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.

Mentioned:

• Sebastian Mallaby, The Infinity Machine: Demis Hassabis, DeepMind, and the Quest for Superintelligence (2026)

Thumbnail: President Trump delivers remarks at the White House AI Summit in Washington, D.C., Wednesday, July 23, 2025. (Official White House Photo by Joyce N. Boghosian)

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 Sebastian Mallaby, who’s a senior fellow at the Council on Foreign Relations and an acclaimed biographer and writer. And we’re going to be talking about his newest book, which is called The Infinity Machine. Sebastian, thanks for talking with me.

Sebastian Mallaby: Thank you, Jack. Nice to be with you.

So tell us what the book is about. Who is Demis Hassabis, and why did you write a book about him?

So the book is about artificial intelligence, and it’s centered on this character, Demis Hassabis, who is, in a way, the OG sort of AI lab leader, right? He starts DeepMind, this startup in London, back in 2010, before AI could even recognize the photograph of a cat—like nothing worked. It was full AI winter.

So this is five years before Sam Altman and Elon Musk start OpenAI. It’s fully 11 years before Anthropic gets started. So he was extremely early.

So if you wanted to tell the story of the making of modern AI through a personality, you know, Demis’s career and intellectual development maps perfectly onto that story.

So the thing that’s most interesting to me about him is that, as you emphasize in the book, his real interest in this, I think it’s fair to say, is scientific and not profit-making. And he, at least at the outset, and I think even today, has a rather idealistic—to me anyway, idealistic or optimistic—conception of the technology and how it can be used.

But the story I also see is someone who—and I don’t mean this uncharitably—but who has basically engaged in a series of compromises or fudges with regard to those values as he’s gotten deeper and deeper into the AI competition.

So is that fair? And can you talk about that arc?

Yes. I mean, he started DeepMind in 2010 with an absolute focus on AI safety. In fact, he met his scientific co-founder, Shane Legg, at a safety lecture in which Shane projected that by 2030 or so, AIs would be sophisticated enough—cleverer than humans—have their own sort of objective functions, and would maybe start to threaten humans.

And this was the lecture over which they bonded. And then in 2014, Demis Hassabis sells his company DeepMind to Google. And part of the sale condition was that AI would not be used for military purposes, that it would be safeguarded by a sort of ethics oversight committee that would be separate from the corporate leadership of Google.

So he took it very seriously. And then this continues for a while. Between 2016 and 2019, he wages a secret battle, a thing called Project Mario, where he’s trying to put pressure on Google’s leadership to have this independent safety oversight board, because Google kind of reneged on the deal at the point of sale in 2014.

And then after 2019, it kind of fades away. And, you know, by now you have Google being willing to provide AI to the national security establishment. In the US, there is no safety and ethics oversight board.

And Demis is left explaining to me, well, you know, I feel as if, you know, if I lean into Google and I’m part of the team there, and I, you know, understand the different pressures that a corporation is under, then I have a seat at the table. And so when push comes to shove, I can chime in in favor of safety. And so I’m a good person—trust me—is kind of the bottom line, which is a sort of flimsy scaffolding of reassurance for an alarmed world.

Especially since—I mean, this was also a time—a lot of this is happening at a time before ChatGPT amazes the world a few years ago with whatever model it was, I can’t remember. And suddenly there’s this massive competition among several frontier models that has been extremely fierce.

And now we’re in a massive competition among those labs and with Chinese firms, and the countries are in fierce competition. And he’s now leading—you talk in the book about how they combined, how Google combined its AI efforts—and he’s leading it.

So he’s really leading, in some sense, this fiercely competitive charge, which isn’t taking—doesn’t appear to be taking—safety all that seriously. Is that fair?

Yeah, it’s fair. And, you know, I think there’s a slight caveat in that his style is to pursue safety ideas secretly. I mean, he doesn’t talk about them.

And Dario Amodei, the leader of Anthropic, is extremely public when he picks a fight with the Pentagon, when he releases this new model called Mythos, where he’s publicly said, you know, this is too dangerous to release generally, so I’m going to release it to a sort of restricted list of people. He likes to be very out there in public with it.

Demis Hassabis, on the other hand, did two important things, to my knowledge, about safety. One was this secret battle I described before, which he was so unkeen to have sort of move into the public sphere that when I discovered it through leaks from other people, you know, I had to talk to his general counsel, who was trying to tell me I wasn’t allowed to publish that. So he really didn’t want that to be public.

And then secondly, he told Rishi Sunak in 2023, after ChatGPT came out, “Mr. Prime Minister, you know, I have an idea for you, which is you could have an international discussion on AI safety—invite the Chinese, invite everybody—start a process that might lead to some kind of understanding internationally on AI safety.”

Demis never told me that he told the Prime Minister that. I only know this because other people, like the Prime Minister’s advisers, told me. So he didn’t advertise what he was doing.

