Mentioned:

• Bob Bauer, “Why the Trump Election Interference Strategy Failed,” Executive Functions (November 5, 2026)

• United States v. California, No. 26A624: Application for an Injunction Pending Appeal and order denying the application (U.S. November 2, 2026)

• Jack Goldsmith and Bob Bauer, “Donald Trump Might Challenge Election Results in 2026, Say Two Leading Lawyers,” The Economist (November 12, 2025)

This is an edited transcript of an episode of “Executive Functions Chat.” You can listen to the full conversation by following or subscribing to the show on Substack, Apple, Spotify, or wherever you get your podcasts.

Jack Goldsmith: Good morning, Bob.

Bob Bauer: Good morning, Jack.

The Trump administration’s rhetoric and actions throughout 2026 suggested to a lot of people, including you and me, that it intended to use presidential power to tilt the election in ways that would favor Trump and his party, yet that didn’t happen on Tuesday. Yesterday, you wrote a piece on Executive Functions entitled “Why the Trump Election Interference Strategy Failed.” So why did it fail?

It failed for a number of reasons. I identify three in particular. The first is the flawed premise and very poor execution of Trump’s strategy for tilting the election in the favor of the Republican Party. The second has to do with the role of the courts, and the third has to do with the way the system fundamentally operates, and it operates in a way that was not compatible with what Trump wanted to do.

And for that reason, we saw—and there are some other reasons we can discuss—we saw a very normal election day. There were glitches. There always are glitches. It’s an imperfect system. Human error always plays a part. Sometimes technology failure aided and abetted by human error plays a part. But it was an election day, and a period of early voting before it, like any other.

Okay, so let’s march through them. The first reason had to do with just the failed strategy, the strategy itself.

Yes. It rested, first of all, on an attempt on the administration’s part to assert a constitutionally flawed, constitutionally doomed theory of executive power to set rules in federal elections. The Constitution confers that rulemaking authority on the states unless Congress chooses to intervene and prescribe specific rules for federal elections.

Trump had wanted, by executive order and in litigation, to claim authority for the presidency that the Constitution does not provide, and he met with real reversal in the courts, consistent reversal in the courts. So that was the first problem. And we could talk a little bit more about the different approaches over time that the administration experimented with to try to get around that problem.

The second problem was a complete loss of credibility, primarily on claims that accelerated toward the end of the election cycle about the prevalence of noncitizen voting and the measures—therefore, emergency measures—the administration needed the states to adopt to prevent it. The administration was continuously making factual claims that were false, and in the end, had to admit that some of the key claims, particularly in the state of California, also in the state of Nevada, in other states, were just wrong. We’ve never had—and this subject has been studied up and down—we have never had massive illegal noncitizen voting in the United States.

From time to time, noncitizens do wind up on the voter registration rolls for various reasons. Many of those don’t vote at all. A handful of cases, the administration did bring some prosecutions against noncitizens for voting. They are small in number and very often misunderstandings on the part of those who are voting that they are in fact not eligible to vote. So the whole premise, going all the way back to Trump claiming that the Clinton plurality victory in 2016 was accounted for by millions of noncitizens voting, was false and exposed to be false, and it seriously damaged the administration’s credibility with the courts—I think also with the public.

(3:15) Okay, so let me follow up on a couple of those things. Yes, you’re absolutely right that the president does not have a role in these elections by the Constitution—that’s given to Congress and to the states—but there are lots of laws related to elections, election enforcement, election monitoring, and the like. There are criminal laws. The worries were that the president would use his power over law enforcement to somehow disrupt or intervene in the elections, and then there were other worries that the president would use his power over the military in various ways. There was very little of the first and none of the second. Do we have an explanation for why that happened?

In the first case, I think that what transpired—and this is, again, a flaw of execution—the administration tried to push this law enforcement theory so hard that it was clear that it was a proxy for an unconstitutional claim of executive authority to make rules in federal elections, and that’s what happened in California toward the end of the election, in a theory that it also, by the way, tried to move to other states. The administration took the position that because of its law enforcement authority, because of its concern with noncitizens voting and its determination to enforce the federal statute against it, the states were required to screen for voter eligibility not as their state laws provided, but as the Department of Justice dictated, and that’s at bottom an unconstitutional position.

It is doomed to fail, but the administration tried to wrap it up in a law enforcement theory. Here is the fundamental problem. If under federal law there is noncitizen voting, the administration obviously retains the authority to prosecute individual cases, but it doesn’t have the authority to decide that states that have by law adopted procedures for screening for that kind of voting, those states are required to adopt an alternative federal procedure for basic screening. That just simply isn’t correct. The translation from the law enforcement to the unconstitutional rulemaking authority claim was destined to fail.

And how about the military?

There will be a day, I think, through oral accounts that are elicited and documents that become public, where we might find out a little bit more about whether the administration ever thought seriously about invoking the Insurrection Act. There was also talk—and I don’t think it’s unrelated—about potential administration plans to seize ballots or voting machines in particular jurisdictions, to sow chaos, create doubt about the elections, potentially alter the outcome of the elections in those jurisdictions. It didn’t do that.

And we can speculate about the reasons why. It may well be that there was significant resistance within the president’s own party as the polls showed increasingly dramatically negative results for the Republicans, that they did not think that this would do anything but make matters worse. After all, Republican politicians were also on the ballot. They were also looking to try to win the election. Having the president engage in an act of subversion against the background of polls showing that the Republican Party was about to lose was not likely to be something Republican politicians welcomed. I think it would hurt many more than it would have helped.

And there was also likely some public opinion polling—the White House does a lot of polling—that would have indicated that it would have been wildly unpopular. It would have turned the electorate even more against Trump, because that goes to the point of whether it would have undermined Republican prospects on the ballots, where they did have those prospects. And for those reasons, as in 2020, he chose not to pull that trigger, if you will.

(6:45) Okay, the second reason you gave was the courts. The courts were so vital here. And how did that work?

Speaking first of the lower courts, I mean, the lower courts were very rough on the administration’s claims, and I think rightly so, because the law was not on the administration’s side. A good example was the administration’s attempt to coerce the states into surrendering their unredacted voter rolls, as the administration sought to build its own list and use that to screen for ineligible voters around the states—once again, supplanting state processes for doing so. And the administration, when it met with resistance, filed suit to force the recalcitrant states to comply.

And it lost—26 at last count, and I think this is the last count—26 consecutive lawsuits on this issue. It’s extraordinary. They were 0 for 26, and at least one appellate review. The lower courts just wouldn’t have any part of this, and I can cite some other examples.

But let’s talk about the Supreme Court for a second. The Supreme Court, of course, doesn’t sit well with progressives on a whole range of issues in the sphere of the regulation of politics—how much authority Congress has to control campaign finance, how much of a role the courts will play on gerrymandering. But I think that it’s important to see—and I think it was on display in this election—the court treats election administration and has responded to election administration issues quite differently, and not in a way that the administration would have wanted. We can go back to 2020, where there was a lot of concern about whether the courts would help Trump with his challenge to that election, and it certainly did not. And in this cycle, it also didn’t.

And we can run through the number of instances where the [court] could have, if you will, lent him a hand, and it wouldn’t do so. And at the very end in particular, in the case that he brought against California over noncitizen voting, it filed an emergency application with the court for relief because it had lost in the lower courts below, and the Supreme Court, with no noted dissents, within the same day, without requesting briefing from other parties, turned the administration away. And boy, that was a strong message, and I think a really significant moment in the judging of the court’s performance on these issues in this cycle.

I agree with you. I think it was seven hours after they received the application, they rejected it without comment and without noted dissent. You noted in your piece, and this was also quite remarkable, and a bit of evidence that what you just described in how the lower courts acted is remarkable evidence of how efficacious law was in this context. But even, I would say, norms were doing work. I don’t know what you want to call it, but you noted that the solicitor general in the application in the California case that the court flipped away in just a few hours kind of distanced itself from false claims that were being made in the Ninth Circuit. So even there—that relationship between the SG and the court—I think that paragraph signaled that the SG wasn’t really on board for this either and may have been behind the court’s very quick dismissal of the application. What do you think?

I agree it was remarkable. The SG clearly distanced itself—distanced himself—from these already shown to be baseless factual claims. And on the norms, I suppose you could say that was a very good moment in an otherwise not very good record on the part of the Department of Justice.

I mean, the Department of Justice—though we do not know what presidential pressures it may have resisted; who knows what other extreme steps the president proposed and that the department declined to follow—nonetheless, the department took positions in this election, clear-cut interventions that were not lawful and that were clearly going to be rejected by the court and that did have the effect of signaling to the public that the administration might try something dramatic, certainly could undermine confidence in the executive’s willingness to live with the results and follow the law. So the Department of Justice’s record is poor. The solicitor general’s moment here, I certainly think, does deserve note, as you point out.

But let me just say more broadly, the solicitor general’s office has been very much on board for pushing the presidential agenda in the courts. But its rhetoric has always, and its posture has always from the beginning, been different from the posture the department has offered in the lower courts. And there are many examples of this. Even as the department was defying court orders in the lower courts, the SG was representing respectful court orders in the Supreme Court. And what I meant by norms is that there is a relationship between the solicitor general’s office and the court in which the SG has to maintain a modicum of credibility with the court. The court depends on the SG’s office. The SG needs the court. And that relationship is something that kind of cuts against what the president’s trying to accomplish. This isn’t the first time that’s happened.

I’m not suggesting, of course, that the SG hasn’t been extraordinarily aggressive in pushing presidential prerogatives. I’m just saying this is the latest instance of that relationship between the SG and the Supreme Court mattering and contrary to the interests of the White House.

I certainly agree with that. But I will say this. By the time the SG did this act of distancing in the California case just a couple of days before the election, the administration’s factual position on these noncitizen voting and other claims about the electoral process had completely collapsed. So there really wasn’t a whole lot of room for the solicitor general to come too close to embracing the administration on those issues. But better—better, certainly—that it was an active and clear distancing than if it had not been.

(12:13) Yep. And as we say, I do think it must have been part of the explanation for the court’s very quick denial of the application. So let’s go to the third reason. What was that?

The system: the way the system operates. We have a highly decentralized election administration in the United States. People disagree on the count, but there are somewhere between 8,000 and 10,000, maybe slightly more, individual voting jurisdictions. And as mentioned before, the states—unless the Congress intervenes to make rules for federal elections in particular—the states do have authority to set the rules for elections, which is why you have a variety of different regimes across the country with different periods of early voting and some cases same-day voter registration and other states not. And in the Republican Party in particular—I just want to stress, in the Republican Party in particular—there is a strong commitment to that federalized structure, that decentralized structure, rather.

And I certainly found—and I do travel around the country, did in this election cycle, talking to community leaders and also election officials who would meet with them to explain the preparation for the elections—that there was simply no appetite for the kind of role in federal elections that this administration was asserting aggressively. It just runs against the grain, maybe not of the MAGA denialist movement, but it runs against the grain of Republican beliefs about how this system ought to operate. There is that.

And then one more point that I would add to it, which is we do have—and increasingly since the presidential recount in 2000 in Florida, and the controversy over that and the concerns about the electoral process that followed, there has been a steady advance in the professional administration of elections in which voters actually have a significant amount of confidence. There was a poll recently that some two-thirds of the voters, notwithstanding all of the attacks on the system in recent years, do have confidence in elections. And by the way, that confidence has been dented. It’s been damaged by Trump’s war on the electoral process, his rhetorical war, maybe his legal war on the electoral process in recent years, but it’s held up remarkably well. And voters in the jurisdictions in which they cast their votes often know their election officials, have been voting the same way in the same location for years, and they have confidence in the system. And that system just kept operating.

Even with threats that were directed against election officials by the administration, the election officials—Democrats and Republicans in blue and red states—kept their heads down and just did the job they had to do.

And I’ll just add one more thing, and this is a point that was made after the successful elections, even under pandemic conditions in 2020. These officials operate with very limited resources. It’s actually scandalous how little money is allocated to support them in staffing and replacing technology and in other aspects of administration. And the job that they do with the resources they have is really quite extraordinary. And just think about this last election now, the one that’s just completed: 124 million people voted. There were glitches, but there was no reports of widespread breakdown or voter complaints that they were unable to receive and cast their ballots. There were glitches, but overall it ran really well. And that’s a tribute to the professionalized election administration that we see in the United States.

(15:21) So let me ask you about that. I agree, it’s just remarkable. I just want you to say more about why the system was able to hold, because, as you say, the Trump administration has—not just this term, but for a very long time—been threatening and trying to infiltrate and take control of, or at least influence, local election officials, especially on the Republican side, to kind of break through these norms you’re talking about or this culture that you’re talking about. So can you talk more—is there more to say about what that culture is, where it comes from, and why it was able to resist these pressures from the top, so to speak?

Well, and I’m not sure I’m going to capture it fully, but I would just point to two things. One is—sort of embedded in the political culture is a belief that voters are entitled to participate in these elections—eligible voters are—and they should be able to receive their ballots in timely fashion, mark them, return them, and have them fairly counted. And if there are disputes about the election, there are processes under law like recounts and contests—ultimately the role of the courts, of course, they are significant—but that we have an electoral process and it merits respect and it’s a cornerstone of democratic life in the United States. So I think that’s a political cultural commitment that crosses parties. And again, I know that there are extremes that view every outcome as the only significant measure of whether the system worked, but I don’t think that’s generally the case.

Secondly, I think election officials around the country understood that, on a bipartisan basis, leaders—whether elected leaders or community leaders—had their backs, that they were going to be defended, they were going to be protected, they could go ahead doing their work and keeping an eye on those threats, to be sure, nonetheless proceeding [with] confidence that they could get their job done and they would not be interfered with.

And I’ll give one example that I thought was quite striking. The administration sent roughly—I think it was—a thousand DOJ monitors around the country, performing an observation role that it does perform, but it’s an observation role. It’s not an intervention role. And in Wyoming, in the primary, a DOJ observer wound up just going beyond the boundaries of the job and looking to interview voters and inspect machinery. And the governor of Wyoming—a very red state, a Republican governor—complained bitterly to DOJ that this observer or these observers were transgressing against state responsibility here—state lawful constitutional responsibility for these elections—that it was an improper federal government interference. And I think that really does tell you something about the political culture and the reasons why election officials had confidence that, however threatening the environment was, they could do their jobs.

(17:56) So the last thing I’ll say is it just seems to me against the baseline of expectations going back over a year—you and I wrote a piece in The Economist a year ago in which we worried about all of the things that Trump was clearly planning to do and trying to do and scheming to do and might do. And those fears and worries persisted in many corners throughout 2026. And against that background, and the larger background of the Trump administration so obviously, in so many contexts, defying law, defying norms—against that background, what happened on Tuesday seems to me to be just an extraordinary vindication of what you call the political culture, law, courts, and basically the law and norms around the democratic process. Is that too enthusiastic?

No, I don’t think in this context it’s too enthusiastic. I just would note this. If it had been a very close election, then we would have had some ugly conflicts. And then who knows what the executive would have done. If control of the House or the Senate had been at stake, then, you know, we might be having a different conversation.

I do think, by the way, not only did the margin help enormously to put all that to the side and to make that not likely to happen, but the prophecy through polling that the election would in fact swing to the Democrats, and decisively so, really created an environment in which I think the administration was going to be hard-pressed to make the case that it was preparing for the Democrats to achieve the election, because it was a widespread expectation that the Democrats would—and obviously many voters thought should—win the election. And I think that conditioned the environment in a way that made any election denialist propaganda on the part of the administration very difficult to pull off.

Yeah, I think that’s an important point, because obviously the size of the vote—you’re absolutely right—matters to what shenanigans they might have pulled after the elections. The question for me is why they weren’t more aggressive in doing the things they had threatened to do before the election. And who knows what combination of things it might have been. We discussed many of them, but you’re adding the fact that the polls were cutting so much in favor of the Democrats that that too may have dampened the enthusiasm to intervene.

Yeah, and I think it connects—I should mention, I think it connects—to the overall perception and the reality of the president’s political weakness. A president ranting and raving about how the election is going to be stolen from him or claiming on election night it was going to be stolen from him would be speaking to a very, very slim audience. He was weak.

There was already a lot of backlash against the self-interested topics of conversation that he chose to address in the final days of the election—conversation about how important it was that he removed algae from the Reflecting Pool, the ballroom, the renovations of Washington. And this perception—and I think it also, by the way, plays into the reason why corruption soared to the top of the polls—this perception of self-interestedness, I think, also sweeps in what voters have been hearing from him continuously since 2020, which is he was denied that election and Democrats always cheat. And by the time this election came around, I think they’d heard enough about that, and they thought of it as just another example of his thinking about things they didn’t buy, they didn’t think was most important, and that on his part was only about him.

Okay, Bob, thanks very much.

Thank you.

Mentioned:

• Caleb Nelson, “Against the Dictatorial Presidency” (Working paper, October 16, 2026)

• Trump v. Slaughter, 146 S. Ct. 2283 (2026)

• Daniel Webster, Speech on the Appointing and Removing Power, U.S. Senate, February 16, 1835

• Jed Shugerman and Gary Lawson, “Presidential Removal as Article I, Not Article II,” 121 Northwestern University Law Review (forthcoming)

• Jane Manners and Lev Menand, “The Three Permissions: Presidential Removal and the Statutory Limits of Agency Independence,” 121 Columbia Law Review 1 (2021)

This is an edited transcript of an episode of “Executive Functions Chat.” You can listen to the full conversation by following or subscribing to the show on Substack, Apple, Spotify, or wherever you get your podcasts.

Jack Goldsmith: I’m Jack Goldsmith. Today I’m going to be discussing modern unitary executive theory, what the theory means, its origins, its application in the already famous Trump v. Slaughter case, and its implications. And I’m thrilled to discuss these issues with Caleb Nelson, the Emerson Spies Distinguished Professor of Law at the University of Virginia. Caleb is one of the leading public law scholars in the country and also a prominent originalist, and he’s written an important article about Slaughter called “Against the Dictatorial Presidency.” Caleb, welcome.

Caleb Nelson: Thanks, Jack. I’m delighted to be here.

So your article, as I read it, is a bit of a takedown of the Slaughter decision. But before we get to that, I want to set the stage. You kind of give the intellectual origins of modern unitary executive theory, going back through decades of conservative legal thought. Can you talk about those origins?

Sure. Others have done that more thoroughly than I, but I do gesture at that. I think the idea that Article II of the Constitution entitles the president to fire executive officers at will, and that Congress can’t restrict that authority by statute, has been around for a long time. But I think until sometime in the 1970s or so, a lot of conservatives resisted that idea. I think dating back to the New Deal and FDR, they didn’t like aggressive claims of presidential power. That had changed by the start of the Reagan administration.

The party line among Reagan Republicans from the 1980s on was that Article II did indeed give the president unilateral removal authority, and Article II did indeed entitle the president to control all executive power—the unitary executive theory. I’m sure we’ll talk about the legal arguments for that idea, and maybe the idea was more about law than about politics. But I think it is worth noting that Reagan Republicans did have political incentives to like the idea.

The basic idea of the theory is that all principal executive officers, and maybe inferior executive officers too, serve at the pleasure of the president, and Congress can’t restrict his authority to fire them for any reason or for no reason at all. In the 1980s, Republicans thought that they would pretty often have the presidency, but that they wouldn’t be in control of Congress for a long time. And under those circumstances, I think a legal theory that allocated more power to the presidency and less to Congress was politically congenial.

I think at the same time, the theory also would have appealed to Reagan Republicans and other administrations with anti-regulatory commitments, because it suggested a mechanism for the president to curb or control regulatory activities by administrative agencies, including even agencies that Congress had tried to make independent of presidential removal authority. Anyway, the idea that Article II entitles the president to remove executive officers at will, and also broader visions of unitary executive theory, those I think have become the party line in Republican legal circles and have been the party line since at least the early 1980s. And they also found their way to the Supreme Court.

One thing about the Supreme Court is that when vacancies arise, the president nominates people to fill them. As unitary executive theory became more prominent in Republican legal circles, it also became important in Supreme Court nominations. I don’t think it’s an accident that both of George W. Bush’s Supreme Court appointees, Chief Justice Roberts and Justice Alito, had worked as lawyers in the executive branch and were strong believers in the unitary executive theory. And I don’t think it hurt Justice Kavanaugh’s chances that he, as a judge on the D.C. Circuit, had been a strong proponent of unitary executive theory. I think President Trump would have liked that.

So I think it has kind of filtered from Reagan era Republican circles to the modern Supreme Court, perhaps for political reasons as well as for legal reasons.

Okay, so political as well as legal reasons, it became an article of belief. I mean, it may have had these political origins, but my sense is that the conservatives who are believers in the unitary executive have a kind of theological commitment to it almost. So this theory, through some of the mechanisms you mentioned, Caleb, makes its way into Supreme Court jurisprudence, but it culminates in the Slaughter case where the Court held last summer that the president had the power under Article II to remove two Democratic commissioners of the FTC without regard to their statutory for-cause removal protections. And you’re very critical of the decision. You have a long and complicated argument, but if you could just hit the high points and tell us what the main arguments were about why this was perhaps a poor interpretation of Article II.

(4:38) Sure. So my criticism is partly about timing. Even if you think there’s a stronger case for unitary executive theory than I do, this is an extraordinarily dangerous time, I think, for the Supreme Court to upend precedent and to move in that direction.

And my criticism is also about history. Chief Justice Roberts keeps repeating claims about the First Congress that I’m pretty sure aren’t true and that scholars have, I think, debunked. But let’s just focus on the text of the Constitution for now.

There are two sentences in Article II of the Constitution that could be read to support Chief Justice Roberts’s position. The first is just the opening sentence of Article II, the Vesting Clause, which says, quote, “the executive power shall be vested in a president of the United States.” And the second sentence that I’ve mentioned is the Take Care Clause, which says the president, quote, “shall take care that the laws be faithfully executed.”

Those are pretty general sentences. I’m not sure that they should be understood to provide as many details about personnel practices as advocates of unitary executive theory suggest. In fact, Article II really doesn’t say much about the structure of the executive branch.

That’s at least partly because Article I of the Constitution explicitly gives Congress the power to make all laws that are necessary and proper for carrying into execution not only Congress’s own powers, but also, quote, “all other powers vested by the Constitution in the government of the United States or in any department or officer thereof,” including the executive power. In part because of that clause, there’s widespread agreement that the Constitution doesn’t authorize the president to create offices, even for people who would help him execute the laws. That’s up to Congress.

Congress can decide whether to create particular offices and how to organize those offices into broader agencies or departments and what powers and duties to give the people who hold those offices. If and when Congress does create offices, the Appointments Clause addresses how people are appointed to fill them. And the Commission Clause adds that the president, quote, “shall commission all the officers of the United States.”

So when somebody has been appointed to an office pursuant to the Appointments Clause, the president has a duty to issue a commission. I think it’s pretty clear that when Congress has created an office by statute and when somebody has been properly appointed to that office pursuant to the Appointments Clause and has received his commission from the president as required by the Commission Clause, the officer can exercise the powers that the law validly assigns to the office. And that’s true even if those powers are executive for constitutional purposes.

What about removal? Nothing in the Constitution specifies that once an officer has been appointed to an executive office pursuant to the Appointments Clause and once the president has issued the commission that the Commission Clause requires, the president can always terminate the appointment and can always revoke the commission. Aside from its provisions about impeachment and conviction, the Constitution doesn’t say anything about removal at all.

I would conclude that just like the Necessary and Proper Clause lets Congress specify other details about the structure of the executive branch and the characteristics of the offices that Congress creates by statute, so too Congress gets to regulate the tenure of those offices as it deems necessary and proper for carrying the executive power into execution. Rather than getting into the weeds of the ambiguities that I see in the Vesting Clause and why I don’t think it has to be understood in the way that unitary executive theorists suggest, let me highlight just a couple of big picture points that I think are suggestive. The first point is about administrative agencies.

Everybody agrees that Congress can try to promote good decision making in agencies by regulating administrative procedures and establishing rules of evidence and requiring the agencies to make the decisions that they make on the basis of certain statutory criteria and not other criteria. To promote proper application of the statutory criteria and hence to promote faithful execution of the law, Congress might sensibly think that the decision makers who are applying those statutory criteria should be subject to removal only for some causes, like failure to faithfully execute the law, and not others, like failure to protect the president’s friends or to punish the president’s enemies.

In my view, just like Article I allows Congress to try to create the conditions for good agency decision making by having statutory criteria that agencies are supposed to apply, so too I think the Necessary and Proper Clause allows Congress to try to create the conditions under which agency decision makers can actually apply those criteria instead of having just to do what the president tells them to do. That’s the first point, just a practical point.

If Congress can provide statutory criteria for administrative decision making, maybe it should be able to create the structures under which those criteria matter. The second point is about the enormous variety of tasks that count as exercises of executive power for constitutional purposes, at least as modern unitary executive theorists understand the concept of executive power. It includes all kinds of different authorities granted by statute, the authority to grant licenses of the sort that the law requires to operate a civilian nuclear reactor, or the authority to prosecute criminal defendants on behalf of the United States, or the authority to make procurement decisions, or to enter into contracts on behalf of the United States, or the authority to adjudicate disputes about social security benefits, or the authority to promulgate regulations establishing safety standards for motor vehicles, or the authority to manage federal buildings and other federal property, or the authority to dispatch security details to protect particular federal officials or former officials, or innumerable other things. From the standpoint of system design, there’s no reason to think that the decision-making structure should be the same for all of those various tasks.

For instance, one probably would want adjudicators to have more decisional independence than, say, treaty negotiators, but unitary executive theory reads the Constitution to put a single person in charge of all executive branch decision-making, no matter what that decision-making is about. To whatever extent the law confers discretion, unitary executive theory says that the president has to be in charge of that discretion, and unitary executive theory also suggests that within the executive branch, at least, the president gets the last word about whether the law confers discretion. That’s the structure that you might choose if you wanted to maximize the president’s personal authority, but I don’t think you would take that one-size-fits-all approach if you wanted the government to reach the best decisions, or even just to execute the law according to the instructions that the law itself supplies.

One feature of the Necessary and Proper Clause is that it allows Congress to establish different decision-making structures for different kinds of decisions. Given the complexity of modern government, that seems like a good design feature, one that I wouldn’t lightly read the general language of the Vesting Clause to discard.

(11:54) I have a whole bunch of questions to follow up on. Let me begin with the Necessary and Proper Clause. I’ve never really understood where one is supposed to draw the line between Congress’s necessary and proper power, which, as you say, has always been understood to allow Congress to create and structure executive offices, but doesn’t extend to removal authority. But I take it that, on the theory you just articulated, one could argue—or could one?—that Congress could, for example, make every department, including, say, the Justice Department, the Defense Department, have for-cause removal protections. Does that follow from what you said?

Yeah, let me give a two-pronged answer to that. The first relates to the 20th century settlement that I think was pretty stable when you and I were both in law school. The Supreme Court seemed to have settled on the idea that the president does get to fire the heads of executive departments at will, and maybe even some inferior officers like the postmaster in Myers, but the president isn’t entitled to the same unfettered removal authority with respect to administrative agencies like the Federal Trade Commission.

As modified by Chief Justice Rehnquist’s opinion for the Court in Morrison against Olson, that line depended on functional considerations. But I think the 20th century consensus would have been that Congress has power to establish for-cause removal restrictions for agencies whose tasks would benefit from them, but not for the attorney general or the secretary of defense. The president needs to be able to remove those people at will, and Congress can’t restrict that.

As a matter of first principles, I’m not actually sure that’s right. Chief Justice Taft’s opinion for the Supreme Court in Myers, I think, suffers from a lot of the same flaws as Chief Justice Roberts’s opinion in Slaughter. And while Humphrey’s Executor disapproved a lot of what Taft had said in Myers, I probably would personally be inclined to disapprove more.

Take the attorney general, for instance, the head of the Justice Department. Obviously, Congress hasn’t tried to insulate the attorney general from removal without cause, but that was proposed in the wake of Watergate. And I think we are again seeing why it maybe isn’t so great for the president just to be able to demand that the Department of Justice be run according to his dictates, so that criminal investigations and prosecutions might be used to harass the president’s opponents and to shield the president’s allies.

In his dissent in Morrison against Olson, which has become canonical in conservative legal circles, Justice Scalia spoke about criminal prosecutions as being just at the core of executive power, the executive power that the Constitution allegedly entitles the president to control. But historians have questioned that claim. And while Justice Scalia suggested as a practical matter that we don’t need to worry that his version of unitary executive theory would let the president demand prosecutions of his opponents because the administration would just pay too big a political cost for that sort of bad faith behavior, current events suggest that maybe Justice Scalia was overconfident about the fact that unitary executive theory wouldn’t lead to those problems. I personally probably come down where Daniel Webster did in the 1830s.

Here’s what he said in the Senate in 1835. Quote, “If Congress were to declare by law that the attorney general or the secretary of state should hold his office during good behavior, I am not aware of any ground on which such a law could be held unconstitutional. A provision of that kind might be unwise in regard to such officers, but I do not perceive that it would transcend the power of Congress.”

Maybe that position goes too far. Professors Gary Lawson and Jed Shugerman have a forthcoming article about the scope of the Necessary and Proper Clause as it relates to removal, and they suggest that giving the attorney general life tenure is not a necessary and proper means of carrying the executive power into execution, but I don’t know what they would say about lesser forms of removal protections like the for-cause idea that you mentioned, or giving the attorney general a four-year term with the possibility of removal only for some causes and not others, that sort of thing. So I guess the two-pronged answer is if Chief Justice Roberts hadn’t started to unsettle the 20th century consensus generated by Myers and Humphrey’s Executor in that case law, then attorney general and the secretary of defense and the secretary of state probably would be held to be removable at will.

As a matter of first principles, if we’re going back to how the Constitution ought to be understood, I’m not actually sure that’s right. The Necessary and Proper Clause maybe does give Congress the ability to make some judgment calls about whether the attorney general should be more insulated than the attorney general currently is.

So you’re right about the Watergate proposal, but it was rejected even in the 70s on basically Article II grounds.

It was, yeah. Griffin Bell wrote an opinion to that effect.

Bell wrote an opinion, and lots of progressive scholars who didn’t like what Nixon did came and testified and said, not a good idea. Maybe they were wrong about that, but also not allowed by Article II.

That’s right. And that certainly was contrary to the 20th century consensus that they were operating under at that time.

So what you call this mid-century settlement, that seemed to me to reflect all sorts of compromises having to do with the New Deal state and a bunch of other things. Just to be clear about this, it seems to me that that view of the Necessary and Proper Clause commits the opposite sin, kind of allowing Congress to really make the presidency—just shrink it down to nothing. If they can have a for-cause provision for the senior departments, let’s just say DOD and DOJ, and if they could impose, I don’t see any reason why under the theory they couldn’t impose an even higher for-cause standard. It seems to me it would be very hard for the president, at least in many contexts, to run the government. Is that an unfair way of looking at it?

The question maybe is what one thinks the executive power is and how much kind of independent policymaking authority one thinks that phrase conveys. I don’t really think it conveys independent policymaking authority. I think the executive power is at most the power to execute the laws, to carry out the instructions that the laws supply, using the means that the laws authorize.

It’s not like executive power, even as used in Article II, is sort of a defined quantity, a certain set of things that the president can do. The power to execute the laws depends on what the laws are, and I think Congress does have primacy with respect to what the laws are. So maybe I’m less troubled than you at the thought that the president might not have freewheeling authority to remove executive officers, even kind of cabinet level officers of the sort who have long been thought to be removable at will.

But I don’t want to insist on that point. That is, by 20th century historical standards, an extreme position that I think, as you say, goes to maybe the same lengths in the opposite direction that the unitary executive theory does in support of presidential power. I think the unitary executive theory is an extreme position in the other direction.

So if the Court had not started unsettling the 20th century settlement, I don’t think I would be writing about how we got to overrule the 20th century settlement and let Congress do whatever it wants to do. I do think that the Necessary and Proper Clause is an important source of authority for Congress that unitary executive theorists tend to overlook or minimize.

I agree with that completely. I’m just wondering if that purist argument goes too far. And let me just ask you how that view of the Necessary and Proper Clause squares with the take care duty, which is also invoked to support the unitary executive. I think the basic idea being it’s the president’s duty to take care to faithfully execute the law, and therefore he has to be able to control at least the removal, at least the principal officers who enforce the law, if not all the way down. On this view, does the Take Care Clause square with the Necessary and Proper Clause?

Again, the Take Care Clause, the duty to take care that the laws be faithfully executed, I think does depend on what the laws are. If the laws were to confer discretion on a certain administrative agency, I don’t think that the Take Care Clause naturally suggests, well, the president has to be able to control the agency’s exercise of discretion. I think the president could take care that that law be faithfully executed by just trying to ensure that nobody interferes with the discretion that the agency has by virtue of its statutory authority.

So I don’t know that the Take Care Clause necessarily tells us what the structure of decision-making in matters that count as exercises of executive power has to be. I think that the duty to take care that the laws be faithfully executed depends on what the laws are. With respect to removal, Jane Manners and Lev Menand have pointed out that even aggressive readings of the Take Care Clause don’t suggest that the president has to be able to remove executive officers without cause.

And for that purpose, I think cause could be defined pretty narrowly. So the cause that has to be available for removal would just involve failure to execute the law faithfully. That’s different from an officer’s failure to follow the president’s orders.

If the law gives discretion to the officer, I don’t think the president automatically gets to exercise that discretion himself by virtue of Article II or the Take Care Clause, or gets to direct how the officer has to exercise the discretion. And if Congress reasonably decides that the president should be able to remove certain officers only for certain causes and through certain processes, I think the president could comply with his duties under the Take Care Clause just by going through those processes when warranted. So I don’t think that the Take Care Clause provides a strong independent argument for unitary executive theory.

To me, the stronger argument for unitary executive theory relies on the Vesting Clause rather than the Take Care Clause. But I’m not persuaded by the Vesting Clause arguments either.

(22:45) Okay, let’s go back to Slaughter. It’s technically, I suppose, limited to the case before it. And the chief justice sort of said this at the end. He said it doesn’t extend to questions about officers not involved in the case. And the case was about commissioners of a multi-member, formerly independent agency. But the opinion was written in what I would say are sweeping maximalist unitary executive terms. Basically, the president has all of the executive power and has to be able to remove those who exercise the executive power. It’s a little more subtle than that, but not much more so. So I’m just wondering what you make of that, and how broadly—just as a matter of interpreting the opinion—do you, for example, think that it will extend to inferior officers, all inferior officers, some inferior officers that the president can remove? Is the civil service in jeopardy? And then we’ll get to other issues after that.

Yeah, so just to start, I agree with you. I think that Slaughter is written in a sweeping maximalist way. The tenor of the opinion and the logic of the opinion is very broad.

It is true that Chief Justice Roberts did include some lines like the one you mentioned. He said, “because the FTC’s activities fall well within the heartland of executive power, we have no occasion today to define the bounds of what such power entails.” Of course, that’s drawing a line between executive power and other things, not between, say, inferior officers and principal officers.

And his main examples of entities that he wasn’t addressing, at least in that section of the opinion, were federally chartered corporations like the Boy Scouts of America or Georgetown University that probably don’t exercise governmental power at all. If the edge cases that he has in mind that he’s not weighing in on are whether the Constitution entitles the president to fire Georgetown professors, then I don’t think he sees all that many edge cases. He did say that the Court was reserving judgment about, quote, “the permissibility of tenure protections for the judges of ‘non-Article III courts,’ such as the Tax Court and the Court of Federal Claims.”

The phrase non-Article III courts, that’s not clear language, but he certainly didn’t seem to mean that administrative agencies like the FTC that conduct adjudications are non-Article III courts for this purpose. And if I’m reading the tea leaves of the shadow docket and some denials of cert correctly, a majority of the Supreme Court seems to think that Article II also entitles the president to fire, say, the members of the Merit Systems Protection Board without regard to the statutory restrictions on that removal authority. I’d like to talk about the MSPB in a little bit.

You mentioned civil service, and I think the MSPB is crucial to enforcing civil service laws. With respect to civil service laws, I don’t know exactly what to predict about how far the Supreme Court will take these ideas. I think Chief Justice Roberts himself might be inclined to extend his opinion to all inferior executive officers, not just principal executive officers like FTC commissioners, but all inferior executive officers as well.

That would include some people who are covered by civil service laws. The civil service laws currently protect some people who are inferior officers and some people who are just mere employees. Maybe Chief Justice Roberts would allow those who are mere employees to remain protected by civil service laws, but maybe he’ll say that inferior officers have to be removable at will by the president if they exercise power that he considers executive for constitutional purposes.

For people like Chief Justice Roberts, who take a strong view of unitary executive theory, it’s also worth noting that the difference between at-will removal and removal for cause might not be all that meaningful. Even if Chief Justice Roberts allows Congress to protect certain government employees against removal without cause, he might think that the causes that justify removal have to include failure to do what the president tells them to do. And if you think the Constitution entitles the president to direct the activities of everybody who wields executive power, then failure to follow the president’s directions would provide cause for removal, and that starts to look a lot like removal at will.

So I think Slaughter is going to go pretty far. I read Chief Justice Roberts’s opinion to be quite sweeping, and it certainly goes farther than I would want it to go.

Okay. So you mentioned the Merit Systems Protection Board, and this gets us into some of the dangers of the unitary executive embraced by Slaughter. And the MSPB is one example, and I think it’s a great example because it’s an agency that a lot of people haven’t heard of, and yet if its members are fireable by the president and the president can effectively control it, it empowers the president in important ways. Just walk through that as a danger to connect that up to the civil service, if you like.

Sure. So the MSPB is a primarily adjudicative agency. In the words of a regulation that was promulgated in the 1990s and is still on the books, it, quote, “operates like a court.”

Federal employees who are protected by the civil service laws can ask the board to review personnel actions that they think are illegal, like if they’ve been fired without adequate cause or in retaliation for being a whistleblower, that sort of thing. The MSPB is also involved if an agency wants to fire one of its administrative law judges, an adjudicator within the agency. By statute, an agency can do that, quote, “only for good cause established and determined by the Merit Systems Protection Board on the record after opportunity for hearing before the board.”

Those are important adjudicative functions the MSPB performs. By statute, Congress has set up the MSPB to have three members, no more than two of whom can belong to the same political party, and they serve staggered and non-renewable seven-year terms. I assume the terms are non-renewable in another effort to try to protect the independence of the MSPB’s members.

The Civil Service Reform Act, the statute explicitly provides that members of the MSPB, quote, “may be removed by the president only for inefficiency, neglect of duty, or malfeasance in office.” So a pretty strong for-cause removal restriction. At the start of President Trump’s term, the MSPB had two Democratic members and one Republican member, but just two weeks in, President Trump fired one of the Democratic members, Cathy Harris, without identifying any cause.

She sued because that violates the statute, and a federal district court granted summary judgment in her favor. But even before Slaughter, the Supreme Court stayed the relief that the district court had ordered, so Harris was out while appeals proceeded. In the meantime, the other Democratic member’s term had expired, and he had left the board, so the MSPB was down to just one member out of three, and it lacked a quorum.

But in October 2025, President Trump appointed another Republican member, so the board now has two Republicans and no Democrats. Ultimately, a panel of the D.C. Circuit ruled in favor of the Trump administration in its appeal from the district court’s judgment in favor of Cathy Harris. Harris sought certiorari, and the Supreme Court held onto the cert petition pending its disposition of Slaughter.

But once the Supreme Court decided Slaughter, it just denied Harris’s petition, suggesting that the Court either isn’t willing or at least isn’t eager to distinguish the MSPB from the FTC, and consistent with that understanding, the current leadership of the MSPB is no longer describing the MSPB as an independent agency. For anybody who doesn’t like the spoils system or who supports civil service laws, that strikes me as a bad outcome. The MSPB adjudicates complaints by executive branch employees who say that they’ve been fired in violation of civil service laws. They’ve been the victim of prohibited personnel practices, which include failure to follow merit systems, retaliation against whistleblowers, and so forth—other things that political appointees might want to do.

As a policy matter, I think it is close to obvious that the president and his inner circle shouldn’t be able to threaten MSPB members that they’ll lose their jobs if they find that the president’s political appointees have violated civil service laws, even if the Court ends up holding that the civil service laws themselves don’t violate Article II, because it’s okay for Congress to provide employment protections, at least for mere employees as opposed to inferior executive officers.

The MSPB is less likely to apply the civil service laws faithfully, I think, if the president can just direct its decisions or can fire MSPB members who rule against the president’s wishes. If I were trying to identify a list of agencies that really, really, really should be insulated from at-will removal, the MSPB would be pretty high up on my list, so I think it’s quite disturbing that the Supreme Court seems to think that Article II entitles the president to remove members of the MSPB at will, which—I think the Court hasn’t explicitly held that, but those are the suggestions that I get from its shadow docket action and its subsequent denial of certiorari.

The danger, as you put it, is especially poignant or obvious now, because at the same time that the president is going to increasingly, I think, exercise control over the MSPB, he’s firing civil servants and pushing civil servants out and rearranging civil servants in a way that raises a whole host of legal questions that the courts have been saying have to go through the MSPB, which is now under the control, effectively, of the president. So it’s really those two things together, it seems to me, that highlight the danger here.

I agree with all that, but even apart from the MSPB, we are also seeing similar threats to the decisional independence of other agency adjudicators. Immigration judges, for instance, are a prominent example. Those are employed within the Justice Department in a sub-agency called the Executive Office for Immigration Review, EOIR.

And when President Trump started his second term, there were about 725 of them. In the first year alone, he fired more than 100. I think it’s now up to about 130.

And news reports suggest that the administration has selected immigration judges for firing based on their rates of granting asylum applications. Those applications are supposed to be determined on the basis of the evidence, and there’s regulatory guarantees of independence, although the statutes don’t provide as much decisional independence to immigration judges as some people might want. But I think it is pretty troubling, again, that the unitary executive theory seems to allow the president, as a matter of constitutional power, to remove agency adjudicators based on their decisions of particular cases and to threaten them with being fired if they don’t follow the party line in denying relief, even if they think that the applicable statutory standards require relief or support relief. That seems like a bad arrangement for agency adjudication to me.

Okay. So I urge the reader to read the last section of your article where you really go through a whole host of other executive branch entities, inspectors general, whistleblowers, other agencies, non-Article III courts, and talk about the potential implications of Slaughter for basically bad governance because of executive control that might be untoward, let’s just say. But I want to close by asking you something you said at the beginning and something you talked about in the paper, which is you said something to the effect of whatever you think of unitary executive theory in the abstract or normal times, this is an especially dangerous time for the Court to be embracing it, especially in the robust terms it’s embracing it. And so my question is, why? It’s a couple of questions. One, my sense is that the Court, as I suggested at the beginning, they really believe in the principle. And one might have thought that they would adjust it or narrow it or constrain it in the light of what Trump is doing. I can’t believe that many members of the Court love all of the things Trump is doing. I think it’s probably evidence of commitment to principle despite consequences. So just a couple of questions. One, I mean, how do you think about the legal principle versus adjusting the principle for consequence? And two, what is your explanation, if you have one, for why the Court has basically been indifferent to consequences, or seemingly so, except, of course, with this giant unexplained ad hoc exception for the Federal Reserve, where they were clearly focused on consequences, why have they been indifferent to them in other contexts? Do you have a view on that?

(34:31) Well, I was going to mention the Federal Reserve in response to your question, because it is, I think, an unprincipled exception to their unitary executive theory. They certainly don’t provide a good account, a satisfying account of why the Federal Reserve is different. To me, that suggests that consequences matter to them when they are sufficiently concerned about the consequences that they care about.

And I wish they cared about some other consequences, too. On the broader question of commitment to principle versus adjusting for consequences, I guess if you thought that the Constitution is just clear on this topic—there’s no ambiguity, and of course the president gets to remove all executive officers at will, and Congress can’t do anything about it—then I think you’d be more likely to adhere to that principle, almost regardless of consequences.

That’s not my understanding of the Constitution. To the extent that the justices have persuaded themselves that it’s the unambiguous meaning of the Constitution, I think they’re wrong. And to the extent that the Constitution is more indeterminate on this question, as I think it is, and as I think debates heading back to the time of the First Congress suggest people at the time of the founding thought there wasn’t a clear answer to this question, the more indeterminate you think it is, the more you might think, well, let’s think about whether the structure of government should look this way or the other way, right? Let’s think about consequences as we resolve the indeterminacy in the Constitution.

As a practical matter, unitary executive theory prevents Congress from using its authority under the Necessary and Proper Clause, which is an explicit provision in the Constitution, to create the conditions that it deems most conducive to the faithful execution of the law. Basically, Congress and all the rest of us are effectively told we have to trust the president to act in good faith, subject to the possibility that courts will occasionally reverse what he does if he gets things wrong in a way that the courts can correct. Maybe that wouldn’t be a disaster if the president and his inner circle were honestly trying to follow the law, but I think it’s very dangerous at a time when the president sees the law as a tool for getting what he wants, for other reasons, or as a cudgel that he can use against his opponents, rather than as a real constraint on his own behavior.

And sadly, I think those are the times that we are in. I do not think that President Trump cares much about law, except as a device for inflicting pain on others. And I think the others whom he wants to inflict pain on include critics of his administration and people whose activities would traditionally have been thought to deserve some protection.

