Opinion: How can we fix the damage of Trump’s presidency

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The “After Trump” analysis and proposals point to ways that both the Department of Justice and any special counsel appointed to conduct investigations can be protected from political pressure when faced with such scenarios. , and it’s hard to imagine two authors more suited to the task.

Bob Bauer was a former Obama administration adviser to the White House, a scholar living in New York University’s law school and co-chair of President Biden’s commission to study the Supreme Court. Jack Goldsmith was head of the Office of Legal Counsel in the George W. Bush administration and now teaches law at Harvard. He is also a senior fellow at Stanford’s Hoford Institution and co -founder of Lawfare, an influential online journal dedicated to national security.

Although their book is spreading on Capitol Hill, and many of their ideas are already being considered by lawmakers, a conversation with the authors revealed their concern that the more immediate crises in Washington could thwart efforts to patch vulnerabilities that Trump exploited – which would allow a future president to pick up where Trump left off.

Below is a lightly edited Q&A with the authors.

Michael D’Antonio: Bob was a White House adviser to President Obama, and you, Jack, were in the George W. Bush Justice Department. At first, the two of you will work together on a book about the counseling office, right?

Jack Goldsmith: We blocked an entire day to go through and plan that book. And over that day, (we) continue to go back to current events and the extent to which Trump’s presidential example demonstrates the gaps and limitations of presidential accountability policies and standards.

The great (after Watergate) reforms in the 1970s, which were crucial in establishing policies for presidential accountability, did a great job but had kind of run their course. Or at least their weaknesses were exposed by the Trump administration era. At the end of the day, we decided that was the book we should write.

D’Antonio: Some of the history you mentioned shows presidents who conform to unwritten standards for how to use presidential power. For example, presidents generally rely on Department of Justice screening and recommendations for pardons and clemency grants. What led presidents to accept these restrictions when a decision was being made?

Bob Bauer: These are the questions that are primarily influenced by the kind of (legacy) that a president wants to leave, the legacy that a president believes he or she is establishing. And this will include circumstances in which the president, for example, may exercise legal authority and choose not to do so.

For example, using the power of pardon to reward friends and punish enemies, or using it for vain political purposes. The choice is not one, for the most part, dictated by constitutional or other more formal considerations, but simply by the president’s belief that any chief executive should be guided to exercise this authority.

D’Antonio: Presidents have gotten controversies involving pardons issued upon their departure from office, but the power of pardon seems to be perfect. What are you going to do there?

Goldsmith: Congress can’t stop the president from forgiving someone. The power of forgiveness is absolute in that sense.

But Congress can punish both the president and the recipient of a pardon after the fact, if that pardon is granted to (obstructing) justice, or if that pardon is part of a bribe to obtain some benefit from person who receives forgiveness.

We suggest that Congress clarify that these types of pardons would be criminal. We also proposed that Congress ban self -excuses. Much of what Trump has done in terms of pardoning his cronies, assuming no bribes, cannot be stopped without a change in the constitution. But in the worst examples of forgiveness for bribery, for obstruction to justice or self -forgiveness, we think Congress can take action.

D’Antonio: It makes sense to address bribes and obstruction of justice where pardons are granted, but where do you get down to the presidents of the investigation and their actions after they leave office?

Bauer: Throughout the entire book, we talk about the dangers of the legal process of getting a weapon; that is, something intended to address significant systemic issues for the operation of the air government made a weapon to score the parties points. But that doesn’t mean a passage for presidents to be appropriately investigated for serious violations of the law. So there are risks either way: disarming the law or a major failure to enforce it.

D’Antonio: But there are cases when an investigation can be useful.

Bauer: We probably saw a significant number of questions (answered in) the Richard Nixon investigation, but it was cut short by the pardon that was issued very quickly after he left office.

Goldsmith: Bob is right that Tixon would almost certainly have been investigated if he had not been pardoned by (President Gerald R.) Ford. And other presidential administrations have been investigated on the margins. These examples show both it is possible to do so and there is hesitation to do so. And of course, Trump raised all of these issues so much.

D’Antonio: The result of Trump’s presidency has led you to propose a lot of new laws. For example, you suggested that Congress require presidential candidates to disclose their tax returns. But the January 6 attack on the Capitol and the Covid-19 pandemic are bothering us. Are you worried that the moment to correct what Trump has revealed is passing or some of the process that will take place in the justice system?

Bauer: There is (ongoing) investigation in the Manhattan attorney’s office … (but) some of these investigations and legal matters are not involved in his actions as president. Some took place before his political career and some took place during his candidacy, such as the money payment scandal. So I don’t think the legal story is complete yet.

Goldsmith: If Trump is found to have committed crimes that can be prosecuted, and if Attorney General (Merrick) Garland believes he can make a case, he will have a question about whether he should do so. He can say yes, and he can say no, but he will consider the consequences whether to prosecute or not. And that is a legitimate function for a prosecutor to pass.

D’Antonio: Trump’s violation of so many presidential standards could be an argument for the need to clarify what is expected of the president. Without those changes, can we rely on officials to act with integrity, or honesty to standards, in a way Trump did not? And does the public have faith in their institutions?

Goldsmith: We think the institutional reforms of the presidency will help to maintain its legitimacy. So many of the changes we propose for the Department of Justice are designed to help the institution show more convincingly that it is acting with integrity.

One of the controversies that emerged in connection with the FBI’s (2016) investigation of both Hillary Clinton and the Trump campaign was that the FBI did not have many concrete guidelines for decision -making in controversial, highly political contexts. Many controversies and problems that (surround) the legitimacy of what the department does can be avoided if clear and informed policies are put in place.

Another example is that (Trump administration) Attorney General (William) Barr has often commented publicly on an ongoing investigation in a way that really hurts the credibility of the department and the credibility of that investigation. This is inconsistent with things Barr himself said about the manner in which attorney generals behaved, but the standard about not commenting on ongoing investigations with the Department of Justice does not explicitly apply.

D’Antonio: After Watergate, there was a couple of efforts to address the abuse of presidential power, and as you said in your book it worked momentarily. With Trumpism predominant in the Republican Party, so far it seems unlikely. But are there some things you think are possible?

Bauer: I think you see that, for example, in places like powers at war there is a basis for some agreement with the two parties to address some of the abuses discussed in the book. Trump insisted on an reckoning of how serious this problem is, and what would happen if someone came to power, Democrat or Republican, (who is) more cunning than Trump, more experienced in using the levers of power, (and) who could have done more damage than Trump did.

Goldsmith: It’s very important time to try to achieve some of these reforms. If Congress can use the muscle of presidential reform, hopefully several times, it will intensify. This is really an important year to come. And so we plan to do our best to help move the process.

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