So I think he’s trying to do things now, but they’re not in the public view. So that’s a slight caveat. But basically, you’re right. I mean, he’s leading one of the major labs, Google DeepMind, in frontier AI, racing as fast as he can, even releasing, by the way, open-weight models, which by his own analysis are dangerous because you can’t control them once they’re out there.

And so there is this contradiction—you could call it even hypocrisy—between his stated beliefs about AI safety and what he’s actually doing. And so then the question is, well, how harshly does one judge him? And I’ve just floated the word hypocrisy.

But on the other hand, were he to quit his job and go off and become a professor somewhere and pursue research, which I think is the alternative path for him, it wouldn’t make the world safer, right? There’d still be this race dynamic.

To be clear, I wasn’t judging him. And he seems—I’m trying to understand—he seems like a thoroughly decent, honorable, brilliant guy. I’m just trying to understand the mindset of someone who, from a very young age, had these extraordinary scientific ambitions, which he’s been as important as anyone in making possible.

And—but safety and this kind of benign vision has always been part of it, and it just seems to have been overtaken by reality—mostly competitive, financial, and global competition reality. And I’m just wondering how he processes that. That’s what I’m getting at.

Absolutely. I mean, I was exactly trying to do the same thing—to kind of figure out how you process it and sort of portray that. And, you know, at the end of the book, he tells me, you know, I’m in a paradoxical situation.

On the one hand, Shane Legg and I projected back in 2009, 2010 that by around 2030, AI would be very powerful. And that’s kind of what’s going to happen. And we’ve been central to building it. So, you know, I’ve delivered on this vision in an amazingly gratifying way.

On the other hand, I had this hope that I could control the technology somehow and make it safe, and that hasn’t worked.

And, you know, when you want to ask, you know, why did it turn out so contrary to his expectations? You know, it’s the Oppenheimer syndrome. Oppenheimer led the Manhattan Project, built the amazing technology, and was an incredible scientific leader as well as a scientist, and thought he could sort of go and sell Truman not to use the bomb or to give the technology to the UN or whatever.

Truman just kicks him out of his office and says, “Don’t bring that guy in here again.” So scientists think that they can control their inventions, but often the inventions have their own will.

Okay, you’ve written a lot of interesting essays closer to the topics of this Substack in connection with the publication of the book. And I just want to talk about some of these policy and governance themes that are implicated—that are talked about in the book—but that you’ve talked about, I think, more in connection with the publication of the book.

First of all—and you’re, you know, the keenest of observers of these various relationships and where we are in these AI races—so I just want to get your temperature on, first, what is the state of the relations between the U.S. government and the frontier labs?

I mean, we know about the DOD confrontation with Anthropic and then with Mythos, the government trying to apparently get its hands on that technology, or at least try to reach some kind of accommodation with Anthropic.

How do you see—I want to go through different pieces of the relationships and the competitions at stake here—how do you see the relationship right now between the US government and the frontier labs?

Well, I think it’s just worth saying at the beginning that, you know, the background—if one goes back to 2023, 2024, the two years after ChatGPT came out, it made all this feel urgent—the background was that there was a lot of collaboration.

And if you talk to people, I think, you know, Ben Buchanan, who was at the National Security Council doing AI policy, is on the record about this. He says, you know, whenever I talked to the labs, there was no resistance to the idea of regulation. It was more the opposite—that they were telling me, “Hey, this is serious. This is powerful. This is scary. This is coming. You need to do something.”

And so when he wanted to, you know, set up the AI Safety Institute, which happened in the Biden years or so on, there wasn’t much pushback, contrary to sort of what one might suspect. There wasn’t much pushback from the objects of the regulatory impetus.

Now, the regulation at that point was extremely, you know, emergent. It wasn’t really biting very much. But still, it’s worth noting that the baseline here is collaboration.

Then you move into 2025. President Trump is in office. He essentially doesn’t want to talk about regulation. He’s more keen on competition, acceleration—just make sure the U.S. has the most powerful AI. And so that kind of goes off the agenda.

Now, in 2026, it comes back, both because of this fight over Anthropic’s models and how they are used by the national security establishment, and because of Mythos, the cybersecurity model.

And I’d say that right now you have this sort of, you know, weird and sort of unstable contradiction of impetuses, where on the one hand, you know, the administration has deemed Anthropic to be a supply chain risk, which is an extraordinary name to attach to a U.S. company. I think it’s the first time that’s ever happened.

And so it’s extremely antagonistic. And you had this Slack message that Dario Amodei, the head of Anthropic, wrote, and which got leaked. It was a Slack message to his own staff. And what he said was something like, you know, “The Trump administration wants dictator-level obeisance from me, and I’m not going to give it.” So that shows you the temperature of the relationship there.

But on the other hand, they are talking together about Mythos, and, you know, Amodei went to the White House to speak to people about it a couple of weeks ago.

So I think it’s a mixture of suspicion and sort of a distant relationship, but then at the same time, a need created by Mythos that—wow, you know, we have no choice but to talk to each other, and we’re going to have to do that.