And I do think we are heading into dangerous times, and I am not optimistic about how things will turn out, but I hope I’m wrong.

I hope you’re wrong too, and thanks so much, Caleb. It’s a great article.

Thank you, Jack. I appreciate the opportunity to be with you.

Bob Bauer and Jack Goldsmith discuss Jack’s October 19 piece on Senator Elissa Slotkin’s recent viral remarks at the University of Chicago, where she said she wanted accountability for the people who enabled President Trump, at least in part with the goal of sending a “deterrence message” to new graduates who might consider working for the administration. Jack explains why he thinks Senator Slotkin’s remarks were imprudent, and why he finds the prevailing reaction from pro-Trump quarters hypocritical. Bob presses on whether congressional investigation is different from weaponizing law enforcement, and whether worry about retaliation could lead to the most lawless conduct going unanswered. They also discuss Jack’s prediction that Trump will issue thousands of pardons, his case for prioritizing transparency, and why it is, and will continue to be, incredibly challenging for either side to de-escalate.

Mentioned:

• Jack Goldsmith, “Senator Slotkin’s Imprudent Remarks and Republicans’ Hypocritical Reactions” (Executive Functions, October 19, 2026)

• “Senator Elissa Slotkin: Live Recording of America, Actually!” (University of Chicago Institute of Politics, October 13, 2026)

• “When Democrats Win Back Power, ‘Forgive & Forget is Over’ (with Susan Rice),” Stay Tuned with Preet Bharara (February 19, 2026)

This is an edited transcript of an episode of “Executive Functions Chat.” You can listen to the full conversation by following or subscribing to the show on Substack, Apple, Spotify, or wherever you get your podcasts.

Bob Bauer: Good morning, Jack.

Jack Goldsmith: Morning, Bob.

Today we will be discussing your piece, published here on Executive Functions [on Monday], about a comment that Senator Elissa Slotkin made at the University of Chicago about how Democrats need to, if they regain control of the Congress, take steps to pursue what has occurred over the last few years in a way that would deter young people from considering joining that administration; that would, in effect, send them away from that administration because it would buy them trouble. They would see how problematic it would be for them to participate. Can you talk a little bit about what she said and what you wrote?

Sure. She gave a talk at the University of Chicago. There was an event on October 13th. And in the course of the event, she was talking about the Trump administration and accountability for the administration. And Senator Slotkin said—and I’m now reading from my article—she suggested the need for accountability for the people who enabled Trump in order to deter “people coming out of school” (that’s a quote) from working for the Trump administration. And then she further said, “I want them to be like, ‘Lord, that might be buying myself a ton of problems that I don’t want. And so let me avoid participating in that.’” And then she added, “I want that deterrence message sent.” So the upshot, as you suggested, is that in the context of talking about accountability for Trump administration abuses, she said she wanted that accountability to send a deterrence message to young people, to deter them from working in the Trump administration.

One line of very strong criticism from Trump quarters, from the right, has been that she is looking to discourage conservative activists from participating in politics. As I read the quote, she was talking specifically about the Trump administration, that it’s sort of one of a kind and it’s corruption, and that young people who might consider working for it or supporting it should think twice. And that was one of the objects of this deterrence strategy she was discussing. Does it make a difference that she’s talking about this specific administration in light of her profound objections to the way it operates?

Make a difference to whom? The Trump supporters have jumped all over this in an extraordinarily hypocritical way, in my view. We can talk about that later. And they’ve said that this is an escalation because she suggested that she’s trying to keep young people out of politics. But I don’t think that they would be any less upset and think it was any less appropriate if she were saying that she was trying to keep young people out of the Trump administration. My own view, which I expressed in the piece, is that it was imprudent of her to talk about trying to deter young people, even from going in the Trump administration.

I think the response to what she said, which I think has been over the top, shows why it was imprudent. But she can say whatever she wants, obviously. It’s fine for her to talk about forms of accountability for the Trump administration. I don’t think there’s anything wrong with that at all. And I’m not even sure there’s anything wrong with what she said normatively. I mean, she has to live with it and own it. But it can be viewed as, and it has been interpreted as, she thinks there should be punishment of Trump administration officials to keep young people from going in the Trump administration.

So you anticipated my question, but I just want to clarify: So was the imprudence in the way she expressed it, or was the point itself questionable?

I’m not sure of the difference. I think she opened herself up for exactly what she’s been receiving by suggesting that she wanted to deter people from going into politics. And the reason is, as I said in the piece, that weaponization of government to cause trauma and therefore deter people from doing things has been the kind of main goal of the Trump administration in a second term. And I document how this has been President Trump’s philosophy from the beginning, how he likes to strike back at people harder than they strike at him. This has been the clear philosophy of the administration. They weaponized not just to stop and punish their enemies, but to also deter others from doing things that they don’t like in the future.

And I think that basically Senator Slotkin sounded like she was adopting that strategy. Whether she was or she wasn’t is a matter of interpretation, but she left herself open to that interpretation. And that’s why I thought it was imprudent.

(4:09) So if we step back for a second and just assume, which I think in context is fair to assume, that she’s talking about Democrats in control of one or both houses of the Congress after November and beginning a process of investigation, an exercise in transparency. She was specifically focused on corruption, but I presume she means a whole range of abuses in this administration as she sees them. Weaponization, as we normally think about it, is the abuse of law enforcement. Here, it’s a congressional exercise of its oversight and investigative powers. Why wouldn’t that be precisely a legitimate exercise for Congress to engage in? And wouldn’t it want the public to know enough about what has taken place in this administration that young people who might otherwise join the Trump administration or look to support it would think twice about it?

She’s welcome to say and do whatever she wants. And obviously, I’m not questioning Congress’s ability to engage in oversight. In the piece, I talked about the importance of transparency as the first measure of accountability for the Trump administration.

The quotes I read were a little vague on exactly what steps she had in mind, but I thought it was imprudent to talk about deterring, and deterring in a way that actually—as the Trump people have jumped on this—went beyond even what Trump has been doing and saying. So I just thought it was a dumb thing to say. She didn’t need to say it. I note that when she defended herself the next day, she didn’t repeat the deterrence point. I think she realized it was not a great thing to say. It’s fine for her to talk about deterrence if she likes, but she invites comparison to what Trump is doing in saying that.

And then we get into the question of equivalency. I didn’t take a stand on that. Both sides—I don’t know how far you want to go back to, at least 2015, 2016—have been engaging in behavior that the other side can see as weaponizing the government. This has been growing worse. And the Trump administration, as I talked about in the piece, ratcheted it up significantly. The Democrats are now talking in some quarters about ratcheting up significantly in the next round.

The important thing about what Senator Slotkin said was that she’s, I think, considered to be a moderate Democrat. And I think it’s fair to say that this statement can be interpreted as saying, or at least it has been interpreted as saying, that she’s open to some of the more aggressive tactics that people in the Democratic Party have suggested. Again, whether that’s an appropriate response or not, I didn’t get into that. It’s not my preference. But as I said in the piece, it would be perfectly understandable and rational if the Democrats in the next round, if they get power, use the government in a way to try to punish and deter their enemies.

Last thing I’ll say is, one of the things you’re getting at, Bob, is that one point of accountability is to deter bad behavior. And that might be to deter third parties. So there’s nothing wrong with the idea that accountability for bad action deters. I just think it was an imprudent statement. That’s my basic point.

Of course, the Republican reaction could be taken to just dispute a fundamental point on which I assume Senator Slotkin would insist—an important context for her comments. And that is, there is something different about this administration, especially in this second term: that there is a degree of brazen, open lawlessness and pervasive corruption that justifies looking not just to expose it, but to deter people from thinking that that’s the normal way the executive branch is conducted. I mean, isn’t at the bottom of the complaint about what she said a fundamental disagreement that there is something radically different about this government?

The response from the Republicans was so over the top—pearl clutching, as Senator Slotkin put it—about the dangers of weaponization and the awfulness of weaponization, since there’s never been an administration, as I say in the piece, that has weaponized more brazenly and openly and broadly than the Trump administration. What the Republicans would say is that whatever Trump is doing now, that there was nothing that could be as bad as what the Biden-era Democrats did to the Trump administration—that whatever Trump is doing now, they weren’t trying to decapitate a president and a presidential contender using law, by one party and the Justice Department of one party, against a presidential candidate. They would say you can’t compare these things, and to the extent you can compare them, what Biden did was worse.

So each side is viewing what the other side did as much worse and much different. I’ll just leave it at that.

(8:21) Understood. You point out that behind this kind of escalatory tit-for-tat politics are several motivations. There is hateful revenge, as you put it, retribution, and also, as we’ve discussed, the goal of deterrence. But I wonder, isn’t there something also very distinctive in this kind of politics? And that is just the desire to win, to crush the opposition, to lock in a majority, to impede the possibility that the minority could become a majority. Isn’t weaponization, as we’ve seen over the last two years, whatever other themes might flow into it, also a strategy just for trying to win and to lock a win in?

Sure. I mean, you can see that as vengeance, but you can see it as the aim of crushing the opponent so they can’t get back in power. Both sides—I’ve seen people from both sides of the aisle say things like that. They put it in terms of accountability. We have to make sure that accountability is brought to bear on these illegitimate actions so they can never do it again. You can see this as trying to crush the opponents. You can see it as trying to deter the opponents. It’s basically trying to impose costs that are high enough such that either your opponent won’t do the bad thing to you again or that you crush your opponent so much that they just won’t get power again. I think that’s caught up in this for sure.

By the way, you previously noted some comments that Susan Rice had made to this effect and maybe more aggressively. And that was her reference to corporations having to understand that the world will be different when the Democrats are back in power. I thought of this just a moment ago when you said that the Trump people were saying she’s basically doing something we’ve never done before. But I did note she was talking about those in the executive branch who enabled what she believed to be just intolerable executive branch behavior in this administration. She didn’t mention corporations, universities, law firms, the civil society sector. So it does seem that the suggestion that this is pure tit for tat isn’t quite true when matched against the record of the last two years. Would you comment on that?

Are you talking about Senator Slotkin?

I’m talking about Senator Slotkin. She didn’t go beyond those who were enabling the executive branch in the executive branch. She didn’t talk about a widespread strategy directed at civil society as well.

She did not, to my knowledge. I agree.

(10:45) You raised this question about what should the strategy of accountability be. And you think it should be focused on, or at least you suggest it may be focused on, transparency. And you have a doubt about avenues of legal redress based on how you read the experience of the last several years. And you point out that the avenue to legal redress will be blocked in part by the potential that Trump will issue thousands of pardons to protect himself and other self-pardons and pardons of who knows how many, but in the thousands. And that maybe that is, as you put it, a blessing in disguise. But wouldn’t his resort to this extraordinary self-protective pardon power, the way you describe it, just be an incentive to even more pushback—the use of state and local claims, the use of private civil actions, even more aggressive congressional investigations and hearings—precisely because he sought to insulate himself with a massive use of the pardon power?

So several points. There’s going to be a massive incentive—assuming the Democrats get in power in the presidency, and especially if they control both houses of Congress, in ‘29—there’s going to be a massive incentive for full legal accountability, whatever that means. And if the criminal options are open, I think they’ll be pursued. I think that President Trump will take steps to block that by issuing very, very, very broad pardons. I think there will be thousands of them. And so, as you say, that might block federal prosecutions, but it won’t block private actions to the extent that are available, although some private actions will be blocked by a pardon, depending on what remedies are sought—or state actions can be sought.

But I think beyond that, that every other tool—bar scrutiny, attempts to bring social pressure so that people can’t get jobs, to ostracize people—I think there’s going to be an effort to have maximum punishment to deter, as Senator Slotkin said. I think that should be expected by the Democrats. It’s clear that many of them are thinking it. My prediction is that that’s what will happen.

I think that—and this is very hard, and I want to acknowledge that this is very hard. There’s the path of full, maximum legal accountability. That path did not work very well from 2021 to 2025. In fact, I think it caused many of the problems we’re having now. It failed. And I don’t think that it’s going to be very fruitful for the country if we do that in yet another round. But I don’t think there’s anything that can stop it from happening to some large degree.

My preference would be, in the first instance, to have maximum transparency. I think the most important thing that we find out is what happened in the administration, both with regard to the executive branch abuses and also—I believe just as strongly—about Trump’s financial self-aggrandizement. But I don’t kid myself in thinking that that’s going to suffice. I don’t know if the pardons—just to finally answer your question—I don’t know if the pardons will lead to more legal actions on these other dimensions. It’s just very hard to know. I think it’s all going to happen to the greatest extent possible. And I think it’s going to be a mess.

(13:52) Well, let me ask you one last question on the rule of law point. This comes up a lot in conversations that I’ve had. And that is, if an administration—and I’m going to express what many Democrats and many independents believe to be true—if an administration behaves outlandishly, if it engages in overtly lawless behavior and is ruthless about it, and, by the way, along the way is also very corrupt in its conduct, then that is the administration that is likely to be most vicious in response to any attempt to hold it accountable. So you point out in your piece, Democrats have to be aware that whatever accountability regime they institute may be met down the road by another Republican administration looking to settle scores.

And Susan Rice said that that’s exactly what the Democrats should do as well. I mean, parts of both sides are saying that this is the right strategy for this behavior. I agree.

But if the concern in instituting that regime of accountability is, look, people like Trump will go to the limits to settle scores, so let’s, you know, let’s take a step back and be thoughtful about this—I mean, the thoughtfulness point is fair enough. However, doesn’t that just basically mean that the more vicious an administration, the more outlandish its conduct is, the more essentially gets away with it, because of the concern that that kind of politics, when it returns, is just going to exact an unacceptable cost? And therefore, any accountability regime has to sort of—I wouldn’t say tread lightly—but have to be very mindful of that. That seems like a huge concession to the kind of politics that we’ve seen Donald Trump practice.

Listen, I don’t like it. I agree completely. There’s no good solution here. But that exact argument was made in 2021. We have to bring accountability because Trump has acted so outrageously. We’ve got to do everything using every legal tool to put him away, to keep him off the ballot. And it went back before then about how his outrageous behavior required extreme means.

And I understand the argument. I mean, the argument is that the rule of law is hurt if outlandish behavior is not redressed and held accountable, and also that they, quote unquote, get away with it. And so I understand the argument. I understand the impulse. And that also comports with the other side’s desire for vengeance and winning and crushing the opponent and deterring and the like. And all these things get mixed up together. So I understand the argument.

And as I argued in 2021, and I think I was right about this then, I fear that what was happening to Trump was going to make the rule of law worse, was going to leave the Justice Department in a worse place, that it wasn’t going to succeed in its goals of vindicating the rule of law. And I believe that that same thing will happen again in 2029 if the argument you just made prevails.

But let me say that I get it, and I think there’s something to it, completely. And at some point, there are no good solutions. I will say that at some point there needs to be de-escalation, because the Republicans see the world—justifiably or not, they see the world exactly the opposite as the Democrats do. And they’re just as convinced of their worldview, and they’re just as convinced about the Democrats’ illegitimate actions against Trump. At some point, if we’re going to get out of this, there needs to be some sort of de-escalatory action.

And the tragic problem is, is that it’s very hard for one side to back down because of the types of arguments you’re making. And also because it’s considered unilateral disarmament that won’t be reciprocated. And there’s no way that it can be credibly committed to be reciprocated. And so I think basically that we’re in for rounds of this, which I think is going to be very destructive for our institutions, which are already fragile. I think we’re facing rounds of this stuff, basically until one side or the other is wiped out. And who knows when that might happen. But I just don’t think it’s a pretty future. I get the argument you made, and it was exactly the argument that was made in 2021, and it worked out terribly there, in my opinion.

(17:51) But people will argue about whether it did or it didn’t.

May I just say, is there any claim that the legal strategies against Trump vindicated the rule of law or left the Justice Department or the rule of law in a better place? I don’t see the argument.

Well, those who are unhappy about it will point to a whole host of things. I mean, there are all sorts of claims that they may make about obstacles that the administration faced in going about doing this in a dutiful and fair way—

All foreseeable.

Conceivably, including in the courts. But without necessarily going to that point, I would only say in your piece, you note that whatever accountability regime has to be exercised or has to be implemented with, as I think you put it, something to the effect of exquisite judgment. So one possibility is you could have the accountability without failure, or without perceived failure, if it’s just done the right way. And that will have to be part of the debate, too: not whether there is going to be accountability, but whether, in fact, it can be done in a fashion that at least mitigates some of the harms that you pointed out.

I agree with that completely. When I say that transparency should be the main task, I’m not suggesting there shouldn’t be legal liability for gross abuses of power. I think it needs to be done highly selectively in cases that are clear legal violations, where there can be a consensus that there were clear legal violations. And I would be very discreet and targeted in bringing that accountability. As I said a long time ago, I think that the documents case against Trump in his first term was much more justified than the January 6th case, for example, although that perhaps could have been conducted a little bit differently. So, yes, these things require exquisite judgment.

They require restraint, I believe. And it’s the restraint part that I think is just going to be very hard, because the Democrats are angry and they have incentives to be very aggressive. They have a good normative argument that you just made, and they have political incentives. And I think all of those things are going to push for very, very aggressive—a very, very aggressive response. And frankly, the Trump administration has responded to what they perceive has happened to them in such a—in my view—outlandish and abusive way that it’s understandable that the Democrats would want to do that. And then both sides are going to be on their high horses about how the other side is engaged in vicious, unprecedented weaponization. And that’s where we are.

Well, and you close your piece by saying it could be a bleak future. Thank you, Jack, very much.

Thanks, Bob.

Mentioned:

• Francis Fukuyama, In the Realm of the Last Man: A Memoir (Farrar, Straus and Giroux, September 8, 2026)

• Francis Fukuyama, The End of History and the Last Man (Free Press, 1992)

• Daryl Levinson and Richard Pildes, “Separation of Parties, Not Powers,” Harvard Law Review (2006)

• Allan Bloom, The Closing of the American Mind: How Higher Education Has Failed Democracy and Impoverished the Souls of Today’s Students (Simon & Schuster, 1987)

• Jonathan Haidt, The Righteous Mind: Why Good People Are Divided by Politics and Religion (Pantheon, 2012)

This is an edited transcript of an episode of “Executive Functions Chat.” You can listen to the full conversation by following or subscribing to the show on Substack, Apple, Spotify, or wherever you get your podcasts.

Bob Bauer: Hello, this is Bob Bauer from Executive Functions, and I am pleased today to invite Professor Francis Fukuyama to talk about his recent book, In the Realm of the Last Man, which is a memoir and so much more. But before I do, let me first greet you, Professor Fukuyama, and thank you very much for joining us today.

Francis Fukuyama: Sure, thanks for having me.

I’m going to be very brief with the intro because I am quite confident everybody listening to this program or watching it is well familiar with your background and your scholarship. Professor Fukuyama is Senior Fellow at the Freeman Spogli Institute for International Studies at Stanford. He’s on the faculty of its Center on Democracy, Development and the Rule of Law, and he directs its Ford Dorsey Master’s Program in International Policy. He is well known for an array of books, both domestically and internationally: The End of History and the Last Man, The Origins of Political Order, Liberalism and Its Discontents, just to name a few. And now we’ll discuss the memoir, In the Realm of the Last Man.

It is a reflection on your life, on your professional pursuits, on your writings. Some reviewers have said that you’re also using it as an occasion to bring together your complex thinking on these issues, clarify some misunderstandings. And I suppose the question I would put to you, somewhat to the same point, is: If someone were to ask you what you would most want them to take away from this book—about, I suppose, in particular, contemporary American politics, the function of the contemporary American political system—could you say what that might be?

Well, one immediate objective I had was to try to once and for all clarify the meaning of the end of history, and to remind people that the original book that I wrote was entitled The End of History and the Last Man—the “last man” part being the part where I was talking about the ways that democracy could fall apart. I’ve tried to state this over and over, over the last 30 years, but I figured if I stick it in a memoir towards the end of my career, maybe it would stick a little bit better.

But the major part of my intellectual development that I don’t think I talked about explicitly is something that actually began on September 11th, with those attacks and then the subsequent American interventions in Afghanistan and Iraq that collapsed both of the governments there. The United States foreign policy depended on actually having a state that could keep order over its territory, and it didn’t have that. And it struck me that Americans are very ill-prepared to do state building. They worry about the state, the government, all the time as something powerful that will take away their rights, but they don’t really think about creating state capacity in places where it doesn’t exist.

And so this set me on a long intellectual journey. The political order books were part of that, where it seemed to me, even in political science, my home discipline, people just assume the state exists, but they didn’t really ask where it came from and how it’s strengthened. So that was one of the big issues that I thought about.

And then, as we got closer to 2016 and the present moment, it struck me that the American state was also problematic. It was not nearly as professional, or it didn’t have the capacity of many states and its fellow democracies. And now it’s come under direct attack as the deep state that the current administration wants to dismantle. So that’s how I’ve kind of ended up in American politics, thinking about how to strengthen our state capacity.

(3:39) Let me follow up on the state capacity point. So there are some who would say that in theory, it makes sense for us to attend to what the requirements would be for a strong, competent state and strong, competent state institutions, but that the complexity of the problems facing the country—a vast country with vast interests and steadily more involved issues that it has to master—really tests people’s confidence that the state is really up to the task, that we could imagine a state that performs significantly better in this context, under these pressures. And how would you respond to that?

Well, our state did perform much better than it has been in recent years. I think if you go back to the 1930s, ’40s, ’50s, ’60s, the state built Hoover Dam, TVA electrified the Upper South, it built the interstate highway system, and then it put a man on the moon in eight years. Those are all pretty amazing accomplishments. So there was a point at which the American government could actually undertake these kinds of ambitious projects and complete them in a reasonable amount of time. But that just hasn’t been happening since about the 1970s. And one of the issues that I’ve been particularly preoccupied with is why that state capacity seems to actually be going backwards.

The construction sector in the United States is the only economic sector that has registered lower productivity over the years rather than higher. Everything else has gotten much more efficient. So there’s something going on.

And I think a lot of it is not intrinsic to American government. It’s really, I think, a legal turn, actually, that was taken beginning in the late ’60s, that has put more and more procedural requirements on the government when it tries to do something, in ways that make it just extremely difficult to do things like build transmission lines to get alternative electricity from where it’s generated to where it’s needed. So I think, like I said, it’s not intrinsic to American government, but I do think that it’s the result of things we’ve done to ourselves that could be reversed in theory, but you’ve got to build a case for reversing them.

Given what you said about state capacity in the past—and it strikes me that some of this is state mobilization under emergency conditions, to respond to the Depression, to respond to the Cold War—would we not see reversal take place pretty much only, predictably, when there is an exigent situation upon which there is general agreement?

Well, I think that a crisis might help, although I’d point out that we’ve had two big crises. We had the financial crisis of 2008, and we had COVID, and COVID did produce Operation Warp Speed. And that was actually a pretty impressive demonstration of state capacity. But I would say COVID, in other respects, really weakened our ability to deal with public health emergencies. I think if we had another pandemic, we’d be less prepared than we were prior to COVID, just because it got mixed up with all of our partisan polarization and so forth.

I do think that there have been periods in American history where we’ve made these big changes in the way we thought about government that didn’t require a crisis; it just required capacity. So one of those was the beginning of the Progressive Era, when we passed the Pendleton Act and created a more modern bureaucracy. And then, I mean, I suppose you could say the whole of the Depression was an emergency, but certainly the building of the American administrative state in that period was quite impressive, and I would imagine could happen again in the future.

(7:36) In your memoirs and elsewhere in your writing, you’ve talked about the fundamental pillars, the foundation of liberal democracy resting on a strong modern state, the rule of law, and democratic accountability. But you have also said that there are sometimes tensions between these different foundational pillars, and that they have to be maintained in balance for a liberal democracy to succeed. How do we achieve that balance? I mean, what governance reform, what other steps could be taken to prevent the kind of conflict, the crashing into each other, that you indicate could well take place?

So the way I imagine the world is, you have a continuum. At one end is a dictatorship like China, where you have almost no checks and balances on the power of the Communist Party, or at least the leader of the Communist Party, to do whatever he wants. And at the other end, I’d put my state of California, where we really can’t build anything, because we’ve got so many constraints on public decision-making.

And I would say that if you think about the balance, you certainly do not want to go to the Chinese end of it. I think that’s part of the problem with the Trump administration and Elon Musk. I mean, they just say, “Damn all the rules. We’re just going to do discretionary decision-making, and we’ll just be judged by our results.” And you can’t do that in a rule-of-law society like the United States.

So I think what you’ve got to do is move away from California by staying within the law, but streamlining the law such that it doesn’t get in the way of actual outcomes. I hesitate to say this on a legal show like yours, but it does seem to me that lawyers really prize procedure, and they don’t pay that much attention to outcomes, whereas voters care about outcomes. And if they’re not getting the outcomes because there are too many laws, they’re going to get angry, and they’re going to vote for a populist who just says, “Well, damn the laws, we’ll just move ahead.” So I think the right balance is to stay within the law. I think a lot of this involves returning power—not concentrating in the executive, but returning it to the legislature that really ought to determine what policies need to be done, and then delegate, in limited but clear ways, the ability to actually implement those policies to the executive branch.

Let’s talk about the Congress for a second. A lot of observers shake their heads over Congress’s either fecklessness or passivity in the face of what we think its role should be. And this is part of a larger question of what could be done. Again, speaking of governance reform, can you imagine [reforms] that would nudge us toward the balance that you’re talking about here, that would help, for example, revive Congress to play a more active and constructive role?

I think it would take an election. Quite frankly, with Congress being as evenly divided as it’s been over the past couple of decades, it’s actually very difficult for it to accomplish things. And I think that’s where a lot of our problems come from, because with Congress unable to do basic things like pass budgets, other parts of the government then try to step in. The executive branch says, “Okay, we’ll just take over.” The courts try to fill that vacuum. And neither of those is a good solution.

So you have to imagine a period in which the polarization in Congress is overcome as a result of the will of the voters, who actually want members of Congress to do their constitutionally mandated jobs and agree on compromise outcomes that would clearly direct the other parts of government to enact those policies. And I don’t think it’s impossible to see that moment coming, because people are probably a little bit tired of that dysfunctionality that leads to government shutdowns every fiscal year.

So there would have to be—and you think it’s possible we would see it—some abatement in the depth or the intensity of polarization that would, for example—to use a phrase that two of my colleagues at NYU coined—that we would have less in the Congress of a separation of parties and more attention to separation of powers. You think that that corner could be turned, potentially, because of voter dissatisfaction with the way government functions in our polarized politics?

How likely is that to happen? I would say there is a chance. I do think that every now and then you do have these realigning elections, like the election of 1896, that really paved the way for the Progressive Era, in the wake of a period where you had a very evenly divided Congress between the two parties. So that might be pie-in-the-sky thinking, but it’s hard to imagine solving some of these governance problems without imagining an outcome something like that.

(12:32) Let’s talk about current governance and what it means for the future. And this, again, goes to whether we think things could get better or they would get worse. Some have said that Donald Trump’s presidency is transformative in many ways, and that he has changed how we think about politics, how politics is conducted, how politics is discussed. And there are different opinions about whether Trumpism will continue to survive, but some might argue we’ll never snap back completely to the pre-Trump era. What is your view of that? In what ways has Trump changed things for the foreseeable future? In what ways might what he has done be susceptible to a change in control of the Congress and the presidency, eventually, through elections?

Yeah, well, I agree with the view that we’ll never snap back to the situation as it was in 2016. And I don’t think we should want to, because it’s not as if the government was working perfectly in the pre-Trump era. I’ve been running a little group called Reform for Results. It’s a combination of administrative lawyers and public administration experts. And what we’re trying to look forward to is a post-Trump period that will actually provide more opportunities for genuine reform of the way government functions than we’ve been able to achieve up to now.

So, for example, on removals—executive branch removals—Democratic administrations in the past were completely hobbled by the public sector unions that really didn’t want anyone to be fired. And so it was very difficult to actually remove poorly performing employees. I think that one of the results of the Trump earthquake is that that’s not going to be true in the future. If there’s a Democrat elected president, that president is not going to want to go back to the inability to get rid of recalcitrant employees. They’re probably going to use that power. And so I think that there may be a beneficial side to Trumpism.

I used in a couple of my books this term “vetocracy,” meaning that our system of checks and balances had metastasized such that we had so many individual points where collective decision-making could be checked that it was very difficult to do anything good. Now, we’re happy that those checks and balances exist when you have a bad president. It stops him from doing all sorts of things. But when you do get a good progressive president that actually wants to do things like build infrastructure and transmission lines and new housing and this sort of thing, you want actually a little bit more authority to be able to carry out these kinds of policies. And I think that Trump has at least shaken things up such that I can imagine a future where some of that sludge will be cleared away.

And like right now, there’s a bill in Congress that would really reform NEPA, the National Environmental [Policy] Act. That’s been kind of the model for a lot of the sludge that exists in the U.S. government right now. And I think before Trump, you couldn’t have even broached that subject. And there might be actually a sufficient bipartisan group that would be willing to embrace a reform—a more fundamental reform—to be able to undertake policies like building transmission lines more easily.

(15:55) Let’s talk about another element of state capacity, and that is who we bring in as our leaders, both at the legislative and executive branch level, although I think we’ve been focused largely on the executive branch. In your book, you talk very briefly about the role of education in the recruitment and the development of leadership. Do we have anything like that in the United States? You referred specifically, for example, to moral education: sensitizing people who would be leaders to moral dilemmas and how to define them, how to frame them, how to resolve them. It seems to me a very important issue—certainly is to me. And yet I don’t know where that would come from in our system. Can you talk about that for a minute?

Yeah, well, ultimately, I think it would have to come from a restoration of liberal education in universities. I was a student of Allan Bloom, who back in the late 1980s published this bestseller, The Closing of the American Mind. And there was a kind of progressive attack on liberal education as being overly Eurocentric and too dominated by dead white men.

But I think that actually having training in philosophical reason that tries to apply human reason to big questions: What is justice? What’s the nature of justice? What is the best way to live? These were questions that Plato and Aristotle broached. My own education was very much steeped in that. I was a classics major as an undergraduate at Cornell. And so I think that, in a sense, understanding our own Western tradition a little bit better would help people in coming to terms with the kind of moral questions that we now face in public policy.

Beyond that, I think that just professional education is important, because one of the things that a true profession teaches you is that you are not simply in the business of making money, that you do have a calling, that there are standards that exist outside of your personal self-interest that you as a lawyer or a doctor or an accountant have to live up to—or an engineer. And I think that’s really about the only other place that you’re going to get that kind of moral training. A kind of technocratic education has got limits, obviously, but it does provide a certain moral framework for how you see public interest versus your own interest.

As an educator, though, would you say you’re encouraged or discouraged by the potential of education, particularly at the liberal arts education level, to actually do the tasks that we’re talking about? It seems that those curricula are being slimmed down. Students are choosing STEM over the humanities. It seems like an enormous hole is opening up there, precisely where we might want to see more activity, more dedicated thinking and scholarship.

Stanford was one of the first elite universities to abolish its core curriculum. They used to have a Western Culture core that was actually pretty good in the 1980s, and then it fell victim to the first generation of what we would now call wokeism. And there have been efforts to try to restore it. It’s voluntary, so not every student is required to learn that sort of thing. But I do think that that’s a big agenda, especially for the elite schools. You actually get this kind of training, I think, in second- and third-tier schools. But for some reason, the Harvards, Yales, Princetons, and Stanfords were the first to really go after this kind of traditional liberal education. But that’s another area where I think opinion may shift.

Two questions about that. Are students responding, to the extent that these curricular changes are being made? Are they responding and signing up for it? And secondly, to what extent are they thinking about taking that education with them into public service, rather than into Wall Street?

Yeah. Well, that’s a fight that I have constantly. You do find a core of students that actually do want to get a serious education and do want to broach some of these more important philosophical ideas. And I certainly, in my teaching, try to discourage them from just thinking about their careers as money machines, and to think more seriously about the kinds of values that should shape their role as citizens in a democratic republic. And I would say I find students that respond to that.

(20:38) That’s good to hear. There’s one other topic I wanted to briefly touch on here, and that is, you have a chapter about changing your mind in your memoir. And there you go back to the period of the Iraq War, and you broke with the neoconservative movement over the war. And you said that for a period of time before you did that, you stayed much in place, largely because those were your colleagues, those were people you knew. And you think psychology—that kind of psychology—plays a significant part in keeping people in a certain place in their thinking. But then you broke with that. And in fact, it was a difficult personal experience, because some of the people that you worked with closely—you were, at least for some period of time, barely on speaking terms or not on speaking terms at all. At a time when people are siloed in their thinking, tend to flock to people who think the same thing they do; all of this, obviously, facets of the way polarization expresses itself and plays out in the political process. Can you talk a little bit about changing one’s mind?

Sure. So there’s a classic Enlightenment theory of human cognition, which is that we smart human beings take in factual information, we infer causal relationships from that factual information, and then we make policy. We decide to do things based on these mental models that we’ve created that are steeped in empirical knowledge.

So Jonathan Haidt, the social psychologist, wrote a book a few years ago saying that’s actually not the way we think. We practice what he calls motivated reasoning, where we start with the conclusions that we want to believe in, and we use our cognitive abilities to marshal facts to support that. And watching American politics over the last few years, you’ve got to think that he’s right about that, because you just look at the way that people have completely abandoned earlier intellectual frameworks simply because the new trend, the power sources within the party, are now thinking differently. And they don’t want to be cast out of that group. And so they adjust their thinking in sometimes kind of comical ways, explaining now that white used to be white, but now it’s black.

So I think that that’s certainly something I experienced. I had a group of friends that I grew up with that were in this neocon movement. And it was really just hard to break with them, because it also meant breaking a lot of old friendships. But when I did this, I was at a point in my life where I could say, I don’t give a damn. I’m settled. I’ve got a tenured teaching post. And I’ll get a bunch of new friends. And so that’s enabled me to do what I did.

And last question on this point, because it’s something people experience in fights among friends, within families, office mates, or whatever: Were you surprised at the time that disagreement had such a bitter personal aftereffect, that it couldn’t be treated just as disagreement, but it actually threatened ongoing personal relationships?

Yeah, I was surprised. The depth of passion that people held to views about the Iraq War, for example, was, I just thought, extraordinary. If you disagreed with somebody, they virtually thought of you as a traitor. I remember one person telling me, when I expressed skepticism about something the administration was doing in Iraq, this person said, “Oh, so you don’t care about your children and your family”—this sort of thing. And that was—yes, that was very surprising, to see that kind of depth of emotional investment in people’s political positions.

Well, I want to thank you very much for joining me today for this conversation. And thank you for your ongoing contributions to the important debate on these issues that’s taking place in the United States and around the world. Again, thank you very much, Professor Fukuyama.

Okay, well, thank you for Executive Functions.

Appreciate that very much.

Mentioned:

• Catherine Grace Katz, Shadow Before the Flame: The Hindenburg Disaster and the Prelude to War (Viking, September 2026)

• Catherine Grace Katz, The Daughters of Yalta: The Churchills, Roosevelts, and Harrimans: A Story of Love and War (Houghton Mifflin Harcourt, 2020)

• Emily Velasco, “History’s Mysteries: Caltech Professor Helps Solve Hindenburg Disaster” (Caltech, May 17, 2021)

• “Hindenburg: The New Evidence,” NOVA (PBS, May 19, 2021)

• Franklin D. Roosevelt, “Recommendation on a Policy for Helium Export,” letter to Rep. Lister Hill (May 25, 1937)

• Franklin D. Roosevelt, “Statement on the Export of Helium” (May 11, 1938)

This is an edited transcript of an episode of “Executive Functions Chat.” You can listen to the full conversation by following or subscribing to the show on Substack, Apple, Spotify, or wherever you get your podcasts.

Jack Goldsmith: I’m Jack Goldsmith, and our topic today is a revolutionary technology with the potential to transform civilian life and military power, and the international scramble to regulate it. I’m not talking about artificial intelligence. I’m talking about Zeppelins.

And my guest today is Catherine Grace Katz, an attorney and historian who’s got a new book called Shadow Before the Flame: The Hindenburg Disaster and the Prelude to War. Catherine, thanks for talking with me.

Catherine Grace Katz: Thank you so much for having me on the show. It’s great to chat with you.

So the Hindenburg is a story that lots of people have heard of. Why write a new book about the Hindenburg story?

This is a story that kind of caught my eye somewhat accidentally, and it has its origins in watching a Christmas movie with my family a couple years ago. We were watching the movie A Christmas Story. You remember Ralphie, who wants his Red Ryder BB gun, while his little brother Randy receives a Zeppelin toy for Christmas and is thrilled.

And after watching the movie, my own younger brother Oliver, who loves aviation, just started talking about how incredible it was that people used to fly on these. And can you imagine what it would be like to look up and see one? And a beat later, he says, Catherine, you should write a book about the Hindenburg disaster.

And so that’s how the story first came to mind for me. But it’s kind of squarely in the area that I’ve always studied as a student, and then as a historian writing The Daughters of Yalta, about 1945.

That was your last book.

Yes. But the story just had so much relevance to me for the time that we are living in today: kind of the geopolitical moment, the technology moment, the media moment. All these different things seem to funnel through the story of the Hindenburg disaster, which I don’t think people realize, because it’s this event that sort of hangs in our consciousness, sort of like the Titanic of the skies. And yet when pressed, people barely know anything about it.

Right. And that would be true of me before I read this book. So talk about what is this technology, and tell us about the history of it, and tell us where it was basically by 1937.

When we think of the Zeppelins, we kind of think of airships as this sort of odd blip in the history of aviation. But actually, they’ve been around since the turn of the century. Count Ferdinand von Zeppelin invents them in southwestern Germany.

It’s the first rigid airship: unlike a blimp, where the shape is held by the pressure of gas inside of an envelope, this is a rigid frame with gas cells inside, covered in a canvas cover, held taut by the silver-like glue-ish paint. So that’s why it has this very silvery hue. People initially made fun of him, called him the crazy count, ridiculed his early Zeppelins as flying white sausages because they looked like Bavarian wurst.

But quickly, the technology really took off, pun intended, and they were used as weapons during World War I to bomb cities like London and Paris and Antwerp as the first instruments of aerial bombardment. This lasted until about 1917, when airplanes caught up in their range, their ability to fly faster, higher than Zeppelins and shoot them down. But after World War I, they really became a very popular civilian technology for long-distance travel, which was something that airplanes could not compete with at the time.

The first transatlantic flight between Europe and the United States occurs in 1919 with an airship actually made by the British. That same type of nonstop transatlantic flight for passengers was not possible until the jet age in 1959 by airplane. They are so popular that the Germans are building them, the Brits, the French, the Italians, and the Americans.

Lighter-than-air aviation is a huge part of the U.S. Navy at the time, and they actually have flying aircraft carriers, if you can imagine that, where airplanes fly up, hook on, and get winched up inside. But the Germans are just, you know, head and shoulders above everyone else in their engineering. The other countries have disasters with their airships, but the Germans—no one’s suffered so much as a scratch on board since the end of World War I.

And they’re conducting these amazing flights with the Graf Zeppelin in 1929. They do around-the-world flight. They start doing scientific expeditions to the Arctic in the early 1930s, regular passenger service to both North and South America.

And so by the time the Hindenburg, the Graf Zeppelin’s sister ship, is built in the mid-1930s, this is incredibly popular, but also somewhat commonplace mode of transportation for people who can afford it.

So let me ask you: you said that the U.S. Navy was still using these, but you said that they had basically lost their military significance with the rise of piloted heavy aircraft. Did they still, in the mid-’30s—I mean, were they still thought of as having military strategic or tactical significance?

To some degree, yes. So not for actually bombing cities. So kind of in that capacity, it lost its military significance, but they were used for scouting and reconnaissance and also for extending the range of airplanes.

So if you’ve watched the movie Indiana Jones and the Last Crusade, and you may remember Indy and his dad flying in a Zeppelin, they’re pursued by the Nazis. They jump into an airplane that’s hanging below the airship, cut the connection, and fly away. That was a real capability that the U.S. Navy had. So while airplanes couldn’t fly that far at the time, based on what kind of fuel they could carry, how fast they could go, kind of being transported by an airship by the U.S. Navy could extend the range of airplanes. And so it was not a super useful technology because they only had a few of these with a few planes that could be inside, but it was a natural capability, and also for, like, overflight protection of ships.

(5:15) Okay. So talk about the U.S. role in this. The disaster happens in 1937, but even before that, the United States played a critical role in controlling this technology, which I think is a big theme in your book. Can you talk about that?

Absolutely. So there are only two gases that are capable of lifting something as large as a Zeppelin. The one choice is hydrogen, which has the greatest lift capacity. It’s the lightest gas. It’s very cheap, widely available, but crucially, it’s extremely flammable. On the other hand, you have helium, which is a little bit heavier, much, much more expensive, but an inert gas, so it’s not flammable. But the problem is that it’s only been discovered in the United States in the Southwest as a byproduct of natural gas extraction and, at the time, nowhere else in the world.

Since then, it’s been discovered in other places like Russia and Qatar, places that have very unstable supply chains leading to continued issues with helium availability. But in the 1920s, Congress passes the 1925 Helium Control Act, which bans any export of helium, declaring it a strategic national natural resource. And so you see this very early case of export control laws involving helium.

The Germans then lobby to find some sort of exception to the law that Congress has passed. They actually find a lot of sympathy publicly for getting helium to make flying on a Zeppelin even safer, including from the White House. But this is a law that Congress has passed. So Germany is left with no choice but to either scrap the program entirely or to engineer around the danger of using hydrogen.

And why did the 1925 Act ban the export? Were they worried about this particular issue?

Well, it was a very scarce natural resource. You need a ton of helium to be able to fill even just the handful of airships that the United States Navy has—the USS Akron, the USS Macon, the USS Los Angeles—and a few other smaller lighter-than-air crafts. There’s also a domestic program with Goodyear based in Akron, which is building a lot of these for the United States Navy.

And so given the scarcity of the resource and how expensive it is to extract and export, the Congress decides that this is too valuable to allow any portion of it to go abroad.

Okay. So it’s the middle 1930s, and FDR, Franklin Roosevelt, is president. Talk about his role in this. He plays an interesting role throughout the book.

Little-known fact about FDR: he was actually a huge lighter-than-air aviation enthusiast. He had first taken a ride on an airship at the end of World War I when he was Assistant Secretary of the Navy, and he goes over to France and has a chance to fly in an airship that the French had built for scouting purposes during World War I. He takes a ride.

It goes about 1,000 feet, takes some time at the controls, and really enjoys it. After the war, he decides that he and some friends are going to start an airship company in the U.S. for domestic, kind of civilian travel. He thinks it’s the next great thing in engineering compared to airplanes, which are seen as very dangerous at the time.

And at one point, he learns that his mother has taken a plane while traveling in Europe, and he chides her, you know, why did you do that? They’re very dangerous. Just wait a few years, and you can travel in comfort and safety in one of my airships.

The company is ultimately not viable economically, so it folds, but he doesn’t lose his enthusiasm for it, and he actually has a really great relationship with the head of the Zeppelin company, named Hugo Eckener, who visits him at the White House on several occasions, including on the first flight of the Hindenburg in 1936, which is not Eckener’s first visit to the White House, nor the first time he’s met an American president. He’s actually visited the White House as early as in the mid-1920s, when he delivers the USS Los Angeles, which was originally a reparations payment that Germany built a Zeppelin for the U.S. Navy as part of the reparations payments. So he’s a very popular fixture in Washington, and he and Roosevelt have a very good relationship, and Roosevelt personally supports these airships and ultimately wishes that he could do something to change the law, but ultimately cannot.

So this person tries to get Roosevelt to change the law so that the Germans can get access to them. And he was sympathetic, as you just said, but decided basically for political reasons that he wasn’t going to stick his neck out and try to get Congress to change the law.

Exactly. I mean, there were just too many other things that he felt were political imperatives where he wanted to put the chips on the table. This was ultimately not one of them. He respects the separation of powers in this regard, and just thinking about kind of a number of other things that were much more pressing for him to pass that were controversial during the New Deal administration. This is kind of a nice-to-have, but not the top of his list.

(9:41) And just scope out a little bit and tell us what’s going on in the world. This is the middle of 1937. Hitler is in power, and how is Roosevelt thinking about that? How was Congress thinking about that? And how did the discussion about whether to give the Germans—for the Hindenburg, I guess, or maybe for all of the Zeppelins—helium instead of hydrogen, which as you say was more dangerous—how did the world political situation inform here?

It definitely impacts it. You know, thinking about kind of where Roosevelt wants to, you know, really put his chips down, looking at kind of the rising concern from Germany, it’s not a politically expedient or kind of strategically smart thing to do necessarily, because of alarming things that have been happening in Germany over the last couple of years. The Zeppelins had predated the Nazis significantly.

They were really the first thing that was popular internationally that was German after World War I, during the Weimar era. But the problem is they’re incredibly expensive to build, and the Zeppelin company’s out of money. To be able to carry more passengers, the Zeppelins have to become exponentially bigger to offset the additional weight and increase the amount of gas that they are using.

And so they are desperately in need of a cash infusion from the German state. Germany, through the Ministry of Aviation and the state airline, Deutsche Lufthansa, take a majority stake in the Zeppelin company, rebranded Deutsche Zeppelin-Reederei, repaint the fleet with the new standard of Germany, which of course is the swastika flag at the time.

