimacy. Its trumps critics, for example, who have talked about getting rid of the electoral college, who have talked about packing the Supreme Court to add six new members to get it to saw 15 to 15. To who want to return us to a world of statutorily protected special counsels. Who want to nationalize large parts of our economy. And i think that has left trump undeniably using the constitution more as a is shield, using the constitution to pursue his own selfinterests. But i argue that either intentionally or unintentionally, he has become more of a defender of the traditional constitution than his critics. Host thank you. Theres a number of topics you cover here from pardons, executive order z, the border wall, the impeachment process. Im going to try to go through some of these and get your take on the president s exercise of executive authority in these areas. Starting with the impeachment. I really do get the point you make that the president did not yield with, he did not apologize, he attacked the legitimacy e of the process, but youal dont hold the president blameless for how he handled the controversial phone call or the ukraine matter altogether. Is it really a win for the institution of the presidency and an affirmation of trumps defense of constitutionalism if hes defending his position in a situation that he himself created and never should have happened in the first place . Guest i think he does in the sense that it reaffirms, at least in my mind, how the constitution intends us to deal with executive misconduct or abuse of power. And even though, as you say, maybe trump created the problem in the first place by his unconventional approach to Foreign Policy or each as some people even as some people claim his mixture of the Public Interest with husband own private political interests, the deeper constitutional question, i thought, was how does the constitution try to constrain executives. And i thought it really does it in two ways. The election process, i think, is foremost in the terms of the framers view of how you constrain an executive who you think is abusing their powers. You elect congressional majorities to oppose him, and you eventually get him out of office. I thought the mistake that occurred here was that impeachment was being used for activity which fell short of the constitutional standard. Im not one as i explain, look, i dont think that impeachment requires a crime. I think high crimes and misdemeanors does include abuse of executive power. But it has to be a serious one. And it seemed to me the kinds of accusations that were being lev viewed against President Trump levied against plump were really designed against President Trump were designed for the electoral process. The bribery of the congress, for example, the king of france had been paying off the king of england are during the 17th century. I think thats what the framers had in mind. And i think you can see that in the founders requirement that the senate get to twothirds before it actually would remove a president even though it put impeachment in the hands of just a simple majority of the house. They wanted to make it difficult to remove a president through impeachment, and that would then funnel the kinds of fighting we saw take place and should be properly funneled into the electoral process. Host let me go back deeper into some of the circumstance es that led to that. The president likes to talk a lot about a deep state of officials who he believes, and you give him some defense here in the book, dud not accept, as you point out, the legitimacy of the 2016 election. And in the president s view, they have acted to try to undermine a duly elected president. You address the very complicated issue of the principled loyalties of people who swore an oath to the constitution if not to their branch of government or to the president and who believe that they have an obligation to honor that oath by bringing to the attention of authorities whether its internal oversight or committees in congress potentially illegal or unethical behavior. Guest well, i think this issue arises twice. Not just impeachment, but also the russia collusion investigation. Of. Host right. Guest both cases, and it raises a deeper philosophical, political theory question about government. And im not claiming trump is thinking deeply on political theory, but i think by his pursuit of his rational political selfinterest, hes sort of advancing this greater constitutional good which is more tied to the 18th century constitution. So let me sort of describe what he was fighting against in a way which is whether its the fbi and jim comey or members of the Foreign Service and the permanent National Security council staff. That, those i dont think of it as a deep state the way, i think the phrase actually comes from turkey. [laughter] i think of that more as a kind of progressive era bureaucracy, the idea of which was most important Public Policy decisions are really technical or scientific or professional x. So you want to delegate power over those decisions to those experts, and you want to insulate them from politics. Not increase political control, but, in fact, reduce it. I think this was very much Woodrow Wilsons thought and had a great impact on our constitution. You see that, i think, in the fbi expect Foreign Service. And the Foreign Service. Trump, to me, embodies a more 18th century view of what the executive branch is about which is we the voters elect a president. Hes the only one charged with executive power and enforcing