So two questions following up. One is, I could never really tell how serious—I think some more serious than others, maybe Anthropic—how serious the labs were when they said, “Please regulate us.” Sam Altman testified to that: “Please regulate me.”

I don’t believe he really thought that. It’s clearly—but it’s a good thing to say when you’re developing this massively dangerous, consequential technology in the private sector. In case something goes wrong or, you know, it’s always nice to have said we asked to be regulated and you didn’t do it.

I’m just wondering how serious that request is, especially given in the last presidential election, a lot of the big money behind—or at least in connection with—the AI labs, the kind of Silicon Valley big money, went all in for Trump. And, you know, David Sacks gets installed in the White House and implements this kind of libertarian policy, hands-off policy.

So first question: how serious is that request to be regulated?

Well, I think when we talk about Silicon Valley in broad-brush terms, we need to actually break that down a bit. And you’ve got someone like Marc Andreessen, whose commercial interests as a venture capitalist are that he wants to back, you know, upstart challenger AI labs. He’s not going to back, you know, the big hyperscalers because they don’t need his money, right?

So he wants to back essentially startups that are probably going to use open-weight models. And so open-weight, by definition—you cannot be in favor of regulation and be in favor of open weight. You know, open weight is the least regulated type of AI distribution mechanism.

And so, yes, when you’re talking about Marc Andreessen, he’s extremely pro-Trump and extremely deregulatory and laissez-faire. And so there’s no seriousness whatsoever in any comment to the fact that you need more safety if it’s coming out of his mouth. I think, to be fair, it’s not coming out of his mouth.

True, correct.

So then you move to other people who are saying that they want to be regulated. And I think in some cases, someone like Sam Altman probably is straightforwardly, you know, insincere.

But I’d say that, you know, all of these characters who are running the frontier labs have said things at different times, and they’ve both wanted safety. And when Sam Altman created OpenAI in 2015, the rationale for creating it was safety and for the AI to be used for the public good. And who knows? I think he might even have meant it in 2015.

But as time has gone on and the race dynamic has become so white-hot, any instinct he might have had to be sincere about wanting to be slowed down has been overwhelmed by his desire to win the race.

But I think there’s both sides of that. Inside one human being, there could be two personalities. And I think, you know, there’s just a different balance in these different people.

So, you know, probably Sam Altman is the most prone to going for acceleration rather than regulation kind of when a stress point comes. I’d say Dario Amodei is the most prone to be safe when a stress point comes. Demis is somewhere in between. Elon—I don’t think he’s really been tested.

So last question in this vein—it just, how likely is it—let me put it this way—it seems inevitable, given the rapid changes in these technologies and the growing perceived dangers in the technology—Mythos being one example, but there are lots of examples.

And given the stakes of these technologies in private hands in the United States, so given the dangers they’re spewing and the stakes vis-à-vis the competition with China and national security more generally, it seems inevitable to me that—set aside legality for a second—it seems inevitable to me that the United States gets its hands on this.

And I don’t know what the mechanism looks like or what the institution looks like, but that the U.S. government cannot afford not to, in some sense, own this technology, both for its own purposes and for safety purposes. True or false?

Broadly true. I mean, by “own,” you would include, I think, control. I mean, it could be a regulatory model.

Yeah, let me be clear: I don’t mean technically own. I mean control. That’s a better word.

So then I think true, yes. I think, in fact, we’ve just run that experiment in the last few weeks, because you had a deregulatory, pro-accelerationist administration in power. And all of a sudden, an actual case of an AI that threatens stability emerges in the form of Mythos.

And it looks as if it could unravel all kinds of building blocks of the internet and cyberspace. Banks would have their bank accounts emptied, et cetera, et cetera. And they turn on a dime.

And all of a sudden, the Treasury Secretary is saying to the Fed chairman, “We need to call the heads of the banks and tell them to take this seriously. And, you know, we need to get our hands on this.” He’s—you know, Scott Bessent, the Treasury Secretary, reportedly has floated the idea of, you know, sort of—I forget what the term is—but you’ll know—essentially requisitioning or having power over the technology.

And Bessent just said, okay, this is so important in terms of statecraft that we’ve got to mention it, bring it up in the summit with Xi Jinping in the middle of May.

So they’ve flipped. They’ve done a 180, exactly as you predict. So I think you’re correct.

And—okay—and one reason they’re doing that is because of the larger China competition. So talk about the U.S.–China competition in AI, please. Where do you see it today? I know that’s a big question.

Well, maybe—I mean, I think actually that it’s—maybe I want to push back on your premise. I think that the reason they flipped is less about China and more about domestic chaos, right? They don’t want the internet to be hacked and, you know, the banking system to crash. It’s not—that’s not necessarily about China. That’s about domestic security.

Don’t you think it’s about both? I mean, if these technologies are—so fair enough, it’s about domestic security, but it’s also about China being able to defeat government systems, China threatening both to steal and to disrupt things in the cyber realm. I mean, I think technology has an advantage as a national security advantage.