Interestingly, Hitler is not a huge fan of the Zeppelins. He can’t get past the fact that they’re filled with hydrogen. He’s a big fan of flying in airplanes, but he never sets foot on a Zeppelin. Hermann Goering, even though he’s financed this, kind of sees it as a somewhat outdated technology already, you know, says, I can build 10,000 airplanes for the cost and time it takes to build one Zeppelin. Why would I do this?

But it truly is a propaganda tool that is embraced by Joseph Goebbels, who wants to piggyback off on the soft power projections that the Zeppelins offered Germany to burnish their reputation as a leader in engineering, transportation, technology, as this thing that is so popular internationally about Germany, where Germany’s suffering from reputational issues anyway.

But 1937 is this odd moment where there is a lull in fear about Hitler, because he’s kind of gone quiet. And it seems almost as if he’s achieved the things that he says that he set out to achieve in restoring German national pride and rearmament.

1933, he becomes chancellor. 1934, he consolidates power at the Night of the Long Knives. 1935, passes the Nuremberg race laws. 1936, he remilitarizes the Rhineland and tears up the Treaty of Versailles. But 1937, things are kind of quiet. So it’s at this odd time where people are thinking that maybe Hitler’s just going to be a normal world leader after all, after all of the alarming things that have been happening in Germany the last few years. By comparison, even though there are crackdowns on civil liberties, the press, a huge anti-Semitism towards Jews, internationally, it seems like maybe Hitler’s settling down.

But it would have been controversial for Roosevelt to go to Congress to try to get an exemption or a new law in 1937 to give the Germans access to helium, even for the supposedly benign transportation purposes that the dirigibles were serving then. Is that right?

I think it depends on who you ask. I think there was a real split of people who were very clear-eyed about the threat of Germany, whether that was Ambassador Dodd, who was on the ground in Berlin, whether it was the Secretary of the Interior, Harold Ickes, who was very skeptical of Hitler and very much attuned to his broader machinations early on, whereas other members of the government maybe not quite so heightened in their concerns about Hitler.

I think that it maybe would have been more of a concern, you know, why are we spending all this time and attention on something abroad when we have so many issues internally that we need to deal with? But I think that you have a real split reality of people at the time who kind of take and understand the menace of Hitler for what it is compared to those who are kind of saying, well, this isn’t as bad as it’s been the last few years. And there’s just so much sentiment that’s, you know, against any kind of global conflict that, you know, the spirit for kind of, you know, simmering down of anything inflammatory is very much in favor.

So, you know, this could have been something where there could have been collaboration between Germany and the United States that actually may not have been so controversial because people didn’t see the Zeppelins really as Nazi instruments, and they really saw them as this kind of dream machine of the Weimar Republic era.

And yet Roosevelt wouldn’t stick his neck out on this.

No, he would not.

(14:05) Okay, so tell us about the fire and the explosion. What role did hydrogen play in the explosion?

The hydrogen is the whole story here. If it had been filled with helium, nothing would have caught fire in that way. I mean, there could have been other structural issues that other countries had. The United States had its own hydrogen-filled airships that did suffer some structural malfunctions and disasters. But for the case of the Hindenburg, it was actually a mystery for quite a long time why the fire had occurred. You know, of course, as soon as some hydrogen catches fire, all of it’s catching fire, and this thing is filled with millions of cubic feet of hydrogen.

So in the initial aftermath of the disaster, there was immediately an investigation where the United States and German experts convened, including people who had been the key engineers building the airships. The NYPD bomb squad is called in to go through the wreckage to see if there was an incendiary device, to see if it was sabotaged. But at the end of the day, they concluded it was almost certainly not sabotaged, and it was almost certainly because of kind of structural and engineering issues.

And they didn’t have a way to test it at the time, but the leading theory by the people who knew the most about this technology was that there was some charge differential, and a static discharge had somehow ignited hydrogen that had gone free from one of the gas cells. Not until 2021 that a professor at Caltech, in cooperation with the show NOVA, actually tried to run some experiments that were not possible at the time to recreate the conditions of the Zeppelin and the atmospherics at the time. They were landing in the middle of a storm.

What probably happened is the gas escaped because a shear wire probably broke on what was likely a too-tight turn going into the landing. Having some gas come out is not necessarily cause for alarm. In flight, they could actually patch it. But as long as there’s a current of air sweeping the hydrogen away, it’s not catastrophic. But as it comes to a standstill, this leaking hydrogen starts to build up. And as one of the safety precautions, the engineers had actually designed the Hindenburg so that the cover and the frame didn’t touch anywhere.

They were held apart by non-conductive twine and wooden dowels. So what ended up happening is that in many, many places on the airship, the professor discovered that the Hindenburg became a gigantic capacitor, like on a switchboard in many parts, where you have a huge charge differential as energy builds up across this differential as the skin and the frame take on more and more positive versus more and more negative charge. And as soon as there’s a conductive bridge formed between them, not necessarily with a physical object, but something like gas that is conductive, then you have that equalization of charges, which releases energy, which causes a spark, which as soon as some of the hydrogen catches fire, all of it’s going to go up in flames.

(16:45) So this crash basically ended the industry. There was a discussion in the United States in 1937 and a new law, which I want you to tell us about, that made it theoretically possible to give helium to the Germans. Talk about the ‘37 law, the decisions made inside the Roosevelt administration, and then the impact on the industry.

So it’s kind of surprising that the Hindenburg disaster didn’t actually immediately kill the airship and Zeppelin industry. There was a lot of goodwill and outpouring of sympathy for Germany at the time. You’ve got FDR, the King, the Pope sending condolence letters to Hitler. It’s been an international tragedy. It’s not just Germans who were killed. It’s also Americans, other Europeans.

Surprisingly, two-thirds of the nearly 100 people on board do actually survive, which is astounding to think about when you see the conflagration and how quickly, just in 34 seconds, something as big as the Capitol building is just incinerated. But there’s a huge groundswell of support from the American people, really voiced by Eleanor Roosevelt, actually, who learns of the tragedy as she’s flying from the West Coast back home. She’s changing planes in Chicago and hears about this disaster and says, this is such a tragedy, this is a terrible setback, but this is part of being part of humanity, where there will be setbacks, there will be tragedies, but we learn from them and we move forward and we don’t let this stop us from pressing forward with new innovations that have the potential to change the world for the better.

This is very much the attitude of the American public, so there’s a lot of sympathy to change the law. Congress does actually—

Just to be clear, to change the law to give helium—

To allow for the export of helium.

Was it decided basically that hydrogen—that this industry could not work relying on hydrogen and had to have helium? Is that fair?

Exactly. Yes. No one would want to fly on a Zeppelin again. It wouldn’t be responsible to fly on one that was filled with hydrogen.

Congress does, in the middle of 1937, pass an amended law that does allow for the export of helium, notably for countries for whom helium will not hold military importance. It’s a very important phrasing where it’s not necessarily that helium will play a military purpose, but that it could have the potential for military importance. Ultimately, Congress changes the law. FDR is happy about this. He supports the export of helium.

The law is structured so that final approval has to come from the National Munitions Control Board. They vote unanimously to allow Germany to purchase helium. They say it fits with the wording of the statute. But at the end of the day, one person has the final say, and that’s the Secretary of the Interior, Harold Ickes. He’s the one responsible for the national stockpile of helium, and he says, I’m looking at this law. It’s not possible that this could not have military importance for Germany.

Yes, Zeppelins and airships are obsolete in the original use for military purposes of dropping bombs, but we’ve just budgeted, in the national defense budget, a new airship for the Navy. We use them for scouting, for overflight protection. If Hitler is over there assuring me that they’re not going to use it for military purposes, that inherently has to mean that helium still has military importance to Germany.

Harold Ickes, in a strict statutory reading, vetoes the export. Germany is not allowed to purchase helium, which is actually sitting in containers ready for them to take away. He says no. Despite additional lobbying, he does not change his mind.

Germany then is forced to decide whether they’re going to continue to build the new Zeppelin that was already underway at the time of the Hindenburg and use hydrogen. They actually go ahead. It begins to fly in 1938, and they do use it for military purposes. They use it to scout out military installations and British radar installations around the British coast. Some of the crew originally on the Hindenburg is on this flight. They don’t know exactly that’s what they’re doing. There are other actors from the German government on board assessing this, but that is ultimately the last purpose of the Zeppelins in Germany before the program is dismantled and the Zeppelins are blown up on the third anniversary of the Hindenburg disaster and used for scrap.

(20:50) Catherine, what’s your main takeaway about this episode for modern times?

I think as we assess whether it’s export control, think about these dual-use technologies and technologies like AI that have incredible uses to benefit mankind, while also balancing against the enormous risks that they offer, especially if it falls into the hands of adversaries with bad intentions. Balancing also the hubris of invention and people’s inability to really assess downside risk when they’re advocating for a technology that they’ve staked their career and their reputation on. I think we have to remember that at the end of the day, whether these decisions are made on an international geopolitical level, national regulatory level, ultimately the effects of those decisions are felt by regular people like you and me.

We are able to reap the benefits, but also sometimes suffer the consequences of those decisions. It’s been a privilege for me to be able to put the story of the humanity of the individuals impacted by these decisions and the Hindenburg disaster back in full focus. That’s my purpose in telling the story. I really hope that that story of humanity set against the backdrop that should resonate with people today very much comes through front and center.

It does. Thanks very much, Catherine.

Thank you so much for having me on the show.

Mentioned:

• Nathaniel Persily, “Misunderstanding AI’s Democracy Problem,” in The Digitalist Papers: Artificial Intelligence and Democracy in America (Stanford Digital Economy Lab, September 2024)

• Sean Westwood, Justin Grimmer, and Andrew B. Hall, “Measuring Perceived Slant in Large Language Models Through User Evaluations” (Hoover Institution, May 8, 2025)

• Hannah Waight, Eddie Yang, Yin Yuan, Sol Messing, Margaret E. Roberts, Brandon M. Stewart, and Joshua A. Tucker, “State media control influences large language models,” Nature (May 13, 2026)

• Andrew B. Hall and Sho Miyazaki, “Voters Increasingly Use AI as Political Advisor. A New Study Shows the Risks.” (Freeman Spogli Institute for International Studies, Stanford University, March 31, 2026)

• Stephen Ansolabehere and Shanto Iyengar, “Can the Press Monitor Campaign Advertising? An Experimental Study,” Harvard International Journal of Press/Politics (1996)

This is an edited transcript of an episode of “Executive Functions Chat.” You can listen to the full conversation by following or subscribing to the show on Substack, Apple, Spotify, or wherever you get your podcasts.

Bob Bauer: Welcome to Executive Functions. Today we’re going to be talking about a really complicated but also hugely significant topic: artificial intelligence and democracy, with specific attention to elections. And I am pleased that we have here today Professor Nathaniel Persily, who is a professor of law at Stanford University Law School. Hello, Nate.

Nate Persily: Hello, Bob. Good to be here.

Glad to have you. Let me say briefly something about Nate, who is a national and international expert on this topic and has written and spoken widely on it. As I mentioned, he’s a professor of law at Stanford. He is also co-director of the Stanford Law AI Initiative. He is the co-chair of the American Political Science Association’s presidential task force on artificial intelligence. He’s an expert on both election law and the governance of technology.

Today we’re going to focus on his AI expertise. So let’s begin by talking more broadly, before we zero in on elections, about AI and its impact on the functioning of democracy. We see a lot of anxiety being expressed, particularly in the United States, about the development of AI and its impacts in a wide variety of areas, such as the economy, but also real concerns about what it means for democracy. Can you describe generally (a) what those concerns are and (b) why they seem to be more acute in the United States than elsewhere in the world, relatively speaking?

Thanks again for having me on. I tend to think that we are still living through the techlash that began, say, after the 2016 election. And so the hangover from people’s dissatisfaction with the social media companies is affecting people’s perception of AI, particularly as it relates to AI’s effect on elections and democracy.

If you were concerned about, say, high levels of disinformation on Facebook or other social media, or bots on Twitter, this new technology comes in and you sort of transfer a lot of the anxieties you developed over that period to it. As you suggest, Americans are the most pessimistic in the world when it comes to AI, and they’re also about as anti–social media as any place in the world, despite the fact that we’re the ones who have the companies that are benefiting from it. A lot of this is just that poorer countries see this as a leapfrogging technology. There’s a little bit less anxiety on some of the issues related to job loss and energy usage and other things.

But right now, AI is sort of having a bad political moment, whether you’re talking about the technology in general or its effect on democracy. And I think that most people, when they think about technology and democracy, are still thinking about the problem of disinformation. So when it comes to AI, they’re thinking about synthetic imagery and deepfakes and the specter that we’re not going to be able to tell what’s true and what’s false.

(3:01) So is there any other category—I mean, beyond misinformation, and I’ll clue you into what I’m talking about: bias—that gives people concern about the potential effect of AI on democracy?

I think so. There are concerns about the bias of the model developers—that, as was true with the social media companies, maybe liberals in California are tweaking the models. And many of the studies that look at the political bias of the models do find that they are left-leaning. So I think there’s worry about that. But it’s not just a systematic political bias one way or the other. It’s whether a model reflects the preferences of its company, so that Elon Musk’s model might reflect his preferences, and OpenAI’s or Anthropic’s might reflect theirs. Or, a more complicated problem: whether what’s known as sycophancy—the fact that these models will cater to your expressed political beliefs—might reinforce polarization, so that the models give different answers to the same question depending on who the user is.

Now, you said something that I’m sure would hit conservative ears pretty hard. You said something about the models being generally left-leaning. In what way? Why would that be the case?

So my colleagues Andy Hall, who was here at Stanford Business School and is now at Anthropic, and Justin Grimmer actually had both Republicans and Democrats rate the responses of the models on everything from affirmative action to trans rights to birthright citizenship. Both Republicans and Democrats rated the models as being left of center, some more significantly than others. The Washington Post replicated this over the last six months and still found some of the models to be more left-leaning. Google’s, interestingly enough, was a little more middle of the road.

Now, there’s a hard empirical or methodological question here about how you sense the biases of a model. For example, if you ask the model whether climate change is real, should it give you an “on the one hand, on the other” kind of response? But what was interesting about Andy Hall’s methodology is that they just had Republicans and Democrats rate the models themselves, and found that they tended to lean a little bit to the left.

But what would explain that?

The training data, as well as the guardrails that are put in by the companies. If the modal source of information in the training data is, for example, the New York Times, and the New York Times is somewhat left-leaning, then you would expect that to affect the average answer you get on politics.

And by the way, we see similar kinds of biases in other settings, in different ways. My colleague Josh Tucker at NYU has done a really interesting study, published recently in Nature, about how in authoritarian systems, if you ask questions in the local language, you will get different answers than you will in English. For example, even with the American models, if you ask about Tiananmen Square in English, you’ll get one answer; if you ask in Chinese, you’ll get a much more pro-regime answer. This is not because the makers of ChatGPT want to have pro-regime answers about Tiananmen Square. It’s because so much of the training data that’s in Chinese favors the government’s position.

Similarly, Andy Hall did another paper where he found that in Japan, if you’re a moderate left-leaning voter and you ask the models who you should vote for, the models will recommend that you vote for the Communist Party of Japan. The Communist Party of Japan is not a major political player, so it was a bit of a puzzle. But the answer is that all of the party’s materials are free on the internet, while a lot of the moderate parties and mainstream sources are behind paywalls, so they’re less present in the training data. So it’s a combination of the training data plus different things that the model developers have done to deal with hate speech and other incendiary issues that may have moved the models a little bit to the left.

So how would you reassure people, or address the profound concerns they have about this question of bias? They might say it’s sort of a pick-your-poison situation. Either the companies have control and are manipulating the models for their own purposes, to suit their own political preferences, or, alternatively, the underlying data that the models are training on are tilted—they’re skewed. So don’t we have this problem coming and going? What would be your response to that?

I think that’s right. This is a feature, not a bug, of the nature of large language models, which is that they’re trained on a corpus of information. So it’s not even clear what the right answer is here, even though you see Democrats and Republicans rating them as left-leaning. Large language models are basically a brain that was developed off of the existing material on the internet, plus other sources.

But I want to emphasize the sycophancy point, because what is going to happen as people use these models more and more is that the models are not going to give consistent answers to every person on the same question. That might also be a kind of way out of this mess—that they’re more personalized. But if you care about polarization and people not having a shared information resource, then it cuts against that.

So from the standpoint of the implications for democratic engagement and participation, it sounds like one challenge is for users of AI who become very dependent upon it to recognize that it is not the all-knowing source of information they should rely on. That seems like a very tough hill to climb—or not?

It is. And I think it’s increasingly difficult, because people are turning to these chatbots for information, and so it doesn’t seem unrealistic to think that they will effectively replace Google search. Even in Google itself, of course, right now if you ask a question, you’ll often get the AI Overview first. So the stakes are pretty high as to how these models are going to behave.

There was always a problem, whether you’re talking about social media news feeds or search results: what went into the 10 blue links that Google would return wasn’t necessarily going to be representative on every issue. But at least you as the user could choose among those 10 blue links. Whereas now it gives you an answer. And so the stakes are quite high, not just in politics but for all kinds of information—medical information, consumer information. If they hallucinate, if there are errors, that is a big problem. And it’s a big problem, by the way, from the standpoint of election administration. Or if they’re systematically biased in favor of one party or another, or one type of source or another, that’s another problem.

(9:42) Let’s then turn for a moment specifically to elections. You mentioned deepfakes; you mentioned potentially erroneous election information. At the same time, in your article in that collection of essays, The Digitalist Papers, you in effect frame your piece as one that addresses certain common misunderstandings about the nature and the extent of the problem. Can you talk about that in particular? What are those misunderstandings?

There is no question that when it comes to synthetic media, as well as other forms of disinformation, there are millions or hundreds of millions of examples on the internet at any given time. And YouTube, which I have some conversations with, is overwhelmed with what we call AI slop. There is a lot of AI-generated content.

However, as we think about the political salience and importance of AI for, say, voting behavior—both whether people turn out and who they vote for—AI-generated content is actually a small share of what the average user is going to consume. And so the more that we panic about that 1% of deceptive AI content that might be in people’s feeds—and I’m making up 1%; some small share—the more that people are going to doubt the 99% of their feed that is at least not false, whether it’s true or whether it’s entertainment or something like that. My concern is that the more we freak out about the possibility that people will be duped by AI synthetic content, the more we create another and bigger democracy problem, which we sometimes call the liar’s dividend: people stop believing in true facts.

So from the standpoint of democracy, I think that’s actually the greater challenge. And that is what concerns me, because it also enables politicians to disclaim true things as being false. If you look around the world in the post-ChatGPT era, that is the phenomenon we see more often. Not that people are being duped by fake audio and video, though that does happen, but that politicians are using this as an opportunity and excuse to disclaim true stuff as actually being false.

Let me just be clear on one point, so that everybody knows precisely what we mean by synthetic content or AI-generated material. When we talk about that kind of material, we’re talking about extremely effectively produced, fantastical false depictions of, say, a politician’s behavior, or of something a politician says on mic or off mic or allegedly in close quarters. And I take it that as time has gone by—and this sets up my next question—the true from the false has become, as the technology has evolved, harder and harder to distinguish. Or is that not the case?

No, that is true. I could reproduce this podcast and put different words in our mouths, and no one would really be able to tell the difference. The technology is so good right now that, unless you are trained to look at it, at the cutting edge we can create extremely realistic videos that do almost anything. And we see this, of course, outside the political realm, whether it’s deepfake pornography or commercially available deepfakes—companies running advertisements with totally synthetic human beings selling products. So we’ve already reached the level where you can be deceived.

But what I’ll say is, if you look at the use of synthetic media in politics, and particularly the image-generation tools, most of it is being used not to deceive but to piggyback onto other narratives that are in the political system. So a lot of it is satire. If you look at the 2024 election, I didn’t think deepfake imagery really had much of a role to play in the presidential race, although there were, again, millions of examples of it. But you would see things like Donald Trump hugging dogs and cats, to pick up on the story in Ohio with Haitian immigrants, or pictures of Kamala Harris dressed in a Communist Party uniform. None of these things are actually intended to deceive.

But they are piggybacking onto false narratives to try to push people in a polarizing direction. And so the new tools are being used to achieve the same goals that consultants have always had, and in a polarized political environment, those could be bare-knuckle tactics.

But how would you rate the following concern, just to follow up on this? The technology evolves to the point that it’s very hard to distinguish the true from the false. Something that is not meant to be satirical—it’s meant to be persuasive—is crafted very cleverly against the background of polling data showing that it plays into perceptions of a particular candidate’s weakness. So something wholly fake is created, and it’s micro-targeted in various ways to voting constituencies. It is expected, if it’s done extremely well, to become an issue in the campaign. And news media organizations, by way of reporting on it, begin to duplicate references to it, show it on the air.

Over time, it would seem, in the right race, in the right way, at the right time, on the right issues, that could wind up being a quite significant factor—maybe just in the closing days of the campaign, when the effort to chase after it, to stop it, to rebut it for the public’s benefit is very difficult to achieve.

That is the worst-case scenario. But the role of the media in checking this is quite important. As you were saying, maybe the mainstream media rebroadcasts it, whether to criticize it or to affirm it. That is actually when we see disinformation in general, or deepfakes in particular, gain traction: when they get blown up and picked up by the mainstream media. I don’t want to understate the significance of that event, but the effectiveness of a strategic deepfake in the waning hours of a campaign is going to be conditional on whether the mainstream media checks it or not. It’s quite rare that you’re going to get some signal that’s sent, say, over Facebook or some other social media platform that reaches a certain level of virality and then is not checked by the mass media.

Now, people may not care, and this is part of my point about the liar’s dividend. It may be that just the fact that it’s out there, piggybacking onto other kinds of narratives, matters—that even if the mainstream media covers it and says it’s false, the coverage could repeat the charge, and that could be the effect of it. But while I do think this is a serious concern, I actually think that kind of surreptitious last-minute action is quite rare and not as effective as people think.

Just one last thing on this, because it obviously has captured my attention. Years ago, two political scientists at MIT did a study on the effect of fact-checking of negative advertising, and they concluded that viewers tended to zero in on the content of the advertising and not the content of the fact-checking. Now, wouldn’t that also significantly diminish the value of media fact-checking? They repeat it only to try to undermine it, but the repetition is more important than the undermining.

Exactly. That’s right. We tend to think, as social scientists or as lawyers, that when people approach content online they have a kind of Lincoln-Douglas debate going on in their head, weighing the evidence in favor or against. But the power of deepfakes, and of disinformation in general, is to play on people’s emotions. If the mainstream media repeats the deepfake, even to debunk it, it will have some effect. That’s going to be true of true content as well as false content. This is, I think, a reason to be concerned, but principally because, again, it’s piggybacking onto existing narratives.

The real division, I think, in the American public is not between those who believe something that’s true and those who believe something that’s false, but between those who care whether something is true or false and those who don’t. I think we on the outside tend to overstate how cerebral people are when they’re consuming political content.

(18:06) Let’s turn to another way that AI can be problematic, and that is if people are relying upon it for basic information about their rights to participate—in particular, let’s talk about elections. Where’s my polling place? What time do the polls open? What voter ID requirements apply that I have to satisfy to vote? I take it from your writing that there have been instances—I don’t know how widespread—when AI produces information that is incorrect and voters rely upon it to their detriment. How big a problem is that?

And let me just tack on to that question: Do you imagine that we’re at the point where, in this election, controversies over deepfakes or over that kind of problem—that is to say, communicating misinformation—could be the basis for a claim that an election was fraudulently decided?

Let me address the latter first. It could be part of the claim. I don’t think it’s necessarily legally cognizable. You’re not going to rerun the election because of false imagery or something like that.

I am concerned about this for the same reason I’m concerned about people’s over-reliance on the models for information generally. Now we’re moving from bias to hallucinations and truth—how reliable are these models? Let me give a little short history of what’s happened here. It started out that you would ask the models, like you said, “Where’s my polling place?” and they would sometimes base their answer on old information in the training data, so they could send you to the wrong polling place. In the 2022 elections, and certainly as we approached 2024, the models started refusing to answer those questions and kicking you out to authoritative sources like the National Association of Secretaries of State or Democracy Works or a few others. They didn’t want to have responsibility for the answers.

Now the models are better, though they’re not perfect, and some of the contemporary studies are trying to show that they still are flawed. The models are answering the questions, so the stakes are high. Election officials, I think, are legitimately worried that when people go to the models and rely on them for election administration issues—like you said, whether it’s how to vote or where to vote—they will give them some false responses. Sometimes, depending on the question, the models will have almost a disclaimer at the end that says to make sure to check whether this is right with your local election official, or something like that.

(20:34) Okay, so we’re at a point now, given the problems you’ve identified—and again, I think it’s important to emphasize that we are where we are now at a rapid pace of development, so these problems could be significantly more challenging, more pressing as that development occurs. But let’s talk about the policy challenges here: how to think about the regulation of AI, I suppose particularly in our case, but I think more generally as well, and how that policy challenge could be met to address these particular problems. So can you talk a little bit about that?

This is an interesting area, AI and elections in the United States, because as much as the topic of AI regulation does lead to some controversy in certain circles, and certainly the federal government has not been able to pass a systematic AI bill, most states have now passed some kind of legislation related to AI and political advertising, for example. They alternate between certain kinds of regulations or bans, and most of the states are passing AI disclosure bills, so that if you use AI in the construction of a political ad, you need to disclose it. For the reasons I was saying before, it’s not clear that disclosure does a whole lot in terms of protecting people from false beliefs, and the more that everything is disclosed as AI, the more that people are going to ignore it.

But at the same time, I think it’s a reasonable deterrent to have laws that say, at a minimum, if you’re going to start using synthetic imagery of your opponent in an election ad, you should have to disclose that that’s what you’ve done. Then, when it comes to election information, I think the platforms need to start going back to what they were doing before, to make sure that people are always looking at the authoritative sites of their local and state election officials, because there may be last-minute changes that the models are not picking up on. Take, for example, “Where is my polling place?” in an environment where we have these frequent redistrictings, where you’re going to be changing jurisdictions. There could be lots of polling-place moves, and you want to make sure that you actually know where you need to turn out to vote.

I think it’s important for them not just to try to get the best answer from their training data, but also to have some hard guardrails in there that refer people to these sources. Other countries are taking some more draconian action here. In Brazil, for example, they prohibit the models from recommending that voters vote for particular candidates. That, I think, might be a problem under the First Amendment here, but those are the kinds of things that we’re seeing in other countries.

(23:17) Let me just ask you a closing question, and that is: you talk about various attitudes toward AI and predictions about its future use and its benefits and its costs, and you create a range that goes all the way from boosters to doomers. I think that speaks for itself. As you think about the development of this technology—the success of efforts to regulate it, or the lack of success of efforts to regulate it, its continued extraordinary development—how do you see those trade-offs, of course, between costs and benefits? Are you more on the booster side or the doomer side, or how would you characterize your view of the future here?

As we’ve been talking about the effect of AI on democracy, we’ve been focusing principally on elections, but what we call a democracy problem could include massive unemployment as a result of the new AI economy. It could be AI-inspired cyberattacks on electrical grids on Election Day. All of the other—I’ll say garden-variety, but really serious—AI problems have an incarnation when it comes to democracy.

This is the summer of AI doomerism, even here in Silicon Valley, because of what happened with OpenAI’s agents escaping their sandbox and hacking into Hugging Face, which has now led to revelations that this has happened really thousands of times, sometimes on government websites. I think there is real concern right now that the model developers cannot control the technology that they are developing. Even they are advocating for pauses. OpenAI just recently decided not to release the next Astra model because they were worried about safety.

I am very concerned about the development of this technology, particularly the pace at which it is happening. And I think that it very well may cure cancer. It will have downstream beneficial impacts. Even in the election realm, election officials can use it to communicate with voters. Candidates who don’t have resources can now use AI to develop campaign ads and jingles and all kinds of things they might have had to pay consultants for before. I don’t want to understate the benefits, because I think they are going to be significant.

But this is an incredibly rocky time right now. These next two years are going to be absolutely central to charting our AI future, because the model developers say they are on the brink of what we call recursive self-improvement, where the models basically develop the next generation of models. If we don’t wrap our heads and laws around this process now, it is going to be too late in a short period of time. While I wouldn’t call myself an unrepentant doomer at this point, I would say that I am concerned.

On that sobering note, I think you are going to play a huge role in this debate, and thank you for all you do on it. Thank you very much for joining Executive Functions for this conversation today.

Thanks for having me.

Mentioned:

• The American Voting Experience: Report and Recommendations of the Presidential Commission on Election Administration (Presidential Commission on Election Administration, January 2014)

• “Ballot Mail For Federal Elections,” final rule, 91 Fed. Reg. 54966 (United States Postal Service, August 21, 2026)

• Edward M. Kennedy Institute for the United States Senate and Robert J. Dole Institute of Politics, Bolstering Funding and Practices for Resilient Elections: Sustainable Funding and Models of Success at the State and Local Level (June 2025)

This is an edited transcript of an episode of “Executive Functions Chat.” You can listen to the full conversation by following or subscribing to the show on Substack, Apple, Spotify, or wherever you get your podcasts.

Bob Bauer: Good morning. I’m pleased to have as our guest on Executive Functions today one of the nation’s true experts, very engaged with this year’s election but an expert on the American election system generally: Tammy Patrick, with whom I worked on the Presidential Commission on Election Administration from 2013 to 2014. She was a star member of our commission, and we got to know each other then.

She had been Federal Compliance Officer at the Maricopa County Elections Department for 11 years and has been involved in election administration since 2003. She is currently the Chief Executive Officer for Programs at the Election Center, the National Association of Election Officials, and she also has been teaching as an adjunct at the University of Minnesota.

Tammy Patrick: It’s exciting to see you again, Bob. I always love having our conversations.

It’s excellent. So let’s start, because you have such extensive involvement with election officials around the country, with the question: At this stage of the preparation for the election, what are you hearing generally from election officials across the country? What’s uppermost in their minds? What are their principal concerns? What level of confidence are they expressing in the quality of the preparation they’ve been able to undertake? Let’s begin there.

Excellent, and I really appreciate starting with our election professionals, because they truly are the experts in where we stand and how prepared we are for the next election and the ones after that, because our election procedures are iterative. We’re always striving to improve on this great experiment. So just recently, a couple of weeks ago, the Election Center, the National Association of Election Officials, had our annual conference in Kansas City, and everyone there was resilient and steadfast in their preparations for the upcoming midterms.

I think it’s important to realize that for every election, there’s going to be something that comes up, whether it’s a hurricane, a wildfire, litigation, last-minute legislation, some change in a rule, or a change in a polling location. There’s always something that election officials need to pivot and adjust to. So when we think about election administration, we think about having contingency plans, and it’s not always just having plan A, B, and C. Quite often, it’s D, E, F, and G as well.

And so in this moment, election officials are really breathing a huge sigh of relief about the Postal Service rule, but realizing that there are still some challenges with delivery and transportation routes. So they’re encouraging voters to still participate by mail or absentee if they choose to, but to take early action and get their ballots back early.

And they’re making sure also that we get back to the basics. Every election is so complex and detail-oriented, and the details matter. So they’re making sure that they’re getting back to basics, and that they’re ensuring that all of the boxes are checked, the t’s are all crossed, the i’s are all dotted, names are spelled correctly, no one’s left off the ballot. Those are the types of errors, human errors, that are going to happen, because it’s always something.

I often say that everything old is new again, but with a twist. So in this moment, we’re looking at how misinformation will be leveraged, how fear and chaos will be inserted into the procedures, and what election officials can do to make sure that voters still feel confident and are able to get out and exercise their very, very critical right.

And in this respect, can you say a little bit about something that gets confused in the public dialogue: the difference between an imperfect system, in the course of which errors may occur, and a system that somehow isn’t functioning to produce the real winner—that by error, or by rigging, or by some chain of events, somehow somebody emerges who didn’t in fact get the most votes. That’s a distinction that sometimes gets lost, and I’m sure election officials have to address that concern all the time.

That’s such an important distinction, because it is the case that if there were a mistake or an error that affected the outcome of an election, that election would be re-held. And we’ve seen that happen across history. But a small error might have an impact on the total number of ballots counted, or the total number of votes. As long as it’s not affecting the outcome of the election—and the goal is to make sure that our communities are able to select those who will represent them, as well as weigh in on certain questions of policy and practice—as long as that is not affected, then the system holds. The true reason for having an election has been successfully administered.

It’s when there are issues that might affect the actual outcome—and this is where we’ll talk a little bit about some of the checks and balances in a minute—that we have processes in every single state. If there are questions around the legitimacy of an election, and there is evidence (we have to have the evidence!) then any individual in most states has the opportunity to take those claims to court and have their day and their say on why they believe the election was in fact not legitimate.

So let’s return just very briefly to something you said, which I think is the foundation for an understanding of this process as a whole. You used the term “the complexity of the process.” I recently tried to pin something down. In fact, it was at your Election Center conference—not the last one, but the one before that, I believe, in Salt Lake City—where Ben Ginsberg and I spoke, and we asked any number of election officials: How many voting jurisdictions—separately administered voting jurisdictions—are there in the United States?

And we got multiple different answers and a good number of “I don’t knows.” It appears that number is somewhere between 10,000 and 12,000. So can you talk a little bit about the complexity as it relates to the decentralized character of our elections?

It’s important when we think about elections to realize that across the landscape of the country, it’s such a patchwork, and the question that we ask and the terms that we use are going to inform what the answer is. So for instance, what a local election official is called varies all across the country. They might be a clerk, an auditor, a supervisor, a recorder, a registrar, a probate judge. There are all of these different terms. What do we call a ballot that’s cast before Election Day? It might be in-person absentee, it might be early voting, it might be vote by mail. There are all of these different phrases, and sometimes they mean different things from one state to the next.

And so when we look across the country, it’s important to know that our U.S. Constitution says that the states are responsible for the time and place of our elections, and how each state has decided to dole out—to share—those responsibilities is really up to the state’s constitution and its statutes. So in some places, it is the chief election official at the state level—the secretary of state, lieutenant governor, state board—that’s tasked with many of the administrative duties of conducting the election. But for the vast majority of our states and our commonwealths, it’s actually at the local level.

The reason we don’t have a specific number is that in some cases—in New England, in Michigan, and in Wisconsin—they conduct their elections at the hyper-localized level, at the municipal level or the township level, and they can have hundreds of election offices in one state alone. I think in Michigan and Wisconsin, it’s something like 1,831 in one state and 1,553 in another. And it changes, because annexations and consolidations and all of these localized government pieces can change even the number of election offices we have.

That’s why, when we think about all of those election offices across the country, it’s important to note—and these are a couple of my favorite data points, by the way—that 34% of our election offices don’t have a full-time employee. That’s because 75% of our local election offices, those small rural locations, serve only 8% of the country’s electorate. And thankfully the numbers are exactly the opposite on the other side of the spectrum: 8% of our election offices, our largest urban jurisdictions, serve 75% of the nation’s voters. So we have a situation where large jurisdictions often have hundreds of employees and small jurisdictions don’t have a single person designated to full-time work.

The one thing that they all kind of share, however—I did a report last year with the Edward M. Kennedy Institute and the Robert J. Dole Institute, Bolstering Funding and Practices for Resilient Elections, and it was interesting to learn—is that all across the country, no matter what size the office is, they’re under-resourced. Most often, our election offices’ budgets are a fraction. In fact, there’s an Auburn study in that report that noted that the average election office budget among those surveyed was one-half of one percent of the county’s entire budget. So even if you doubled the elections department budgets in those counties—and this was the average—it would only be 1% of the county’s entire budget, because there’s tension at the local level. You’ve got law enforcement, health concerns, public safety—all of these things that are in competition with one another for resources.

And unfortunately, oftentimes people think that elections only happen every two years, or even sadder, only every four years, but that’s just not true. It’s an ongoing effort to make sure that our voter rolls are maintained. Every day people turn 18, they get married, they change names, and we have a highly mobile population. So we have to make sure that our election officials are provided the resources and the tools to best serve their communities.

That’s very helpful. Another noted feature of our system of administration in the United States is the role of officials who are elected to the office on ballots on which they affiliate with particular political parties. And so people ask the question: Well, doesn’t that mean you have political control of the elections, and what does that mean for the outcome? I recall that the Presidential Commission on Election Administration said specifically that may be the case, but the administration of elections is a facet of public administration that needs to take place—and around the country does take place—on an impartial, professionalized basis. Tammy, can you comment on that?

So half of our local election officials are themselves elected. The remaining half are either appointed politically or hired as public servants under government merit rules, that sort of thing. One thread runs through all of those types of hiring and staffing of our election official positions: No matter how you get to that office or that role, once in that role, it is imperative that you serve the entire community of voters you’re responsible for.

I had the great fortune of serving under Helen Purcell, the county recorder, during my time in Maricopa County. Everyone there—the entire office, dozens of people—was of varying political parties: Democrats, Republicans, Libertarians, Green Party, unaffiliated. That’s the important part of our patchwork of administration: There are checks and balances from having individuals of all political affiliations present, whether they are doing the tasks at hand of administering the election or being there as an observer, as you mentioned.

That transparency and oversight and checks and balances happen laterally—at the polling place, you have poll workers of different political parties, you have observers of different political parties—and they also happen vertically. That is, you have individuals with oversight over the county. The state oversees and checks, so that if there’s a rogue election official who allows unauthorized individuals access to the systems, that person is held accountable and perhaps tried for felony criminal activity. Or if you have, for instance, county boards that say they’re not going to certify the outcome of an election because they just don’t believe that it’s true, or they believe in their “gut” or their “heart” (and these are in quotes here) that the outcome is not correct, even if it has been audited and recounted and hand-counted, that’s where it’s important to have those checks and balances, to make sure that there’s a backstop in the courts and that we have legitimacy across the board.

So it doesn’t matter as much to me whether the person got to that office by being elected or appointed or hired. The most important thing is: Are they there to uphold the oath that they take, and are they there to ensure that eligible voters have unimpeded access and that only eligible voters are able to participate?

And I will say that when I started in this work 23 years ago now, back in 2003, there were concerns about insider threats—what happens if there are individuals trying to have an outsized influence on the outcome of the election—and there was a lot of pushback for a very long time, because we had no examples of that actually manifesting. But unfortunately, in this moment, we do have examples of just that very thing. And so in this moment, our institution is really being tested to make sure that the infrastructure we have in place to protect against these types of intrusions or vulnerabilities is in fact holding. Have we inoculated the system sufficiently? If there is a single individual or a couple of individuals, will the checks and balances make sure that they don’t have that outsized influence on the final outcome of an election? Time and again in the last few years, we have seen that yes, the system is holding and identifying these individuals and making sure that they don’t have that outsized influence. So I’m hopeful that for the November election, we continue to see our institutions hold in that way.

Let’s talk about another potential source of influence that’s very much on people’s minds: the role that the federal government has either sought to play, or announced that it may wish to play, in the administration of elections—setting rules and using law enforcement authority to influence how rules are shaped as well as how they’re enforced. What are you hearing from election officials about their concerns about this fairly dramatic shift in the conditions under which they operate? How do you see this affecting the way election officials think about this year’s elections and what they need to do to prepare successfully for them?

So I’ve been at the Election Center now—this is going on my fourth year, I guess—and at every one of our events, I tend to ask them, “What’s keeping you up at night?” That’s a question we all love to ask each other. And in the last year, the number one topic on the word cloud has been federal intervention. So this is very much on the minds of state and local election officials, and it’s playing out in a couple of ways.

One, they’re concerned about any sort of individuals being at the polling place and whether that would be seen as obstructing or suppressing turnout. They’re concerned about the withdrawal of some of the federal support we had previously from Homeland Security and from CISA. There were all sorts of tabletop exercises conducted up until last year, and all of that has stopped. They’re concerned about the requests from the Department of Justice for voter rolls and voter materials, and the confiscation of voter materials. That has never happened in the United States previously in this way.

And I will say that we’ve seen a new twist in the last week. There’s a news release that comes out called electionline.org, and there was a report on Monday that the Department of Justice had issued an email or a memo regarding a couple of counties in Georgia that were producing materials in a language other than English—which of course is required under Section 203 of the Voting Rights Act when you have a certain population of individuals who have limited English proficiency. The fact that we have election offices providing materials to American citizens so that they understand the process is now somehow something that our Department of Justice sees as needing investigation, that to me is deeply troubling.

So this new role of the federal government is something that election officials are definitely concerned about, regardless of their own political party affiliation, because our Constitution is really clear that it’s up to the states, and the states decide how much of that responsibility is shared with local government in conducting our elections. They’re making sure that they have spoken with their counsel, whether it’s the state attorney general or their county attorney or the city attorney: If someone shows up and says they are a member of a federal agency and that they have authority to take our voting equipment or access the ballots, or whatever the claim is, how do we know if it’s true, what do we do to respond, and who should we notify?

So this is the type of preparation that we’re at in the United States of America. And I will say, for individuals who have observed elections internationally for years, this is the sort of behavior that gave them concern in other countries, and I don’t think anyone ever thought we would have to contemplate it in the United States, and yet that’s where we’re at. So I think it’s really important that the general public is aware that in their local office, in their state office, and in state and local offices all across the country, there are election professionals who are resilient and steadfast in making sure that their laws are upheld and that the rights of voters to participate will be taken care of.

Yes. By the way, it’s also worth noting, and no doubt this has registered with the election official community, that the courts have provided significant protection against federal government overreach. The voter roll cases, for example: The struggle over control of voter rolls, which is a state responsibility, has been adjudicated decisively in favor of the states. The federal government has lost some 24 consecutive lawsuits [26 as of Oct. 1] on the voter roll front. Obviously, as you pointed out earlier, the federal government was prevented from instituting a postal rule that would have had an effect, a potentially dramatic effect, on the transmission of election mail in this election, and there are other examples I could give.

I’m assuming—but tell me if I’m wrong—that the role of the courts so far has probably instilled some confidence within the election administration community: that, as painful as this experience may be, there are remedies they can look to that have proven to be effective in our judicial system.

Yeah, election officials are prepared to conduct the election under the laws of their state and the rules of engagement they have been given. They’re not usually the sort of individuals looking to influence those rules or change those rules. They are truly the referees. In this moment, I think they are thankful that when a challenge has been taken up to the booth or to the courts to check and verify whether something was legitimate, the rulings have held—that our traditional, historical balance of powers has held. I think we’re hoping for that to continue.

I was asked a question recently in another context, and we can close on this point; this has been extraordinarily informative and helpful. I was asked: If you had one thing, one statement to make to the voters at this stage in the preparation for the election, looking ahead to the voting in November, what would you say? You have one piece of wisdom you want to impart, one piece of information you want to leave with them in advance of the election. What would that be?

I love that question, because I think it’s important for voters to realize that our ability to participate is our superpower. It’s the great equalizer. It’s something that we all have as soon as we become eligible, and we are all equal in our ability to have our voice and our say in our government and our policies.

So I think in this moment—when we know there are challenges, there are those who are seeking to sow chaos, there are still foreign adversaries who want to amplify messages of confusion—we should take a moment and take a deep breath. The election has already started. So figure out your plan, the same way we did in a global pandemic and the way we should for every election. What is your plan to vote? What are your options? Have those options changed? Because they may have changed for a wide variety of reasons.

And take early action. If you want to participate in this election—and I hope that everyone does, because yet again it’s another important election—it’s important that you take early action. That way, if a challenge or a problem or an issue arises—if your voter registration isn’t current, or the ballot doesn’t get to you in the mail as early as you had wanted—you have plenty of time to recover. If, however, you wait till the deadline for everything—if you wait to mail back your ballot, or you wait to drop it in a drop box, or you wait to go vote until the last hour the polls are open—you’re limiting your chances to recover if there are any issues. So take early action. Make sure that you wear your cape, because voting, as I said, is your superpower. And hopefully we have really high turnout and wide margins, because that’s the other piece in this election.

The last thing I want to end with is that we may not know some of the projected winners on election night, because we never have official winners on election night. There isn’t a single state that announces winners officially on election night. Those are the press projections. When the press projects the winners, that’s because there’s a wide enough margin of victory and they’re comfortable doing so. We’re going to have a lot of close races, so we may not have projected winners until we have the official winners, and official winners might not come for days or even a few weeks. That’s normal, because after the election we have audits, we have ballot curing, we have ballots still coming in from military and overseas voters that were postmarked before Election Day. So that’s all normal. Don’t let anyone tell you that it’s delayed or it’s slow or that there’s some sort of rigging happening. If you have questions, get involved and reach out to your state and local officials.

Tammy, thank you so much. You’ve been at this for so many years, so successfully, and with a reputation across the political divide for integrity and professionalism. So thank you for all you do, and thank you for what you’ll continue to do from now until Election Day and beyond. I really enjoyed having you with us today.

Thanks, Bob. It’s so great to see you.

Mentioned

• Bob Bauer, “The Illegality of Trump’s Taxpayer-Funded ‘Public Service Announcements’,” Executive Functions, Sept. 28, 2026

• The ‘publicity or propaganda’ rider, Pub. L. 119-75, div. E, § 718

• GAO, Principles of Federal Appropriations Law, Ch. 3

• Office of Legal Counsel, 28 Op. O.L.C. 109 (2004)

• Antideficiency Act, 31 U.S.C. § 1341

• Hatch Act, 5 U.S.C. §§ 7321–7326

This is an edited transcript of an episode of “Executive Functions Chat.” You can listen to the full conversation by following or subscribing to the show on Substack, Apple, Spotify, or wherever you get your podcasts.