the laws, and then everyone in the executive branch whos conducting Foreign Policy, whos enforcing the laws are doing out as an assistant to the president. So its a much more political vision of the bureaucracy. Bureaucracys responsive to the president , and we hold him accountable or her through the politics. And to me, thats what happened in the impeachment and in the russia collusion investigation, is that you had the permanent experts, the Foreign Service, or the fbi conclude that the president essentially was unfit for office. And so they were, to me, they were it would not have computed to the founders. They were challenging the head of their own branch at unfit. Thats not really their job. Now, e i think as you say, there is this impeachment system, and congress does have the right and the power to remove president s. And, of course, theyre going to gather some of that information from the executive branch, from people who work there. In that sense, i dont think impeachment was off. Matter of fact, i dont see how else it would run rather than people say, or oh, the president misuses his power a lot. To me, it was the standard that the house and some members of the senate were using. Instead i would have thought all those things were much more appropriate for oversight hearings to be brought out for spending cuts or renext, the usual tools that congress uses to fight with the executive branch and ultimately putting it before the voters as we will in november. This is the all going to be before us when we vote on the president this november, and i think thats the better solution. Host you talk a lot about executive powers and prerogatives and trump defending the institutional presidency, and i wanted to go through some of the different powers of the presidency here. Starting with executive orders, i think thats an easy one to talk about. Of course the president has the authority to reverse actions by executive order or at least earlier executive orders. But im just asking if signing a bunch of executive orders, is that real president ial leadership . In other words, if we have a President Joe Biden next year, i would imagine hes going to reverse a really large number of executive orders. Is there more of a legacy for a president to engage in the traditional process of negotiation, building consensus, getting compromise in congress and getting the laws through the system that are going to have a greater deal of permanency rather than just issuing willynilly large members of executive orders and saying i did a lot of things . Guest yeah, i think thats e a great point, mark. I dont, you know, the book is, doesnt approach it exactly the withdraw you did, but i think thats quite right. Just the way i think of it is that the president has this power of reversal. I thought that was something new. Theres a lot of things prime ministers can do unilaterally president s. Youre quite right. If the president only operates through executive orders, he is laying his a achievements vulnerable to simple reversal if a President Biden comes in. This is january 21st. Only by working with congress to affect statutory change do you give it a kind of longlasting legacy and permanence. So i quite agree with you. Yes, President Trump, like president obama, have been frustrated by the infighting of congress, have not been able to get a lot of their agenda through. And so naturally, theyre going to turn to executive orders. But i dont think its permanent so long as i think the constitution says, so long as president s have that power to quickly and immediately reverse any use of unilateral executive power by their predecessors. And i just want to add, i think that was somewhat thrown into doubt by the Supreme Courts recent discussion on the daca case which really surprised me. Actually, in the book i said i thought it would come out the other way, and i went through all the implications that would occur if the court didnt allow President Trump to reverse the daca program. Host yeah. So on that, let me take a contemporary application then of this particular issue. Can the president issuen a executive order to prohibit evictions, as he said recently that he might like to do, on though it was congress that approved a temporary moratorium . Would that be an appropriate use of an executive order . Or, you know, should the president simply work through the law making process here as a well . And let me add to that tiktok. Can the president issue an executive order banning tiktok . [laughter] guest im sure lots of parents want the president to have that power. [laughter] right now. [laughter] but its really interesting. I think this is, through this power that president obama, i think, creates in daca for the first time, kind of creating a program by not fully enforcing the law. Which leads to daca program, it has certain limits. So, for example, the rent eviction idea with. I havent studied that closely, but generally, to me, its a state law issue. Host right. Guest so i dont with see how the federal government by restraining its own prosecutorial discretion can have an effect on the states and whether theyre going to affect people. If theres going to be any kind of eviction waivers at the federal level its state courts, its actually more the federal government as a whole thats expanding its power by, i dont know, attaching and spending riders for conditional pending when the states accept, i guess, pandemic relief money . But its not the same thing. Also id say with tiktok, that to me is actually more of a