Yes, but I think—okay, we’re going to—I think this conversation is going to go in a direction where we need to clarify one thing right now, which is that there are two kinds of worry about powerful AI in terms like—the big worries, I would say.

One is that—and essentially this is about bad guys getting it and doing bad stuff with it. And there’s two kinds of bad guy, right? There’s China. And in 2022, when the Biden team—before ChatGPT, by the way—saw this coming, they put the semiconductor export controls in place because they didn’t want China to have cutting-edge AI, because in their view, the bad guy to worry about was China.

And there’s a whole second category of bad guys, which is sort of rogue states, terrorists, criminals, et cetera, et cetera. And I think it’s just very important to clarify that there are two kinds of threat.

And I think it’s important to distinguish two ways of dealing with these threats, because in the Cold War analogy, the way to control the danger of nuclear war between the Soviet Union and the United States was mutual destruction and the balance of deterrence.

The way to control nukes from being loose and falling into the hands of terrorists and rogue states was a totally different mechanism, which was the Non-Proliferation Treaty, which wasn’t perfect, but it worked kind of for a while.

So, you know, that’s an important distinction because of, I think, where we’re going to go.

And so, going back to Mythos—Mythos is in the category of both, right? It could be that the Chinese government gets it, but more immediately, it could be just the criminals get it.

And the criminal threat or the terrorist threat is posed not merely by the prospect that China gets this technology and releases it on an open-weight basis, but also that Meta does, right? Or Mistral in France, or Cohere in Canada. There’s a bunch of other labs that could open-weight this stuff, or even just not open-weight—just release it on a proprietary basis, but much more expansively than Anthropic did.

Or have it stolen.

Yeah, right. And there was a hack of Anthropic’s Mythos.

Okay, fair—perfectly fair distinction. I want to come back to it, but can we talk about—you wrote a piece in The New York Times about U.S. policy toward China, chip restrictions, and why you thought that was a bad idea. And then I wanted to get to the nonproliferation treaty idea that you just mentioned.

So can you just tell us why you think that the Biden approach may not have been optimal?

Sure. So at the time I supported it because I thought it had a chance of actually preventing China from getting cutting-edge AI. It turns out it didn’t stop China from getting cutting-edge AI.

And the proponents of semiconductor export controls will say, well, it’s because the controls were not tight enough. But we’ve run this experiment since 2022, so it’s four years now. And we’ve done it under two different administrations.

And in neither case, if you look at the chart of the performance gap between the top model in America and the top model in China, that gap—America’s lead—has shrunk. And it shrunk under Biden, and it shrunk under Trump.

So I’m just skeptical of any regime in which we impose semiconductor export controls or some expanded version thereof that actually works in stopping China from getting powerful AI. They may be like two months behind us, six months behind us, something like that, but that’s not very long.

But just before we go further, I always understood the goal not to stop them but to slow them. And even with workarounds, the United States maintains its edge.

And are you saying that it would be better in maintaining that edge to get rid of the chip controls? That argument, I don’t understand.

Fair. Okay, that’s very fair. So yes, I agree that the controls slow them down. My point is simply that it’s not very much—it’s six months. Does six months really make us feel a lot more secure?

I’m open to—you know, this is a finely balanced argument, which is why I’m excited to have it with you. You could argue that a six-month lead is a lot, and that, you know, if you get Mythos six months before the Chinese do, that’s enough to harden your systems such that when they have it, they can’t use it to any devastating effect.

And also enough to compromise all of their systems.

Yeah, true.

Sorry, keep going.

So I guess my view—my view has been subject to revision—my view has been that a six-month lead over China isn’t enough to feel that’s a big geopolitical win, because, you know, I was thinking, I guess, more of, you know, the conventional integration of the AI into weapon systems, drone swarms, this kind of stuff.

And whether you’re six months ahead of the adversary in that case, you know, they just pick a time to invade Taiwan when they do have—they have caught up.

Now—and, you know, if you think about the Mythos example again—wouldn’t they wait until a moment of near parity? Because these things sort of—you know, you have a jump that the U.S. does, and then the Chinese are fast followers, and then they jump up so that the gap is reduced or minimized. And then they would have a strategic parity that they could use.

So I just observe that it’s not a very big lead. And then you have to ask, what was the cost of the policy? Because if there was zero cost to imposing the semiconductor equipment ban, and there was a marginal gain, then you’d probably take it.

But I contend that there is a cost, in the sense that if we go back to my distinction between two kinds of rogue—China is a rogue, but also terrorists and criminals are rogues—we need to keep our eye on that second category of risk.

And that involves getting China involved, because if they produce open-weight models, which is what they do at the moment, then we know that terrorists will get it.

So the deal is: We give you chips, and you shut down your open-weight models. And what does the form of cooperation look like? Because I’m not so sure that the third-party rogues aren’t going to get the bad stuff, even in the absence of open-weight models. That’s a large assumption.