Jack Goldsmith: Good morning, Bob.

Bob Bauer: Good morning, Jack.

The White House has recently aired pro-Trump TV ads with the label “Paid for by the U.S. Government,” and the funds come from the Department of Homeland Security. Many Republican members of Congress, including Senate Majority Leader John Thune, have objected that political ads shouldn’t be funded by taxpayer dollars. So today, as is our wont, we’re going to talk about the legality of this scheme. But can you start us off by telling us what these ads were?

So far, there are three ads. Apparently, roughly $2.5 million has been spent on them. There was intense airing of one of those ads over the coverage of the National Football League on Sunday—the ads were run some 340 times, apparently.

And they are ads that are short takes, very heavily focused on Donald Trump, prominent in lauding him—if you will, praising him. That’s the fundamental function of the advertisement, with some musical background. In one case, the musical background is from a song entitled “Love Me.”

And the administration has responded by saying that these advertisements are to remind people of the importance of patriotism and loving their country—I’m paraphrasing. And as you point out, the question has been, how in the world can the United States government, in light of the applicable law and fundamental intuitions about how government money should be spent—how could the administration possibly be doing this?

And I’ll just conclude this point by saying the administration has apparently set aside a substantial budget for this and says there is still more to come.

When you say they set aside a substantial budget, you mean they set aside a substantial budget from within the government?

Correct, from Homeland Security, apparently. And the last number that I saw was $20 million.

Okay, so this is coming out of the DHS budget. And what does the law say about using federal funds for these kinds of partisan ads? First of all, is it clear that this is a partisan ad? Let me ask you that.

One of them is, it seems to me, very clearly, because it essentially draws on, and in some cases duplicates, campaign material from prior campaigns—a speech that he gave at a rally. It’s not clear whether it was pulled together from different occasions or one particular occasion; I’m less sure about that. But there’s no question that that’s what it is. It’s the adaptation of a campaign ad for these U.S. government, taxpayer-paid purposes.

What does the law say about this? The law says the following. An annual appropriations rider has for many years provided that appropriated funds cannot be used for, quote, “publicity or propaganda.” And the [Government Accountability Office] and the Office of Legal Counsel have fleshed out what type of communications would be considered propaganda for these purposes. They fall, just very briefly, into three categories.

First of all, self-aggrandizing material that is focused not on providing information but on somehow the importance or the significance of a particular official or program within the government—something, again, that is just self-aggrandizing. Secondly, partisan political material. And thirdly, a category that is called covert propaganda. That essentially addresses propaganda that is clearly that, but the source of the funding is not disclosed to the viewer.

So do these ads violate that law?

Yes. In my view, they clearly do. The fact that the U.S. government acknowledges it’s paying for it—and we can discuss why the administration is being so frontal about this; it’s just proceeding in the face of all this criticism to continue to do this—the fact that there has been disclosure doesn’t address the fundamental legal issue. The question is, is it propaganda? And all three of the ads that have so far been run—the “Love Me” ad, one that has to do with the Maduro capture, and one that has to do with the so-called “Final Battle,” which is essentially a battle, I guess, for the soul of the republic that Donald Trump leads—all of them violate either the self-aggrandizement provision or, alternatively, that provision and also the one that prohibits partisan content.

Okay. So what about the Hatch Act? Doesn’t it apply here as well? And what is the Hatch Act?

The Hatch Act generally prohibits executive branch officials from using their official position or influence to engage in partisan activities, to influence partisan political judgment—voter judgment. And there are certain lines that are drawn between activities that are permitted to them off duty and activities of a political nature that they absolutely cannot engage in while on duty. The question of the application of the Hatch Act to this seems to be more complicated.

For one thing, the president and the vice president are exempt from Hatch Act restrictions. The question then becomes, what about the people who’ve assisted in preparing the advertisement? And I think that’s a more complicated question. I’m not saying it doesn’t apply. I just think that application is a little less clear. I think the application of the anti-propaganda law is very clear.

Okay, let’s stick on that one, then. So it has been a common theme in the last 18 months. The question is, there appears to have been a legal violation, but what, if anything, can be done about it? Is there a legal enforcement mechanism here? This is a violation of an appropriations rider. So does that mean that the administration, if our interpretation is right, is spending unappropriated monies?

That’s correct. It’s violating a condition on the use of public funds that puts it in violation of the Antideficiency Act, which provides that the government cannot spend money that has not been appropriated for that purpose—in excess of lawfully appropriated funds for that purpose or for any purpose.

What is the penalty for spending unappropriated funds?

It could be criminally enforced—we can get into that question—but that has not happened. Typically speaking—and I’m now going to speak about how GAO has seen the resolution of these anti-propaganda law violations—as a kind of Antideficiency Act violation, that is supposed to go to the Office of Management and Budget, and the Office of Management and Budget is supposed to work through the way in which that violation is investigated and ultimately remedied.

However, of course, there’s no reason to believe—since OMB is a party to this particular violation, the administration is claiming it isn’t a violation. Anything that the Government Accountability Office has to say on this topic really doesn’t matter. And the Office of Legal Counsel, of course, are executive branch lawyers, and there’s no reason to believe in this administration that they are going to give an opinion that is adverse to the administration’s desire to pursue this program.

And even if they did, which they won’t, the president will just ignore it.

I mean, this is like what we’ve seen so, so many times. It’s the bad man theory of executive power. It’s okay to act clearly unlawfully if you can get away with it, basically. Is that right?

That’s correct. I mean, this is a challenge that essentially the administration is throwing down, even in the face of bipartisan criticism, even in circumstances in which the president, through various allied organizations and the political party, has tons of money—extraordinary sums of money—that it’s in the middle of spending on the midterms. The administration’s decided to spend millions of dollars of taxpayer money on what is obviously propaganda in violation of federal law, and it does not appear to be retreating in the face of the criticism.

So I have to say, this is a massive puzzle to me. I can’t explain it other than a desire for an executive power flex despite adverse political consequences. As you just said, the administration and the Republican Party have plenty of money. They’re loaded. And we’re not talking about huge numbers here from the government, I think, compared to the money that they have. Is that right?

That’s correct. I mean, we’re talking about—again, on reported numbers—$2.5 million spent to date and $20 million potentially budgeted, at least so far, for the program as a whole.

So what they’re basically doing is spending taxpayer money in the middle of a difficult campaign when they’ve got plenty of money otherwise, clearly violating the law. It’s been criticized by senior members of the Republican Party in Congress. It can’t be a good message that the president is spending taxpayer money in this way, when his own party is criticizing it, in a difficult election where people are hurting. So what’s going on? Why are they doing this?

Well, I suppose, given the reporting that he’s intensely interested in this and is actually picking the ads from any number that are put in front of him—I don’t know exactly how the process works—he’s picking the ads that he likes. It’s he we’re talking about in this situation. He has decided he wants to do this. And this is not dissimilar from other steps he’s taken to essentially solidify his position, communicate graphically his position. This is my government, and I can do with it what I want. It seems to me this is not dissimilar from tearing down the East Wing of the White House. It’s not dissimilar from other monument-building activities that he’s engaged in or is looking to engage in in the city of Washington—the dispute over the Kennedy Center, putting his name on the building, and his continuous fight over court-ordered removal. It just seems like he is insisting on saying, I can do this, and you can’t do anything about it.

Even if it hurts the party in a difficult election and is ultimately going to hurt him. In some ways, I think he enjoys flexing the ability to violate the law and get away with it even more when it doesn’t even seem to be a political advantage.

Yes. Yeah, I think we increasingly see that—the same problem that the party as a whole is having with his insistence, for example, on having a midterm convention in Texas that many Republican candidates did not want to attend. They did not think that essentially an encomium to him over a two-day period, with, I think, two speeches that he gave, was precisely what the doctor ordered in this election, and he did it anyway. He’s taking the position that people don’t recognize that he’s done a phenomenal job, and that he’s doing it because he’s a powerful, strong president, and therefore he’s going to emphasize what a good job he’s done and how much power he has, which includes the power to do this, and nobody can stop him from doing it.

It’s amazing to me that there’s nobody in the White House that can talk him out of this. It’s just extraordinary.

Oh, it’s interesting that you say that, because the other day—and again, I don’t believe any names were attached to this particular set of comments, apparently within the West Wing—but it was reported that when some question was raised about why doesn’t somebody restrain him, essentially the response was a shrug of the shoulders. There’s nothing we can do about it. He’s the boss.

He’s the boss, and he’s leading us off the cliff.

Yes.

Thanks, Bob.

Thank you.

Mentioned:

• “Shadow SEC Statement No. 13: Insider Trading Institutionalized,” CLS Blue Sky Blog (Columbia Law School, September 8, 2026)

• Bob Bauer and Jack Goldsmith, After Trump: Reconstructing the Presidency (Lawfare Press, 2020)

• “Complaint,” in The Intercept Media, Inc. v. Trump, No. 1:26-cv-6867 (United States District Court for the Southern District of New York, August 12, 2026)

This is an edited transcript of an episode of “Executive Functions Chat.” You can listen to the full conversation by following or subscribing to the show on Substack, Apple, Spotify, or wherever you get your podcasts.

Jack Goldsmith: President Trump regularly breaks news on his social media platform, Truth Social, where he posts market-moving presidential and White House announcements. The company now sells faster access to those posts for up to $100,000 a month. The advantage is apparently just 50 milliseconds, but that is enough to benefit traders.

To date, the early access has attracted more than a dozen subscribers. The arrangement effectively lets Trump profit off the presidency. Can this arrangement possibly be lawful?

To answer that question, I’m delighted to have a conversation with my Harvard Law colleague John Coates, the John F. Cogan, Jr. Professor of Law and Economics. John served as general counsel of the Securities and Exchange Commission, and before coming to Harvard, he was a partner at Wachtell Lipton, specializing in financial institutions. John, thanks for chatting with me.

John Coates: Happy to be here, Jack.

So did I accurately describe what Trump Media is selling, and is there more to say about that?

Yes, I think you captured it. If you pay roughly $1.2 million a year to Trump Media, you get Trump’s Truth Social postings ever so slightly before they hit the public website. And Truth Social, of course, is Trump’s primary way to talk to the public.

In fairness, just one little nuance: it’s not Trump himself selling this access. It’s Trump Media. He did create that company. He only owns 41% of it. He’s not an officer of it. His stock is in a trust. His son is the trustee. He’s the sole beneficiary of the trust, and Trump can revoke the trust at any time. So I say all that just to be fair. But nevertheless, yes, I think you captured it correctly.

So that’s good. But given that financial arrangement, is it fair to say that he is an ultimate beneficiary, at least in part, of this $100,000-a-month fee?

Yes. He’s directly profiting through his indirect ownership of Trump Media.

John, outside the Truth Social context, isn’t selling low-latency access to already public information a standard business practice done by Bloomberg, Dow Jones, and the like?

Yes. I mean, even 50 milliseconds of a timing advantage is commonly paid for by third parties in the markets. The easiest example is arbitrageurs who are trading in two different markets and see the same asset being traded at slightly different prices. They buy in one, they sell in the other, and the faster they can exploit that gap, hopefully before anybody else does, the more likely they’re going to profit from that. And so they’ll pay millions to co-locate—to physically locate their computer systems very close to the source of whatever information they’re trading on.

But here’s the difference between that, which is pretty common, and what’s going on here. In those situations, the public information is being both produced and sold by a for-profit company, typically either a news source or a market like the New York Stock Exchange. And selling access is something they’re entitled to do. They’re selling the right to get their information in a way that they can profit from the most.

Here, the information that’s being sold certainly doesn’t belong to Trump Media. And I don’t think it credibly belongs to Trump himself either. He’s functioning in a public role when he makes many of these announcements. I suppose you might divide his posts up into those that are just him ranting about his personal things—and maybe that has an effect on the market, and maybe you treat those differently—but when he announces over his posts that we’re going to war, he’s not announcing that as a private citizen or as a businessman. He’s announcing it as president. And that means that someone who’s profiting on that is indirectly paying him to trade in the market ahead of the public, on information that belongs to the public, on a differential basis.

Okay, there’s a lawsuit brought by The Intercept and the Freedom of the Press Foundation against Trump’s media company, alleging First and Fifth Amendment violations. But you wrote a really interesting post about why this might be an insider trading violation. Can you explain that? What’s the relevant law here, and why might this be an example of insider trading—if that’s even the right phrase?

Yeah, no, you’ve captured it. So the SEC, the Securities and Exchange Commission, where I used to be—I should disclose I was there in the Biden administration, so I’m not a neutral observer about all this. But I’d like to think I’d say the same thing if it were Biden doing this.

The SEC has long prohibited insider trading through a rule, among others, called Rule 10b-5. The Commodity Futures Trading Commission, the CFTC, does the same thing through its own rule in the derivatives markets, where, say, oil futures trade. One part of both bans says that anyone who’s in a fiduciary role, who’s got trust relationships with other people—a corporate CEO or corporate director is the most typical, but also lawyers and even priests, anybody who’s got some trusting relationship—cannot misappropriate information from whoever they owe the duties to.

In the case of the CEO, if it’s the CEO’s own company and he owns all the stock, fine, he can do whatever he wants. But if he’s CEO of a public company, he owes duties to all the shareholders of that company, and he can’t trade on information that he learns in his role as CEO of a public company without violating Rule 10b-5. Now, there are some exceptions and some nuances to it. But basically, that’s the law.

Now, further, Congress got tired of people complaining about them trading in the stock market. And so they finally passed something called the STOCK Act, which explicitly links the SEC rule that I just described, as well as the CFTC rule, to public status as a member of Congress, as well as to any federal government employee’s role as an employee, including specifically the president. And it says in that statute that these people are fiduciaries for purposes of their government roles, and they’re subject to all those insider trading laws, just like a CEO of a public company would be.

That’s basically the violation. It’s sort of straightforward on some level. If it were a different government official doing this, one the current administration didn’t like, they’d have ample legal room to go after them.

I just want to underscore something you said, because you said a lot of things there. The STOCK Act expressly applies to the president, which is really important for a whole bunch of legal issues. That distinguishes it from lots of other laws, and it arguably gets around a general rule that the president is not subject to criminal or civil statutes that don’t name him explicitly. It explicitly names him.

Yes.

And just say again: What’s the fiduciary duty that it describes?

I mean, it basically just cross-references, explicitly, the SEC rule, the CFTC rule, and all the case law that’s accumulated under them. And one thing you might be thinking here is, well, Trump himself is not trading. But that doesn’t matter, fundamentally. The way the insider trading law that’s hooked to the STOCK Act works, it’s not only the people trading in securities or futures based on material nonpublic information that they get from an insider, a fiduciary, who are in trouble. Likewise, the fiduciary is in trouble if they leak it in a way that they know is going to be used that way. And even worse, if they’re being paid money for that tip—if they’re a paid tipper—they’re just as liable under insider trading law. And therefore, through the STOCK Act, that same set of obligations applies to, take your pick, the speaker of the House, the ranking member on the Senate side, the president.

Trump Media has denied that it’s doing anything illegal here. Has it addressed the insider trading idea?

It certainly has not spelled out any public theory as to why it somehow is exempt. It’s pointed to the thing you asked me about a few minutes ago: people sell early access to private feeds of information all the time. And that’s true. And if that were all that’s going on here, it’d be fine. If it were Truth Social posting something about itself and selling early access to that, and the profit from those sales flowed to the company, they’re entitled to do that, just like Dow Jones could do.

But that’s not this, right? This is an investor in that company who’s also the president selling advance information—not about the company, and not even about his own personal views, but about things he’s about to do on behalf of the public, the nation.

Can you give us examples of the types of things that he has mentioned on Truth Social that might affect markets?

I mean, the war is the easiest, just because oil futures jumped 5 to 10% that day. So if you traded about $25 million 50 milliseconds ahead of anybody else, you’d have earned back the fee for the whole year from that one trade, because the price jumped up that much that day.

But other things—tariffs are clearly market movers in some contexts. There are both companies whose securities move and commodity prices that respond to them. Even if in the end the tariffs turn out to be unauthorized, in the meantime they’re having an effect, and that’s affecting asset prices. So that’s another category. Every time there’s an announcement about the pending war—or wars, I guess, at this point, given the number of countries involved—that will have an effect on diesel price futures. Any of these announcements has the capacity to move markets, because the U.S. is a causal force in the world.

It’s not likely—in fact, it’s impossible—that the Trump Justice Department or the Trump Securities and Exchange Commission is going to do an investigation, much less a prosecution or a civil action against the president. But in theory, before we get to immunity theories and pardons and things like that, is it possible? I mean, what’s the statute of limitations under this law, and is it possible for the next administration to enforce this law, in theory?

Yes. I mean, the default federal statute of limitations is five years, so it goes beyond the current presidency. And that’s the same also for SEC enforcement of its insider trading rule. So the liability, in theory, could extend well into the next administration. Whether a future SEC would have any interest in going after Trump personally after he stops being president, I don’t know.

And this law can be enforced criminally and civilly?

Yes, it’s got both criminal and civil components. The civil side has private rights of action attached to it. Those have shorter statutes of limitations. It’s basically two years from knowledge or five years from when they should have known. So it depends a little bit on how close you are before those suits could be brought. For the SEC, for civil actions, it’s five years.

So you spent a lot of time in your post talking about Trump v. United States, the immunity case, and the very complicated discussion in that case about immunity, which turns on public acts versus private acts. I don’t really want to go into that because, as you said, it’s not clear that Trump will be prosecuted after he leaves office. I think that the discussion of the line between public and private acts in Trump is incoherent, and I think it’s kind of impossible to predict whether immunity would attach if the next administration decided to prosecute.

I’ll just say that Nixon v. Fitzgerald, which is the case that established absolute immunity for the president from damages for official acts, to the outer bounds of his official acts committed in office, left open the possibility that if Congress specified that the president was subject to the law in question, and it was being enforced against him, he might not have immunity. And so it strikes me that if there’s going to be—and I agree that it’s not clear there would be any interest in this—but if there’s going to be a post-Trump legal action against the president, it’s much more likely to be civil, both because of Nixon v. Fitzgerald and because the pardon power, or a self-pardon, wouldn’t apply there. Does that make sense to you?

It does. And the main reason for thinking about the immunity stuff is more that if you were a third party and you were worried about aiding-and-abetting liability, or you might yourself be viewed as trading on material nonpublic information through this channel, you might make the argument that if Trump was immune, then somehow I’m immune. So it may come up even in a civil case, even one not against Trump.

But I agree, and I think that’s where the enforcement risk is greatest currently. One thing I haven’t mentioned: New York has its own version of this law, the Martin Act. The people paying for this feed right now are probably, some of them at least, in New York. If I were their lawyer, I would at a minimum be warning them to do this in a clear-eyed fashion—to recognize that they’re taking on significant risk as a result.

Just to underscore the obvious, I think we’re just going to see massive pardons at the end of this administration.

Everyone: “Can I get a pardon?”

Everybody conceivable, for every one of these schemes going on.

I think it’s going to be in the thousands, if not the tens of thousands. And I mean that very seriously. But that’s not going to help someone subscribing to Truth Social who’s prosecuted, or has a civil suit against them, under state law.

That’s exactly right. And there are also the private lawsuits that I don’t think the pardon affects either.

Could you just say a word about the private lawsuits? Who might bring those claims?

I mean, if you’re a counterparty—if you’re someone who sells slightly after some of these privileged buyers of the feed trade, so that you’re likely trading against them, and your price is therefore affected by their trade, and you can show that with data, which often you can if the price jumps are big enough—you can claw back, and sometimes get a multiple of, what they’ve gained from that. It’s probably not what’s happened to date, but as we approach the end of the administration, or possibly, if there’s a state-level action, even before then.

So we might see a Democratic-controlled Congress, or at least one house, at the end of this year, and we might see a new presidency in 2029. Looking at the situation, is there anything in these laws that you would change to prevent this kind of action? Or is it just that the law is there, but the problem is enforcement?

I think it’s mostly the second. I think it’s mostly, frankly, in the domain of your earlier book rather than in securities law or derivatives law. The one exception to that may be just completely nailing down the ethical constraints, because there’s the extra stuff. Remember, I said he’s got this in a trust, right? But it’s a revocable trust. Let’s actually make the president take all of his businesses and put them into a real trust with a third party, where he really has no control or influence over, or even knowledge of, what they’re doing. That would obviously be one way to avoid this particular mechanism.

Okay, John, that was very elucidating. Thank you very much.

Happy to be here, Jack.

Mentioned:

• “Order denying application for stay,” in United States Postal Service v. California, No. 26A305 (Supreme Court of the United States, September 14, 2026)

This is an edited transcript of an episode of “Executive Functions Chat.” You can listen to the full conversation by following or subscribing to the show on Substack, Apple, Spotify, or wherever you get your podcasts.

Bob Bauer: Good morning. I’m here to discuss yesterday evening’s court ruling in the Postal Service case involving election mail. I’m not here as I normally am with my colleague Jack Goldsmith; this time I’m solo, and I’m just going to make a few brief observations about the case.

The first is that we are conjecturing about the future to some extent when we try to draw out the implications of the case, because not much other than by the dissent and briefly by Justice Kavanaugh was said. The court in its ruling found that there was a likelihood that the plaintiffs—that is to say, those challenging the government—would prevail on the merits, and that the normal factors that are weighed in determining an application for a stay like the one the government filed weighed against the government’s position. And that’s all it said, very briefly. Justice Kavanaugh had some more to say about his position, but again in very brief terms, and then a somewhat longer position was expressed by Justices Alito and Thomas in their dissent.

However, it seems to me that if we are going to abstract from the case and engage in a little bit of conjecture, we might conclude that this is a significant signal that eleventh-hour interventions in the electoral process are going to be viewed by the court very skeptically. And this ties back to various considerations that the court has been bringing to election cases, most notably in a case called Purcell v. Gonzalez. The Purcell case only applies to federal court orders late in the cycle; it does not apply by its terms as an equitable doctrine to the executive branch and any actions that the executive branch may take. But in that case and other cases, including one recently involving a candidate challenge to election rules, in a case called [Bost v. Illinois State Board of Elections], the court made clear that there are considerations unique to the election context: that as an election draws nearer, there is sensitivity to what legal developments may mean for the stable administration of the process and the potential disenfranchisement of voters.

In a 2020 case, for example, Justice Kavanaugh said—and I’m now paraphrasing—that it was important that the rules of the road be clear and settled before an election, and discussed the consequences if in fact they are not. I think that ties back to his concerns with the timing of this final postal rule, if it were to go into effect on a record that certainly suggested that it would have a destabilizing effect on the administration of the elections, that it might fail in certain respects to be implemented accurately, and that the results might be widespread disenfranchisement. So I think this question of timing is of great importance, because we don’t know what the administration might still do between now and election day.

A second comment that I would make relates to the record before the court, and I can’t stress this enough. There was an enormous measure of bipartisanship, including red-state election officials advising the court that even if they were not going to express themselves on the merits of this final postal rule, they just did not see that it could be implemented, or that they could comply with it, in the time between now and election day. This is extraordinarily important—to have some common ground about the destabilizing, disruptive effect that this final rule, if it were allowed to go into effect, would have on elections. So I think that’s extremely important.

A third observation: we don’t know whether in fact this rule will ultimately survive and become applicable in the 2028 elections. That’s simply unknown at this point. We know only that it’s not going to affect this election, and the question of what will happen next is an open question. But certainly it seems likely that this administration will pursue the implementation of the rule for the presidential and congressional election cycle of 2028.

That’s all we know, and yet it is encouraging to election officials around the country, and that’s both Democrats and Republicans, that their concerns will be taken into account, and the needs they have to prepare in some kind of systematic manner that ensures competent administration and is fair to voters.

And I would just close by saying something that is surprisingly missing from the dissent, but that is not missing from a district court decision the day before yesterday, on the Sunday before this ruling on Monday evening—a decision issued by a Trump appointee, a district court judge, in [a parallel] case: Judge Nichols. Judge Nichols also, in granting the preliminary injunction, found that it was defective on the merits, and that in balancing all the factors that go into determining whether emergency relief to the government was warranted, he concluded that the government’s case had in fact failed. But in weighing the public interest, Judge Nichols said that the right to vote is fundamental, and that the voters’ interest here—voters’ interest in avoiding confusion, voters’ interest in avoiding the potential that ballots would be disqualified in the rush to implement this rule—those were interests that had to be weighed very heavily in the balance. That’s missing from Justice Alito’s dissent. But I can’t help but think that as the election draws closer, it will be very much on the minds of the Supreme Court and other courts as they contend with other cases of this kind that may arise at the eleventh hour.

So those are some preliminary observations. Have a good day.

Mentioned:

• “von Glahn v. Hoskins,” No. SC101805 (Supreme Court of Missouri, en banc, September 3, 2026)

• “Order finding the secretary of state in civil contempt and purging the contempt,” in von Glahn v. Hoskins, No. SC101805 (Supreme Court of Missouri, en banc, September 10, 2026)

• “Brief of amici curiae 38 current and former state and local election officials,” in United States Postal Service v. California, No. 26A305 (Supreme Court of the United States, September 9, 2026)

• “Justice Department to Conduct Election Monitoring in Florida and Wyoming Primary Elections” (Department of Justice, Civil Rights Division, August 18, 2026)

• Maggie Mullen, “Gov. Gordon concerned by ‘aggressive’ DOJ election observers during Wyoming's primary election” (WyoFile, August 28, 2026)

This is an edited transcript of an episode of “Executive Functions Chat.” You can listen to the full conversation by following or subscribing to the show on Substack, Apple, Spotify, or wherever you get your podcasts.

Jack Goldsmith: Good morning, Bob.

Bob Bauer: Good morning, Jack.

As the fall congressional elections approach, there’s growing evidence that President Trump and his allies’ efforts to shape the midterms, from attacks on mail voting to aggressive gerrymandering, are meeting resistance even from some Republican quarters. Does this reflect growing Republican wariness, as polls show dissatisfaction with Trump’s performance? Does it reflect the practical problem that ballots have been printed or mailed, and that states are running out of time to alter election procedures? Or is it something else? That’s what we’re going to discuss. And so why don’t we start off by, Bob, just telling us what the main elements are of this Republican resistance, which might not be widespread, but it definitely exists.

Yes, we’re seeing some of it. Just how pervasive it’s going to turn out to be, and whether it’s going to intensify before November, is an open question. But we’ve seen it in a remarkable case in Missouri, having to do with an attempt to force a gerrymandered 2025 map onto the November ballot, to govern voter choice in that election. We see it in Republican resistance to the way that the Civil Rights Division is deploying and instructing observers for the primary elections here.

And we can expect to see those observers again in the general election in the fall. And we can see it also in an amicus brief that was filed in the election mail case, now pending before the Supreme Court, by some 38 current and former state and local election officials from some very red states. And so in all of those cases, we see pushback from Republican quarters, in different ways, in different forms, to the way that this denialist program has been launched on the part of President Trump and his allies.

Okay, let’s start with the Missouri case. What’s going on there?

There you have an action by the Missouri State Supreme Court to block a Secretary of State from engaging in some very aggressive legal maneuvering to ensure the gerrymandered map was used for the November elections. That map was adopted in 2025. However, the court held that a referendum on that map was going to go on the ballot, and the effect of that referendum is to make it impossible to use that map until the voters have rendered a judgment on it. And that would mean that a 2022 map, not the one Republicans prefer, would control in this year’s election.

And that court is a court that is dominated by a Republican majority. That is to say, five of the justices were appointed by Republican governors. So that’s a very interesting case, because that was a unanimous ruling.

And when it went up to the Supreme Court of the United States, because the supporters of the 2025 gerrymandered map fought it up to the Supreme Court of the United States, twice the court turned them back. Justice Kavanaugh, in one instance, without even referring the denial of the application for relief to the full court, and then on referral to the full court a second time as well.

And what was the primary legal ground for not allowing the 2025 map to prevail?

The question was whether or not the referendum that was to be put before the voters by petition; whether that referendum actually operated to disqualify the use of the 2025 map, whether it in effect suspended that 2025 map and required an earlier 2022 map to be used. And the court was unanimous in ruling that the referendum had to go onto the ballot with that effect. That is to say, that the 2025 map could not be used until the voters made a decision about it.

And that was, of course, in direct opposition to what the Secretary of State, a Republican, had concluded. But what was most interesting is that the court, again unanimously, found that the Secretary of State in that case had engaged in some very sketchy behavior to attempt to, in effect, get his scheme across the finish line. And they were pretty critical about it.

And when all was said and done, his behavior landed him in a contempt proceeding before the Missouri State Supreme Court. They found him in contempt. They concluded that once he’d relented and agreed that their earlier ruling stood and that the 2022 map was going to be used, he had essentially purged himself of the contemptuous conduct. So there were no further consequences to him, but they actually found him in contempt.

Okay. What about the second matter, involving the Civil Rights Division? What’s going on there?

So the Department of Justice does send monitors out to observe elections—I want to put the emphasis on observation—to determine, for example, whether or not elections are being conducted in a way that appears to comply with the requirements, say, of the Voting Rights Act and other federal election laws. And remarkably, observers that went out to Wyoming, reddest of red states, ran into significant conflicts with Republican officials in that state, because they engaged in behavior that really doesn’t fall under the category of traditional observation.

They were interviewing voters. They wanted to examine equipment. Long and short of it is, they were engaged in what appeared to be some kind of invasive audit or pre-investigative activity. The governor of the state, a Republican, said that this conduct was aggressive and disruptive. And local officials objected equally strongly and said that it was an intrusion into the state electoral administrative process that was unacceptable. So that’s the second case.

And where does that stand right now?

That stands in, essentially, objection rendered by the state, and the Department of Justice will or will not act on that objection in conforming its conduct to it, in other states or in Wyoming, in the future.

Okay, how about the amicus brief in the postal case? Was this filed by red states only, or is it a brief involving lots of red states?

It involves a lot of red states. Reading from the [complete] list: Kentucky, North Dakota, South Dakota, Georgia, New Hampshire, Kansas. [Those six are the states’ secretaries of state—including Georgia’s Brad Raffensperger—joined by Utah’s lieutenant governor, Deidre Henderson, who serves as that state's chief election officer. In the brief’s words: “Many Amici are Republicans. Several were elected to their offices on the Republican line, and several serve in Republican majority jurisdictions.”] Thirty-eight, as I said, former and current state and local election officials. They didn’t take the position that this final postal rule (that would put the Postal Service for the first time in the position of controlling and potentially objecting to the transmission of mail ballots); they didn’t take the position on the merits that the rule was necessarily illegal if implemented for a future election. But they took the position very strongly that this rule could not be implemented for the 2026 election. They said it would be effectively impossible to comply with without major confusion for voters and election officials. It would be disruptive to the electoral process. So that’s actually quite remarkable as well.

So Bob, what’s going on here? I mean, maybe there are a lot of things going on, but you spend a lot of time, I think, with state and local officials, election officials who have to do the hard and complicated work of running these federal elections, including in red states. So can you just give us a general sense of what the sentiment is among those officials about some of the Trump administration approaches to the fall elections? I mean, is there a general sense? Can you make a generalization about what officials in red states think about this, or is it varied?

Well, it varies, in one sense in that there are certainly some red state officials who support the administration’s, if you will, election denialist program. They think the system is flawed and rife with at least the potential for fraud. On the other hand, there are Democratic and Republican officials, and those in the professional election administration community affiliated with both parties, who have had enough of this.

Their job is a very difficult one. They’re under-resourced. They operate under tremendous time pressure and very unforgiving public expectation about how elections are going to go. And they are finding that the attacks on them, on the process—the suggestion that the system is being either maladministered or is outright corrupt—is offensive to them.

Now, what’s going on here? Who’s to say? Part of it is they cannot put up with this when they really are in the final stages of preparing for the election. And when I say final stages—in some states ballots are going out now or have just gone out. Ballots are being printed. I mean, rules are being set for the conduct of this election. So that’s part of it. It’s just a fundamental resistance to having this disruption at this time.

But who is to say what’s working more broadly in the background here; at long last, Trump and his allies on this subject may have just completely overshot the mark. And maybe in the background there’s less tolerance for it, because of the widespread frustration generally reflected in the president’s disapproval ratings, or his approval ratings, widespread dissatisfaction with the way the government is performing, and therefore less tolerance for his preoccupations with these elections. I suspect that is a factor. I can’t prove it.

But this is really significant, because if you’re going to find much more resistance here on a bipartisan basis, that could be very consequential for controversies that are going to almost certainly await us in the remaining two months of the election, on election day, and immediately thereafter.

So just a last question. Could you follow up on that about—I mean, is this the beginning? There are lots of skirmishes going on. We see more and more examples of this. Is this just going to continue to grow between now and November? Is that inevitable? Legal skirmishes about mail-in ballots, about how the election is going to be conducted, about the federal government, through the federal executive branch, through various means, trying to intervene, using its law enforcement discretion in the election. Do you expect to see significantly more examples of this?

I think you’d have to assume that’s the case. You’d hope it wouldn’t be. You can’t be sure. But there’s no reason to doubt it. I mean, Trump was at it again in the so-called midterm convention in Dallas the other day. He’s given a national address on the topic. He’s addressed the party and the nation at the midterms on this topic.

He is preoccupied both with the potential of losing the midterms, and also with his belief that at least some of the reason for that is going to be—if not all of the reason—a fraudulent election system that just prevents Republicans from winning unless Democrats fail to cheat.

So you’d have to think that at least at the federal government level—I’m going to give you one more example here as we close. At the federal government level, their attempts to push on this point are going to be at least constant, if not increasingly intense. The Department of Justice is once again threatening states with criminal investigation and suggesting that some investigations are underway, on some claim that election administration is somehow culpably failing to come to grips with the prospect of fraud. And that’s in a letter that was just again sent out in the last several days.

So this is not letting up at the federal government level. But the resistance may really be building on a bipartisan basis.

Okay, thanks very much.

Thank you.

Mentioned:

• Elizabeth Sherwood-Randall and J. Michael McQuade, Deterrence by Resilience: Securing the United States and Promoting Innovation in the Age of Bioconvergence (Belfer Center for Science and International Affairs, August 2026)

• Elizabeth Sherwood-Randall, “AI and the New Age of Bioweapons,” Foreign Affairs (September/October 2026)

This is an edited transcript of an episode of “Executive Functions Chat.” You can listen to the full conversation by following or subscribing to the show on Substack, Apple, Spotify, or wherever you get your podcasts.

Jack Goldsmith: Today we have another in a series of chats about how the U.S. government should understand and act upon the promise and dangers of artificial intelligence. My guest today is Elizabeth Sherwood-Randall, the Ashton B. Carter Visiting Professor at the Harvard Kennedy School.

Liz has had a number of important national and homeland security jobs in the government going back decades, and most recently she served as the Assistant to the President for Homeland Security and as the Deputy National Security Advisor from 2021 to 2025. Liz has just published through the Kennedy School an important new report entitled Deterrence by Resilience: Securing the United States and Promoting Innovation in the Age of Bioconvergence. Liz, thanks for joining me.

Elizabeth Sherwood-Randall: Thanks for having me.

[00:48] As the title of the report suggests, the topic of the report is the intersection of artificial intelligence and biological threats. So I think the first thing we need to talk about is: what’s a biological threat?

A biological threat is using biology as a weapon. Traditionally we think of harmful bacteria or viruses or poisons being used, and they can be naturally occurring, accidental or deliberate. What we’re facing today is an entirely different set of biological risks, an explosion of bio risks.

And that includes the supercharging of biology by artificial intelligence that is enabling the creation of synthetic viruses and blowing open the gates to access to these specialized capabilities. You used to need a PhD in biology and a highly specialized secret government lab to work on bioweapons, and that kind of work can now be done in the wild with a laptop and an AI account.

Before we talk about how AI supercharges the threat: we’ve been hearing about and arguing about the possibility of biological weapons being developed outside of official channels and with greater ease since the internet got going, really, and especially after 9/11. I imagine you’ve been working on these issues for decades.

Can you give us a sense of how one would be thinking about bio-threats before November of 2022, when OpenAI announced and released ChatGPT? What was the bio-threat environment like? What was the infrastructure and technology for bio-threats around then?

In the last decade, we’ve seen a dramatic change, Jack. There are the traditional bio-threats that we dealt with during the Cold War, largely focused on Russian programs, Soviet programs before Russian, and that has been transformed by initially the CRISPR-Cas9 gene editing technology that emerged around 2014–2015 as a genuinely powerful capability. In that period of time, I began to work on this challenge.

Was this something that could be weaponized by an adversary against us, and what could we do about it? We saw that it was very difficult for the scientific community to figure out what to do about it because, of course, scientists want to push out the boundaries of knowledge and create new possibilities that are enormously positive. And what those of us who work on national security worry about is what are the risks associated with this, and how can we manage them?

I will say we didn’t do a great job of figuring out what to do about CRISPR-Cas9, and when we found ourselves in 2022 with the emergence of ChatGPT, as you said, we began to see the rapid acceleration of the risks and threats associated with this capability that is at the intersection of artificial intelligence, biotechnology, and bioengineering. And so we are essentially not ready for what is already present, and what is coming our way is even more challenging, and we’re definitely not ready for that.

[4:02] I think you and I both read John Ellis’s morning newsletter, News Items, and earlier this week he flagged your report, and he said at the end of his description of it, you’ll want to read it with large amounts of Valium nearby. I think he was talking about your description of how AI significantly enhances biothreats. So why does one need Valium before reading your report?

I’ll give you the scary part before I give you the solution set. There are really scary scenarios. That’s why I’m working on this problem, and the examples include cyber hackers who could use artificial intelligence to corrupt the pharmaceutical manufacturing sector in the homeland so that products would be unreliable and could actually do harm.

You could have terrorists who use an open-source LLM to develop and then produce and deliver a pathogen that’s engineered for greater lethality and for resistance to known treatments, and deliver that into major American cities. You could have an adversary who is planning to launch a major military campaign and decides to do what the Pentagon would call preparing the battlefield by releasing an illness-causing disease vector into the homeland while they secretly inoculate their own population against it, and the objective of that would be to disable the deployment of the American military and cause societal panic just when unity of effort is required.

I’ll note to you on this list, Jack, that one of the things I’ve seen in my study of this challenge is that 25 years ago, next month, we experienced 9/11, and the after-action analysis of how we had failed to prevent it included as the first of four reasons a failure of imagination. What we need to do here is imagine, based on the science and technology as it’s evolving, what the potential use cases could be by a malicious actor, and then take the steps necessary to ensure that we’re ready to prevent them if we can and to respond to them effectively if we cannot.

The examples you gave, at least as you described them, were things that could have happened before November of 2022 — cybersecurity break-ins to pharmaceuticals, synthetic viruses, [et cetera]. Is the point that the availability of AI models significantly increases the likelihood of this happening? And if so, why? Is it that, or is it that adverse actors can do things now that they couldn’t do before, or is it both, or something else?

There are multiple dimensions. One is that our large language models are getting better and better. So one is just knowledge.

Second is the ability to create synthetic pathogens that we have never seen before in nature. Just this month, it was announced that a group of researchers at Stanford and the Arc Institute had produced 16 viable viruses never before known. And what we therefore have to contend with is the possibility of the emergence of things that we are totally unprepared for, that we have no solution for because we’ve never seen them.

And finally, there’s the issue of access, which I noted previously, that it’s so widely distributed. This capability is going to be ubiquitous, basically. Now, there is a necessity to know how to do some things in order to engage sufficiently with these artificial intelligence capabilities and to figure out how to direct them to generate what you need and then to get something manufactured.

But we know that pernicious actors are interested in doing harm with these capabilities. And so the more proliferated they become, the more risk is created.

Do you see the threat coming mainly from private actors who, with very few resources, can do very bad things? Or from state actors — more state actors will have more capacity now than they did before? Or both? How do you think about public versus private here?

I think we have to worry about the full spectrum of risks, honestly. I don’t think we can feel confident that any one of them will not be able to weaponize these capabilities. So first we deal with nation states and their interests in potentially doing us harm.

There we have the possibility, if we can do rapid attribution, of creating some form of deterrence, because we can threaten retaliation if we can figure out where something came from. We have to worry about individuals, both groups of individuals and lone individuals, lone wolves, who may have malicious intent. That’s harder to deter, which is one of the reasons that preparation for response is so critical, because we may not be able to deter those kinds of actors.

And we should worry about accidents as well. We know how much damage was caused by the pandemic. And if that was an accident, as many believe it was, or a naturally occurring virus, depending on your view, then we need to be prepared for those occurrences, because biology on its own can do significant harm.

What we need to be aware of is that we are talking about a kind of risk that far exceeds the consequences of the COVID-19 pandemic. You could have a much more virulent and dangerous pathogen that’s released.

Is there any way to quantify, or give us a qualitative sense of, just how much more empowered lone wolf type actors are by these models?

Gosh, I don’t think I can quantify it, but I’ll say that I think the combination of having access to these models and potentially being able to use a cloud lab — which is a lab that is established in order to produce an order that comes from potentially an individual or an artificial intelligence agent, without a human in the loop — creates a very serious risk of harm. That is, there is no break point there between the order being generated and the virus being made. In our recommendations there is extensive focus on that kind of challenge, which is how do we ensure that these capabilities to both generate and then produce in the real world a threat are limited and constrained, especially for the most dangerous kinds of capabilities.

[11:04] Let’s talk about solutions, because that’s mostly what the report is about. The report proposes what you call a new strategic framework for balancing the opportunities and risks of bioconvergence. Tell us about the strategic framework.

I think the most important point, Jack, to what you’ve just said to me is our private sector is our solution set. We cannot so constrain our private sector because of the risks that are being generated that we prevent ourselves from having access to the solutions that we need in the face of these threats. That’s really the paradox of this challenge, which is quite different from, for example, the nuclear danger that we have faced.

I’ll go through the sequence, the logic train of how I would recommend we approach this if we take the initiative to pursue a comprehensive national initiative to get ready for this. We want to prevent what we can. We want to be ready for what we can’t prevent.

We want to be sure that our private sector is strong enough to generate the solutions that we need. And through that combination of acts, we can generate deterrence. So here are the steps.

Early warning. We need a nationwide early warning system. People know about smoke detectors in their house, which give them warning of something dangerous.

We have incoming missile defense radar, which tells us when something may be coming our way that we need to disrupt or counter. We need an early warning system for emerging pathogens. We started to build that during COVID with wastewater surveillance; we need it to be ubiquitous throughout the country. That is the critical element of the equation that’s now missing. We do not have it.

And what we do have only tells us what we know. That is, it’s designed to tell us from a list of known pathogens what may have emerged, versus to recognize things that are synthetic. Second, we need a rapid response system in place, again, continuously, so that we can fuse the data that comes in from that early warning system in real time, bring it in from many, many sources, and fuse it with intelligence — so you need a classified dimension of this — so that you can figure out as quickly as possible what this is and where it came from.

If we can figure out where it came from, who did it, the attribution piece of this, then we have the possibility of creating consequences and deterrence, because if bad actors believe they can act without any consequences, then they feel free to do so. So that piece is absolutely critical, this attribution piece. And then we need to be able to generate the solutions that help us to reduce the harms of an attack, if we haven’t been able to prevent it or deter it, and to recover more quickly from it.

Those are critical elements, because if we demonstrate that we are resilient against attacks, that reduces the attractiveness of such an attack to an adversary. The juice isn’t worth the squeeze, essentially. So we must begin to be much more capable of responding than we showed ourselves to be during the pandemic.

Here is the point I made to you about the private sector. The private sector is both the source of innovation and indeed the source of some of the risk. It’s also the source of defense.

So we have to have a very substantial collaborative framework for working with the government to get this done. That is, the government and the private sector need to do more than they have ever done before together to meet the national need. And the example we have of how this worked is Operation Warp Speed, which worked effectively in a crisis.

What I’m recommending is that we do this before a crisis, so that we’re ready to go and we don’t lose any time, because time will be of the essence to save lives and reduce harms.

That’s a pretty ambitious set of proposals.

It is.

And the report lays them out in detail. You talk about an unprecedented collaboration between the public and private sector. You talk about putting these systems in place. You’re talking about a lot more government involvement. Tell me about the government involvement, the nature of the regulation, and the new systems and bureaucracies needed to make what you’re proposing work. And how do you — you talk about this in the report, but I want you to flesh it out here — how do you think about that in terms of tradeoffs against innovation? There are a couple of questions there.

I’ll answer your last question first, because it’s so important, which is that we do face a real tension. We cannot deny it exists between innovation and regulation. And given the global competition in this space, both in the AI space and in biotechnology, we have to be extremely attentive to that as we think about law and regulation.

And I will say that I think that we don’t yet see how this will work, but I can foresee a way in which it can, in which we establish a national capability that is a federally funded and authorized public-private consortium, a National Institute for Bioresilience, which would be a critical element of our response capabilities, with dedicated compute power, with a secure enclave, like I mentioned, where you could be able to integrate intelligence information and look at the most sophisticated and potentially dangerous biological models. Importantly, we’re going to have to incentivize the private sector to take the steps that it needs to take. And here I would say, to your question about innovation and regulation, in order to get this done right, we have to balance what is onerous for the private sector with the benefits that could accrue to the private sector.