traditional use of the executive orders that you were mentioning earlier, mark, that come either their use of inherent executive power, but they can also be, and the more common executive order, i think, is the execution of some delegated power from congress. You know, congress has given a huge amount of power to the executive branch to regulate International Economics for National Security reasons. Already i believe there have been National Emergencies declared for sanctions purposes with regard to china and its businesses. A lot of its companies and practices are under investigation now by the fbu. So if president obama im sorry, President Trump bans tiktok, that actually, to me, seems constitutionally straightforward. An exercise of iepa, 1977 law that Congress Gives the president to sanction national companies, transactions for National Security. Its, if the president if President Trump were to try to do it unilaterally without any congressional, that would be a really difficult question because i dont think without congress the president has an International Economic sanctioning power. Host let me turn to another contemporary issue and, to be fair to you, the author, i know you are not writing during the pandemic like with all books, you know, it was published in late july. But i was looking at your citations, i think the last source you cited was february of this year guest guilty as charged. [laughter] i begs i begged the publisher host several months lag time, but i think its a good topic to bring up with regard to the exercise of executive power, right in because this is absolutely the biggest challenge of president ial leadership of our time. And none of us expected this challenge. And ill point out, by the way, at one point you said challenges at home dont tend toward the unforeseen and unprecedented. Unfortunately, thats what happened in this particular case. But, you know guest from china. From abroad. Host okay. [laughter] well, yeah. Right. So it was, but it became a domestic crisis, right . And the president has an obligation to establish his leadership here in the country thats been really hungry for that. And in the book which, or again, you laid it to rest before the pandemic, so you didnt have a chance for this manuscript to approach the president s leadership, but i want to ask you to apply it in a sense because, you know, youve defended trump as a strong and vigorous national leader, but where was that leader during the outbreak when he said effectively to the states, youre on your own. The federal governments not a shipping clerk, you know . When the governors were pleading for some help getting protective equipment and also in a new edition of this book, i dont think you can ignore the pandemic and the new chapter, right . You emphasize president ial powers, what are you going to say in that next edition when you discuss the pandemic and this president s leadership . Guest im glad you raise that because thats the chapter i wish i could have written after the deadline. For getting the manuscript in which i thought would wrap up nicely, but, yeah, things just keep happening that themselves could consume a whole presidency over and over again. Yeah, its interesting. You know, its an odd thing. People are create sizing trump for being a dictator, they impeach him for having too much executive power in february, then within a month people are saying why arent you doing more. This, i think, its not really the separation of powers thats the problem, its federalism. The constitution, no matter what the president s powers are in terms of filling in what the federal government can or cant do, the federal government still has limits. And i think actually this is where, i think it would have maybe gone along with my thesis that trump has actually been respecting the federalism limits on his powers even to his own political detriment. The populist in him, im sure, wants to set closing dates and reopening dates for every business in the country and would have wanted to set for social distancing set standards. But the constitution doesnt give the federal government that power. The constitution is one of limited federal integrated powers, and weve long had the understand thing that Public Health understanding that Public Health and safety is primarily a state and local issue. The federal government can come in as support, but the front line in the trench warfare of it, fighting a pandemic or disorder, is going to always be city and state, local authorities. So i think the federal government has been doing what its supposed to do. It can provide money to the states, it can provide equipment and personnel and resources. It can fund a vaccine, it can Fund Technical research, it can spread information. But the federal government doesnt really are are the people, it doesnt have the people, it doesnt have the actual mechanisms of government to take care of a nationwide pandemic. You think about how many people does the federal government even have. How could they even enforce a pandemic social distancing system. The entire fbi, its entire work force is smaller than the new york police department. So the real agencies of government, the real arm of pluck power in this kind of public power in this kind of widespreaden pandemic has to come from the state government. So actually i think its interesting because i think a president who really wasnt conscious of constitutional limits would have tried to go beyond that. But i think the trump actual, to husband political detriment, has st