Yeah.

And I’m skeptical—and I’ll get to this in a second—I’m skeptical that any agreement between the United States and China, about which I’m skeptical, can have powerful effects on third-party countries and private actors.

So what does the cooperation between the United States and China look like? And what is the virtuous story about what the deal is and what cooperation looks like?

I think the best analogy is the Cold War and nuclear nonproliferation. And so in that story, you have both the International Atomic Energy Agency, which kind of keeps track of nuclear material and tries to, you know, by accounting for it, prevent it from being used in secret nuclear weapons.

And then you have later—in fact, 12 years later—the negotiation of the Non-Proliferation Treaty in 1968, which kind of makes compliance with the IAEA mandatory for countries that want to have access to civilian nuclear power.

And I think that’s the sort of model where, in AI, you keep track of big clusters of compute, which can be used to train powerful AI models. And that’s one kind of safety provision, so that you know what’s being trained.

And then secondly, you don’t have open-weight models, which, once they are released, anyone can do anything with them. And that’s just too dangerous. You wouldn’t do that with nuclear material. I don’t think you should do that with AI.

And the deal is that, you know, countries which are going to want what they call sovereign AI—that’s already a bit of a catchword—if you’re France or you’re Germany or, you know, Kenya or whoever, yes, you want to be able to train your domestic AI models on, you know, the Swahili texts or whatever—the Swahili oral tradition—that, you know, you want to make it kind of culturally friendly to your own culture. And that’s all good.

But in return for getting access to models, which you can then post-train in a way that, you know, fits your sovereign AI objectives, you agree to these safety standards: no open weight, you know, we’re going to know where you’re training it, we know what the cluster is, we keep an eye on that so that if you’re trying to make cyber weapons, we’re going to see it.

And so I think it’s something like that.

So, I’m going to state why I’m skeptical and give you the last word on this, and then I have a final question.

So the nuclear Non-Proliferation Treaty—some people think—wasn’t a terribly wonderful success. Not every country joined it. The countries that didn’t join it developed nuclear weapons. It hasn’t prevented some countries from appearing to develop nuclear weapons.

But it’s a relatively simple treaty. It basically says no development of nuclear weapons. I mean, it’s a little more complicated than that, but—and we have a sense of what nuclear weapons are. There’s a problem about pre-development and how do you control that—that’s always been a problem with the treaty.

But let’s imagine that that treaty is a success, despite the adverse evidence. It just seems massively more complicated here because there are so many things you might regulate—chips, data, data centers, know-how, the models themselves.

So you’re going to be regulating all of these things. It’s much, much more difficult to have a verification regime in this context. Dual use is prevalent everywhere. It’s very hard—it seems to me, correct me if I’m wrong—to hide bad uses, bad developments, new models, and the like.

Verification regime in this context, which involves not just government-to-government, but deeply into the private sector of both countries, to private companies of both countries, and so on and so forth. Enforcement seems to me—not clear how that’s going to work.

Let’s just imagine that it works bilaterally between China—that we somehow work this out where there’s this virtuous regime where we’re both doing safety and none of us—or none of them—are doing bad uses or acceptable bad uses within the competition.

But I don’t understand, you talk about all the dangers from these third parties, both private and public actors, how this regime is going to handcuff them and all the verification and enforcement problems there, and then on top of that, there’s a massive need for speed.

This stuff is getting very, very dangerous very quickly. And it’s inconceivable that such a treaty or such an international organization would happen in the foreseeable future.

So that’s why I’m skeptical, in a nutshell.

That’s quite a long list.

You don’t have to go through the whole list, but is there a reason not to be skeptical?

Well, I think the first reason not to be too skeptical is that it’s kind of massively defeatist in the face of a serious threat, right? You know, the Mythos vision, where you have random criminals who can steal everybody’s money from their bank accounts, is not a good one.

And so I think trying to lean into the possibility of some sort of regulation that avoids that is important. And if you’re going to do that, it’s got to be international, because obviously you can commit those crimes from some offshore base on a Chinese model. And so if the Chinese have been excluded from any such deal, it’s pointless.

So I think, you know, “don’t give up” is the first message.

And then secondly, I think there are more kind of choke points on which the US, in particular, can get a grip. And if it had China with it, it could definitely get a grip.

And the choke points essentially are the making of the chips and the operation of the chips in clusters. I mean, at the moment, overwhelmingly, the majority of compute clusters are in the United States, and the ones which are not in the United States are using U.S. chips and U.S. equipment—or the equipment of, you know—even in the case of ASML, the Dutch company that builds the lithography machines to engrave the chips—that’s a Dutch company, but they have operations in the United States. They are fully going to comply with U.S. coercion.

So I think essentially the whole of the Western camp—and you and I have talked about this in the past in the context of other things, like the regulation of the internet—all of the Western AI, including—and I would include the Middle East and stuff like that—have touch points in America, which they care about, like the customers they want to serve, the way they’re going to raise money, the chips they’re going to use, other technology around the chips, the cooling material and all that.