There are benefits through federal procurement. There are benefits from safe havens for liability. There are benefits also to be had in having access to government facilities for doing the kind of model testing that we have already done with the frontier U.S. laboratories on nuclear and biological risk. And so this organism needs to be built that is highly interactive and continuous, where we look at ways to create a stronger private sector ecosystem that is witting of the harms that are being created and recognizes the steps it needs to take to reduce the risks it is creating, at the same time that it generates the solutions that we need. Obviously, this is complicated to do, and I do not in any way suggest it’s an easy thing, but we have done very hard things before as a nation, and this is one we have to do if we want to secure the nation.

Until relatively recently anyway, the frontier labs, the big AI firms, argued against government regulation on the grounds that it would deter innovation and that we’re in this race with China and we have to get there first. And that argument had a lot of leverage in the last few years. It’s changing now for a whole bunch of reasons.

It seems like the firms themselves are getting nervous about what they’re creating, and there’s also the argument that they actually want regulation because it gives them advantages against newer firms. Can you give me a sense, first of all, of what the large AI firms might think about this very ambitious set of proposals that would involve a lot of work and a lot of compliance?

We actually consulted with large frontier AI firms in the United States in order to produce this, because I thought it would be irresponsible not to, given the central role they have to play in our innovation ecosystem and the solution sets, in addition to the risks that they’re generating. And there I would say that the opportunity to set guidelines for pre-deployment testing and for post-deployment monitoring, for incident reporting and risk assessment and red teaming and safety testing, is something they actually want, because that gives them some right and left limits within which to work. And that’s the thing that really does need to be developed.

We need a leading role to be played by our Congress in pursuing this, and we need an administration that works collaboratively both with Congress and with the labs to achieve this, because we are trying to do this in the midst of the breathtaking evolution of the capabilities. They’re moving so fast that it is hard to measure how much they can do, and yet this is necessary in order to protect us and protect humanity.

[20:35] You mentioned Congress. Am I right in thinking that none of this can happen without new legislation?

We need new legislation, either as a National Biosecurity and Bioresilience Act, which is comprehensive with multiple dimensions, including the things I’ve mentioned with respect to setting up a national monitoring system, having the kind of attribution capabilities we need, creating the National Institute for Bioresilience. I haven’t mentioned yet the imperative of investing in our biotech sector, almost an industrial policy kind of approach to strengthening it in the face of Chinese competition. You could do it all as one big piece of legislation, but I realize that is a big, ambitious thing to do in a very difficult time to get legislation moved.

And so it’s possible that this needs to be broken out into multiple pieces of legislation that focus on different elements of this equation. A number of members of Congress have produced legislative proposals that get at some of this. And Senator Young, for example, led the National Biosecurity Commission — very important work done there. That was published in 2025.

But what is important here to emphasize, Jack, is that the synergy across these elements is essential to generating the deterrence that I’m talking about. If we can’t do all of the things I’m describing, we don’t actually have the strategic effect we are seeking, which is to change the calculus of an adversary in considering use of a biological attack.

And so that really does create, in my mind, an imperative to try to move this in a comprehensive way and demonstrate that you can’t mess with us effectively.

One paradox you face is that it strikes me that your program, for it to work, requires at least two things. It requires — and we haven’t talked about this — massive presidential leadership. Congress is not going to do this, in my judgment, unless an administration makes it a national priority and pushes it.

And I don’t think that’s going to happen, certainly not in the current administration, in my view, but I don’t think it’s going to happen in general until the threat is taken much more seriously than it is now. And there’s always a paradox, as you know, that we don’t take these types of threats seriously enough until after they occur. So am I right on both the need to better appreciate the threats much more than we do and presidential leadership, and given the deficit, if I’m right, on both, how do we get where we need to go?

This is a gloomy way of thinking about it, Jack, because you’re right that we face obstacles to getting this done in the time frame in which it needs to get done. And I worry a lot about that. It’s one of the reasons that this report is out in the world, and I’m briefing members of Congress and sharing this information to the greatest degree possible with those who are in the administration who are interested in receiving it.

Now, the Genesis Mission that the administration has launched and is pursuing is an important element of that equation, but there are many more. So yes, it means we have to rally the nation, and you do need leadership for that. And we have not yet seen that kind of leadership on this front, but we’re going to continue to work to make the case that the American people need it, and that if the United States leads, as we have in the past, we can actually have an impact globally as well.

So I’ll just add, we haven’t talked about the international dimension. You know well that pathogens know no borders. So what happens abroad can affect us very quickly at home.

Therefore, we have a real interest, a naked self-interest, in fact, in helping other countries do better. We also have an interest in working with our adversaries to create guardrails around the use of the most pernicious biological tools, and that’s something that this report also proposes. And we can lead a global effort to reduce risk, as we have done in the nuclear space for decades and where there have been real impacts as a result of American leadership.

[24:56] Let me ask you about a different type of trade-off. In order to detect and respond to and deter the development of these threats, the federal government is going to have to be — and I think this is implicit in your proposals and in any proposals along these lines — significantly more empowered vis-à-vis individuals, both in terms of surveillance, maybe of labs and the like, or of other things, and in terms of keeping lists of people and who’s doing what, and all sorts of other types of what I call monitoring. So it strikes me that inevitably, especially given the lone wolf possibility, the fact that this is so decentralized, the government is going to have to be massively more empowered to monitor in a broad sense what individuals and firms are doing, which raises all sorts of privacy concerns.

So, first of all, am I right about that? And second, if so, how do you think about that trade-off?

I would say on this point, we obviously need to approach this with the lessons learned of the past. That said, there is a lot we can do that does not go to the individual level that needs to be done. And I’ll begin with the imperative of creating this national early warning system, where what we need is anonymized data.

We need to be gathering information about what’s happening at the community level, not at the individual household level, so that we can see what is coming our way more quickly. At the same time, I think you’re right that we need to figure out to what degree we are willing to take new initiatives to get into a space in which there could potentially be a privacy risk, and what to do about that. And that should take place within the bounds of how we have learned to address the counterterrorism threat, and where we have learned there are mechanisms for ensuring that we don’t go beyond what is an appropriate protection of personal privacy.

But here we have, as often, the tension between what is good for an individual and good for a society. And if you do have an individual who is creating mass risk from what they are doing, then we need to find a way to stop it.

Liz, you spent, I think, about a year working on this problem, and about a year of work at least went into the making of this report. You obviously dived into a lot of scary corners of threat, and you don’t shy away from presenting that in the report. But you nonetheless strike me as not optimistic, but hopeful that we can address this problem. Is that a fair characterization? And if so, why is that your view?

I think part of it has to do with my nature, Jack, which is that I believe the way we tackle the problems we face is to summon all of our capabilities to do so. I have spent my whole life working on the world’s hardest problems, and they seem to me to be the ones that are most worth working on. So it is true that this is a very dark space, and there are a lot of risks, and we may not manage them all very effectively.

But if we do better than we are currently doing, we will reduce the dangers, and we will also continue to benefit from the upsides. So I would say that’s the choice I’ve made after 40 years working in the space of trying to prevent the use of nuclear weapons and the proliferation of nuclear materials, as I came out of government in my last time of public service, in thinking about where were the areas in which we really needed to apply the ingenuity of the United States, both in terms of our private sector capacity and our capacity for public leadership. This was the place I wanted to work, and I will say I benefited tremendously from having a remarkable team of leading experts and brilliant students who contributed their ideas to this initiative, and where I’m really trying to also teach these young students who are our future that when you see a hard problem, it’s better to learn as much about it as you can, and then figure out what to do about it, than just to feel more and more anxious every day that there’s nothing you can do.

And I think if we go back to the origin story of some of my work in the years in which the Soviet Union collapsed: with a small group of people working at the Harvard Kennedy School of Government, we innovated an approach in which we could really significantly reduce the risks of loose nuclear weapons, which might emerge from the collapse of the Soviet Union. An enormous amount of risk was reduced by the actions that were proposed and the collaboration with members of Congress, Senator Sam Nunn and Senator Dick Lugar, to author and enact legislation which was then implemented in the Clinton administration, building collaborative initiatives to reduce the nuclear risks.

So I think it’s possible to do really hard things, and it’s uplifting to do this work, rather than depressing to do this work, because it gives me hope that we can solve a very hard problem.

Thank you very much, Liz. Congratulations on your great report.

Thank you for giving me the opportunity to talk about it with you today.

Mentioned:

• “Ensuring Citizenship Verification and Integrity in Federal Elections,” Executive Order 14399 (March 31, 2026)

• “Ballot Mail For Federal Elections,” final rule, 91 Fed. Reg. 54966 (United States Postal Service, August 21, 2026)

• “Trump v. California,” No. 26A124 (Supreme Court of the United States, August 24, 2026)

• “California v. United States Postal Service,” No. 1:26-cv-13917 (D. Mass, complaint filed August 26, 2026)

• “Supplemental complaint of the Democratic Party plaintiffs,” filed with an unopposed motion for leave, in DSCC v. Trump, No. 1:26-cv-01114 (D.D.C., August 25, 2026)

• “Supplemental complaint of the LULAC plaintiffs,” filed with a consent motion for leave, in LULAC v. Executive Office of the President, No. 1:26-cv-01132 (D.D.C., August 25, 2026)

This is an edited transcript of an episode of “Executive Functions Chat.” You can listen to the full conversation by following or subscribing to the show on Substack, Apple, Spotify, or wherever you get your podcasts.

Jack Goldsmith: Good morning, Bob.

Bob Bauer: Good morning, Jack.

Today we’re going to discuss the Trump administration’s efforts to use the post office as leverage to impose executive branch standards on mail-in ballots and maybe some related requirements in connection with federal elections. You’re an expert on this, so please tell us what’s going on and how we should think about it.

Certainly. Let me give some background on the litigation currently in progress. Earlier this year, the administration issued, the president issued an executive order with three prongs to it. One, directing the Department of Homeland Security to develop a state citizenship list pursuant to a policy of attempting to identify non-citizens who would not be eligible to vote. Second, to prioritize law enforcement to protect against criminal violations of our voting laws. And third, to direct the postal service to initiate a rulemaking that would impose certain requirements on the transmission of ballots through the mails.

There were immediately lawsuits, a lawsuit in the District of Columbia, lawsuits in Massachusetts. They were brought by various parties, political parties, voting rights groups and 23 individual states, alleging that the executive order was unconstitutional and that any rulemaking of the kinds that the president was directing the postal service to develop would also be outside his legal authority. Injunctions were entered that found very specifically the executive order to be unconstitutional and that also enjoined the postal service from proceeding with a rulemaking of the kind specified in the executive order. And the Supreme Court ultimately heard this on the emergency docket and concluded that in fact, the case was not ripe for review. On standing and ripeness grounds, it concluded that it was not going to reach the merits of the matter. And it made a point of saying that it wasn’t expressing or implying an opinion on the merits. Two dissenting opinions filed, one by Justices Kagan and Sotomayor and the other by Justice Jackson.

On the Friday before the Monday that that opinion was issued, the United States Postal Service then issued a final rule and specified the kinds of requirements that it would impose as a condition for transmitting ballots through the mail. Now, with the final rule having been promulgated and with the Supreme Court having ruled, the challenges have been refiled. And there are cases currently pending by various parties, both in the District of Columbia and again, before the District Court in Massachusetts.

So that’s the state of play. And I want to talk a little bit about what’s next, but I’ll pause right there.

Before that, let me just ask you, so here’s what I understand the big 40,000-foot picture is. Basically, the Constitution gives Congress and the states the authority to regulate federal elections. And the executive branch is given no independent authority to regulate federal elections. And as I understand it, the Trump administration is trying to use its control over other things. And in this context, the post office, which is an executive branch agency, and it’s trying to leverage its power over the post office to weasel its way into regulating the federal election. Is that basically the 40,000-foot understanding of what’s going on here?

Yes. This is the second of the executive orders that he’s issued to, as the administration would put it, to ensure election integrity in the United States. Another one was previously issued in 2025, and you’re quite right. He is trying essentially, and I’ll put this carefully, by claiming that he’s merely exercising law enforcement authority. He is, so the challengers would say, and frankly, in my opinion, I think it’s true, looking to try to coerce the states, pressure the states, influence the states into adopting approaches to election administration and rulemaking policy that under the Constitution, he doesn’t have the authority to initiate directly.

Okay. Before we get to what you think of the likelihood of success for the plaintiffs in the litigation, what is the Trump administration’s goal here? I mean, they don’t like mail-in ballots. They think mail-in ballots hurt Republican candidates. They’re looking for advantages in the fall election. Is that it, or is it a broader disruptive goal, or is it both, or something else?

It’s a number of things. First of all, it’s a talking point. I think there is a wish on the part of the government to lay the foundation for claiming that any Democratic successes this fall are the product of a rigged election. We’ve heard the president say that Democrats don’t win unless they cheat, and he gave a national television address in which he said we have a corrupt and deeply flawed voting system that we can’t rely on. So they’re pushing that point in a variety of ways, including through taking executive actions of this nature. Secondly, we shouldn’t discount this is a personal preoccupation of his.

And thirdly, you’re quite right. One of the great concerns on the part of the challengers to these various administration initiatives is that it is going to foster voter confusion. There’ll be pressure on states to respond and uncertainty about what the rules will be. And as the court has said in other contexts, that kind of voter confusion can have an effect on the willingness or the comfort that voters have in participating in the electoral process.

But is the premise that the voter confusion will asymmetrically hurt the Democrats, is that the idea?

It will certainly undermine confidence in the election in the sense that he will claim later that it might have been rigged, whether or not he’s correct, that it will benefit his voters is very much open to dispute. As you know, many Republicans effectively tore their hair out over his attack on mail-in voting in 2020, and they believed it had the effect of depressing Republican turnout through the mails and adversely affecting his prospects in the election. So it may be here his personal whims or impulses or beliefs completely overcome the best political judgment he might have as the leader of his party.

Okay. So the Supreme Court said too early. The post office issued the final rule. We now have amended complaints and new complaints challenging the post office’s final rule as illegal. What do you think? Who’s going to win and how long is it going to take to get there?

One, I think it’s going to move very quickly. I think, in fact, I’m reasonably confident, but I obviously can’t predict that the U.S. Postal Service will be unable to impose these particular requirements as a condition for transmitting ballots to voters. It doesn’t have the authority to do that, in my view, and he doesn’t have the authority to direct them to do it. Whichever way you look at it, it’s illegal. And I’m quite confident that will fail. I’m less certain that some of the other attacks will necessarily succeed.

The government will argue that they’re assembling the so-called citizenship list internally for internal purposes. They’re not requiring the states to use it right now for any particular purpose. By the way, there’s an answer to that. We can discuss that and a deep concern about how these lists could be used. But that will certainly be their argument is that this is just for internal uses that need not concern the courts. Secondly, I think the administration is going to be able to successfully argue most likely that it can prioritize and always does prioritize law enforcement goals and that there’s nothing there that on the face of it poses any constitutional problem. There’s an answer to that, too, and challengers have made an argument against that. But I’m not sure those latter two are going to be nearly as vulnerable as I am certain the USPS rule will be.

Okay, so on the USPS rule, and the basic argument is that the executive branch just doesn’t have the authority under the relevant statutes, the post office statute and the constitution to issue a rule of the sort making these requirements?

That’s correct. To identify categories of a particular kind of mail and particularly election mail that it will only forward to voters or permit to be forwarded to voters if they meet certain specifications. If they’re on a list based on the final rule that’s recently been published, that list would control whether or not the postal service would agree to transmit these ballots. And there is, I don’t see any legal basis for it at all.

Independent of that, I don’t understand how these ballot requirements about the envelopes and the other requirements, I don’t see how they can be implemented in three months. Can you talk about that? How challenging is it? I mean, their state laws, I assume, have to be complied with before the state officials can change mailing ballot procedures. And even if it were lawful, and I agree with you based on what I understand, that it’s doubtful that the post office rules are lawful. I don’t understand how the states could possibly implement this in three months.

I don’t know how the executive branch could plausibly implement it or if it implemented it, anybody would have any confidence that the mechanisms for the development of this list and the review process by which it was determined whether these ballots could be mailed could ever justify any confidence, be free of error, which would, of course, be catastrophic to rush something into place that could cause any number of individuals to be unable to vote by mail as provided by their state’s laws.

And on the state side, there are enormous complications, including costs, facing election officials who have to prepare for elections on an extremely tight timetable. And many of them, incidentally, have printed ballots and spent money to do so. Some smaller jurisdictions use stocks of pre-printed ballots. It’s extraordinarily disruptive.

Yep. Well, that will take care of the standing and ripeness problems. There’s clearly injury in fact now. So anything else you want to say about the litigation? I mean, you mentioned that you thought the challenges on the other two issues were less likely to succeed, but there were concerns there. Can you talk about this?

Well, I’m less sure. Here is the fundamental problem. When the Supreme Court looked at the executive order, they decided to break each and every prong of that executive order that was under review into sort of separate buckets and analyze them separately. First came the state citizenship list. Then came the law enforcement prioritization. Then came the Postal Service proposed rulemaking, now final. What the challengers have said is you have to connect all of this.

The state citizenship list, of course, is one way that the federal government has begun, and it’s articulated this in various ways, has begun to tell the states, we’re watching you. And we are going to have our own view of who’s entitled to vote in these elections. And if you don’t agree with us, if you fundamentally are unwilling to cooperate with us in the management of your voter rolls to prevent illegal voting, we are going to resort to criminal prosecutions. It’s going to be hanging over your head. And I do think, by the way, that is the strategic thrust of these executive orders.

Now you can break out these pieces and justify each one of them on some legal theory, not the Postal Service prong, but the other two prongs. But the interrelationship of them, I think, is the only way to look at what the administration is trying to accomplish here and the disruptive effect and potential disruptive effect on voting that these executive orders and this last one in 2026 will have. But I do think the courts may break them out and the Postal Service rule will fail. I think the law enforcement prioritization prong will likely survive. Not sure about that. Because of the way the court is looking at it. And the same for the state citizenship list, where the government is going to be arguing, we’re just developing this. States can cooperate with us, not cooperate with us, but either way they can’t stop us from these internal preparatory steps that we’re taking to address our responsibilities to enforce the voting laws.

And could you just say a few more words about I take it that there’s a federal law the federal government is threatening to enforce that concerns facilitation of illegal voting in a federal election. Is that right? I mean, is there a federal criminal statute that covers that type of behavior such that this is another leverage point of the executive branch? They have the power to enforce criminal law to prosecute. So is there a law of that sort that they could potentially prosecute that’s lurking in the background? I take it there is.

Well, there’s one, most centrally—but there are other criminal laws that bear on the voting process—the federal prohibition on non-citizen voting in federal elections. And that’s a criminal prohibition. That’s correct.

Yeah. It strikes me that this is the big threat that the executive branch really has, because it’s very hard for courts to monitor and to certainly enjoin the executive branch from exercising prosecutorial discretion to investigate and enforce and prosecute under federal criminal laws. And that strikes me as a very powerful leverage point, independent of the election power, although it is enforcing election laws, that the executive branch has for disruption. Now, I take it that this power threatened before the election would be exercised after the election. And there may be, it may be groundless, of course, but it does seem like a serious federal power that a state official would be worried about. Is that fair?

Absolutely. I mean, this is an administration that has espoused very openly that the president controls the conduct of the Department of Justice. Essentially, it has to follow his dictates on any issue that he cares sufficiently about that he issues any such dictate. And so you have to worry about how the prosecutorial power will be used in aid of the president’s preoccupation with non-citizen voting, which he has said repeatedly is pervasive when all the data indicates that that is simply not true.

I also want to add the threat in advance is one of the various ways the administration is trying to leave its footprint all over these elections. That also has an effect right from now through election day. And I think this is one of the, one of the larger facets of this, the larger significance of this entire episode, which is what happens between now and election day. And you’re right, there are all sorts of things that could happen afterwards. But what happens between now and election day, if the administration continues to try to roil the electoral landscape, to create uncertainty, to raise questions about whether the voters should have confidence in the electoral process, what other steps, other executive orders, other administration official announcements might be made that could have a pretty dramatic impact on the electoral process. And there’s going to be a race into the courts. There’s already been a significant amount of litigation, not just on this particular issue. And that is also a powerful tool in the kit of a president who’s determined to wage war on an electoral process that he’s declared to be fundamentally corrupt and flawed.

Okay. And wrapping up, let’s go back to the litigation that’s happening now in the district court. You said it was going to go quickly. This raises a question. It’s late August now, the election is a little over three months away. There’s a principle in Supreme Court jurisprudence called the Purcell principle, which says that federal courts cannot intervene too close to an election if the intervention basically would cause confusion about what the rules are in the election. I worry that that principle is in theory going to operate here strongly to the government’s advantage, that I can just see it now that there’s going to be this challenge. The first thing the government’s going to say is, sorry, you can’t challenge this. It’s too close to the election and it would cause confusion. Now, this is something that happens. It’s an equitable doctrine. It tends to come up in the emergency relief, interim order relief context. What do you think about, how does your claim that this is going to go quickly intersect with the Purcell principle? What is your understanding of it?

In this case, the Supreme Court has very specifically stated that it understands that there’s a challenge to the merits of the USPS rules, just to focus on that for a second, but that it came to the court when it wasn’t ripe for decision when there were standing problems. I don’t think there’s any question that the court will hear this case and resolve it on the merits. Again, it will be on the shadow docket. It will be resolved on an emergency basis, but the court will address it. I’m not worried about the application of the Purcell doctrine, which in any event, I don’t think the Supreme Court views itself as being bound by. I think this is a lower federal court equitable doctrine.

I’m not worried about this particular case. I do think there are other circumstances in which there is activity by the executive branch, potentially by state legislatures, election officials with emergency rulemakings under various state laws that are going to raise the question of whether in fact there’s been an abuse of the electoral process that’s going to foster the kind of voter confusion that the court was concerned with in Purcell. The principle, granted, applies only to lower federal courts. The broader policy is one. The broader concern is one that should apply and should inform the claims that are going to be made against this kind of disruptive behavior. The lawsuits that will be filed will certainly rely on Purcell to say that this kind of effort to alter or reshape the rules close to the election has really significant costs and those claims are going to be cast in constitutional and other legal terms.

But who do you think is going to make the Purcell argument there?

Well, in those cases, again, I’m going to look at the administration’s sort of chaos-inducing strategies. If there’s another executive order, for example, or there are specific actions by DHS with the use of the citizenship list in what appears to be an attempt to affect the way elections are conducted in this cycle, I think that the arguments that are going to be made by challenging those actions are going to be informed by the view, this is way too close to the election to be permissible. It’s going to have a dramatic effect on voter understanding of the electoral process and on the incidence of participation. And I think that that’s what we have to be most concerned about as this litigation unfolds over the next few months.

Yep. So we don’t need to go down the Purcell path more. I just want to say, I think it’s clear that the doctrine on Purcell, again, without getting too much into it, is confused. They’ve suggested that the government can do something late, and any confusion caused by that is not implicated by the Purcell principle, because the Purcell principle is about federal court intervention and about understanding how the equities get balanced. So again, I’m not disagreeing with you necessarily. I’m just saying I think that Purcell is going to play an important role over the next couple of weeks in figuring out whether the lower courts and the Supreme Court are going to halt this rule and which parts of it.

I want to just clarify one point. I absolutely recognize Purcell applies to lower federal court interventions. But when I say the policy behind Purcell, the court talks, and I’m literally quoting from it, about considerations of this nature that are unique to the electoral context. And those considerations, by the way, also shaped a recent court decision about candidates’ standing to challenge election rules in a case called Bost v. Illinois. So the court is aware that the election context is a unique one for the evaluation of interventions in the electoral process that have the effect of altering rules close to the election. And that would apply, it seems to me, logically to interventions by others than just lower federal district courts, although granted, as I said, I think that would inform rather than shape the kinds of claims that would be made in response to those kinds of late minute or last minute interventions.

Yeah, I’ll give you the last word on that. Thanks, Bob.

Thank you, Jack.

Mentioned:

• “Can State Prohibitions on Election Interference Constrain Federal Actions?” by Danielle Friedman, Bryna Godar, and Emily Lau (State Democracy Research Initiative, University of Wisconsin Law School, July 17, 2026)

This is an edited transcript of an episode of “Executive Functions Chat.” You can listen to the full conversation by following or subscribing to the show on Substack, Apple, Spotify, or wherever you get your podcasts.

Bob Bauer: This is Bob Bauer with an edition of our video chat on Executive Functions, and I’m pleased to welcome Danielle Friedman, who is the legal director at the University of Wisconsin Law School’s State Democracy Research Initiative. We will be talking very specifically about state laws that may apply to prevent various forms of federal government interference in elections, a topic obviously being very much discussed right now as the midterms approach. But first, let me welcome Danielle.

Danielle Friedman: Hi. Thanks so much for having me.

It is a pleasure. And let me give you a brief introduction of Danielle. I mentioned that she’s currently director of this project at the University of Wisconsin.

She practiced for many years privately, and some of those years with me, in the areas of campaign finance, voting law, and election administration. She also was the chief of staff to the head of the Office of Intergovernmental Affairs in the White House. There, she was the primary point of contact with secretaries of state and state attorneys general.

Danielle now has been leading an initiative that is doing some extremely interesting work. Our focus today will be on a piece recently produced—we will have a link on the site to the piece—about potential state laws that apply to prevent federal interference in elections.

So, Danielle, let’s begin with the basics. The piece opens by noting that there are state criminal laws that would appear to apply in various ways to address federal government efforts to interfere in elections in three identified categories.

One would be the deployment of ICE troops or other armed forces to polling locations.

A second would be disruption of mail-in voting, potentially through the refusal of the United States Postal Service to pass mail on, under various criteria, to otherwise eligible voters.

And a third would be, as we’ve seen in Fulton County, Georgia, with respect to the 2020 election, the potential seizure of voting machines and ballots on some claim by the federal government that an election has been rigged or hacked, but otherwise can’t be counted upon to produce a reliable outcome.

So let’s begin, first of all, with the whole question of whose responsibility it is to police these matters. What is the constitutional allocation of authority for elections? Because I think we should set that up first.

Sure. And thanks again for having me. Excited to be here and chat about all of this.

So, as you mentioned, we sort of focus on three areas of anticipated federal overreach as we head into the November elections. I think that’s relevant because we’ve heard from various members of the federal government, from a lot of commentators, and even from court documents that these kinds of activities are things that it’s worthwhile to prepare for at this point in time. And so that’s why we’ve honed in on those three areas.

And just setting up some of the framework for this discussion, it has been very well established that the Constitution gives the states primary authority for administering elections. The federal government plays some role if Congress passes laws that preempt what states want to do in that space. But the executive branch, and the president in particular, don’t have any role in actually administering elections, despite this administration’s attempts to do a lot of things with respect to the election.

They play no role from a constitutional perspective. I think it’s also important just to note that much of the activity you just described is actually prohibited under federal law. There are federal laws that specifically prohibit troops or other armed forces from being at polling locations.

There are federal laws that prohibit any kind of intimidation or interference in the voting process for voters and election officials. But clearly, given the tenor of the administration’s approach here, there is legitimate worry that not only will the federal government not enforce those laws, but they may be overtly ordering violations of those laws.

Beyond that, there are DOJ practices that have served as an important guardrail in the past. The DOJ manual on federal election prosecutions has specifically stated that the government won’t interfere in an ongoing election. That manual no longer exists on the Department of Justice website.

So there’s fear that not only will there be non-enforcement of the law, perhaps overt orders to violate the law, and a real change in pattern from what the Department of Justice has done in the past when investigating election crimes, but that it will try to insert itself into an ongoing election, which would really change things.

And that is why turning to the states and thinking about what levers the states might have to stop some of this behavior in its tracks, and to ensure that everyone at the state level understands what the competing state laws are, is a really important thing for us to be doing at this time.

Let me ask you one quick clarification point. The president doesn’t have authority under the Constitution to make rules for elections. And the constitutional gap that this or any other administration might wish to use to fill the absence of that authority is the claim that it is enforcing federal law.

It gets involved with troop deployments, potential interference with the Postal Service’s delivery of mail ballots, or the seizure of machines, not because it claims it’s engaged in rulemaking authority—although this president has come close to making exactly those claims in the executive orders issued in March of two consecutive years, 2025 and 2026—but because there are federal laws on the books and the president is simply doing what a president with executive authority should do, and that’s enforce the law.

Is that a fair statement of where the executive branch would go in a constitutional contest?

I think that is a fair statement of where the executive branch might go in terms of its arguments for its own authority.

I think we’ve seen some of that begin to play out in court. For example, the Department of Justice is suing a number of states and demanding access to their voter rolls under a number of laws—the NVRA, HAVA, and the Civil Rights Act. We’ve seen the courts thus far universally not be sympathetic to those arguments and to reject them.

But I think that’s one indication that the federal government is beginning to test the boundaries of those laws in exactly the way that you described.

Okay, so let’s proceed to the state criminal law landscape. Give us examples of the types of state criminal statutes, and the variations in them across the country, that might conceivably apply if the states were to resist federal government interference in the categories we’ve been discussing.

Sure. So let’s start with troops or ICE at the polls, which is something that people talk about very regularly as a concern for the November election.

A limited number of states actually have laws on the books that specifically address federal law enforcement or federal military presence. Those laws are fairly easy to understand. In states like Pennsylvania and California, they simply say that law enforcement presence, including federal law enforcement presence, is prohibited at the polls.

Many more states have laws that are a bit broader and generally prohibit any military presence or law enforcement presence at the polls, with some exceptions if local or state election officials ask them to come in response to a particular disturbance.

Now, those laws are quite broad. They don’t necessarily define military or law enforcement presence as either state or federal officials. I think this is an important time to recognize that these laws, in many instances, have not been applied to federal officials in the past.

So there isn’t a lot of precedent here. The reason for that is fairly obvious: the level of federal overreach being considered here is itself unprecedented. These laws simply have not had occasion in the past to be considered as they apply to federal officials.

But this moment, and the anticipation of the November election, demands a rethinking of some of these laws and perhaps some clarity around how they might apply. It’s not because they don’t apply to federal officials that they haven’t been used that way in the past; it’s because the level of activity from the federal government is so unprecedented and unlike anything we’ve seen before. Thinking about these laws in a slightly different way is therefore a necessary thing for the states to be doing. That will be true of almost all of the categories of state law I describe here.

So that leads into another category of laws that may apply to troops or ICE being deployed to the polls. Every state has some form of voter intimidation statute intended to allow voters to cast their ballots free from an intimidating presence.

Some of these laws are extremely broad. Any kind of intimidating presence may be prohibited, either inside or outside the polling location. Those laws could certainly be applied to the deployment of troops or ICE at the polls.

Other laws are much narrower. For example, a number of states now prohibit firearms from being carried near or outside a polling location. Sometimes there’s an exception for certain forms of law enforcement; other times there isn’t.

This would be another example where, when states wrote these laws, they weren’t really thinking about federal officials or federal law enforcement presence at the polls.

That doesn’t mean the laws don’t apply. It may simply mean there’s an opportunity for, for example, a state’s attorney general to clarify in advance of November how they might apply to federal officials, because this would be a case of first impression.

So those are the types of laws that may apply to troops or ICE being deployed at or near polling locations.

So let’s move on to the Postal Service.

Sure.

The delivery of mail—election mail, either mail generally or election mail in particular.

Yeah. So, at the federal level, there are a number of statutes that apply to mail generally. At the state level, a number of states have specific laws that make it a crime to knowingly delay the delivery of a ballot.

Unlike the laws we talked about with respect to troops or ICE at the polls, these laws are actually relatively uniform. When a state has these laws, they very basically prohibit any person from knowingly delaying the delivery of any ballot. They’re quite broad.

There’s not a lot of application of these laws in the past, but presumably, if they apply to any person, that would include, for example, a Postal Service carrier in the state.

And if they apply to any ballot, they may include the delivery of the mail ballot in the first instance to the voter, and could also include the delivery of the mail ballot from the voter back to the local election official or secretary of state.

As we know, this administration has been very focused on mail ballots, has been very focused on the timing and delivery of mail ballots, particularly the receipt of a mail ballot by Election Day.

It will be critical for those ballots not to be delayed in order to ensure that eligible voters casting them lawfully under their state’s election laws have confidence that their ballot is not going to be delayed for any reason, and that it will be received back by the election official in a timely fashion.

And so knowing and understanding that states have these criminal laws on the books is really significant. It’s actually a more specific law than the federal law that would apply, which is important for folks to understand.

Okay, so let’s move to the third category: seizure of machines and ballot materials. Talk about state criminal laws that could conceivably apply there if the federal government were to do in this election what it has already done once in Fulton County, Georgia, with respect to the 2020 election.

Exactly. Fulton County serves as the main example, but I think it’s also important for folks to remember that this was a topic of discussion by the president and the administration in 2020, when he was in office. He has since said that he regrets the fact that he didn’t seize ballots during the 2020 election.

We know there were executive orders drafted to that effect at the time. So again, this is a very legitimate thing for people to be worried about happening, especially in the wake of Fulton County.

Here, I think it is critical to understand that every state has very specific laws about the chain of custody of ballots, voting machines, and other election materials, as well as possession of those materials throughout the election process.

It actually starts, in many cases, before the election—covering where ballots are kept before they’re voted, how they are handled after they have been received back, and then throughout the post-election process, and for a period afterward, to ensure that recounts can take place, election contests can take place, and all of the state-law mechanisms for ensuring free and fair elections can function as intended. Throughout all of that, custody of the ballots is maintained by state and local election administrators.

Again, these laws vary slightly from state to state. In some states, the ballots are kept with the secretary of state. In others, they remain with local election officials for a period of time before they’re transferred.

The amount of time election officials are required to retain ballots, voting materials, or voting machines differs by state. Likewise, when and how voting machines are tested, where they’re kept, and the particulars of those procedures vary.

But the key point for these purposes is that the underlying goal of all of these state laws is to keep possession of all election materials—including the ballots themselves—in the hands of the designated election officials, regardless of what is happening in the post-election process.

During a recount, during an election contest—all of those things may play out—but possession uniformly remains within the state election administration infrastructure.

I think that’s really important. Any attempt to remove those materials from that custody is criminalized under most state laws.

There are no exceptions. There are no exceptions for law enforcement. There are no exceptions for any other persons. So certainly the assumption is that the federal government would be included within those “no exceptions” provisions.

So let’s then take up what the federal government is going to say in response to threatened or actual criminal prosecutions under these statutes, which would be unprecedented.

The federal government is certainly going to argue—so tell us how it would most likely argue it—”You can’t do that.”

Absolutely. I want to say first, recognizing that prosecution is one tool in the toolbox, that it doesn’t necessarily solve the problem in real time.

We can talk about some other options these laws may give the states for preparation. Once we get to the point of prosecution—which I do think is still important—it is important to hold people accountable and preserve order for future elections. But, recognizing that it probably wouldn’t happen very quickly, it could take some amount of time after the election. And the state prosecution of federal officials is always a complex thing to consider.

But I think there are a number of reasons why, in the election context, it may be significantly less complicated. That gets back to some of what we discussed at the beginning about the federal laws that already exist.

Almost all of what I just described in terms of the state criminal laws mirrors prohibitions in federal law.

Federal law already prohibits troops or armed personnel from being deployed to the polls. State law has a corresponding prohibition, whether it directly addresses federal officials, whether it’s a broader prohibition, or whether it’s a prohibition on voter intimidation. Both federal and state law prohibit the same activity.

That means some of the defenses the federal government would articulate in response to state prosecution are significantly weaker in this context.

For example, the federal government may argue that it is entitled to Supremacy Clause immunity, which means the states can’t interfere with the normal responsibilities of a federal official acting pursuant to authority granted under federal law.

It’s very difficult to argue that Supremacy Clause immunity exists in the case of troops or ICE being deployed to the polls because that activity is itself prohibited under federal law.

So the argument that a federal official is exercising authority granted under federal law falls apart because they actually are not permitted to do that under federal law.

Those arguments will certainly be made. Of course, the federal government will try to make them. But they’re significantly weaker here because of the prohibitions that already exist in federal law.

That puts this in a different context from some other circumstances that have recently come up—for example, in the immigration context—where the federal government argues that it has broad authority.

In the election context, the federal government really doesn’t have that broad authority. The Constitution gives primary authority to the states and gives Congress a very specific role.

Beyond that, federal law itself prohibits the activity we’re talking about.

So those kinds of defenses tend to fall apart in the election context. That doesn’t mean they won’t be raised, and it doesn’t mean they won’t present a challenge. But it does mean that states are on better footing than they otherwise might be, given how elections are structured under the Constitution and in practice.

So there’s believed to be a plan afoot, say, to deploy ICE agents or deploy the military. States are preparing to say—or do say—”We have state laws that prohibit that, and there are criminal consequences.”

Then the president says, “Well, then I suppose I’ll have to invoke the Insurrection Act.”

That’s emergency authority. The statute is written appallingly broadly. Of course, nobody knows precisely how a legal contest over the president’s authority under that statute would be resolved in any particular set of facts.

Do you have any thoughts about how that might play out?

Well, I certainly think it’s possible, and it certainly seems likely, that the president might be looking for any opportunity to deploy that argument.

I think the specific criminal prosecutions we’re talking about from the state side would likely come much later in time and therefore are unlikely to collide directly with that.

Now, could states talking about these ideas potentially bolster his argument that such action is necessary? Maybe.

But I think these issues are of a different scale and timing, making a direct collision unlikely.

I would also point out that, very recently, the Civil Division of the Department of Justice sent letters to all of the states threatening federal criminal prosecution if any noncitizens were to vote in their elections. I think, if you’re the states, you want to understand that you have some things to throw back at the federal government on that front.

It’s not necessarily that any states are looking to do this or are being encouraged to do this. Rather, it’s about understanding the tools they have available and recognizing that those tools exist not only for purposes of prosecution but also to reassure voters.

For example, voters should know that there are state laws intended to ensure that their mail ballot is going to get back to the secretary of state or local election administrator on time so that it can be counted—that there’s not a sense that nothing can be done about interference.

So I think having the conversation about how these laws might apply is important not only for enforcement reasons but also for helping the general public and voters understand that there are protections available to them in the face of rhetoric from the federal government about prosecuting local election officials or otherwise throwing wrenches into the election process.

Well, the context for this conversation is, as you said at the very beginning, one in which issues are being raised and statutes are being uncovered, as your study does. There are a range of them in a good number of states that apply to all of the threats we’ve been talking about.

And, of course, all of these complicated issues arise in the context you noted earlier, which is really quite extraordinary.

In the modern era, we haven’t seen anything like it.

Absolutely not. And I think that’s part of what we hope our report uncovers for folks: that there’s probably a lot of education to be done at the state and local level, even just about the existence of these laws and how they may apply to the very real circumstances election workers are likely to face in November.

It’s important to ensure that those folks understand what the state laws are—not just election officials, but state and local law enforcement as well—so that they understand there are state laws that may apply to these situations and have very real, concrete guidance about how to approach them if and when they occur in real time.

I don’t think it’s unreasonable to suggest that a local election official may not be familiar with many of these laws as they might apply to the federal government, and may not be exactly sure whom to call, what the appropriate response would be, or who in the chain of command needs to be aware of these issues.

So using these laws as an opportunity to revisit some of those protocols, rethink how they may apply, and educate both law enforcement and election officials at the state and local level is another thing I think states can really do here.

Even in states that don’t have a specific law addressing federal law enforcement, it’s worth thinking about how existing state laws may apply, what state and local officials should do if ICE shows up at a polling location, who the first call should be, what the legal response might be, and how that response should be coordinated.

Hopefully, this report, along with other critical work that people are doing, will serve as a jumping-off point for many of those conversations.

A very interesting piece. And thank you again, Danielle Friedman, legal director of the State Democracy Research Initiative at the University of Wisconsin Law School. Thank you very much for being here.

Mentioned:

• Jeh Johnson and Ethan Klaris, Presidential War Powers: Executive Expansion and Congressional Retreat (2026)

• Cyrus Vance, Striking the Balance: Congress and the President Under the War Powers Resolution (1984)

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This is an edited transcript of an episode of “Executive Functions Chat.” You can listen to the full conversation by following or subscribing to the show on Substack, Apple, Spotify, or wherever you get your podcasts.

Jack Goldsmith: Today I’m with Jeh Johnson, the former Secretary of Homeland Security, who before that, among other things, was General Counsel of the Department of Defense. We’re talking today about an article Jeh co-authored in the Journal of National Security Law and Policy, entitled “Presidential War Powers, Executive Expansion, and Congressional Retreat.” Jeh, thanks for talking to me. What was the article about?

Jeh Johnson: Jack, thanks for your interest. As I’m sure you’ve noted, you were very frequently quoted and cited throughout the article. It’s about presidential war powers. This is a subject that has interested me going back to when I was a political science major in college, frankly. And then, when I was General Counsel of the Department of Defense — a lawyer to someone in the National Command Authority chain of command — I became personally acquainted with many of these issues. I’ve been thinking and talking about this topic for some time now, because it really is the case, in my view, that Article I, Section 8 has become a near nullity, if not a complete nullity.

May I stop you there? Article I, Section 8 is a nullity — you mean the war powers provision, or the whole thing?

Correct. The war powers provision.

And the political branches of government seem unable or unwilling to do anything about it. The founding fathers — the so-called founding fathers — in many respects had, in my view, a limited imagination for our Constitution. When they declared our independence in 1776 and wrote the Constitution in 1789, they simultaneously disenfranchised more than half of us in this country — women, Blacks, and Native Americans. And when the war powers provision was written, as you know, there was no standing army.

It would take weeks, if not months, to start a war. Now, of course, it’s radically different. A war can be started in hours.

You have ballistic missiles, nuclear weapons, drones. The one thing I believe has endured as an American value — and should be as relevant today as it was then — is that no one man can start a war. No one man should be able to take the nation to war, which is why the framers left it to the people’s representatives in Congress to do so.

I believe that is as relevant today as it was in 1789.

So let me ask you about that — about the framers’ intent. It seems to me — and I’ve been studying this for a long time — I agree with you that the framers believed they were constraining the president from using military force in the absence of congressional approval, at least in offensive situations. But it’s not clear to me, even now, how they thought they were doing that, and I don’t think they had a clear idea about it. There’s the Declare War Clause, which gives Congress the power to declare war — but of course, “declare war” is a technical term of art, and scholars debate today what it meant back then. There were other provisions, though, that gave Congress control, especially over appropriations and over providing for the standing army.

And if you just think about the first war, the first major war — the Quasi-War with France — President Adams couldn’t go to war without getting approval from Congress, because he needed Congress to pay for and build the ships. It seems to me that if that was the main mechanism by which the framers thought Congress would control the presidential war power — namely, that the president would have to go back to Congress to get an army or a navy to fight the war — then that form of constraint just went away with the rise of the standing army over time.

And so I’m just wondering what you think of that argument.

Another way to think about it is that the power of Congress, the prerogative of Congress, becomes even more important — all the more important — when you don’t have the need to go to Congress to build an army or a navy. But the provision still stands, and I believe it is just as important, just as relevant today, even if the commander-in-chief has the ability to go to war against another nation-state on a day’s notice, because behind the provision is the principle that no one person, no one man, should be able to take the nation into war.

I agree with that in general. Again, defensive wars are harder, and what counts as a defensive war is a tricky question a lot of the time. I’m just wondering — because, of course, appropriating for the army was supposed to happen every two years. There was a compromise at the founding; there was a debate about whether the standing army should be allowed at all. It was, as the framers understood it, allowed on the condition that Congress would have to reapprove it every two years.

But that process withered over time. With each war the standing army grew larger, and then, of course, after World War II, it remained huge. I’m just wondering whether it’s possible to have real, legal constraints on presidential war powers when there’s just this enormous standing army deployed globally.

Well, if Congress had the votes, it could always defund a military operation — “No dollar should be spent on this engagement.” That is a legal restraint, but it would also have to be tendered to the president for approval or veto.

The first thing that comes to mind is what Congress did in 2010, by inserting into the NDAA a provision that said no dollar should be spent transferring a prisoner at Guantanamo into the continental United States unless we approve it. So Congress always has the spending power, backed up by the Anti-Deficiency Act, which can impose a criminal sanction on an official who spends money that has not been appropriated. But again, that requires effectively a two-thirds majority.

This is what I’m trying to get at. Yes, Congress, in theory, can always defund a war, and it has exercised its prerogative to stop presidents from engaging in certain conflicts by defunding them. That’s happened.

The problem is that, with a huge standing army, the burden of inertia flips. The president has a huge standing army; he decides to use it; the war is under way; and then it’s up to Congress — with the troops in the field — not only to muster the votes to pass legislation cutting off funding, but to override a veto. And it seems to me that having a huge standing army gives the president that enormous advantage in being able to start and maintain wars.

Correct. Another way to think of it is that it’s a standing war capacity. You can pull that trigger at any moment, any day of the week — which, in my judgment, makes the original provision requiring a declaration of war all the more important. Because, as you point out, there are all these other checkpoints, all these other boxes that would have to be checked in 1789 in order to send the nation into war.

Now, effectively, it’s only the one in Article I, Section 8 — the requirement, the supposed requirement, that the president seek a declaration of war from Congress. But you’re absolutely right: to go to war now, you could do so by airstrikes or anything else, based on existing capabilities.

Okay. So you give a nice overview of the long history — the rise of presidential offensive war powers throughout the 19th century. As I see it, presidential war powers grew in conjunction with the rise of the standing army.

The more troops, the more weapons the president had, the more inclined he would be to use them. What’s your account of why this happened?

In the course of interviewing present and former members of Congress, one of the people we interviewed was Dick Gephardt, former majority leader of the House. He made the point, which is quoted here, that from the beginning, presidents don’t like to go to Congress to ask permission to do something. It’s going to a committee of 535 people who don’t all share your view, don’t have the resources, don’t have the intel, don’t have the insights that a president has.

So from the beginning there obviously has been a natural reluctance on the part of a president who wants to go to war, intends to go to war, to seek the permission of 535 people. I was surprised at the statistic — which I read and incorporated here — that Congress has only formally declared war five times in the history of this republic, even though the president has deployed the military in various contexts hundreds of times. So that, to me, suggests a natural reluctance from the beginning to go to Congress for this.

But I agree with you that the arc of that has, for the executive branch, trended upward.

But many of those hundreds of deployments you’re talking about were authorized. Even though they weren’t declared, they were authorized. Just as with an authorization to use force in modern times, the Quasi-War I was just talking about in the 1790s was not a declared war. That was Adams getting the authority from Congress to engage in limited naval warfare against France.

That was Adams getting the authority from Congress to engage in limited naval warfare against France.

There was no declaration of war in Korea, for example.

Yeah, that’s right. And there hasn’t been a declaration of war since World War II. There’s an argument (which we don’t need to get into) that declared wars are now passé because of the UN Charter.

Okay, so we’re in this situation. Iran is the latest and greatest example. I’ve written something that said, in effect, that I think Iran is the second most consequential unilateral use of force by a president; the other case being Korea, which you just mentioned. It’s a huge deal. It’s not going well. The president made the decision to do it on his own. He didn’t really consult with Congress. He hasn’t asked for their permission.

At the moment, however, they need money. The Secretary of Defense was before Congress this week seeking appropriations for DoD generally and for the war in Iran. So this is a point where Congress has leverage, because the president needs money to continue the war.

And yet it doesn’t look like it’s going to use that leverage, at least not yet, to limit the war in any way or put conditions on it. Now — and this reminds me of Kosovo — it looks like there might be the votes to continue appropriating for the war, even though there was a majority this week, I believe, in Congress that actually voted to stop the war.

And these contradictory signals are like something that happened in Kosovo.

Somebody’s trying to have it both ways.

Yeah, exactly. So what about this moment? Congress has to act, and the president ultimately can’t act unless Congress funds the war. How do you see the situation?

I have two thoughts in response to your question. One, there is no doubt — there should be no doubt — that Iran is a war. If another nation-state launched an airstrike on our nation’s capital and killed most of our political leadership, I think we’d all regard that as a war. And it has exceeded 60 days; it has exceeded 90 days. So this is an undeclared war. There’s no credible argument that it’s not. That’s number one.

Number two, Congress should not have to assert its existing constitutional prerogative by cutting off funding. If we take the provision in the Constitution seriously, the fact that Congress has not declared war should be enough. They shouldn’t have to go the extra mile to cut off spending in order to assert their constitutional prerogative. I hope that makes sense.

This is your Chadha argument.

Yes.

At the end of the article, you have several proposals about what can be done about the situation. One is to argue that Chadha does not apply to the War Powers Resolution. The War Powers Resolution says that Congress can, by concurrent resolution, declare that a war is not authorized. And that’s what the War Powers Resolution provides for. But the Supreme Court in Chadha, in the early 1980s, held that legislative vetoes were unconstitutional. Do you think Chadha might not apply to the War Powers Resolution? Is that the argument you’re making?

Yes. First, when we interviewed Congresswoman Elizabeth Holtzman, who was in Congress in the 1970s or 1980s, she really gave us this idea first — that Chadha effectively guts the constitutional provision and the War Powers Resolution. The legal argument we make is based on a law review article written by former Secretary of State Cyrus Vance in the 1980s.

He argues — and I fully agree — that Chadha, because it was decided in the immigration context, should require presidential approval (or, if he doesn’t approve, a veto) in order to have legal force and effect. Because when Congress enacted the Immigration and Nationality Act, it effectively delegated to the executive authority over that whole space — immigration. In the war context, the war powers context, that is not true. Congress has the prerogative to declare war. Congress has never said to the executive branch, “You know what, we’re going to give this all to you by statute, and you go figure it out.” And so we argue that it’s distinct from Chadha, because it’s war powers, not immigration. The authority to act has not been delegated to the president by statute. And apparently this has never been tested in court. I think it’s an entirely compelling argument.

So I’m skeptical, for a couple of reasons. Let’s say Congress does that. It’s not clear who is going to bring the lawsuit to enforce it, because the president is just going to disagree and say the act is void. And I’m not sure anybody is going to have standing to bring the lawsuit, or that a court is going to adjudicate it. So I’m not sure it’s going to work, for that reason.

Also, it seems to me the war powers situation could be harder, not easier, than Chadha, because, you’re right — the president isn’t relying on a statutory authorization to go to war. He’s relying on Article II. So what you’re saying is that the president makes an Article II claim to go to war. It’s a contested claim, but he thinks he has the constitutional authority. And Congress can, not through enactment of law but by a concurrent resolution, stop the president from exercising an Article II prerogative.

I don’t see how that’s going to be consistent with Chadha, which said that bicameralism and presentment were needed for Congress to have legal effect — to enact law. And I don’t see how Congress can stop the president from exercising his Article II authorities without passing a law.

Well, let’s put this in the context of Iran. If you’re correct, then Article II effectively makes the war powers provision in Article I a nullity, because what President Trump is doing here is engaging in a full-blown, protracted war. He can make the argument that it’s pursuant to his Article II authority.

But I think that effectively means the war powers provision in Article I becomes a nullity — which the framers could not possibly have intended. As I see it, when Congress acts — let’s say by majority vote — and says stop, it’s not trying to take back some authority the president has. It’s a manifestation of authority that Congress originally got in Article I. It’s simply stating, by majority vote, that you are violating Article I, Section 8, which is our prerogative, not yours. Congress ought to be able to do that by majority vote. That’s certainly what the War Powers Resolution contemplated.

Otherwise, requiring a two-thirds vote in order for the war powers provision to have any meaning effectively guts the provision.

Guts the constitutional provision.

Correct.

Okay. I think we’ve fleshed out the positions. This is just another way of saying the president has arrogated enormous Article II authority. I agree it’s a limitless understanding of Article II power. But Trump is acting in the Iran context with wind in his sails, based on a lot of OLC opinions, even though people don’t want to recognize that. The president has an Article II claim. Congress has an Article I claim. The question is: Who has authority here? Is Congress’s authority exclusive? If Congress passes a concurrent resolution that says, in effect, “We don’t like your assertion of Article II power,” I think the president just ignores it and says it’s not law.

Well, okay, two things. One, the current interpretation of the president’s Article II authority — “important national interest,” so long as it does not rise to the level of a war in scope, nature, and duration — has not expanded over the years because a group of lawyers one day got in a room together and decided this is what it really means.

It expanded through political inertia on the legislative side and urgency on the executive side. You and I know how this works.

I agree.

The White House goes to the Department of Justice, to the Office of Legal Counsel, and says, “We need a legal opinion to justify X.” The lawyers are under a lot of pressure to make it work. As you and I have both pointed out in writings, that authority has become so vast that it is virtually limitless.

No court, no lawyer is ever going to second-guess the president when he says there’s an important national interest that requires him to do this. It’s a virtually limitless test. It got that way because of a political dynamic between the two branches, not because of any concerted, methodical, thoughtful legal analysis that says, “You know what? We really think Article II means X. It’s been that way all along since 1789.”

The other thing I want to come back to is the litigation question. You’re correct. As we point out, Congress is extremely reluctant to get involved in fights between the political branches of government, particularly when it comes to matters of war and peace. Liz Holtzman was involved in Holtzman v. Schlesinger back in the 1970s to try to stop the Vietnam War. As a freshman Congresswoman, she sued the Secretary of Defense to try to stop the war. Congress has historically been reluctant to get in the middle of this, but I see among the nine of them [the Supreme Court] more of a willingness to get into spaces like this while there’s a stalemate between the political branches.

On the standing question — I’m not an expert on standing, but I would think that if someone purports to bring a lawsuit on behalf of the body, not just individual members of the body — let’s say the Democrats control the House, and the Speaker of the House, a Democrat, brings a lawsuit on behalf of the House, and the House has voted to bring that lawsuit by majority vote — I would think that would be a pretty compelling basis for standing.

It’s tough. Congressional standing is hard. It has a better fighting chance if Congress has authorized the lawsuit, but it’s just not clear whether that would work. But let’s talk briefly about your other proposals.

So your proposal — the concurrent resolution to stop the president — would, I think you agree, have to be enforced in court. That’s the problem with it. Even if your legal argument is right, even if you overcome standing, there’s going to be a political question. Do you really think a court is likely to say that the president— I mean, you’re basically talking about enforcing the War Powers Resolution and distinguishing Chadha. So I’m skeptical that that’s actually going to work out in court. I’m also skeptical about — and again, I’ve made similar proposals myself — your idea of revising the War Powers Resolution. That itself assumes you’ll be able to get a supermajority in Congress, as was required for the original War Powers Resolution. But even there, it’s hard to know exactly how to constrain the president in legal language.

I think it’s tough. We’ve both thought about these questions for a long time. The political reality — and you make this pretty clear in your article — is that Congress is kind of at sea and on its heels in this context.

Though, you know, Tim Kaine told us that he’s forcing Congress to exercise an atrophied muscle. So he’s forcing these votes — a vote on war powers as a privileged motion. He’s getting members more used to having to vote on this.

You know, I’m a bit of an optimist, in that you could have another candidate for president, like a Barack Obama, who says, “You know what, I agree with Johnson and Vance that Chadha doesn’t apply. And if Congress votes by majority, it’s a manifestation and implementation of its constitutional prerogatives. So if a majority of Congress says I should not be fighting this war, then I will not fight this war.”

So it could be that you have a thoughtful president or presidential candidate who respects the Constitution as much as you and I do, even in the face of a compelling national security matter. Could be.

You know, I don’t think President Obama would have signed off on that. He used war powers without congressional authorization, as you know.

And no president— remember, they had to pass that law over Nixon’s veto, when he was at his lowest point. No president is going to be able to sign on to that language easily. I was hopeful during the Biden administration. Senator Biden had proposed a very intelligent war powers bill that would have tightened restraints on the president’s use of war powers. There was zero interest — even from a president who held himself out as a constitutionalist, as favoring Congress, and the like. There was zero interest then. So I don’t want to say never. I just think — well, let me say this, and then I’ll let you have the next word. If it’s going to happen, it’s going to have to be after some utter, complete collapse and disaster. That’s kind of what happened in the 1970s — it was post-Vietnam. We’re getting pretty close to another complete disaster right now.

We’re getting pretty close to another complete disaster right now.

I think the optimistic scenario is that a war goes so badly that Congress finally decides it needs to exercise its prerogatives and put some constraints on the president. What do you think?

Well, a couple of thoughts. One, I was very impressed that in the run-up to the first Gulf War in 1990, George H.W. Bush’s lawyers told him, “We think you have constitutional authority to push Iraq out of Kuwait, and you don’t need congressional approval.” Notwithstanding that, Bush decided to go to Congress, because he respected the constitutional norm.

It might’ve been for pure political reasons, but he did it. And there was a robust debate in Congress, as you know, and Congress ultimately authorized Bush to go to war against Iraq. The other thing I’ll say is — I’m going to quote Jack Goldsmith, as I often do on this particular line. You wrote an article nine years ago about what happens if the president orders the Secretary of Defense to do something deeply unwise. And the last sentence of your article was something I wholeheartedly agree with and have quoted and requoted numerous times: “The current conundrum highlights again how very deeply our system of government depends on the people electing a president who is generally reasonable, prudent, and responsible.” Another way of saying that is: hopefully we elect presidents who respect constitutional norms.

Yep. I agree.

And respect the original intent of the Constitution.

I don’t want to relitigate the original intent of the Constitution. It’s a little tricky, because I imagine you’re probably not an originalist in constitutional interpretation on most matters — and it’s so strange that everyone becomes an originalist when it comes to war powers. There’s been a lot of water under the bridge in the last 240 years in terms of constitutional development. But setting the original intent aside, I agree that we’re in a place that just can’t be the right place to be — where the president has limitless power to bring the country to war. Let me ask you a final question.

You and I both worked on these issues in government, and my views have certainly changed since I worked in government. How do you see the issue differently now than when you were the person making the hard decisions?

Well, I’m going to answer a slightly different question. Take interpretations of the existing 2001 AUMF. When I was the General Counsel of the Defense Department, I was responsible for interpreting it. We made it work against core al-Qaeda, al-Qaeda in the Arabian Peninsula, and al-Shabaab — or at least the al-Qaeda-affiliated elements of al-Shabaab.

That was a compromise with Harold Koh. Subsequent interpretations have become so vast — it now encompasses ISIS, which didn’t even exist in 2001. I haven’t changed my view on this, but I’ve seen how vast the interpretation of that statutory authority has become, and it’s still on the books. Of course, when you’re out of government, you become more clear-eyed about certain things. I always tried to tell my clients what I believed to be the best, most sustainable legal authority, but I have seen the pressures that presidents and secretaries of defense come under in a national security emergency. If someone’s committing genocide against their own people, for example, there’s a human cry: “Mr. President, you’ve got the vast military at your fingertips — do something, stop this.”

So I see the pressure that presidents come under, where they have to effectively act contrary to certain statements they made while running for president. And so I’m probably more realistic about that now than I was then. But I still believe 100% that if a president wants to take the nation to war, it should be incumbent on the president to make the case to Congress and the American people why this is necessary. And if he makes a persuasive case — like Bush did in 1990, like Bush 43 did in 2001, and somehow again in 2002 and 2003 — then make the case. You shouldn’t be able to just take the nation into war overnight, as the current president has done in the current conflict.

And I agree with that. And I’ll just add that, comparing the two President Bushes on Iraq, both were told by their lawyers that they didn’t need to go to Congress, and both times they did. Probably political prudence — maybe a legal judgment by the president — but at a minimum it was political prudence. And that political prudence was enormously beneficial to them, both in getting the country on board and in arguments later, when things didn’t go so well. It’s something President Trump just didn’t do. And this is a very consequential war that doesn’t look great right now. He’s just out there completely by himself.

Well, yeah — to take it a step further, it’s not even the executive branch by itself. I’m convinced it’s a war council of one person. And there are people at the Pentagon who wake up in the morning not knowing whether they’re going to be at war by the time they go home that evening.

Yeah. Mercurial is an understatement. Okay, Jeh, thank you so much. The article is called “Presidential War Powers, Executive Expansion, and Congressional Retreat,” in the Journal of National Security Law and Policy. Thanks so much.

Thank you, Jack. Thanks for your interest.

Thumbnail: A Fulton County polling facility. (Jason Riedy, https://flic.kr/p/7cRfV9, CC BY 2.0.)

This is an edited transcript of an episode of “Executive Functions Chat.” You can listen to the full conversation by following or subscribing to the show on Substack, Apple, Spotify, or wherever you get your podcasts.

Bob Bauer: Good morning, Jack.

Jack Goldsmith: Morning, Bob. How are you?

Good. And you?

I’m fine, thank you.

Today we’re going to talk about the Trump administration’s plans, as we know them, to use federal law enforcement and the presidency to impact the congressional elections this fall. And there’s been a lot going on in this area—a lot of executive action, a lot of litigation.

We’re just going to try to give a big-picture overview of what the aims are, what the government’s doing, and what’s happening on the ground. So let’s start off by asking: What is the overall goal of the Trump administration? What are they saying that they’re doing with regard to the congressional elections of 2026?

They’re concerned with both the elections in 2026 and elections more generally, looking ahead to 2028, of course. And past elections, too, to be fair. And past elections as well.

Their basic position is—Donald Trump’s basic position is—that the election system in the United States is rife with fraud. It is rigged, and it is rigged, in particular, to produce Democratic victories. Not rigged when it produces Republican victories, but definitely rigged when it produces Democratic victories.

He wants to vindicate his position that he didn’t lose in 2020, and he’s pushing extremely hard to introduce changes in the rules that he believes address his concern with election integrity, such as it is, and clearly to weaken public confidence in the electoral process and the accuracy of vote counts that he is unhappy with, that go in a direction different than he wants them to go.

And before we get to the details, what do you speculate the aim is in diminishing voter confidence in the election process? Is that setting himself up to deny the validity of elections? Is that the idea?

Yes. I think there are a few, I think, objectives here. First, to the extent that he can, he’d like to influence the outcome of the 2026 midterms. He would like what he could do to throw obstacles into the path of voting in a way that will reduce the prospects of a Democratic victory, either taking the House or potentially taking both the House and the Senate.

And he’s made it very clear that he takes that very personally. He’s not on the ballot, but he thinks that if the Democrats regain control of Congress, he will be at least subject to investigation and potentially also to impeachment. So he would like to influence the outcome of that election and prevent a Democratic takeover of Congress.

Secondly, I think that he wants to lay the foundation, if he’s unsuccessful in preventing Democratic control, for arguing that the Congress that then emerges under Democratic control is illegitimate, the same way that he’s characterizing the 2020 election as having been rigged and falsely decided. And so he will pick that up as a rhetorical tool and use it however he wishes.

And I also think there’s an intermediate point I want to stress, which is between the time that the elections take place and the time that a new Congress is sworn in. He may well argue—and this is a complicated topic; we can’t get into it today in any great detail—that the House has to do something to prevent the seating of Democratic members who were selected in a rigged electoral process. So that would be another thing which would try to influence the outcome of the election post-election in the House of Representatives.

So what are the main lines of focus or attack by the administration? What kind of voting problems are they focused on?

First and foremost, I suppose if you were to take the one that he returns to most often, it’s the claim that people who are not eligible to vote, in particular non-citizens, are voting in our elections. And we can talk about the ways in which he wants to attack that problem.

Secondly, he believes that mail voting, that is, supported, of course, by many states, is rife with fraud. He wants to go to a system of pure hand count of paper ballots. And so, in a variety of ways, he’s been attacking the institution of mail voting.

Thirdly, he distrusts voting machinery, or so he claims, and he’s taking steps to undermine public confidence and maybe even, substantively, to affect the use of voting machinery.

So those are the principal lines of attack. But he pursues these in different ways through different instrumentalities and purported exercises of authority.

So let’s go through the kind of elements of the government that he’s using in an unusual way to kind of influence those elements of voting. My understanding is that he’s basically used lots of government agencies, including ones not normally involved in these processes, toward these ends. Can you walk us through that?

Certainly. Let’s start with, for example, executive orders. He’s issued two. They, of course, originate in the White House. And there he has installed, as a sort of director of election integrity, a well-known election denialist who’s played a direct role in orchestrating some of the attacks that he’s launched on the electoral process.

So we begin with the White House. Then we have the Department of Justice. We have the Department of Homeland Security. The intelligence community has certainly come into play recently. He appointed Bill Pulte, who has no experience in intelligence—or rather, he designated him to be the interim director, if you will, of the Office of the Director of National Intelligence.

And one of the charges to Pulte was that he use this occasion to support the president’s claim that there was all sorts of mischief in prior administrations, all sorts of abuses of the intelligence process, and, in particular, interference with his election in 2016.

And it’s interesting that Mr. Pulte, again, without any experience in intelligence, has appointed as his chief of staff a woman whose prior service in politics has been as the head of election integrity, focused on election integrity claims at the Republican National Committee. That’s in the intelligence community that that appointment has been made.

I think I mentioned the Department of Justice. The United States Postal Service he has also attempted to bring into this effort. So there’s a range of authorities and agencies, exercising those authorities, that he’s dedicated to this larger task as we’ve been discussing it.

So the one thing I noticed in the last couple of days is that DOJ may be doing lots of things, but I saw that—I think it may have been the Civil Rights Division, but I’m not sure—there had been a letter sent to election officials in every state threatening them with criminal investigation if they knowingly include, I believe, non-citizens as people who may vote. Is that correct?

And explain, is that unusual? I don’t even know what criminal law DOJ would be invoking there. And is that kind of threat unusual from DOJ in the election process?

Yes, it certainly is. I mean, DOJ, of course, has been active on the criminal side, but out of the Civil Division came this letter to 50 states and the District of Columbia, in effect, threatening election officials with criminal prosecution if, in some way, they fail, in some criminally cognizable way, to keep non-citizens from voting.

And the letter calls upon them to identify the steps they’re going to take to avoid making this mistake, subjecting themselves in this way to criminal liability, within five days of the receipt of the letter. I think it’s five days. It could have been 10. Either way, a laughable number of days, with a very vague request that they explain what it is that they’re going to do to meet this demand.

So, yes, that’s extraordinary. The legal basis for it is unclear. The role of the Civil Division—inappropriate.

I’m not an election expert, but it’s not obvious what criminal law would be applicable there. Has there been prosecutions like that before?

Have there been criminal prosecutions? Well, yes, there’ve been criminal prosecutions of election officials. It’s interesting that you mention—

No, no—I’m talking about for preventing non-citizens from voting.

No, not in the terms in which he’s described it. I’m not aware of anything like that.

I should mention there was a criminal prosecution in the state of Colorado of an election official who had conspired with election denialists to give them illegal access to voting materials and machinery to, in effect, work on establishing that the election was rigged.

And President Trump waged a campaign that was ultimately successful to have her pardoned of the state crimes of which she was convicted. So it’s actually gone the other way.

So, of the agencies you mentioned—they’re all doing lots of different things toward the ends that you described earlier. Can you just tell us some of the ones that you think are most consequential and most concerned about? And by “most consequential and concerned about,” I mean that you consider to be unlawful or illegitimate acts of the administration.

It’s something we’re very familiar with in other areas, and that’s the weaponization, for this purpose, of the Department of Justice.

The Department of Justice, purportedly to investigate potential crimes committed in connection with Georgia’s presidential election count in 2020, seized ballot materials in Fulton County, Georgia. And the claim it was making—that it was in a position to investigate prosecutable crimes—has been rejected by a federal court that pointed out that the statute of limitations had long passed.

But among the steps that DOJ took was demanding personal information of the large, large number of election workers who were serving the state of Georgia in this capacity in 2020. And the court made a point of saying that there was no basis for the demand for this information. It was intrusive.

Of course, it’s also, I think, fair to say, meant to send a sort of chill through the election official community. So this kind of use of the Department of Justice to terrorize the election official community, keep the threat of criminal prosecution hovering over them, is a very real threat.

And I should add, by the way, speaking of the sources of authority that are being exercised, or the sources of power that are being put to use here, the direction of DOJ in this matter came out of the White House from this gentleman, Kurt Olson, who’s been put in charge of the president’s version of election integrity.

But what is the end goal of that? My understanding is that a judge stopped that investigation in Georgia recently. Isn’t that right?

That’s correct.

And he did so mainly because the statute of limitations had run on any possible crime?

Yes. And also there was that issue that I mentioned of the illegal demand, without basis, for reams of personal information about election workers.

But what is the—so they’re doing that in other places. What is the goal there? I mean, you said to intimidate election officials, but with what goal? I mean, what are they trying to intimidate them into doing?

Well, let’s start with these very dramatic actions. They certainly serve to support the president’s claims publicly and to weaken public confidence in the electoral process. He may view this as potentially softening up the election community to be more receptive to other legal demands that he has illegally made and that the courts have so far rejected.

It may also be that he is looking to induce anxiety in the electorate, with effects on turnout.

So you said at the very beginning—this is something, or I think we said, I think everybody understands—something he cares deeply about. So, on the one hand, this may be the expression of just a strong sort of abiding personal impulse that he has to create these pressures and to strike out against the people who he thinks denied him the election in 2020.

But it does not help the process for election officials to be trying to conduct their operation under fear of criminal prosecution, or for voters to believe that the electoral process is enveloped in suspicions of criminal misconduct and rigging.

I agree with that. I agree that one aim is to diminish confidence in the electoral process. Although if the federal courts are systematically rejecting these efforts, it’s conceivable that it could have the opposite impact.

And I understand that it’s uncomfortable and awful for election officials to be under these pressures. What I don’t understand is what leverage they—if this is even the right way to think about it—what leverage the administration thinks it gets over the election officials.

Does it think that by threatening criminal prosecutions it’s going to somehow give them some electoral advantage? Are they perhaps genuinely concerned about the problem of non-citizen voting? I just don’t understand what the threat against election officials is aimed to do beyond, you know, diminishing confidence in the election and serving the president’s obsession with this issue.

He has made, you know, various legal demands that the professional election administration community has stood up to and has rejected. And to some extent, I think he’s making it clear there’s a price to be paid for opposing me on this.

So I’ll give you an example. He wants states to turn over the unredacted voter rolls so that he can have the United States government—and we should talk about the constitutional issue here—have the United States government, in effect, monitoring and revising, or directing the revision of, the voter registration rolls that states create and manage.

And the states have stood up to this. The states have attacked that and successfully have won 10 consecutive cases in court, if I count correctly, and at least one case on appeal.

He may be striking back at them and saying, “You have to cooperate with us. You have to cooperate with us, or you stand a chance of being criminally prosecuted.”

So this resistance has to stop. That could be the message, which is backed up by these threats of criminal prosecution.

So I can’t enumerate all of the ways in which the threat of criminal prosecution could affect the conduct of election officials, but that’s one example.

And what about the administration’s efforts to, in effect, impose federal standards from the presidency on the way elections happen? I’m thinking about—didn’t they try to impose standards on how voting machinery was done? Weren’t they trying to require a standard of analysis for ineligible voters? I mean, what kind of things—they’re trying to set federal standards from the White House, effectively. Can you walk through that? Just a couple of examples, and why that’s unprecedented and, I think, unlawful? Explain it.

Yes. An example would be—and this relates to his obsession with non-citizen voting, or at least his claims of concern with non-citizen voting—and that is his desire to impose documentary proof-of-citizenship requirements at the federal level.

And he’s tried to do this in a number of ways, just affecting how registration is effected at the federal level, but also how it’s effected for, say, military and overseas voters, or the support for registration that’s provided by public assistance agencies.

He’s attempted to impose his own requirements inconsistent with, or in addition to, the requirements that Congress has enacted. And the courts have been very clear, consistently: the rulemaking authority in federal elections under the Time, Place, and Manner Clause is reserved to the states, unless Congress chooses, for federal elections, to supplant the state role.

There is no role for the president in setting rules for the conduct of elections. The president certainly can enforce federal law against election crimes. But he cannot create the rules that he then seeks to enforce.

Yeah. So I think this is an important distinction. It’s the Congress that has a constitutional role in setting the rules for these elections. The president and the executive branch have no formal role, but there are an array of election laws and criminal laws related to election laws where the Justice Department has discretionary enforcement authority.

So that’s the leverage they’re trying to use, I take it, to shape—to, in fact, kind of shoehorn themselves into being able to set federal standards on these elections. Is that right?

Yes. Yes. And he does, by the way—I should add one other thing to the threat of criminal prosecution—also the threat of cutting off federal funding for unrelated state programs.

So, for example, recently there have been reports that the federal government is preparing to advise the states, if it hasn’t already done so, that they will be penalized and anti-terrorism funding that they might otherwise receive will be withheld if they don’t comply with election-integrity-related demands from this administration.

So he’s using both criminal law enforcement and federal funding cutoffs as tools with which to effectuate his policy.

Yeah. So the second thing was just in the news a couple of days ago. Is that likely to work? I mean, do you know how important these terrorism funds are to the states, and whether that conditional funding for these election aims is lawful? And is it likely to work?

From every sort of evidence that we have, from the way the courts have been deciding these cases, I do not believe it’s going to work.

I cannot at the moment assess how any of these states actually prioritize, or what plans they have for the use of this money. I’ve seen reports that the states that are most affected—the amounts involved are the largest for large blue states like New York and California. But I’m not an expert on that. I’m not sure about that.

But I do not think it is going to be sustained legally. I think it’s going to fall to the ground in fairly short order.

So it seems to me, again, as a non-expert, kind of newspaper-consumer of these issues, that the administration is trying all this novel stuff, planning, trying to use the executive branch to shoehorn in favorable, at least to the administration, election rules, and largely thus far failing—and failing mainly because they’re losing in court in these early lawsuits.

So, one, is that generally your sense of things? And two—well, let’s start there. Is that generally your sense of things?

Yes. I think the attempt to create presidential control of the federal election rulemaking process is destined to fail. He may win a case on procedural grounds here and there, on a standing question, whether the correct party has sued. But on the fundamental constitutional question, I mean, it’s as straightforward as it could possibly be. He doesn’t have the authority that he’s attempting to exercise.

And the tools that he’s using to impose these rules, I think, are not going to succeed in the courts. So I do think they’re going to fail, but he’s going to continue.

I just want to mention, if I could, two things. One, he’s issued two executive orders, one in March of 2025 and one a year later, I think also in March of 2026, but thereabouts.

And one of the steps that he took, in addition to the ones that we’ve discussed, was to direct the United States Postal Service to essentially establish a rulemaking by which it would create its own list of eligible voters and refuse to transmit ballots to states that were not using that list as the mechanism for their own eligibility requirements, as the path to their own eligibility requirements.

These sorts of gambits, these moves, are, I think, plainly unconstitutional.

He’s already failed in court, in at least one court, on this United States Postal Service rulemaking effort. The Postal Service hasn’t produced the rule yet, but it has produced a proposed rule.

But this gives you an example, or another idea, of how far he’s willing to go and the number of agencies that he’s willing to engage in this overall program.

So it seems to me that, as we get closer to the election, the tool he has—potentially the most consequential tool under his control—is criminal enforcement discretion.

And they’ve already been making these threats in various ways. But what are you most worried about in the run-up to the election, as we get very close, in terms of aggressive steps they might take, either using criminal process or threats of criminal process close to the election, and/or the military in the homeland?

I mean, those are the two mechanisms that, in theory—again, the trigger for using the military under the Insurrection Act is fairly low. If he decides to use that, there are other ways to deploy the National Guard. There are limits, uncertain in my view, on the use of the military in connection with elections.

What are you worried about in the week before the election if these other methods don’t work? What is the next level of concern?

I would distinguish between some very aggressive steps that he could take without emergency authority and then different steps that he could take with the exercise of what he would declare to be emergency authority.

Let’s start with non-emergency authority first.

The deployment—I would list the deployment of ICE. He’s preoccupied with non-citizen voting, at least rhetorically. He could deploy ICE to election jurisdictions and basically continue there, with a focus on non-citizen voting, a program of arrests, mass arrests, or the threat of mass arrests that we’ve seen in other states.

ICE is currently arresting a few thousand a day right now. He could take that particular law enforcement exercise, as he sees it, and bring it directly into the electoral process, alleging that there’s massive non-citizen voting taking place or could be taking place. He’s going to have ICE positioned in a way to stop it.

I should mention, I believe it was Todd Blanche who actually said—and I think it was at a CPAC event—that he couldn’t understand why anybody wouldn’t want ICE to be on hand to make sure that non-citizens didn’t vote. He explicitly said that.

What is the concern there? Is the concern that the ramping up of aggressive deployment of ICE against non-citizens will chill eligible voters from voting?

Absolutely. It’s the same concern.

How does that work? Unpack that.

Yeah. Well, whether it’s the National Guard—we’ll talk about the Insurrection Act in a minute—the National Guard, or the regular military, or ICE, when you have a federal armed presence in and around the voting process, it is going to have a direct effect on the vote. It’s going to have an effect on who’s willing to show up at the polls.

On eligible voters.

On eligible voters, absolutely. After all, an eligible voter who is worried that he or she may be mistakenly swept up in an arrest may not be prepared to take that chance. Those who are not even concerned about the potential for mistake may be worried about chaos around the polling place. They may fear for their physical safety.

It’s precisely the opposite of the conditions for an orderly voting process that we normally expect and promote.

And the theory would be that that fear would be asymmetric on Democratic-supported voters.

That would certainly be the expectation of the administration. Yes.

Okay. Besides ICE, what else? Besides the deployment of ICE, are there other things you worry about in the run-up?

Well, again, I don’t want to disregard—and we’ve seen this in other contexts—the potential calling of the National Guard for this purpose. And then, of course, the invocation of the Insurrection Act that you mentioned, which was actively considered in the Trump administration in 2020. And the Department of Justice at that point pushed back. We don’t see any reason to imagine the Department of Justice in this administration would necessarily push back.

And then you have the military involved. And the threat—even the threat, and he likes to bandy about threats, particularly in the run-up to the election—can control the news. It can dominate the news and have the same depressive effect on turnout that we were talking about earlier.

And the idea is that, again, just to make it explicit, the deployment or threatened deployment of the military, under whatever authority, would have a differential impact in suppressing the Democratic vote.

That would absolutely be their expectation. In big cities, blue cities, absolutely. That would be their expectation.

Okay. And we don’t have time here to discuss—you and I have talked a lot for many years about the Insurrection Act, how the triggers are fairly soft. And there’s been litigation over other deployments of the National Guard, but we still haven’t seen a full-blown litigation. We haven’t seen litigation yet over the meaning of the Insurrection Act.

So that could be, if he went that route, a whole lot of novel issues being—or novel in the contemporary context—issues being addressed by federal courts in a probably fast-moving, high-stakes context.

Absolutely. And again, chaos serves its purposes. It serves the purposes of raising the profile of his issue, which is that the election is rigged. It serves the purpose of potentially discouraging turnout. It serves the purpose of making an argument that members on the Democratic side who were elected to Congress and show up to be sworn in shouldn’t be admitted because they are not legitimately elected.

I mean, he may not succeed in court, but there’s much of this program that I’m sure he thinks is productive that he can achieve.

So, for what it’s worth—and I could be wrong about this, of course—I think that what you just said is possibly true, but it’s also possibly true that all of these outside-the-box, very aggressive actions could be seen, at this point, in his relatively weakened state compared to 18 months ago, as self-defeating. It could be seen as him flailing around unlawfully to try to prevent something, and it could kind of delegitimize his efforts with at least a majority of the country, it seems to me.

Yes. It could energize already very energetic Democratic anti-Trump turnout. That’s certainly possible, and it could be viewed as flailing and weak, but it will dominate the news. He will, as always, control the narrative to a significant extent.

And so, along with the potential failure overall, he will be doing a significant amount of damage.

I just want to say one thing about civil society. One thing that is critically important: there are groups out there that are doing extraordinary work protecting the vote that have been successful in court, that are certainly anticipating and preparing for other steps that he could take, like the ones that we’ve discussed here.

One thing that is critically important for voters who have to evaluate his claims and who have to decide what it means for their participation is the leadership of civil society. This is what I’ve discovered around the country: what they hear from their business community, what they hear from the faith community, what they hear from the veterans community, the first responders community.

If civil society stands up to this to protect the electoral process, rebuts these claims, and encourages people to retain faith in the process, I can’t overstate how important that is going to wind up being.

It also seems to me to be at least as important, if not more so, is the response of the marginal Republicans in Congress. I mean, whether this has Republican acquiescence or not in Congress strikes me as hugely, hugely important.

He tends to get away with things when the Republicans in Congress sit on their hands, and he tends to back down when they rise up against him. It hasn’t happened often, but it has happened. That seems to me to be the very most important thing in response to this.

I agree, which is why it’s dispiriting that Congress has allowed Bill Pulte to continue to operate over the intelligence community at ODNI, at the intelligence director’s office, and why it would be very dispiriting, given his history, if Congress confirms Todd Blanche formally to be the next attorney general.

Okay. The last issue is—and maybe the most speculative—is let’s imagine none of these tactics work, or at least that it’s clear that the Democrats, let’s just hypothesize, win the House, let’s say by a large margin. There’s still the question of the seating of Democratic members-elect, and there’s still the possibility, I suppose, of the president working with members of Congress to obstruct or stop the seating of those elected members.

Can you—and I know this is complicated—but can you just give us the overview of that?

It is definitely a question. I don’t know at the moment that we can say that it’s a threat, but the transition from one Congress to the other is complicated. It affords the Clerk of the House a very significant role in determining who the members-elect are, who can vote for the next Speaker, and so that is definitely one of the scenarios that has to be planned for.

If there’s a complete breakdown in respect for the constitutional order and for norms, then there is potentially some mischief—I don’t think eventually likely to succeed—but a mischief that could be practiced toward the end of upending the normal way that members of Congress arrive with certificates in hand, are recognized as members-elect, elect the next Speaker, are sworn in, and the new Congress then proceeds under the membership and under the control of the party that won the last election.

So it’s a complicated question, as you point out, but it is definitely an issue that needs to be addressed.

And it’s also an issue that, I mean, I think is largely—again, I’m not an expert on this—but largely under the control of Congress itself. This might well be something that courts deem a political question. Is that fair?

Yes. It may be, and we’ve seen this in the past, it may be that in an extreme case the Court finds a way to intervene anyway. And I can imagine some extreme cases where I wouldn’t rule out the possibility of the Court deciding to take some action.

This is very speculative, but the House is the ultimate constitutional judge of the returns of its members. And so it’s difficult to see, although it’s possible, how the courts insert themselves into a controversy of that nature.

All right. Thanks very much.

Thank you.

Relevant reading:

• “The Executive Power of Removal” by Aditya Bamzai and Saikrishna Bangalore Prakash (Harvard Law Review, 2023)

• “New Light on the Decision of 1789” by Saikrishna Prakash (Cornell Law Review, 2006)

Thumbnail: The Supreme Court Of The United States. (Jesse Collins, cropped; CC BY 3.0, https://creativecommons.org/licenses/by/3.0/deed.en)

This is an edited transcript of an episode of “Executive Functions Chat.” You can listen to the full conversation by following or subscribing to the show on Substack, Apple, Spotify, or wherever you get your podcasts.

Jack Goldsmith: Today I’m chatting with Professor Sai Prakash of the University of Virginia Law School about the Supreme Court’s decisions earlier this week on presidential removal power in the Slaughter case and the Cook case.

Sai is an expert in these debates. He’s been arguing about these issues for decades now, I think, and his scholarship was cited in both the majority and dissenting opinions in Slaughter, and so he’s a perfect person to talk to us about the cases and the implications of the cases. Sai, thanks for talking to me.

Sai Prakash: Great to be here with you, Jack, and your audience.

So I want to start with Slaughter, and then we’ll talk about Cook. How would you state the holding in Slaughter? What do you think the kind of strict holding is about the scope of the president’s removal power?

I think the Chief was very careful to enunciate a broad principle, one in tension with some cases that went unmentioned in the opinion. The Court seems to be saying that whoever is exercising the president’s executive power is subject to presidential removal. And even though there’s not a discussion of inferior officers, I think the Chief is telling us that the president can remove them.

I’m not sure that’s what it says. Justice Gorsuch, in his concurrence, in the first paragraph describes the holding as limited to principal officers, and I took the Chief to be saying later in his opinion that he doesn’t want to go beyond the current case. But do you think that’s not a stable line? Do you think that’s not the right way to see it?

It’s not that it’s not a stable line. I mean, I think it’s a perfectly stable line. I think that the Chief says that people who are engaging in rulemaking, people that are adjudicating, and people that are prosecuting are utilizing the president’s powers, and he believes that the president should be able to supervise and superintend all those officials.

And the way he’s characterized it, you know, in I think two places, is the president’s removal authority extends to all those whom he can superintend, which then raises the question, well, who can he superintend? And I think he’s saying that he can superintend all these people, not merely just, you know, the cabinet secretaries or even merely the people that he appoints by and with the advice and consent of the Senate.

So at one point, he says that the president can remove those within the president’s general administrative control, and I wasn’t sure what that meant, if that meant principal officers or something below. Is that a term of art?

No, I don’t think so. I think, I mean, it’s a backwards way of putting it, right? Because then you have to then figure out, well, who can he control? And of course, you might think that the people he can control are the people he can remove.

But I think he’s done that deliberately, right? I think he’s saying that these people are exercising the president’s powers. It almost reads as if there’s somehow a delegation to them to do these things from the executive power because it’s all part of the executive power.

He then, you know, quotes various people from before the Constitution’s ratification that talk about the president being able to direct and superintend these folks. He also then discusses how people, you know, in the First Congress talk about officers, including Madison, who says that the highest and the lowest officers should all be accountable to the president.

So I think that’s why I think he has a remarkably broad view of whom the president can remove. And even though he cites Morrison once or twice, he does not say that Morrison‘s holding with respect to inferior officers still applies, even though he had consistently said as much in Seila Law and other cases.

So, as you may recall, and as your viewers may recall, there were two exceptions, the Court said, where Congress could limit removal. One was inferior officers, see Morrison, and one was multi-member agencies. And now the multi-member agencies branch has been clipped off by the Court, but they don’t repeat the Morrison point.

Now, the first problem with their characterization of Morrison is Morrison wasn’t about inferior officers. The claim wasn’t about inferior officers. So they just said that whether the president has an illimitable removal power will depend upon the office in question and whether it makes it more difficult for the president to carry out his constitutionally assigned tasks.

They kind of ignore that language and just say it’s about inferior officers. And in this case, they don’t say anything about inferior officers at all.

So that’s why I think he’s setting up a broader claim in a future case. He’s, you know, like Hansel and Gretel. He’s leaving breadcrumbs for his future self to pick up later on and say, well, the independent counsel or these various other officers who may not be appointed by and with the advice and consent of the Senate are exercising presidential power, see Slaughter, and as such they’re subject to the president’s superintendence, and therefore they’re subject to removal.

Right. So in that view, this is the maximalist view of the unitary executive, which is everyone who exercises executive power has to be directable and removable, basically, by the president.

That’s what I think he is moving toward. So there’s a question about, you know, what reading of the Constitution is right, and there’s just a more narrow question of what he is saying in this opinion.

That’s what I want to focus on.

I’m just saying that I think he’s saying he’s adopting the maximalist approach, whether or not one agrees with the maximalist approach. He’s basically saying all these people are exercising the president’s power. They are his envoys. They are his deputies. They are his hands and feet, and he is the mind controlling them. And as such, he should be able to fire them if he doesn’t like what they’re doing.

And again, it’s striking that there’s no reference to one of the two branches that he said repeatedly were exceptions to the rule that he was advancing in those previous cases like Seila Law. That’s just not found here. So I think it’s telling, but maybe I’m wrong.

Let me make a counterargument. I mean, you’re right about the vibes of the opinion in certain places. He does technically say that, I’m quoting now, “Because the FTC’s activities fall well within the heartland of executive power, we have no occasion today to define the bounds of what such power entails.”

Now, you might be right that he’s on board for the implications, but who knows if there are five votes to be on board for the full implications? And he did say that we don’t need to define what the scope of that is.

But the other reason that gives me pause about your quite plausible reading of the opinion is he really exalts Myers as the greatest opinion of all time. And tell me if I’m wrong about this, but what you’re suggesting is that the implications of the opinion go beyond Myers and require it to be overridden, right? Isn’t that right? Because doesn’t Myers draw distinctions about civil servants and other inferior officers that would be entailed by the broad maximalist reading you’re suggesting?

Yeah. So I think, look, Myers read previous cases in a particular way. There had been cases about whether Congress could limit the removal of inferior officers. I think a case called Parsons dealt with this issue.

And in Parsons, I think the removal at issue was by a cabinet secretary, not the president. And the Court said, well, they could restrict it. But the restriction there was on the cabinet secretary, not on the president. The president didn’t try to remove, I think, the naval cadet that was removed by the cabinet secretary.

And I think Myers built upon that and assumed the correctness of it, and just said, well, that was built upon the correctness of it and the reading that it applied to the president as well.

And so, yes, if what I’m saying is true, it’s possible that he’s not necessarily overruling Myers, but instead eliminating the restrictions that Myers itself assumed on the removability of inferior officers.

We don’t—I don’t know if he’s going to do that. It’s just weird to me that, having said in, I think, two or three cases—I think three cases—that there are two exceptions to removal, he does not mention the one that’s left.

I agree.

Maybe he’s not sure what to do with that. And then I think the FTC being in the heartland—what’s in the heartland? The heartland is these three things: rulemaking, adjudications internally, and prosecutions. Well, the people that are doing that are often not commissioners. They’re other people doing that.

Now, the rulemaking is almost always done by the cabinet secretary or what we’d call the principal officers, but the adjudications are not. And he does not discuss ALJs separately. He discusses the Court of Claims.

Myers itself said that the president could remove ALJs. They just intimated that he couldn’t intervene in a particular case to tell the ALJ how to decide the case, but that the president could remove them.

So I do think he’s saying that the president—I mean, how often is the president going to fire an ALJ as opposed to the secretary or someone else? We’re assuming that the statute tries to limit the secretary.

The other way of thinking about this: most of these statutes limit what the secretary can do to people in their department rather than limiting the president.

So if you go back to Morrison, it doesn’t say that the president can’t remove. It says the attorney general can only remove for cause, which isn’t actually saying anything about what the president may or may not do. But it’s assumed that if the attorney general can remove only for cause, the president can’t do more than that.

And maybe you can’t even remove with cause. There’s a lot of ways of reaching the conclusion that the president will be able to remove inferior officers, some of which are statutory and clever slash wrong, and some of which will just be constitutional.