If you brought the full might of the United States down on them, they don’t have an independent ecosystem, and they couldn’t do anything.

So I believe the U.S. has a lot of control. The only place it doesn’t control is China. That’s the only credible technological possibility of a totally separate ecosystem that rises up and, you know, provides an alternative source of AI compute power.

So if you had two countries on board—China and the US—I believe that some form of nonproliferation is possible.

Of course, I accept that in the past, nonproliferation for nuclear stuff was not perfect, and there would be people who didn’t sign and all that stuff—but better than nothing.

Fair. Okay, that’s a fair answer. Let me ask you one last question. And I haven’t heard you speak about this, so I don’t know if you have views on this.

At least in the United States, a lot of people are—we’ve been focused on—our earlier conversation was about the danger of these technologies being in private hands and the need, perhaps, since the federal government is the guarantor of the public interest and the supplier of public goods that we can’t rely on the private sector for, there’s a natural assumption that the government should perhaps, at least for dangerous uses—as for negative externalities and the like—have some access to and control over these technologies. That’s the basic argument.

But there’s another worry, which is the worry of the government possessing these technologies and the bad things the government could do with these technologies. And there’s an endless list. You know, it supercharges surveillance. One can imagine perfect control.

You know, we’re talking a lot in this country about the unitary executive. Well, you can imagine everyone being plugged into the presidential AI and taking immediate directions, and you can also imagine that taking nefarious uses.

There’s a real worry about government having these things. And so that’s just another worry in this whole horrible calculus of trade-offs that one has to think about. And I wonder if you have any thoughts about that.

Yeah, I mean, probably fewer thoughts than you do. But I would say that, first of all, I agree that AI is a centralizing technology. So the internet was a decentralizing technology in the sense that it became easier for less powerful actors with fewer resources to have as much information as the powerful ones.

And so the state, which might have had a good monopoly on some forms of important data, suddenly those data were democratized, and lots of people in the private sector could get them. You know, satellite surveillance of what’s going on on the ground, you know, was—I mean, it’s maybe not just the internet—but you have companies like Planet, which provide excellent images of what’s going on on the ground. That’s a private company, a startup in Northern California, which makes its data available to lots of customers.

And so you get the kind of democratization, privatization, diffusion of knowledge.

But with AI, you need to have as much data as you can. And then when you train on all that data, you sort of have this ability to centrally control, centrally understand things. And if the AI is held closely and not distributed, that’s an extremely centralizing phenomenon.

So, I mean, at the moment, you know, the way AI is being built is sort of in the hands of, you know, 10 or something companies. But they release it fairly openly, and so it’s pretty democratic.

But were that to change in the future—as we’ve been discussing—in a more closed way, it’s maybe government basically controlling domestic producers to the point where they could demand that they get one of the most powerful models only for the government or something like that.

Yes, that’s very centralizing and very disturbing in terms of civil liberties. And indeed, we’ve seen that argument come up explicitly in the fight between Anthropic and the Pentagon—not the Mythos one, the one before—where Dario Amodei made two objections. One was about autonomous lethal weapons. The other one was about the use of his AI for domestic mass surveillance.

And his point specifically was, you know, the law has not caught up to deal with the prospect of this very powerful AI in the hands of the government. And until it catches up, I don’t want my system to be used for this, because democracy lags behind where the tech is.

So I do think there’s a sort of whole set of concerns there, which you’re correct to raise. I’m not sure I’m pushing the argument beyond what you said in your question.

No, that’s great. I say I share his concern. The law has not caught up to the possible uses. And I think we’re going to be learning that over the next months and years.

Sebastian, thank you very much. It’s truly an extraordinary book. It’s not just about one person—it’s really a history of artificial intelligence and an exploration of all sorts of related issues. It’s a touching personal story, and it’s told accessibly and vividly and brilliantly, as usual. Thanks very much.

Thank you, Jack. It’s been a great pleasure.

Thumbnail: Classified intelligence material found during the FBI search of Mar-a-Lago on August 30, 2022. (Department of Justice.)

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 Marty Lederman of Georgetown Law School, who is a former deputy assistant attorney general in the Office of Legal Counsel in the Biden administration. And we’re going to talk about the constitutionality of the Presidential Records Act.

The Presidential Records Act basically says it gives the United States ownership, possession, and control of presidential records. That’s what the statute says. And then it makes the president responsible for managing and preserving those records in office. It transfers custody and ownership—well, I guess just custody—to the National Archives once the president leaves office, and then it governs access to those presidential records thereafter.

And the reason we’re talking about this is because, on April 1st, the Office of Legal Counsel, where Marty and I both worked in different administrations, issued an opinion that said that the Presidential Records Act is unconstitutional for two independent but interlocking reasons—and that’s a quote from OLC. First, OLC said that it exceeds Congress’s enumerated and implied powers. And second, OLC said that the PRA, the Presidential Records Act, aggrandizes the legislative branch at the expense of the constitutional independence and autonomy of the executive.

Okay, Marty, we’re going to talk about these legal arguments, but let’s start off—if you could just—what’s at stake here? Why is this law important? And what’s at stake with whether it’s constitutional or not?

Marty Lederman: Yeah, so I’ll give a quick sort of historical background, which the OLC opinion tracks as well. So, from the beginning of the Republic until 1934, there weren’t a lot of records created by the president or the folks right around the president, but there were some. And Congress effectively allowed presidents to take those records with them when they left office.

And that, over time, was understood to be a congressional acquiescence in effectively transferring the property of those records to the president, to control the way he wished to do so after leaving office. And presidents treated it in various different ways. They made a lot of those records public, and some they didn’t.

In 1934, Franklin Roosevelt—so, there weren’t a lot of records, and there wasn’t really a repository within the federal government to hold them anyway, so it wasn’t like there was another option—in 1934, Roosevelt encourages and eventually signs the law creating the National Archives. And he also takes great pride in saying, I’m also going to donate all of my papers to the National Archives so that the people and the government can have access to them for historical reasons.

So, from 1934 until 1974, there is a place to store them. And every president between Roosevelt and LBJ, generally speaking, made all of their papers available and gave them to the archives, under certain terms and conditions, but generally speaking, to allow the public and the government to have access to them within certain parameters.

After President Nixon resigns, some of his tapes and other, you know, incriminating documents have obviously already been made public at that point—that’s why he resigns. Ford pardons him. And he says, well, the rest of these tapes in particular, and documents, belong to me, and I’m not going to follow in the footsteps of my predecessors. I want to take them and keep them and not give them to the archives.

You know, and this happens right in the wake of the greatest scandal of, you know, the post–Second World War era. And so that obviously engenders a lot of pushback from Congress and the executive branch. And, you know, President Ford encouraged and signed a bill that applied only to Nixon’s records. And it effectively—it did not transfer the property, interestingly enough. It actually gave him just compensation, but it required him to turn over those records to the archivists in the archives for the preservation of historical understanding and the public’s understanding, and the ability of future presidents to understand what Nixon had done, and Congresses and the courts.

And we’ll talk a little bit more about that—the various different actors who are able to get access and what the purposes are. So it’s a Nixon-specific statute that is then challenged by Nixon on about six or seven different grounds—constitutional grounds. And that gets up to the Supreme Court, and the Court rules seven to two against Nixon on every one of his claims. He had actually dropped one or two of them by the time the merits are there, but it rules against him on all of the claims, including, most importantly, a claim that this impermissibly impinges upon the ability of the President to perform his functions by creating a chilling effect going forward.

Or you write that presidents—if Congress were to do this to other presidents—they would know that their conversations are subject to eventual public disclosure or disclosure to their successors or to Congress, and that will inhibit presidents from doing the job the way it ought to be done. And the Court rejects that—what I’ll call the separation-of-powers argument—pretty decisively, and actually articulates a test, a very liberal test, pro-congressional test, for assessing that kind of constitutional claim: one that a federal statute impinges upon the President in a way that will unduly restrict the operation of his constitutional duties.

And so it’s a pretty determined—it’s a pretty strong opinion, supported by President Ford, who signed the bill, and by President Carter, who was the president at the time of the litigation.

Right after that decision, Jack, I think it’s important to note—and we’ll talk a little bit more about this coming forward—OLC nominally tries to distinguish this case, called Nixon versus Administrator, famously, tries to distinguish it on the ground that it was a Nixon-specific statute and it was in the wake of Watergate, and it was a sort of a one-off kind of thing.

The irony was many of Nixon’s claims—and the ones that caused some of the justices a little bit of angst—were that this was impermissible because it was limited to Nixon. It was a class-of-one statute that seemed—he raised a bill of attainder argument that got the most attention from the Court, an equal protection argument that he dropped before it got to the Court, and that sort of thing.

But Congress, after this decision, decides, well, you know what, that’s right—it shouldn’t be Nixon-specific. We don’t want this to happen again. And so we’re going to pass a bill that, with President Carter’s approval, starting in 1981, will make these basic rules applicable to every future president.

With one big change: this new bill—and the one at issue here, the Presidential Records Act—actually declares, as a matter of statutory law, we are now—this will now continue to be government property, not personal property. And then it subjects all of these presidential records to a series of regulations, which we can discuss.

I’ll stop here for a second. And that’s—and OLC at that time testified that this was plainly constitutional, and every president for almost a half a century has treated it as constitutional and complied with this statute.

I haven’t answered your question about what the implication is.

So you didn’t answer my question—what’s at stake here—but that’s okay. You raised a lot of things. So let’s just talk about some of those.