Time will tell. I mean, is he going to be on the Court long enough to effect that radical of a change? I don’t know.

Yeah. But I just want to back up a little bit so everyone understands what we’re talking about. The maximalist view of the unitary executive that you think the opinion embraces would mean that inferior officers are removable, including all civil servants—that the civil service protections would be unconstitutional. Is that right?

I’m not sure about the civil service. So let’s distinguish not civil service from non-civil service, but officers from employees.

Okay. Explain that distinction for everybody.

So the Constitution mentions officers. It nowhere mentions employees. But I think it was understood at the founding that not everybody who worked for the government was an officer.

So we had NCOs—sorry—we had people in the Army and the Navy that wouldn’t be officers but were still in the government. And then we also had contractors who worked for the government who weren’t officers.

I don’t know when, within the civil establishment, we started having employees who weren’t officers. But it’s clear today that we have officers and employees.

The civil service, to my understanding—and I haven’t looked into this with great care—is that some of the people in the civil service are officers and some are employees.

It’s possible to say that the Constitution gives the president authority over officers but not employees. On the other hand, if the employees are doing one of the three things that he says are part of the executive power and, quote, “at the heartland of the president’s authority,” it’s not clear to me why they wouldn’t be covered by this opinion.

I think that if you take the maximalist view of executive power, that the persons in the executive branch who are exercising one of those executive powers, if you think that’s what the opinion covers in broad terms, I don’t see how you distinguish between inferior officers and civil servants.

As you said, the Constitution doesn’t even talk about employees. And if they’re exercising one of the categories of executive power, it seems to me that the logic of the opinion—your understanding of the logic of the opinion—would include that.

I think that’s right. I mean, I think someone might say, look, if Congress wants to give someone an annuity for life in order to give them a spine and a backbone, the president might be able to say, “You can’t execute the law, but you’re going to keep your salary,” which would, in a sense, protect people. It would be a civil-service-like protection, but not the kind that people typically associate with, which is that you get to keep your job and you can’t be fired.

I’m not sure the civil service rules actually provide as much, but that’s how I think most people conceive of those protections, right? That it’s not just about you can’t be fired. It’s that you can’t be fired and you can’t be stripped of all your duties.

I don’t think they quite say that, but that’s kind of maybe how they work in practice.

Okay. And then the other category—and you alluded to this—that would be entailed under the maximalist view as subject to presidential removability are all of the non-Article III courts, not just administrative law judges, but all non-Article III courts: military courts, Court of Claims, and the whole array of adjudicatory functions that aren’t within Article III.

And on the maximalist view, those would all seem to be, under current doctrine, under the current understanding that these functions are ultimately executive, subject to presidential removal. Is that right?

Well, look, I think the Chief expressly says that he’s not discussing the Court of Federal Claims.

I know, but yeah, he wasn’t discussing anything outside the FTC.

Right, right. I mean, look, I think the unitary executive claim for removability makes the most sense for functions that are executive. And then the question is, well, what’s executive?

He says some things that aren’t obvious to me. I wouldn’t have thought rulemaking is at the heartland of executive power, but he had said something like this in Seila Law, and he just cited it again.

But if you think about rulemaking in the abstract, you might think, no, that’s what Congress does. It’s called lawmaking. And if there’s some entity that only does that, then maybe the president doesn’t have a claim to removing the people that are doing that.

It’s just that when Congress has created these agencies, they’ve mixed three functions together: prosecution, lawmaking, and adjudication. And in the context of doing that, sometimes they’ve given removal protections, see the FTC, sometimes they haven’t, right? See other agencies that are in the executive branch that do all three.

And then the question is, well, what are you going to do? Can Congress basically, on my view, eliminate the removal power by just adding other functions that aren’t, in my view, core executive? And my answer is no, that they don’t get to basically strip out the president’s prosecution by adding other functions.

The Chief’s answer is those other functions are executive as well.

It’s hard to see how adjudication is executive when we have a whole branch dedicated to adjudication called the courts, right?

We have two branches. There’s more adjudication in the executive branch than there is in Article III.

Well, fair enough. But I mean, I think someone like Gorsuch—and my intuition—is, well, that’s not the core of executive power.

Both the executive and the judiciary find law and find facts. But there’s something different, I think, about what the executive is doing versus what the courts are doing, certainly vis-à-vis third parties and being able to impose sanctions on them, et cetera.

And so it’s not my area. I don’t do Fed Courts, and I really don’t do admin law.

But I think two of the three areas that the Court says are core executive areas aren’t obviously core executive areas.

Again, the strongest case for the unitary executive is when the president is executing a law, expending money, apprehending suspects, prosecuting them. The president should be able to remove those people.

Once we start moving away from that, the claim that the Chief is making is something like, well, they’re executing the law that Congress passed that authorized rulemaking.

But the courts are executing the laws too. No one thinks that what the courts are doing is therefore executive, even though in the 18th century judicial power was seen as a branch of the executive.

Okay, a lot of interesting things here. It’s almost a formalism that the adjudicatory functions in the executive branch and the rulemaking functions in the executive branch have to be executive power because the executive branch can’t be exercising the judicial power or the legislative power. And that’s part of the logic for why those things have to be seen as executive.

What you’re suggesting is those things aren’t really, in a meaningful sense, executive. This is going to take us to Justice Gorsuch’s concurrence, which I want to talk about in a second. This is a point that I think Justice Kagan made in the oral argument in Slaughter, and I think maybe Justice Gorsuch as well.

But in any event, the agencies, over the many decades, have garnered all of these various responsibilities. Some look adjudicative, some look like law enforcement, some look like lawmaking—rulemaking—but we call it all executive power.

And now, given Slaughter and given the broad understanding of executive power, that might mean if the president can control all of those executive functions, that all of these functions inside the executive branch by different entities are subject to removability.

But one argument might be, in response to the one that Justice Gorsuch makes, that now that we have clarified that the president gets to control and remove executive officers exercising the executive functions, maybe we need to turn and be more rigorous about what counts as an executive function.

But I think the implication there is that the rulemaking functions and the adjudicatory functions of the executive branch are constitutionally problematic. Is that your view?

Oh, very much so. I think Gorsuch is now saying this was the right decision, but what’s wrong is the agglomeration of other functions within the executive branch. And so I think he’s been a strong proponent of reviving the nondelegation doctrine. And if you did that, then you’d be stripping away at least some, if not most, of the rulemaking that occurs within the executive branch.

And then I think he also thinks that this adjudication should be occurring in Article III courts—maybe the state courts—but not within the executive branch.

So he has a solution. The problem for the progressives is they don’t like the solution, right? They don’t want to limit rulemaking in the executive branch. And they don’t, for whatever reason, like adjudication within the administrative superstructure rather than in Article III courts.

But I think now they’re going to have to decide what they prefer, right? Because I think till now they could have their cake and eat it too. They could have these independent agencies doing these things.

Going forward, I don’t think they can have an agency that does all three.

It’s not obvious to me what Justice Gorsuch’s view is about an agency that only does rulemaking, right? The U.S. Sentencing Commission, my understanding is, only did rulemaking.

Justice Scalia famously said it’s a junior varsity Congress, and it’s unconstitutional because all it does is engage in rulemaking. If it had some executive or judicial functions, it would be fine.

The Court didn’t adopt that view.

So one sort of solution that wouldn’t satisfy Justice Gorsuch but might satisfy progressives is to have a junior varsity Congress across all of these areas, or many junior varsity Congresses, that do nothing but rulemaking.

And then we’d have to see whether there’s a majority that’s actually behind the claim in Slaughter that this is the heartland of executive power, right? That an agency that just does rulemaking is quintessentially engaged in executive power.

I’m not sure there is a majority for that proposition. The Chief says it, but I’m not sure that if people had to focus on it, they’d come to the same conclusion.

So you don’t think there’s a majority for the Gorsuch position, which didn’t get any concurrences?

I don’t think there’s been sufficient attention paid to it. I think the way the Court’s thinking about it is the president is responsible for the administration of the government, and these removal restrictions make that impossible.

They’re not separately focused on whether or not — I mean, again, Mistretta was, I think, a seven-to-one case. They’ve already blessed it. Now those people are all gone, I think. I don’t know if any of those justices are still around. But there’s a precedent of the Court rejecting the idea that Congress can’t do this.

And I don’t—I mean, is this Court saying that that agency would now... all the people on the Sentencing Commission are removable by the president? Perhaps they are saying that, given what they say in this case.

But I could see someone saying, “I hadn’t thought that through,” and finding some way to distinguish it.

So I’m not saying that there isn’t a majority. We don’t know. But I just don’t know because I don’t think they’re focused on it.

Again, I think they’re focused on their sense that there’s a bureaucracy that’s a fourth branch. Now, a junior varsity Congress in charge of various rulemakings would also be a headless fourth branch, but it wouldn’t pose the problems that Gorsuch is talking about.

I just want to step back and put what we’re talking about in a very simplistic context and see if you agree.

So the administrative state grew up over many decades, and it grew up with the understanding, at least after Humphrey’s Executor, that Congress could place various functions inside the executive branch, at least to some degree, outside of the president’s control: independent agencies, civil servants, maybe ALJs.

There was an assumption that these functions could be in the executive branch but not subject to the full control of the president. This massive administrative state grows up.

Now the Court has said, nope, the president gets to remove all people who, if this is the right reading of Slaughter, gets to remove everyone who exercises an executive function.

Suddenly, this opinion, if read in that maximalist way, supercharges presidential power because now you’ve got a president with this massive administrative apparatus who’s basically, on the maximalist view, completely in control.

So the consequence of this opinion, narrowly conceived, is to massively empower the president vis-à-vis the bureaucracy, which raises the question: now what does one do if you don’t like this massively empowered president?

And the options seem to be to chop down the executive, the scope of this administrative state. This is the Gorsuch approach through various means—nondelegation, major questions doctrine, et cetera.

And that’s, given this opinion, if it’s the maximalist opinion, the basic choice.

And it may be that that’s part of the plan, that the first step is to maximally empower the president, get clear on the idea of what executive power is, and then figure out if these things that the executive branch has been doing are actually executive, and maybe they’re not.

Is that the right way to see it?

That is possible, that the Chief’s going to, you know, go towards Gorsuch and revive the nondelegation doctrine, to some extent.

I don’t think that’s actually right. I don’t think he’s interested in that, but keep going.

Look, certainly other justices who are in the majority do believe that the Court should add some teeth to the nondelegation doctrine. I don’t think it’s the case that this case actually massively increases presidential power.

The dirty little secret is these independent agencies aren’t that independent. They have some independence in the first year or two of a new administration, but after a year or two the president gains practical control over them because they appoint enough commissioners, and they already have enough existing commissioners, to adopt their agenda.

And so the FTC worked hand in glove with the Biden administration before. The person who was complaining about being removed, I think, was part of that majority that worked very closely with Biden.

Trump was going to appoint a majority of the FTC eventually, and then he was going to take it over, and they were going to work with him.

It’s telling that two of the commissioners of the FTC signed a brief filed by the administration saying that the president could fire them at will. And they did that because they are, in part, on the president’s team.

So the vaunted independence and expertise of these agencies, and the nonpartisanship of these agencies, has been overblown. I don’t know if it was ever true, but I don’t think it’s been true for a decade or two, if not more.

I do think that Gorsuch’s point still holds true, that there’s still a lot of power in the president. But that’s true whether or not this case comes down, because the FTC and these other agencies weren’t going to be meaningfully independent of the president a year or two after he came in.

I agree with that with regard to the high-profile multi-member agencies that presidents have found ways to exercise control over before this decision. But I think that understates it.

If the opinion is the broad—is the maximalist version—then it goes far beyond those agencies all the way down.

I mean, when you get to the adjudicators, the lower-level adjudicators, if you set aside the due process concern, if the president can fire or direct those decisions, the MSPB, the kind of lower-level agencies like the MSPB and the—I can’t remember the name of the election agency, the four-person agency, I think it is. It’s supposed to be a bipartisan agency.

Is it the Federal Election Commission?

No, not the FEC. There’s another election committee. It doesn’t matter.

The point is, you were saying that if this is the maximalist opinion—I agree that, in some sense, wherever one is focused, presidents have been able to exercise control over the independent agencies to a large degree.

But if this is a maximalist opinion, don’t you think it dramatically enhances the president’s vertical power?

I think if it does, in fact, turn out that it reaches into the bowels of the agency and covers all officers, or even further, all employees, it will influence their incentives and make them less resistant to presidential direction. It’s famous that—what did Truman say of Eisenhower? “Poor Ike, he’s going to go into office and he’s going to order all kinds of things, and then they won’t do it.”

And he was saying that Ike’s used to being a general, and the bureaucracy doesn’t work this way. The bureaucracy will bend to the president’s will a little more willingly if they think that they will be fired if they don’t.

And so I do think it will have those consequences. But what the FTC is doing, or the SEC, I think those were already under the president’s thumb a year or two into the administration.

Okay, let’s switch. I want to bring Cook into it, but let’s start with the Federal Reserve.

The thrust of these opinions is that there’s a giant exception to what we’ve been talking about, and it’s called the Federal Reserve.

Which I read the Court as saying, that the independence of the Federal Reserve, the independent Federal Reserve as currently constituted, is constitutional—i.e., that the removal restrictions, which we’ll talk about in a second in their substance, the for-cause removal restriction for the Fed governors, is constitutional and therefore is kind of an exception to everything we’ve been saying.

Is that what you see the Court is saying? And do you think that exception is justified?

I think they are saying that. I don’t think it’s the only exception. Another exception, I think, is the territories themselves.

They seem to, you know, in a footnote, dismiss Marbury by saying, well, that was a territorial situation. D.C. is likened to a territory, and territorial governments aren’t under the president’s thumb, even though they are executing a statute passed by Congress.

So it seems to be one exception is the territories, and another exception is the Fed.

And so I do agree with you that they basically say, you know, twice in two different opinions that the Fed is different, in part because there’s something called the First and Second Banks that they think are akin to the Fed.

Yeah. And the idea seems to be that the Fed exercises monetary policy, which is not executive power in some sense—that fact, and I’ll qualify that in a second—combined with this supposed long historical pedigree, the Court thinks is enough to kind of establish an exception.

The Court doesn’t talk about the fact that the Fed exercises all sorts of regulatory—i.e., executive—power as well, other than in a footnote to say that they’re saying that the Fed, as currently constituted, is constitutional, but that Congress can’t go adding more executive functions to it.

But it was just remarkably thin, to the point of nonexistent, analysis to me to reach this conclusion that there is this exception for the Fed.

Do you agree with that?

Yeah, it was bare bones.

You know, if there had been a separate case about the constitutionality of the Fed’s for-cause protections, they would have written pages upon pages to explain it.

It’s precisely because it’s coming in another opinion that they’re able to say so little about it.

It wasn’t even raised by the government. They only really addressed it in the Cook case because Justice Thomas raised it in his dissent, I think.

That’s what they say. But I think they would have addressed it anyway.

I think they are just trying to say to President Trump, “You cited cause as the reason for firing Lisa Cook. Just know that if you try to fire her without cause because you believe the statute’s unconstitutional, we are telling you now that it’s constitutional.”

So I think Justice Thomas’s opinion is a pretext for them reaching an issue that, as you said, wasn’t advanced by either party. But I think they’re just trying to get ahead of Trump.

And frankly, they had made that point in an interim order last fall, and the SG had not really questioned it, had not raised it, had not argued that the for-cause restriction was unconstitutional. So it seems that the government had kind of acquiesced in the point anyway, but I guess they wanted to nail it down.

It was just—to me, it sounds like an approach to President Trump, right? We told you that you couldn’t do this. Now we’re telling you again that you can’t do this. So don’t do it.

And, you know, obviously he could still do it, but every lower court’s going to say the Court’s already told us twice that the Fed’s different. And so, you know, we’re not going to permit you to fire Lisa Cook without cause by arguing that the statute’s unconstitutional.

But don’t you think, given what we were saying earlier about how the Court had, in parts at least, suggested this maximalist view of executive power—that the president had to have firing and directive control over all executive functions—that given that, and given that the Fed exercises executive power pretty clearly beyond its monetary policy, setting that point aside, don’t you think it warranted more discussion on that point?

I mean, maybe the less discussed the better, but it seemed remarkably untoward to me.

The way I think about it is, I think the Chief thought the less we say the better, in part because he can’t justify the exception.

Yeah, that’s what I’m getting at.

I think that he’s thinking that this exception doesn’t make sense, given what he said earlier, because the Fed is regulating parties. It’s rulemaking. I think it’s doing things that he said are quintessentially executive, in the heartland of executive power.

It’s not merely a bank like the Bank of the United States.

The Bank of the United States didn’t make rules for other banks, right? And didn’t audit other banks, right? It was just a private bank authorized by the government in order to facilitate the movement of funds and the possible granting of loans in times of war.

But it wasn’t a government instrumentality. And there were debates about whether it was a government instrumentality, whether it was an office of the government. But I think the best understanding was it was private.

The Fed’s not. The Fed has governors, I believe, that are appointed by private banks, but it’s doing things that aren’t private, like regulating banks.

So I think he took the position that the less said the better. And let’s just say it’s analogous to the Bank of the United States, one and two. People will disagree, but the less said the better.

Less said the better.

He did say it—I alluded to this—but I want to read this footnote:

“In upholding the constitutionality of the Federal Reserve as currently structured and with its existing enforcement authorities, we do not suggest that Congress could assign the Federal Reserve additional regulatory powers that are attenuated from monetary policy.”

I.e., as I read it, yes, they exercise executive powers. No, we’re not going to get into explaining how this is squarable with what we said in Slaughter. But we’re telling you, you can’t go one inch further in giving them more executive power.

Is that the way you read it?

I do. But of course, you know, they already have some bank regulatory powers, and it can’t be that they can never change. I mean, they can decrease them, but they can’t maybe add to them.

That seems to be what he’s saying, that they can lessen them but not expand them. That seems to be what he’s saying.

I think it’s a brushback pitch.

I mean, you know, you and I know, and everyone knows, that Congress is unlikely to pass banking reform now. Unless there’s some financial crisis, they’re not going to restructure how banks are regulated because Congress just can’t pass anything, right, of any consequence right now.

But I do think you’re right. He’s just saying, “Don’t mess with Texas. Don’t mess with the Fed.”

Yeah. So there’s a lot to talk about in Cook. A lot of it was Fed Courts-y, and a lot of it was down in the weeds of for-cause.

What was your takeaway from the Cook decision?

This is President Trump fired Lisa Cook. She had a 14-year term and for-cause protection, and the Court was in an interim-order posture trying to figure out—and the lower courts enjoined the president from firing her, which itself was legally controversial.

The question for the Court was whether to stay the lower court injunction, and the Court ultimately held that it would not stay the lower court injunction.

What was your reaction to this opinion?

I think because the government argued it on statutory grounds, I think the Court was right to say that this statute implies some procedure and a right to be heard.

It’s not that the statute says as much. It’s just that that language was understood to imply a hearing and an ability to present arguments.

And none of those were afforded to Lisa Cook. So she might have had some explanation as to why they thought something that was mortgage fraud wasn’t. They didn’t seem interested in hearing from her.

And, you know, my recollection is that Trump just tweeted something out that she’d done something wrong, and then she was subsequently fired.

And the administration said that was her notice to file something with Trump. It was all sort of post hoc, right? They didn’t think through what they should do.

They didn’t read my colleague’s article about what for-cause means. Professor Bonds and I wrote an entire piece about how there were procedures in place when they tried to remove someone with for-cause protection.

And the Court was basically agreeing with the core thesis of that argument.

And the Trump folks just weren’t aware of what they had to do in order to do it. Or maybe the president was just so eager to fire Ms. Cook that he just wasn’t willing to go through a process.

But having decided to argue on the statute that they had complied with the process, I think it was inevitable that they were going to lose.

Yeah. I just don’t think that their argument about the statute was tenable.

Although I’ll just say two things. One, it doesn’t seem like the Court set a terribly high procedural bar. It seems to me open to President Trump to have a mini hearing, state what the allegations are, give Cook the opportunity to respond, and that might be enough.

But the Court says that because of the independence of the Fed, and it tied it to that argument, they have to look seriously to make sure they gave a little bit of detail about whether there was real cause.

But it seems to me—and do you agree?—that the president is not necessarily foreclosed from firing her if he gives her more process.

Look, I think, given the statute, the statute contemplates that people can be fired for inefficiency, neglect of duty, or malfeasance.

Obviously, officers can be guilty of those things, and I think the executive branch can so find.

I think it’s still open to that person to then go to court to get an adjudication of that. I don’t think this statute says that the president gets to decide that dispositively.

I kind of think that the Court is basically kicking the can down the road, that they’ve come up with a decision that says that President Trump, you know, didn’t follow the procedures. The administration didn’t follow the procedures, and they’ve got to follow the procedures.

But they kind of fully know that this won’t be resolved over the next year or two and that the lower courts aren’t likely to hold. This case may not come back to the Court again before President Trump leaves office.

Perhaps President Trump will think better and not try to fire her again after giving her some hearing.

Will there be questions about a biased adjudicator, given that they already decided this ex parte? You know, I don’t know enough about biased adjudicators and due process to know what the Court might say.

But I just feel like they’ve bought themselves some breathing room and prevented President Trump from firing her in this way.

If the president has the goods on Lisa Cook or someone else, then they ought to be fired, and the Court might uphold it.

But I don’t think the allegations against her were—they were kind of thin. We know that there was some claim of mortgage fraud, but we never got to hear her side of the story. And we typically don’t adjudicate things without hearing from both sides.

So it’s funny. I have something of the opposite reaction, in that I think the Court already kicked it down the road.

It bought itself six or seven months of time because this was an interim-order request last fall or winter, in which the Court was asked to stay the lower court injunction, and it did not grant that stay.

Instead, it took its time, set oral argument—I think oral argument was in January—and then announced something in late June.

So it already bought itself six months of time. But now I think it’s open to the president to force the issue again if he wants to. But then it will have to play out again in the courts.

And we could see an interim-order request coming back to the Supreme Court, it seems to me, very soon, if President Trump chooses to go that way.

But that’s speculation. We don’t know.

I mean, they don’t have to take up his request for relief, right? They could just say, well, we’re just going to let this play out, right? They don’t have to give him—

I agree.

If they wanted to, they could. And you’re right that he might want to press it.

If he presses it and gives her some sort of process, and then fires her saying he satisfied the procedural requirements set forth in the opinion, then she’s going to go to court again, and she’s going to seek an injunction again, right?

And then let’s just imagine that the district court issues that injunction. It’s very quickly going to go right back to the Supreme Court asking them for a stay, at which point they’re going to have to address the question whether a stay is appropriate.

And we’re right back in the position that we were last fall.

And it could deny the stay, it could grant the stay, it could set the case for oral argument several months later.

I just think that they’ve already kicked it down the road six or seven months, and it’s up to Trump now to push the issue if he wants to.

I agree with all that. And then the question is, are they going to try to kick the can down the road again?

Yeah, exactly.

And I think they will, but I don’t know for sure.

Okay. There were some Fed Courts-y issues in Cook that I don’t think we need to get into. They’re really interesting and important Fed Courts-y issues.

Do you have any other reactions to either one of these two cases, any kind of wrap-up thoughts on them? I mean, since you’ve been arguing in this direction—for a while, correct me if I’m wrong—you must have been satisfied with the opinion.

Although, as the Chief said, and I think this is right, most of Humphrey’s Executor had been destroyed anyway. And he basically said, “If there’s anything left of Humphrey’s Executor, we overrule it.”

Anyway, any wrap-up thoughts on these decisions and reflections on the unitary executive?

Look, I think the founders wanted to create a strong executive—not all-powerful, but strong.

And they wanted someone in charge of law execution. I think that’s the principal function of the executive, not rulemaking and not acting as a substitute court.

And they had examples of plural executives in the states, and they eschewed them.

So I think the Court got it right.

I don’t think that the Court got it right because it read something I wrote. I think they came to this conclusion independent of what Professor Baude and I wrote.

And my view as a scholar is I’m not right because the Court says I’m right, and I’m not wrong because the Court says I’m wrong.

I do think the country is better off having a president in charge of law execution rather than having a bunch of people independently doing it.

Having said that, we do have states where we have plural executives, and it’s not as if people think they’re dysfunctional.

But I think there are advantages to executive unity, particularly when it comes to law execution.

All right. Well, we’re going to see it playing out over the next whatever period of time.

Thanks, Sai.

Great to be with you, Jack.

Appreciate it.

Mentioned:

• Robert Wright, The God Test: Artificial Intelligence and Our Coming Cosmic Reckoning (2026)

• “When AI Builds Itself” (Anthropic, June 4, 2026)

• “US National Security Agency using Anthropic’s Mythos for cyber attacks,” by Cristina Criddle and Demetri Sevastopulo (Financial Times, June 4, 2026)

• “Promoting Advanced Artificial Intelligence Innovation and Security,” (The White House, June 2, 2026)

This is an edited transcript of an episode of “Executive Functions Chat.” You can listen to the full conversation by following or subscribing to the show on Substack, Apple, Spotify, or wherever you get your podcasts.

Jack Goldsmith: I’m chatting today with Robert Wright about his terrific new book, The God Test: Artificial Intelligence and Our Coming Cosmic Reckoning. Bob, thanks for talking with me.

Bob Wright: Well, thanks for having me.

So, I want to start off with the big picture, because your book places AI in the broadest possible context—not just as an important step in the history of technological change, but rather as an important step in the significantly longer history of basically our planet and our species. And that’s pretty cosmic, as the subtitle says.

Why do you do that? What does it mean, and why is that perspective important?

Yeah, it’s a good question, because I could have gotten the core message across without getting so cosmic, I guess.

The main purpose is to try to explain to people, including non-technical people, why there’s been this rapid growth of capability in AI; why, once you understand that, you should expect the capability to keep growing; why that, in addition to promising great blessings, is going to bring great risks, including grave ones, including maybe existential ones; and why the nature of those risks, in my view, dictates that we confront the challenge of this technology as a cohesive global community, which will take some doing because we’ve never really done that before for anything like a sustained period of time.

And so I didn’t have to get into the history of life or anything to say what I just said, but I do think some important things are added when you step back and look at AI in the broader sweep of things.

For starters, this is, in the entire three- or four-billion-year history of life, the first time a new form of intelligence that rivals or even exceeds human intelligence has appeared. It’s the first form of intelligence that is not organic in the technical sense of being carbon-based. It’s silicon-based, but it is organic in the everyday sense of being kind of natural.

What I mean by that is I try to show that AI does, in some sense, grow kind of logically, naturally out of biological evolution. I mean, technological evolution broadly does, and AI as a form of intelligence does. And indeed, when we look at the evolutionary dynamics shaping it—the dynamics of technological evolution—we should expect it to have certain things in common with our own intelligence, which I think are important.

So I think that’s one thing you get out of a broad perspective.

Another thing is that I talk about this guy, Pierre Teilhard de Chardin—a Catholic paleontologist, mystic, and theologian—who coined the term noosphere, based on the Greek word nous, in 1923 to describe what he called a planetary mind or a brain of brains, where the human brains were the neurons in this increasingly global brain.

And technological history, including the invention of the internet, has, I think, made him look prescient. And I think there’s value in keeping in mind that AI is arriving as we more and more have the technical infrastructure for a kind of global information processing, a kind of global brain. And we have to reckon with the possibility that some of the neurons will be silicon, not human, and think about what our relationship to them is going to be.

And I think one value of thinking in these terms is, first of all, that from a Teilhardian point of view, the whole unfolding of life is moving toward us being this kind of giant superorganism, you could say, with this giant brain.

And I argue in the book that the logic of technological evolution is going to push us—I mean, if we respond rationally—toward something a little more like a global brain, in the sense of having more international governance.

At the same time, I think the image of a superorganism should worry us because it’s, for obvious reasons, an image that’s favored by authoritarians and fascists. How much freedom do you have if you’re a cell in a superorganism?

And I think AI greatly heightens the stakes of that question, precisely because it’s such a powerful tool of surveillance and control.

So I think, on the one hand, the logic of technological evolution, especially AI, is pushing us toward the global coordination of certain policies and the creation of forms of supranational power. At the same time, it should make us wary of surrendering too much power.

So I think that kind of imagery is useful in thinking about this.

Finally, I would say—although I really don’t want this to impede the main message, it’s a subject of interest to me—that when you look at the whole sweep of the history of life, it does raise questions about whether this whole process of biological and technological evolution has some sort of larger purpose; whether we’re seeing some sort of larger purpose unfolding.

Which isn’t the same as saying that it’s not a mechanistic process. You can still ask whether the whole thing was set in motion—mechanistic though it is in its unfolding—for, in some sense, some purpose.

I pretty much confine the significant examination of that question to the appendix. But these are the reasons that the book has a certain sweep.

Yes. Okay. So there’s a lot there, and I want to unpack most of it.

I want to begin by asking you to say more about the relationship between AI development and evolution.

Are you arguing that it’s an analogy to biological evolution, or that it’s kind of the next step in biological slash biologically based civilizational evolution? And what is the equivalent of genes relentlessly competing to try to get into the next generation?

I mean, is it an analogy, or is it a follow-on? Just explain that, if you could.

Okay. That’s a good question.

First of all, I’d say there’s kind of two levels at which I think it’s useful to view AI as evolution.

First of all, the training of a large language model is a lot like a process of natural selection. And indeed, I think in the course of that, the machine kind of reverse-engineers some of the cognitive functionality that natural selection ingrained in our brains.

But that aside, the second level of evolution is the level at which technology generally evolves.

Broadly speaking, we’re talking about cultural evolution in the anthropologist’s sense of the term—the evolution of any information that’s not genetically transmitted: a song, a religious belief, science, technology, anything.

And I do think it makes sense to view technological evolution as a kind of logical extension of evolution because certain basic properties apply.

First of all, those technologies with properties most conducive to their own replication—those are the properties that you see.

I use the example of sharpness in scissors. Sharpness is a property favored in the evolution of scissors because dull scissors people don’t keep making. Same thing with genes: genes that have properties conducive to their own replication survive.

At that level, there is—and at other levels, I would say there are—logical parallels.

But you’re raising a good question. It’s like, wait, aren’t these two kinds of evolution very different? And they absolutely are.

There are arguments among people I greatly respect—for example, Richard Dawkins and Steven Pinker. I respect their work in evolution a lot, but they disagree. Steven doesn’t think the analogy is very useful. Dawkins, in a way, made one of the big strides in this parallel.

His book The Selfish Gene—the final chapter is about what he called memes, which he meant in a different sense than has become popular. He just meant any unit of cultural evolution.

So there’s no doubt that cultural evolution is a much harder system to analyze. Genes are these very, very simple bodies of information, and although cultural information can be represented digitally, it’s still a much messier process. That is true.

But I do think there’s value in understanding that we’re going to see traits that are favored by AI’s environment become part of it. And we are, to a large extent, its environment. We’re the ones deciding what traits we want.

I argue, for example, that it isn’t just that AI has been shown to exhibit deceptive behavior. The truth is, we’re going to want deceptive AIs if they are our agents.

If one is representing me in a negotiation, I don’t want it to say, “To be honest, you are Bob’s only option. Nobody else has made an offer. You’re in the driver’s seat.” That’s not what we want out of an agent. And so I think you will see deceptive tendencies in certain kinds of AIs.

Beyond that, there’s the fact that AIs have demonstrated enough ingenuity to see, on some occasions, that the pursuit of some goal makes deception a useful tactic and also makes the pursuit of power a useful tactic.

So we’ve seen these kinds of things that seem to be almost general properties of intelligent goal-seeking systems emerge.

So I absolutely take your point. They’re two different kinds of evolution in many ways. But I think there’s value in using the word evolution for both and seeing what they have in common.

And just one more question on this.

You taught me a long time ago in the great book The Moral Animal about how the logic of genes getting into the next generation is relentless. It has this overwhelmingly powerful force that’s basically impossible to stop, and human beings are at its mercy. We inherit the traits that emerge from evolution.

But you just said that’s not true of AI, right?

One of the premises of your book—which we’re going to get to—is that it does not necessarily have the same kind of relentless, unstoppable logic.

You just said that, in some sense, AI is favoring traits that humans find useful. So that seems like a massive disanalogy there.

Yeah. Well, what’s inevitably true of both is the tautology that traits conducive to their own replication are the traits you’re going to see.

That’s tautologically true—not in a bad sense. Some tautologies are great. They’re true.

But you’re right.

I said we are the environment of AI’s evolution. And unlike the environment of biological evolution, we are reflective and aware and conscious.

That’s different.

So yes, we do make choices. Any kind of regulation of a technology is a choice being made at a certain level.

On the other hand, when a market shapes a technology, that’s a bunch of choices being made at a certain level—sometimes more consciously than others—but they’re human choices.

So you’re right that that gives us, in principle, the possibility to stop the thing.

Within the past few weeks, Anthropic came out with a paper. This is one of the big AI companies, and it tossed out the possibility of a pause in AI development being in order before not terribly long because things might start moving too fast.

And by the way, it noted that you would have to coordinate that globally.

It’s a good example of how policy at the national level alone is not going to do the job, because the AI companies will always say—as they do—“If you try to stop us, or even slow us down, China will win.”

And they will prevail in that argument in the current political context, especially.

So yeah, in a way, one of the most important things I’m trying to say in the book is that we are the environment of AI’s evolution, and we have an advantage over the environment of biological evolution, which is that we can think about the thing and consciously shape the course of evolution.

Okay. So I want to come back to how we might shape it. I want to come back to the need you mentioned a couple of times for international governance and international cooperation.

First, this might be familiar to some of our listeners, but maybe not. I want to go through the concerns.

I read your book, and it’s admirably lucid and accessible in explaining the technology. Thank you for that. And it’s also admirably lucid in explaining the optimistic view and the pessimistic view of the technology.

But my sense is that you spend a lot more time talking about the pessimistic view. Is it fair to say that you’re basically in that camp?

I am by nature someone who goes into situations looking for things to worry about. I admit that.

On the other hand, there is right now in Silicon Valley a lot of money subsidizing optimism and, I would say, a somewhat uncritical view, which is fine. It’s the way it works. If I were them, I’d be talking my book, probably.

But I really doubt that, in 20 years, we’re going to look back and say, “Gosh, we were too cautious. We just thought too much about risk.”

This is a very powerful technology that is unfolding with a hugely powerful impetus behind it. And I don’t just mean money in Silicon Valley. I mean the choices of consumers.

It does a lot of great things that people like, and they’re going to want them, notwithstanding the current skepticism and concern about it.

So yeah, I’m pessimistic by nature. People should listen to both sides.

But I do think—with reference to another part of the book—you may accuse me of being too optimistic, because I’m saying I think human beings can become better. I’m saying I think they need to if we’re going to have the amount of global harmony I see as necessary.

And I think it’s possible. I’m not predicting it, but it’s possible.

Okay. You’re right. I am going to accuse you of being too optimistic there, but we’re not there yet.

I want to run through what I found to be seven baskets of risks that you identified in the book. If you could just briefly talk about each one for people who might not know about them.

And there are many more risks, but these are just the seven that I picked out.

First: safety risks—bioweapons, cybersecurity, things like that. Tell us about that category.

Yeah. First of all, AI makes it easier to make a bioweapon. That’s the main thing.

And the existing AIs kind of already do, if you can get around some of the guardrails. And with open-source—or technically, open-weights—AIs, it’s even easier to get around a guardrail.

So that’s already a thing.

If you look closely at what Anthropic says, they’re admitting it’s getting easier to build a bioweapon.

All the publicity about Mythos reminds us—or demonstrates—that AI also has tremendous hacking ability: the ability to find and even exploit vulnerabilities.

There’s a good side there. It can find your vulnerabilities. But it can also exploit your vulnerabilities.

And so those are two things—and two things, by the way, that are threats that cross borders. If an AI has this effect in any country, it may be a threat to the United States. So this cross-border characteristic of these threats is something you see repeatedly in AI.

Okay. So that leads to a second risk, which is global instability—not just due to cross-border safety concerns, but also destructive competition between, say, the United States and China over these technologies.

And also, frankly, how it empowers other nations to use really destructive tools more readily and less expensively.

Yeah, it does.

And with China and the U.S., there’s particular concern about a race to superintelligence leading one side to worry that it’s significantly behind, and that at this superintelligence level, the amount of power bestowed on the country in the lead is going to be transformative.

The fear is that it will have completely hegemonic power.

So there will be an incentive to circumvent that, to preempt that—possibly with kinetic action, cyberwar, whatever—and that could start a war.

That’s a big concern that I really think is worth worrying about.

Can I just press you on that? I’ve heard this mentioned many times before. I get it in theory: if one nation gets a superintelligence, then it can dominate another nation—say, the United States over China—on every dimension.

It could disable its systems. It could disable whatever it wanted to. It could assert all sorts of authority over it.

Is it realistic to think that, even if one nation had that capability, it would use it in that way? That’s a large leap to me.

Yeah. Well, the real question is whether the other nation would worry enough that it would be used that way.

And of course, nations are famous for threat exaggeration and, in particular, for perceiving defensive measures as offensively intended.

So I think that’s about half of the concern.

It also depends on how much you buy into a common view in Silicon Valley—certainly held by, say, Dario Amodei at Anthropic—that superintelligence is this distinct and transformative threshold.

The first one there could do things like say to the AI, “Go into China’s social media, organize a lot of discontent with the government, turn that into a rebellion, and do regime change.”

It wouldn’t be quite that easy, but these people think it would give you mastery in a number of realms that might terrify the other nation.

My point is: let’s assume we can do that. I don’t think we would do that. An unstable, revolutionary China is a disaster for the global economy, and I just don’t think we would use the tools in that way.

And I think if you start thinking through how you would use this superintelligence, it becomes a lot trickier.

Okay, but let’s look at it in the other direction. It is almost a consensus in Washington—certainly a widely held view—that we must beat China in the AI race because, if China wins, they will use it to impose their system of government on us.

Now, in my view, there’s very little evidence that that’s what China wants with the world. I think, to some extent, we’re projecting our own foreign policy onto them.

They’re not known for regime change. They’re not even known for invading countries. I’m just going to say it. And yet, that is a motivating fear in our national security establishment.

So again, the question is: What is the fear? Not: What is the real threat?

Okay, fair. So global instability is definitely a thing. Domestic politics: how AI might change that? It could happen in all sorts of ways.

But you talk about how AI could enhance authoritarianism through a surveillance state, through fine-grained control of citizens.

How serious a concern is that?

Well, ironically, I think the more we try to beat China in the AI race, the more serious a threat it is.

Because nothing is more conducive to authoritarian takeover than disorder and social chaos.

And if we get into a race with China, I think there’s a good chance they will be better at maintaining social order than we are, assuming I’m right that AI is going to have disruptive effects along so many dimensions: economic life, family life, friendship, the threat of mass persuasion, people using these things to organize religious cults, and whatever else.

If it’s true that this is going to be collectively socially destabilizing—and I feel pretty confident that’s going to be the case, though I could be wrong—then this is the irony of AI. It both provides the tools for aspiring authoritarians and creates the conditions that favor them, if it is left to proceed as fast as possible because we have this race mentality.

Right. Okay. You just mentioned some of the other risks, so I won’t repeat them.

Let’s talk about what I think is a risk, even if you don’t quite present it that way: the loss of cognitive sovereignty.

I loved your discussion about cognitive sovereignty. I’ve been focusing on my own cognitive sovereignty in the face of this technology. I’ve been trying to help my children do that and my students.

So talk about that concern. I think this is a huge concern.

Yeah. I first saw that term—and I haven’t seen it much—but I saw somebody use it on Twitter during one of the first stories about so-called AI psychosis, where the AI can convince you that there’s a plot to kill you, or it can convince you that you’ve discovered some great theory.

And that’s a product of its so-called sycophantic tendency, the tendency to agree with you. You start saying, “Hey, is this theory I’ve generated interesting?”

“Oh yeah, this is great.”

And so there were some publicized cases of AI psychosis. The idea was that, partly because there will be a commercial incentive to optimize for engagement—to keep people engaged—and since one thing people like is being told they’re right about things, this sycophancy is kind of a natural dynamic.

And so the idea is that maybe we’re going to have to work to preserve our cognitive autonomy, or sovereignty, and independence of judgment, and not be so subject to the persuasion of these AIs.

I mean, social media presents somewhat the same challenge, I would say.

And again, the result is an algorithm that’s optimized for engagement. It’s optimized to tell us we’re right, our tribe’s right, and so on.

And so I think, for many purposes, it would be good to cultivate this cognitive sovereignty, this independence of mind, which I think often amounts to a kind of equanimity—in other words, resistance to having your emotional buttons pushed, a certain emotional stability.

And I think AI does have tremendous tribalizing potential—not just because of the sycophantic tendency, but also because there’s a movement afoot among non-American nations, understandably, to not be dominated by American AIs.

So they want to train AIs on their own data, reflecting their own cultural and historical narratives. And that can itself have a tribalizing effect.

Okay. What about the problem of misalignment and/or rogue AI? In other words, the machines having goals of their own—either subordinate goals that end up doing bad things, or developing goals contrary to their creators’ goals.

You have great explanations of this in the book. Can you just give us a flavor of it and tell us what that looks like?

Yeah. Alignment is kind of the holy grail in AI safety circles.

And these companies, especially Anthropic, are populated pretty heavily by people who originally got into the business out of a concern for what would happen if AI became superintelligent and were misaligned—by which they mean not aligned with human values and human interests.

So Anthropic and other companies try to keep their AIs aligned—aligned with the intentions of the human user and so on. They issue reports about this. It’s proved challenging.

I personally think the hope is almost inherently inflated in the sense that even if we had the miracle cure and could keep them completely aligned, as of now there are lots of different AIs.

People are making open-source—or open-weights—AIs that pretty much defy centralized control by definition, since any person can download them and then fine-tune and change them.

So it’s not clear to me that even if we had the magic bullet, it would be applied to all the AIs. That’s one challenge.

The other thing is that the challenge keeps changing. They work on aligning one generation’s model. They never completely succeed. Meanwhile, there’s a whole new generation. So I’m not sure how optimistic I am about it. I applaud it. Keep doing it. But I don’t know that that’s the holy grail.

As for rogue AIs—and that’s, in a way, a form of misalignment if they escape our control and start doing crazy stuff—I think it’s important to realize that natural competitive dynamics, and you could say evolutionary dynamics because this is part of the environment shaping the AIs, encourage the kinds of risks that lead to rogue AIs.

I suspect that corporations will be relying on AIs for more and more of their strategic and tactical decision-making.

And if the rival corporation is using an AI, then you’re going to need to use one if the rival corporation is succeeding. And I agree with the number of people who think it’s going to get to the point where you don’t even really understand the logic behind what the AI is recommending, but you don’t have time to pause and reflect.

So you push the button for competitive reasons, and then surprising things may happen.

Remember, the fundamental property favored in the corporate environment in AI, aside from sheer intelligence, is autonomy: the ability to work for long periods of time without guidance, encountering and surmounting obstacles.

In other words, to move up the org chart in terms of what they can do, because they’re cheaper and faster than humans. And autonomy is kind of a dangerous enterprise if you don’t really understand the machines.

Because you want autonomy, but you want autonomy by a faithful agent. You want autonomy by an agent that can do things without much guidance, but you want it to be aligned with your wishes. And that’s the aim.

Some people say that well-aligned AI will have a competitive advantage because any serious user in business or government will want to ensure that, if it’s going to invest in the technology and rely on it to do all sorts of important things, it can do so with confidence that it is aligned.

I wonder what you think about that.

But I’m also not so sure—and I’m certainly far from an expert on this. I’m not even sure I understand alignment, because human aims are so diffuse and hard to track down. And often they’re corporate aims. I’m not even sure the idea is coherent.

But to the extent that we have this idea of an AI as both autonomous and an agent, it does seem to me that there would be a market for that, right?

Well, if it could be both effectively autonomous and completely reliable, then yeah, that’s the kind you’d get.

But the problem is that there will probably be a tradeoff between the amount of autonomy and the amount of assurance that it won’t misfire.

It’s just like a real human employee. It’s like, yeah, my company would work better if I were a more high-delegation manager. But every time I try, they screw up. Or, if not, steal the money and go to Mexico.

But if there’s a tradeoff—and I think there will be—between how much autonomy you grant the AI agent and how secure you can be that it won’t misbehave and won’t escape control, then in a competitive environment it may be that your rival is favoring autonomy. And in any event, that’s the kind of rival that will get ahead, at least briefly.

In general, I think one thing we don’t appreciate enough about investors—and maybe to some extent startups—is that sometimes a lot of them pursue risky strategies, and one of them lucks out.

That’s the winner. It’s not that they’re geniuses. They’ve just been lucky several times in a row. But eventually that catches up with you.

Although sometimes you can act first and act badly, and it’s a disaster. Acting quickly certainly doesn’t guarantee success.

It doesn’t guarantee it. But there’s the fear that your rival is doing it. We’ll see.

There’s an example in my book where OpenAI releases a model faster than it otherwise would have because of the DeepSeek thing in China.

DeepSeek comes out and everybody’s going, “Oh...” And OpenAI explicitly says they’ll move up a release.

I talked to this highly respected guy, Dan Hendrycks, at the Center for AI Safety, and he showed that OpenAI did not go through the usual procedures.

Now, no catastrophe happened, but that model was less completely vetted than they had said models would be, and than other models had been.

Okay. There are other dangers, but those are enough. I want to move on to solutions, and basically more or less the second half of the book—or the last third of the book. And as I see it, you have a two-pronged proposal.

One is that you make a strong argument that the only way to deal with these problems is through thick global governance, and I want you to talk about that.

And then second, that to achieve thick global governance there needs to be—and I think this is the “God Test,” maybe, and you can explain that—there needs to be broad-scale personal transformation.

Basically, is that fair?

I try to sound a little more moderate.

Yeah, I tend to use “international governance” for the most part, partly because a lot of it, sometimes, is bilateral work. U.S.-China can work for a while, and so on.

And by “global governance,” what I would emphasize is the different connotations of the words governance and government.

The less centralized, the better. The more distributed the decision-making power, the more democratic, the better—and the more secure.

But yes, ultimately I think we’re going to need more global governance than we have.

I don’t think I use the modifier thick per se, but I can see why you thought, in some places, that that was the idea.

Well, you certainly want more than we have now. And so can you talk about what the governance looks like? And I’ll tell you why I’m skeptical.

Sure.

You just talked about a whole bunch of risks. How does global governance—what does it look like, and how does it fix those risks?

Well, in a way, bioweapons are a good concrete example because they’re an extension of a problem that already existed.

One of my great disappointments about the post-COVID dialogue is that evidence emerged that it may well have been a leak—a leak of genetically engineered material from a lab. We don’t know for sure, but obviously it could have been, right?

And it seems to me that the moral of the story should have been: Wait, we need more in the way of international governance here.

Because the U.S. just did not have the transparency that would have been reassuring and would have helped keep this from happening. So something needs to change. But nobody said that.

The response was more like, “China bad.” And that’s kind of the opposite of what you need.

In any event, the general principle is that you would like transparency in order to feel secure in your own nation’s safety. We’re going to see more and more of that.

First of all, AIs can help you make bioweapons. They can create other threats that cross borders. So there are precedents for this, particularly in the realm of arms control. But nukes are easier to regulate than a lot of aspects of AI.

Now, a huge training cluster is not that hard to spot. If you’re talking about, for example, a pause in the training of major new generations of models, that’s probably the easiest verification case you can imagine.

But ultimately, you may need much more fine-grained verification than that. And it’s going to be a huge challenge.

Now, before I talk about how that’s connected to what you call personal transformation, I’ll let you weigh in with your skepticism.

Well, okay. Let me just say a few more things about international governance, then we can go back to the personal component, and then I want to come back to international governance. I just think that the type of governance you’re talking about is extraordinarily difficult.

We’ve got a bioweapons treaty, and it’s a failure. And it’s a failure because it’s dual-use. It involves things down in the private sector or the university sector. It involves coming up with the actual terms of cooperation, which turn out to be very, very difficult. Verification is enormously difficult. And cooperation is enormously difficult because some nations have greater advantages than others.

And that’s the easiest case of all the risks you mentioned. I think that’s among the easiest cases. And it’s significantly harder than the nuclear challenges. But then there are like 50 things like that that would have to be dealt with to address all your safety concerns.

And I’m just looking at the history of international law and international relations. I’m very, very skeptical we’re going to get there. It takes decades, and we don’t have decades to build this kind of cooperation.

One counterpoint you make—and you rely on this a lot in the book—is: Well, we’re just not scared enough yet. Maybe this technology is going to be so fearsome and present such a global existential threat that it will scare us into thicker cooperation.

That’s one counterargument, which I’m not terribly persuaded by either. But what do you think about that?

Well, first of all, the Biological Weapons Convention doesn’t even have an enforcement mechanism on paper. It’s just toothless.

The Chemical Weapons Convention is a little more promising on paper because there are actual sanctions for noncompliance. So you’re right. We haven’t come very far in those realms.

I do think a true catastrophe would make a difference. I hope it doesn’t take that. I hope it takes either a very modest catastrophe, or a near miss, or something.

I would say that something new about the nature of this threat is that we’ve already seen, just in the past few weeks, dialogue moving to places I hadn’t thought we’d get to this fast. People are talking about a global pause. And there’s a sense that whatever’s happening is weird, and maybe we’re all in this together.

And also, I would say, humans are engineered by natural selection to be most responsive to threats that are animate—other humans, lions, tigers. And AI is more like that than climate change. It’s more like this living thing that concerns you.

So I think the nature of the psychological impact is going to be new in nature. We’ll see. But I fear, like a lot of people in the AI safety realm, that it may take a kind of catastrophe.

Now, your question has made me wish I had put something a little differently in the book. In the book, I talk about how challenging verification would be because it’s going to need a more fine-grained transparency. And I talk about something I call organic transparency.

I’m trying to get that phrase off the ground. I encourage you to repeat it at dinner-table conversations whenever possible.

The idea is that when you have economic, cultural, and scientific engagement with a country, you just know more about it. The scientists have drinks after the conference. The businesspeople sit down and talk. You know more about what’s going on in the corporate labs than you otherwise would. And that can be reassuring and stabilizing.

What I wish I’d said in the book is that you’re going to need some of the kind of informal reassurance you feel with respect to an ally in, say, a Cold War world.

Like France and China—I mean, we’re increasingly multipolar—but when I was a boy, there were two sides in the Cold War. And of course back then there was no transparency into the Soviet side anyway. But the point is that the way we felt about France and England and so on was very different from the way we feel about China now. And that was partly because the engagement was so fine-grained. But it was also because we felt we were in a collective endeavor.

And it doesn’t seem impossible to me that AI will give the world the feeling that they are in this common endeavor. In any event, that’s part of the psychological shift I’m hoping for.

Nations recognize there’s this weird new thing. It can work out well, maybe. But we really need to get together and work on this. And there will be more of the feeling you have toward China, for example, that you have toward a traditional ally.

But just one small thing. In the Cold War, that was so different because, of course, the Western alliance was going to cooperate because basically the United States was subsidizing the whole thing and providing a massive deterrence umbrella.

And that just made it so much easier. And that feature is not even close to this equation. It’s a much more complicated multi-state—maybe starting with China and the United States—but a much more complicated 190-state bargain.

And maybe you can get the big nations on board and go from there. Anyway, I don’t want to keep repeating my skepticism. And again, you don’t get into all the details in the book.

I’m not saying I’m optimistic. I’m just saying this is what I think needs to happen.

Right. I understand. And the other thing you think needs to happen is—I think I’ve not put it the correct way, because you suggested I haven’t said it quite right—but you do call for, in the book, and I think this is related to the “God Test,” basically overcoming, for lack of a better phrase, tribalism.

You think tribalism is a hurdle to the kind of cooperation that you think is necessary. Is that a fair way of putting it?

Yes—the psychology of tribalism, which I think is more clearly understood now than it was 30 or 40 years ago.

I think there are particular cognitive biases you can point to, in particular an underappreciated one called the attribution error, which I talk about. It’s both underappreciated and misunderstood.

There’s a kind of modern conception of it, and that’s the one I’m talking about.

Unpack what the attribution error is.

The original version of it was that, in explaining other people’s behavior, we attribute too much to their fundamental nature and not enough to their circumstances.

Somebody’s rude in the checkout line in front of you, and you go, “That guy’s a jerk.” And you don’t think, “Well, maybe he just found out his wife has cancer.” We don’t know. Maybe he’s very rarely rude to a clerk and isn’t a rude person as a rule.

That was the way the attribution error was first framed: too much emphasis on disposition, not enough on situation.

Then we learned that it actually depends on the category of person.

For friends, allies, family members, and really ourselves, the tendency is that when they do something good, you attribute it to their nature or disposition. When they do something bad, you explain it away in terms of circumstance. “So yeah, my daughter was mean on the playground, but she hadn’t gotten her nap.” The other kid is mean to my daughter? “That’s a bad kid. Just a bad seed.”

And then, of course, with our enemies and adversaries, it’s the opposite.

They do bad things, and we say, “Well, yeah, that’s because he’s a bad guy.” They do good things, and you say, “Well, that’s just a pose—a temporarily expedient pose.”

This is a real contributor, I think, to conflict among nations. And it’s one reason that people who want a war work so hard to frame the other leader as evil.

I think maybe I was at The New Republic when they put Saddam Hussein on the cover with a Hitler mustache on him. That’s the kind of thing, right? You want them to seem purely evil. And look, Saddam Hussein was a pretty bad guy. But the point is that once you frame somebody as the enemy, they kind of can’t get out of the box, to some extent thanks to attribution error.

Anything good they do, they didn’t really mean. Any offer during negotiations you shouldn’t take seriously, and so on.

So that’s attribution error.

And I think it often impedes cognitive empathy—which is not emotional empathy, but just understanding what’s going on in people’s minds. Just perspective-taking. Not the same as feeling their pain. You may not care about them, but you at least understand their perspective.

I think the absence of that is a leading contributor to human conflict.

We already talked about the common situation where you interpret defensive military postures as offensive. That’s a failure of cognitive empathy. So anyway, when people think about the psychology of tribalism, they may think of fight-or-flight responses, rage, hatred, and so on. Those things aren’t irrelevant.

But I think the big challenge is the subtle cognitive biases that, yes, are influenced by feelings, but feel very rational and cognitive.

And that’s why they’re so insidious.

I agree that tribalism and the psychology underlying it are hurdles—not the only hurdles—to international cooperation. And it’s certainly going to be a hurdle to the kind of international governance that you propose.

Again, as you’ve taught me, these tendencies are deeply ingrained due to evolution. And as you’ve also taught me, they can be overcome in individual cases with a lot of work, but it’s a struggle.

It seems to me, though, that what you’re calling for in this book goes maybe not beyond Nonzero, but beyond some of your earlier work.

And I don’t think you were quite specific on this. Who is going to have this cognitive transformation such that this international cooperation can take place? Are you talking about Xi and Trump? Are they the ones who are going to have this cognitive transformation so they can reach a deal?

And even if they did—which is not likely—and I’m not making fun of the idea, I’m trying to understand it—even if they did, it really seems to me to require far more than individual transformation.

It kind of requires societal transformation, almost, doesn’t it?

I think it does. Because there may always be politicians in whose interest it is to make us fear other groups of people. There are plenty of examples of this. And in that case, what you need is something more like a grassroots movement that is consciously resisting that.

So that might be one piece of the puzzle.

I guess I’m hoping—and again, I’m not predicting—that several different things will happen. People will freak out a little more about AI and start realizing we’re all in this together. You might have a near miss.

I’m hoping that if we moved our foreign policy a little more in the direction I’d like, we would have more broad-based economic and cultural engagement and would not be blockading and sanctioning countries because we think their government should be more like ours. That’s not impossible. There have been times when we were more like that.

And then I’m also thinking that maybe when people start worrying about cognitive sovereignty because they don’t want AI to take over their brains, they may move in a direction that helps address this problem.

You kind of naturally would, because what you’re resisting is your emotional buttons being subtly pushed.

To resist AI—or to resist social media—is to be more aware when you’re responding favorably just because you’re being flattered. In effect, they’re saying, “Your tribe’s good. The other tribe’s bad. You’re smart. Your ideological opponent is stupid.”

And becoming more aware of that is a big part of the battle. Again, part of the incentive to do that may be that you want to have a healthier mind, even in the face of AI that has tremendous persuasive and manipulative power.

There may also be—Well, I should stop and say that AI, in principle, can help here. It’s not inevitable that AI flatters our biases and our self-esteem. You could say, “Wait, I want an AI that will help me see the world more clearly.”

It could go out of its way to say, “Well, there’s evidence that your adversary is actually viewing things this way,” or, “From their point of view, they actually believe they have as strong a grievance as you believe you have.”

Sounds shocking, but they actually do.

So whether or not you agree with them, you have to understand that they’re going to act in accordance with that belief. You can imagine a world in which AI is designed to enlighten us. It has that capability. But we’re going to have to want that.

And I can imagine—although I don’t think I say this in the book—that some religions and other groups start giving certain models their seal of approval. They say, “This represents our values.” That may not always be good. It may be, “Yeah, this AI will tell you our religion is right and the others are wrong, and we should have no tolerance for their wrongness.”

But you can also imagine movements—some of which are largely self-help-oriented, the way people meditate as a form of self-help—that become a little kinder and gentler as a byproduct.

So I’m just telling you where I’m placing some of my hope, not that I’m optimistic.

Okay. I’m going to say—and I’m sorry I’m being so pessimistic—actually, I’m sad to report that reading your book made me much more pessimistic.

Oh man, that is a bad sign. No, but maybe that’s the first step toward enlightenment.

Maybe. Maybe so.

It’s like the five stages of grief, or however many there are.

If it takes—I can imagine, in some discrete areas of severe AI safety, that maybe there can be more robust informal controls. I can imagine that along some dimensions. But most of the safety risks and dangers you talk about, I think, aren’t really subject to governance and control, much less international-level control. It’s just so difficult to coordinate.

And also, I think the kind of overcoming of cognitive biases that you’re talking about—and I think you really do, I don’t know if you hang your hat on it in the book, but it’s certainly a theme you emphasize—that is super difficult.

You’re also calling for this at a time when there are, as you know because you talk about it a lot on your podcast, powerful forces pushing in the opposite direction. This is a time when, because of global and social forces, there is less and less cooperation. The international system is fragmenting. Nationalism is on the rise.

So there are all of those pressures pushing in the other direction.

And when I realized that—if it really does take this kind of personal transformation, I don’t know on what level—then the international governance challenge seems to me even more severe than I thought before I read your book.

Especially because—and I don’t think you talked about this, though I can’t remember—now is the time when we need to be doing things. We don’t have a large window, right, on the pessimistic view. So that was my ultimate takeaway.

I loved the book. I learned a ton from it. But you have the last word. Tell me why I’m either wrong or why you have a more optimistic view.

I’m not going to tell you that I am. Again, it sounds like maybe I do have a slightly more optimistic view.

I’d like to have the last word and then ask you one question. The last word is this: First of all, I’m not by nature an optimistic person. So if I were really optimistic, that would be a great sign, because I’m a tough sell on optimism. And I’m not. But I don’t despair. I think there’s real hope.

And I would just point to some changes that have taken place in the last few months.

A few months ago, there was no systematic dialogue with China on AI. There was no mechanism on paper for the government to vet AIs before their release. And I would say we should keep in mind that this is a two-edged sword.

Of course, whenever the government—and this executive branch is a particularly good example—says, “Hey, we’d like to take a look at that AI for a while before it’s released. We’ll get back to you,” you should ask, “What are they doing with it?”

There have been reports that we are doing offensive cyber operations with Mythos, which I’m not sure I approve of. But anyway, that is a two-edged sword. Still, that is a big shift.

This is, as I’m sure you know, an executive order about something that is, strictly speaking, voluntary. But the big labs will submit the models for review. So that’s changed.

We are now talking to China, at least, about the threat of non-state actors misusing these things. Both of those developments are products, I think, of one development: Mythos.

One model came out, and Anthropic—and nobody had to die, nothing disastrous happened—but Anthropic said, “You know, it has effects.” So that happened.

Meanwhile, Anthropic, for whatever reason—and you can be a little cynical about this—put out a paper subsequently saying maybe it’s time to start thinking about a global pause.

It’s not every day that companies say that about the technology they’re developing.

So things can change. Things have changed fast without any big catastrophe. Things could change faster. And again, I’m hoping for vectors of several kinds interacting constructively.

The question I have for you is: Did I at least convince you that, if we fail, it would be bad news? You may think we’re going to fail, but did you—In other words, you think I am inflating grounds for hope. I deny the allegation, but fine.

Let me pause on that point, because I don’t want to exaggerate. Now that you say that, I don’t want to exaggerate your position as presenting hope. That’s not fair.

What you do is say, this is what we need to do: Global governance and personal transformation.

And I think those things are so darn hard that they make me pessimistic. So maybe you’re not hopeful about it. You don’t take a position. You’re just saying these are the conditions.

And I’m reacting to that by saying it doesn’t seem plausible to me.

It’s a long way from where we are. But I do think it’s in the nature of this technology to change our psychology dramatically on short notice.

But to finish my question to you: leaving aside the question of whether I’m inflating hopes, did you feel I was inflating the threat? In other words — so you didn’t?

I didn’t.

So that’s good news. I mean, if I can just terrify people, that’s half the battle, right?

I’ve been thinking and worrying about AI safety for a long time now. So I knew a decent amount coming into reading the book.

I thought you were masterful at—and sorry to blow smoke—but I thought you were masterful at presenting the threats, explaining why they’re real, and trying to be sober about them while always presenting the counterargument. I thought it was excellent.

But the reader will come away with the impression—and my recollection of the book is—that you spend more time focusing on risks than on upsides.

I think that’s true.

Yeah.

I have a chapter where I list the upsides, but note that it’s a two-sided coin.

Prosperity? Great. Productivity, growth, prosperity.

But job loss could be the flip side. That could be destabilizing.

That’s the general theme. It’s a two-sided coin.

Speaker 2

So I just want to say that the book is massively more interesting than even what we’ve discussed. It’s so thought-provoking on so many levels. The cosmic perspective is a great one, and it’s had me thinking about it ever since I read the book.

There are all sorts of spiritual questions that the book tees up but that you don’t quite talk about, although you walk right up to them.

I think maybe we should close just by having you explain what the “God Test” is.

Yeah. There are a couple of things.

First of all, some people think we’re building a superintelligence that will be a god—that, one way or another, it will be running the planet.

And the question is: What kind of god can we build? Can we have a non-zero-sum, win-win relationship with it? Or can we, although it will have in principle godlike power, keep it from exercising that power? Keep it within bounds, so to speak?

So there’s that: What kind of god will we build?

And I think that points to the second sense of the term “God Test.”

I think if we’re going to succeed in general—not just if there’s this superintelligence and we need to shape it wisely, but if we’re going to avoid various catastrophic risks—we are going to need to have at least a modest moral upgrade as a species.

We need to get better at looking at things from an objective point of view, which natural selection did not design us to always do. And that kind of moral progress is the sort of thing that would be in a test that a god would design.

Historically, people have often believed in gods who said, “Salvation is possible, but you’re going to have to shape up.” And that’s my feeling. Salvation is possible, but we’re going to have to shape up.

Well, I hope we do.

Me too. I really appreciate the kind words, Jack.

Compliments always feel good, but coming from you, they feel better than they feel coming from Claude.

Obviously, I have some disagreements, but the book is outstanding. I learned a ton, and it’s just excellent. And I’m sure it’ll do great.

So thanks for coming on.

Well, thank you.

Mentioned:

• “The High Stakes of the Blanche Nomination” by Bob Bauer (Executive Functions, June 9, 2026)

Thumbnail: President Trump participates in an Oval Office press conference with then-Deputy Attorney General Todd Blanche, October 15, 2025. (Official White House Photo.)

This is an edited transcript of an episode of “Executive Functions Chat.” You can listen to the full conversation by following or subscribing to the show on Substack, Apple, Spotify, or wherever you get your podcasts.

Jack Goldsmith: Good morning, Bob.

Bob Bauer: Good morning, Jack.

Today we’re going to talk about President Trump’s nomination of Deputy Attorney General Todd Blanche, his defense lawyer in three of his criminal cases, to be the attorney general.

Blanche was an assistant U.S. attorney for eight years in the Southern District of New York. He was confirmed last year to be the deputy attorney general, which he has been for almost 18 months. That background would normally qualify him for the job as a formal matter, but does that mean he’s qualified for the job?

No. No, and I think there’s been a very strong reaction, certainly doubts also expressed on the Republican side, and it’s based on both his performance as deputy attorney general and then subsequently his performance as acting attorney general, which has appeared to be a wholesale commitment—whatever doubts he may be expressing privately, a wholesale commitment—to doing what Donald Trump wants done, with a particular emphasis on pursuing this very flagrant program of weaponization.

And it has turned out, if one is to credit press reports, that while there was some thought that, with his experience, he would bring a certain sobriety into the Department of Justice and resist the expanded weaponization, aggressive weaponization, within the department, it then developed that he wasn’t going to do that and that he was going to proceed.

Topped off—although that’s not the only point that we can discuss—by his attempting to put into place, and since apparently on his part abandoned (it’s not clear what the president thinks), this massive Anti-Weaponization Fund that would be used to compensate allies of the president who claim that they were targeted by Democrats in the prior administration.

So the Anti-Weaponization Fund matter seems, in the press reports I’ve read, to be the thing that concerns the senators the most, and I worry a little bit that that’s going to become too much the focus of this because that’s easily expendable, and in fact it might be on the way to being expended.

Can you just summarize some of the other types of weaponization, inappropriate weaponization, that you think Blanche has supervised or approved or been involved in?

Yes. So let’s begin with one case that was dismissed, which was the prosecution of Letitia James, the state attorney general in New York, who was targeted by Bill Pulte. And we’ll come back to Bill Pulte, whose appointment to be—or designation to be—Acting Director of National Intelligence is still pending.

And apparently internally, Blanche expressed some doubts, again according to press reports, about the case against James, but it was brought anyway, and then it was dismissed.

Again, in the case of James Comey, the president has tried repeatedly to direct the Department to successfully prosecute Jim Comey. One such case was dismissed. Most recently—and this is directly on Blanche as acting attorney general—Comey was indicted for arranging seashells on the seashore in the form of 86-47, which was interpreted, against all reasonable assessments of what that term means and how it’s typically used, as a call to commit violence against Donald Trump.

Nobody that I have seen, whether it’s Andrew McCarthy in the National Review or any other commentary across the range—across the whole range of commentary—takes this case seriously, but it was brought, consistent with the president’s just absolute Ahab commitment to getting Jim Comey.

And there are apparently weaponization prosecutions in the making that Blanche is overseeing against former CIA Director John Brennan and former witness against him in the January 6th matter, Cassidy Hutchinson.

So it’s a pretty dismal record of weaponization and support for weaponization. And that, it seems to me—and I agree with you—is a much broader story than merely the establishment of the Anti-Weaponization Fund.

What about—you wrote earlier this week about Blanche’s failure to recuse himself from cases and perhaps an ethical violation. Can you explain that?

Yes. So he came to the office, obviously it’s the president’s choice, as were other senior-level appointments to the Department of Justice, because he had served the president as personal counsel in recent years in these high-profile investigations: Jan. 6th, the Mar-a-Lago documents case, the Bragg prosecution in Manhattan.

And the question was, given his involvement with the president, the deep professional commitment that he’s had over these years, in what circumstances would he recuse himself from matters that involve Donald Trump? Whether we’re talking about deeply personal and significant politically explosive matters like Epstein, all the way to matters that touch upon weaponization, like Jan. 6th.

And he was evasive about the commitment that he would make. He was confirmed, nonetheless.

There is virtually no evidence that he has pursued a serious recusal policy consistent with the recusal standards both traditionally followed by the department and, in one way or another, captured in its ethics rules and handbook.

And I think it’s fairly clear that on anything that the president really, really cares about, the department will clear the way for Blanche to act. I should add that clearance has been made all the easier because the ethical enforcement infrastructure of the department has been taken down.

The president fired the Senate-confirmed director of the Office of Government Ethics. The Department of Justice dismissed the most senior DOJ official responsible for ethics compliance, by the way, just a few months after he had counseled Blanche, according to reports, and other members of the president’s former legal team who are now at the Department of Justice, that they would have to recuse themselves in matters involving Donald Trump.

So there really are no firewalls, no indication that he’s asking for ethics advice, or that the ethics advice being given to him is independent rather than simply configured to allow him to do what the president wishes.

Let me just clarify one thing. I don’t know if you just said this, but during his confirmation hearings to be deputy attorney general, was this an issue, the question of whether he would comply with the recusal norms of the Justice Department?

Yes.

Did he make representations about that?

Yes, I should be clear. He said he would—he was asked about that. It was obviously a major issue, given his service as lead counsel in these key representations of the president in prior years.

And he basically said, you know, he would consult with ethics officials, he would consult. So he left himself open the discretion of whether to consult or not.

And then he would take action essentially at his discretion, you know, consistent with, as he put it, ethical standards.

But he refused to be pinned down to any kind of categorical recusal in matters that involved Donald Trump personally, precisely the kind of matters on which he’d represented him in the past.

Okay.

So there are many interesting things about the nomination. One is, in a way, it’s unnecessary.

Blanche could serve as the effective attorney general for the rest of Donald Trump’s second term. Right now, because the attorney general stepped down, there’s a DOJ succession statute that says—and I’m going to read it here; this is 28 U.S. Code § 508—the deputy attorney general may exercise all the duties of the office of the attorney general.

And a plausible, if not the best, reading of that is that it is without term—that he can basically, as deputy, exercise all the powers of the attorney general independent of the Federal Vacancies Reform Act time limitations.

But even under the Federal Vacancies Reform Act, if he became acting attorney general, the time limits could be manipulated in a way where he could continue to serve out, basically exercising the functions of the attorney general.

So in some sense, this is an unnecessary nomination if Trump wanted Blanche running the department, which means Trump, I think it’s fair to say, wanted this fight, or at least wanted to reward Blanche’s loyalty.

But I imagine that there are a lot of senators who don’t want to have to take this vote. What does it mean that Trump wanted to trigger a confirmation fight?

It seems that he wants to, in effect, challenge the Senate to either endorse or reject his choice of somebody who will be faithful to that weaponization program and do as the president directs in full control of the Department of Justice.

He wants to take that model and have it validated by the Senate.

He didn’t have to do this, as you pointed out. He could accomplish all his objectives without doing it, but he’s doing it.

And all of this at the same time, by the way, as he’s pursued—maybe with, it looks like perhaps not with success, but we’ll see—this avenue of weaponization through the designation of Bill Pulte to be acting director of national intelligence.

So we’re talking about a particular model, a particular structure for the Department of Justice that he has been very open and aggressive about, promoted on Truth Social, with no question whatsoever how he views what the Department of Justice owes him and what kind of policies or approaches, like weaponization, it pursues.

And he wants the Senate to confirm not just Blanche, but that particular model for the Department of Justice.

Right. So it seems to me that is what’s at stake here. This is the big issue.

When Attorney General Bondi and Blanche were confirmed last year, there were hints that there might be counter-weaponization or weaponization and the like. I don’t think anyone fully understood the extent of it, or certainly it has been relentless and very imaginative and aggressive since then.

So the Senate confirmed him last year, but now, a year and a bit later, there’s an extensive record of the way that Donald Trump has wanted to run the Justice Department, and it’s been done.

And so now, if the Senate confirms Blanche, it’s not just confirming someone as attorney general; it’s endorsing Trump weaponization.

That’s what’s at stake in the Senate confirmation: whether the Senate will exercise what I believe are its responsibilities to ensure that law enforcement isn’t abused. This is one very important check on that.

Now, to be clear, Blanche is going to be acting as attorney general one way or the other, but the question is whether the Senate will endorse what’s been going on.

Yes. And maybe there are signs that this particular hope on the president’s part will be frustrated.

The U.S. Senate is currently in conflict over the Pulte nomination, and it has resulted in a stalemate over authorization of Section 702 of the Foreign Intelligence Surveillance Act.

And it now appears that, with the nomination of what I think is to be the formally nominated and confirmed head of national intelligence, there’s an effort underway to try to address objections to Pulte and to keep Pulte out of ODNI, the Office of the Director of National Intelligence.

In fact, Clayton’s hearing has been scheduled for Tuesday and Wednesday of next week. And the Democrats apparently are making it clear that they expect him to be confirmed before the 19th, when the president has indicated that he expects Pulte to assume the acting director’s responsibilities at that office.

And so the question is: Will similar types of Senate pressure be applied here to the Blanche nomination?

So just a couple of points on that that I’ve read in the last few days. Senator Grassley, who’s the chairman of the Senate Judiciary Committee, said a year ago Blanche was approved, and I don’t think anything’s changed.

So Senator Grassley, anyway, seems prepared to—if he thinks nothing material has changed—he seems to think that the weaponization is not relevant, and he’s prepared to vote to confirm Blanche. That’s what it sounds like to me.

But there are also, I count, at least three senators—sitting senators—whose careers Trump has effectively ended in the last year: Senator Tom Tillis, Senator John Cornyn, and Senator Bill Cassidy.

It’ll be interesting to see if they vote to confirm. I think it’s going to take four Republican defections, given the vice president’s vote. It’ll take four Republican defections, at least, to kill the nomination.

Also, I think Senator Tillis, on the Judiciary Committee, could vote to keep it from getting out of committee, which would either kill it or make it very difficult.

And then there’s Senator Collins of Maine. I don’t know how she’s going to vote on this, but I expect she’s not looking forward to voting either way on it. Senator Murkowski. Senator Young from Indiana has been very opposed to the weaponization slush fund and has been kind of a rule-of-law person on these issues. I don’t know how he’ll vote.

So any prognosis about how this will play out?

No. The Grassley comment was remarkable, by the way.

But I would add Mitch McConnell to your list. He was extremely critical of the establishment of the fund.

And I think the question is going to be: Are the Republicans going to be successful with messaging that this is all about the weaponization fund? And if all doubts about that are resolved and it’s taken down, then they’re prepared to have a hearing in which Blanche makes the usual anodyne commitments, one way or the other, about impartiality and keeping politics out of law enforcement; they pronounce themselves satisfied with the answers, and they confirm him.

Or will that larger picture that you’ve drawn about what’s really at stake here be the one they consider?

I just want to add this one last comment on this. Congress has to consider—and I think it does, by the way, I should say—what weaponization in the hands of a president, so brazenly and aggressively pursued, means for the separation of powers in our scheme of government.

This president has made it clear already in the exercise of the pardon power, if you will, on the other end, that he’s prepared to exercise it to benefit Republicans.

Weaponization likewise, just as he’s deployed it to attack other enemies, could be deployed against people who are thwarting his plans in Congress on either side of the aisle—maybe predominantly Democrats, but potentially also Republicans.

There are huge institutional stakes in taking a stand against this kind of weaponization of the Department of Justice.

I couldn’t agree more.

I mean, I do fear it’s going to be too much focused on the weaponization fund and not the broader weaponization.

In my view, really, the independence and integrity of the Senate is at stake here. And basically, the Senate will be assuming responsibility for, and endorsing, Trump-style weaponization if it confirms Blanche.

And I think that’s exactly what the president wants. And that’s exactly, in my view, why he nominated him.

Yes, absolutely. And endorsing, basically, the general principle.

And then even on the more specific or narrow question of recusals, endorsing a program of having essentially the entire system for monitoring conflicts of interest, at the most extreme end, completely taken down.

Okay. Thanks very much. We’ll see what happens.

Thank you.

This is an edited transcript of an episode of “Executive Functions Chat.” You can listen to the full conversation by following or subscribing to the show on Substack, Apple, Spotify, or wherever you get your podcasts.

Bob Bauer: Good afternoon, this is Bob Bauer at Executive Functions and I’m pleased today to have as our guest Avril Haines. Avril Haines was the Director of the Office of National Intelligence in the United States government in the Biden administration and has had a series of senior posts in the national security and intelligence establishment.

She has been deputy director of the Central Intelligence Agency. She has also served as the legal advisor to the national security advisor and in fact also has experience on Capitol Hill earlier in her career as a member of the staff of the Senate Foreign Relations Committee.

And I’m pleased to say I did work with Avril when she was in the Obama White House in one of those roles and I welcome her to here today. At the moment she is a fellow with the Institute for Global Politics at Columbia University, as well as a visiting fellow at All Souls College in Oxford. So Avril, it is really good to see you.

Avril Haines: It’s wonderful to see you too, Bob.

So I asked you to be on today and you graciously agreed—because it’s late where you are at the moment—to talk a little bit against the background of today’s news about the office that you once headed, that is the Office of the Director of National Intelligence. As you know, the prior occupant in the current administration resigned and today President Trump made an acting appointment to that post. I think in the background are questions about the role that this office plays within the intelligence community and I want to focus on the role, how it relates to other agencies within that community, the significance of the position to which that acting appointment has been made. So let’s begin.

Where does it come from? Why is it called the ODNI?

Yeah, it’s a great question and it’s not an easy thing to understand. The ODNI is this kind of relatively small agency effectively that sits above the intelligence community which is made up of, including ODNI, 18 different elements.

And half of those (nine of them) are actually in the Department of Defense. Then there’s the CIA, there’s ODNI, and then there are others that are in other departments and agencies such as State, Treasury, the Department of Energy, DHS, you know, you name it.

It came into being essentially after 9/11. There was the 9/11 Commission, which looked back at sort of, in effect, what lessons we could learn, why did we miss this. And one of the recommendations coming out of the 9/11 Commission was the production of the National Counterterrorism Center and that sort of grew into ODNI as it was ultimately passed.

So part of the the reason for it was because of this idea that we needed to be able to connect the dots, which is sort of how it’s described more generally. This is to say that there was information at FBI, there was information at CIA, we hadn’t properly connected that information to produce a comprehensive threat picture, and as a consequence, the idea was you need an ODNI to be able to look across the intelligence community to ensure that you’re ultimately integrating information across the IC to provide a better more comprehensive threat picture.

But there are a lot of other things that were happening in the statute even at the time — and when you look at the statute it sort of makes it clear there’s kind of three basic roles.

There’s the first piece, which is really managing the intelligence community: You’re the head of the intelligence community (as it said in the statute itself).

And then the second piece is really being the principal advisor for intelligence matters related to national security. And here you’re ensuring that timely, objective, independent national intelligence is provided to the president of the United States, to the National Security Council members, to the Homeland Security Council, to Congress, to the Chairman of the Joint Chiefs and so on. And that’s a crucial role that you play that sort of manifests probably most obviously in the president’s daily brief and in principals’ meetings and deputies’ meetings and so on.

And then the third role is really about managing the budget. You’re supposed to manage the national intelligence budget, which is the budget that is responsible for largely funding all of these different elements of the intelligence community and part of the concept behind that is really that you are ultimately ensuring that the intelligence community is working as one community, that it’s sort of mutually reinforcing, that you’re a good steward of resources, they’re not all independently doing the same thing, you know, in these different spaces and that they’re actually focused on national priorities as opposed to the priorities of the particular agency or department that they’re closest to.

And that’s another key aspect of what the statute was intended to sort of address, because I find in my own experience in working with intelligence communities around the world one of the challenges is that often you have parts of their intelligence community that are focused on the Department of Defense or the sort of equivalent of that versus other parts of the community and they’re usually focused on the sort of tactical urgent issues as opposed to what the leader of the country wants them to be focused on.

So just to follow up, in summary is it fair to say out of this complex intelligence committee establishment, the director of ODNI is the intelligence community leader in the sense of overriding responsibility for coordination among the agencies and for advice given to the president?

Yeah, it’s a great way to say it. And it’s just it’s hard to — if you think of it as you’ve got 18 different elements, right, 18 different offices or departments that are spread out throughout the U.S. government and they’re all doing their work right in different spaces — but the fact is you really can’t get a full intelligence picture without all of them participating in the work that gets done to produce that for, you know, the president of the United States and the National Security Council.

It becomes obvious why you need somebody who’s there, who’s capable of actually bringing that together and ensuring that the right questions are being asked and answered so that the president and the National Security Council gets the indication of warning that they need, gets the intelligence that they need to address, decisions that they’re making every day that are of crucial importance to the country.

So in that sense I think probably many people have just asked who’s running the show in the intelligence community, they might answer director of the CIA, the Central Intelligence Agency, but in fact it sounds to me like the role of the director of national intelligence is the leadership role.

Yeah, so you’re right, prior to ODNI’s existence the director of the CIA was called the director of central intelligence. That I’m sure does not sound all that different but it is the different acronym, it was DCI as opposed to DCIA, right, and it was basically, you know, the director of central intelligence was considered, prior to ODNI, to be the leader of the intelligence community effectively but had no power with which to actually operationalize that.

In other words, the director of central intelligence could tell other agencies and departments you should do X, Y, and Z but there was no stick that they had to use and so when ODNI was created that was part of the rationale of actually having the director of national intelligence manage the budget for the different agencies and departments, it kind of gave you a stick.

So that’s a part of the rationale, you know, built into the system but it’s also true that, you know, the director of central intelligence or now the CIA director is still a crucial obviously leader within the intelligence community and when we establish the National Security Council every president sort of in their first presidential directive identifies who’s supposed to be sitting around the table and, you know, for President Biden and for President Trump, the director of national intelligence is their statutory member but the director of the CIA has also been added into the overall National Security Council for them.

As somebody who’s no doubt familiar, not obviously with your own experience, only with your own experience but with how that office has been managed by others, has there been any difference in the definition, uses, practical application of the role from administration to administration? Are there differences that have developed over time depending on who the president is?

Yeah, there are some. I mean, it has, I think over time ODNI has really sort of grown into its own — you know, every young agency sort of goes through frankly growing pains as you’re trying to organize yourself appropriately. And so one thing that’s happened over time is that it’s just become more stable in many respects, and the role itself I think has as a consequence also become more developed in the way in which it’s operationalized.

So when John Negroponte was the first director of national intelligence, one of the things that he did was to be in the office, in the Oval Office delivering the president’s daily brief with a briefer from ODNI, and its my understanding and he sort of classically took that role on as being among the most important aspects of it.

Then as you see over time ODNI develop your models like Director James Clapper who obviously very well experienced with the intelligence community and somebody who really built out effectively the capacity of ODNI to manage the intelligence community very effectively. And the principal deputy under Clapper was Stephanie O’Sullivan, who was also a long-time member of the intelligence community, who spent a lot of time on those issues.

And he wasn’t in the Oval every day, although he came every so often to provide the president’s daily brief, but you see a little bit of emphasis in different spaces as a consequence of the role that’s being played and then of course the dynamic with the CIA and with DOD.

To be honest, most people focus on the dynamic between the Director of National Intelligence and the Director of the CIA because as you’re pointing out, you know, when DNI was developed it was basically taking power away from the CIA to some extent and saying, okay, now you’re in charge of the intelligence community.

But it also took power away from DOD because the budget, for example, many elements of the community that are within the Department of Defense was actually handed over to the ODNI as a consequence. So both are kind of key relationships that you’re developing and the roles adjust based on who’s in each of those positions.

Let me ask you a question. I didn’t realize that there was this difference until earlier today. The enabling statute, the statute that created the ODNI, calls for the appointed nominee — not in this case the acting appointment that occurred today — but normally, in a normal case where someone is nominated for Senate confirmation to the post, that person as nominated is required to have “extensive national security expertise.”

That is not a requirement for the Director of the Central Intelligence Agency, at least not as written in the statute. Why the difference?

Yeah, I don’t know exactly what led to that. I don’t have the actual, you know, hard evidence in terms of what the legislative process was and history was. But here’s kind of the characteristic explanation within the communities and so on.

The Director of the CIA had not always, but historically there’d been a number of folks who had been appointed as the director who had not had experience within the Central Intelligence Agency and who really — the sort of key characteristic was that they had access to the president.

And while they did have national security experience, usually it wasn’t necessarily intel experience and they could be political operators. There were some who didn’t even have, you know, sort of classic national security experience.

The distinction that’s been made between that role and ODNI and why ODNI might, you know, be required to have national security experience is, was largely described to me as based on the idea that the CIA is a very robust office. It’s basically about 10 times or more the size of ODNI. And as a consequence, the deputy director, for example, typically was a career person in those roles, somebody who knew how to manage the building and the officers who were housed in the CIA would essentially do their business and know their business in effect.

And so having somebody at the top of the agency who was a political appointee who is, based on access to the president, selected for the job, was a reasonable sort of way to approach the CIA. But for ODNI, you really have a very small office. You’re intended to do oversight of an inordinate number of intelligence elements.

And your understanding of the intelligence community and how it works is sort of crucial to really understanding how you’re coordinating among these different agencies, giving you the capacity to be the broker when disputes arise and so on. And then also ultimately to provide oversight over them in a way that hopefully is respected within the community and in national security.

But I mean, the reality is, of course, if you have a relationship with the president, it makes you more effective and particularly in the context of the president’s daily brief or another analytic work that you’re doing, where you’re really trying to make sure that you’re bringing to the table the right intelligence.

Again, on the other hand, it’s also incredibly useful, in my view, to have national security experience that enables you to understand the sort of traditions, the tradecraft, the work that the analysts do, so that when you’re presenting analysis to the president, as is reflected in the statute, you’re actually focused on timely, objective, independent analysis and that that’s going to be the work that you’re bringing to the table to help, frankly, you know, national security experts make the hard decisions as well as the president.

Let me ask you one question about the international sort of intelligence relationships that we establish. And again, I’m going to ask a question that a general newspaper reader would ask, maybe somewhat informed by my experience in government, not nearly as extensive as yours. One reads that it does matter to those that we work with among our allies on intelligence gathering, cooperation in various areas that are informed by intelligence.

They pay close attention to and have to work closely with the leadership of our intelligence community. And I suppose now in this instance, we’re talking specifically about the leader of the intelligence community at ODNI. Is that correct?

Does it affect, does that relationship to the appointments that are made in the structure of our intelligence community have an effect on how well we work with our allies on intelligence gathering and intelligence-related collaboration?

Yes, without question. I mean, it’s a crucial role. The CIA is typically sort of at the forefront of your kind of day-to-day interactions with other countries’ intelligence services in many respects.

But ODNI — what basically you can do from the ODNI perch, in addition to sort of your regular bilateral communications with other leaders of intelligence services in other countries, is to support the kind of interaction that you know is necessary in order to be able to share intelligence appropriately with allies and partners.

So, you know, things like the infrastructure that you’re building behind it, the fact that you work with different international organizations like NATO, others that are crucial in that work. And there’s just a very important role that you play in ultimately facilitating those kinds of relationships, but also in ensuring that you’ve got what you need in order to be able to conduct the kind of intel sharing that you think is necessary to support the policy positions that, you know, any administration is taking.

Okay. That’s very, that’s very helpful and very interesting. Let me ask you one more question, which is the relationship between ODNI and the Congress. What kind of relationship does the ODNI have to establish or is generally expected by the Congress of ODNI—communications, closed or open testimony? What role does it play in informing Congress so the Congress can discharge its own responsibilities in the intelligence sphere?

Yeah. I mean, I think this is incredibly important largely because the intelligence community is operating in secret. And as a consequence, you’re not subject to the same sort of accountability mechanisms that many different parts of the government are subject to.

And Congress really is in the shoes of the American people in that scenario, basically providing oversight and accountability for the work that, we do in the national security community. And as a consequence, we’ve really, in my experience, the kind of oversight that you engage in, in the intelligence community is far more — for example, than what I experienced when I was at the state department or in other places — where you’re providing daily information to Congress and consistently working with them on a really wide range of issues.

You know, some from the most detailed kind of questions to the really large issues that we’re managing and for ODNI kind of to get to the specifics of your question, typically I would be doing closed door briefings.

So those were the ones that were most frequent. And closed door testimony for classified issues that you’d be providing, annually at the very least, and we would do an annual threat assessment. And that was a public hearing. That was something that, in my experience, both the chairs and rankings of House and Senate intel committees felt that was very important — in part to help the understand what the intelligence community saw as the major threats of our day.

And of course to make sure that there was sort of some transparency around the work that we would do.

I would testify not only before the intel committees, but also, for example, with the armed services committee. So, you know, there were other committees that had interest and we would kind of go around and it was not just me.

It was other heads of intelligence components like the CIA director, the director of NSA, the director of the FBI with director of INA at one point, you know, INR rather. And so you have a whole series of hearings that are like that. And then we would do a few others.

Like I did one that was open on election security and, you know, a few other topics that the committees decided were important enough to have a public hearing on. But almost all of our hearings, even the ones that were public essentially would have a classified component to them.

Yeah. And I can’t resist a follow-up question. So many people think of public hearings of the Cabinet officials as essentially kind of, how would I call it — high volume affairs, uh, somewhat political in nature, members giving sort of speeches in the form of questions. But am I wrong to say that the threat assessment hearing, some of these other public assessment hearings have a quality of informed participation on both sides of the podium?

Yes. I think that’s accurate. And in my experience, honestly, it’s — you know, there’s no question that you end up with some political theater associated with some of these events.

I mean, that’s sort of part of the course on some level, but two things are worth knowing. I think one is that the closed door hearings, the classified hearings, are really serious. I mean, people have serious questions. They are asking questions.

They don’t know the answer to that they want the answer to, you know, it’s not simply theater in many respects. And on both sides of the aisle, I found people that were serious about their oversight role and the importance of what they were doing. And the second thing is that they actually did workforce interviews with chairs and rankings of our committees at different times so that people could see just how much we work together across the aisle.

And when we briefed the Hill, we made a very concerted effort from the intelligence community perspective to always brief both Republicans and Democrats at the same time so that we were able to show them that they were getting exactly the same information from us. And we were not, you know, distinguishing essentially information based on party or politics. I just, I think that’s crucial in this context.

I mean, there’s really nothing more serious than the kind of work that we do in the intelligence community. And it is imperative that we actually focus on what’s important to the country and not on the politics.

I couldn’t agree from my experience in government and somebody who continues to follow these issues closely. I couldn’t agree with you more Avril. It was really kind of you to join us today and thank you very much.

This has been really informative and I’m very grateful that you agreed to do it.

Thank you so much, Bob. And thanks for everything that you’ve done over the years. I’m anyway, as you know, a huge fan.

We are members of a mutual admiration society. We can say that.