So I think that history is fair, except for one thing. I mean, wasn’t— you said that Congress, before the Nixon statute, you said that Congress had allowed presidents to do certain things. But really, wasn’t Congress mostly silent? And didn’t presidents actually claim—make various claims of ownership over their papers before Nixon?

I’m not sure there were ever any legal disputes about it. When Attorney General Saxbe actually issued an opinion when Nixon wanted—when Nixon made this assertion that he could just take these documents and never share them again. And Saxbe was asked, as Attorney General, is this government property or is it presidential property?

And his opinion basically said that Congress had silently—ordinarily, of course, you and I, Jack, the documents we created when we were government employees are government property, right? They were done—we were paid by the government, we used government facilities, it was done in our official capacity. All other actors within the government, of course, it’s government property.

And Saxbe basically argued that there had been an implicit acceptance by Congress over the years, without any specification, that it was okay for presidents to treat this as their own.

But I thought that the D.C. Circuit in the Nixon case held that they were his private records, and that the statute—well, it may have been valid—constituted a taking, and that he warranted compensation. And as I recall—I haven’t gone back to look at it—I think that case had a list of all of the prior presidents.

You’re talking about the Nixon case? The Nixon case in the ’70s.

Yeah. Sorry if I wasn’t clear about this.

Didn’t they assume or claim that it was Nixon’s property and that he was—yes, absolutely—the person that could regulate this, but that it was a taking, and that was because there had been no prior statute that had actually regulated this, and he had assumed?

Yes. So —

I don’t actually think this affects the legality of what happened.

No, no, it’s actually—Congress agreed. So with respect to the Nixon statute, Congress actually, for the first time, sort of said, we’re going to treat this as private property. The statute itself gave him a right to just compensation.

I think what you’re referring to—it’s been years since I read that decision—is that he ended up collecting, I think, something like $170 million—

Yes, exactly.

—from the government, because Congress actually came in and said, yeah, we’re going to continue this regime in which this is your property, but nevertheless, we’re going to require you to hold it with the archives.

So there was a statute for Nixon, and then there was a Presidential Records Act, and that was important because it prospectively claimed, for all presidents going forward, that this is public property.

And so—and then there was this regime which you just described that we were subject to, and that everybody in the executive branch is subject to, about certain papers being public property and subject to this regime.

So—and I don’t think that history is particularly dispositive one way or the other, but I think it is a little bit contested before the Nixon statute.

In any event, why is it important? We can come back to that. I don’t think it’s actually important, but why is this OLC/White House challenge to the Presidential Records Act, saying they’re not bound by it—why is it important? Is it because they’re going to destroy documents? Is it because they can use Signal now? I mean, why is this an important thing to worry about?

So, one of the first remarkable things about this OLC opinion is that it’s, I guess, kind of like some of the torture opinions in the Bush 43 administration—it’s OLC answering a question, a very broad question about the constitution, the facial constitutionality of a statute, without any indication on the front—on the page—about why they’re answering that question, right?

Ordinarily, OLC, you know, either the President or someone else in the administration comes to OLC and says, we would like to do X—is it lawful for us to do X? And OLC answers that question. Here, the question proposed to OLC by the White House Counsel was: Tell us whether this statute is facially constitutional.

Now, there may have been much more specificity in the internal discussions between the White House and OLC, but the opinion does not explain what turns on this or why the White House is interested in this question. So we’re left to speculate.

And I guess I’ll answer the question by—I guess—I’ll show what the statute does.

In the first instance, it requires both the President and the Vice President, and those working for the President in nine different components of the White House office—not OMB, not USTR, but most of the other White House components—it requires them to retain all government— all presidential records, which are broadly defined, but which exclude purely personal or partisan, you know, electoral records—campaign-like records.

And the President has a pretty wide berth at deciding what counts as that exclusion. But in any event, the President and those around him are required to basically maintain those records during the presidency itself.

And there’s an amendment in recent years that if you use non-governmental resources to create the records—like your personal phone or Signal or some of these new apps where they are not automatically retained—within 20 days, you have to transfer them to a government application or technology that will retain them.

So there’s an affirmative obligation to retain the records while you’re in office. And then, at the end of your term—of the President’s term—the records have to be transferred to NARA, to the archives, for preservation thereafter, subject to all sorts of different rules—which I think we’ll probably get into—about when they become available, to whom, and under what circumstances in the subsequent years after the President’s term.

So here, I think—here’s the answer to your question, what people are suspecting, but we don’t know.

The first concern is that it will allow the President and/or those around him not to abide by the statutory requirements of retaining certain information while he is in office—either tearing them up and throwing them out, or burning them, or putting them on, you know, Signal and letting them be deleted after a few days, or things like that. So that’s number one.

Number two would be not transferring them to NARA at the end of Trump’s term, but taking them to Mar-a-Lago, or doing like he did once before, and doing that in violation of the Presidential Records Act.

And number three would be what NARA does with the presidential records that it does have—both Trump’s and other presidents’ records. Will they turn them over as required by—will they engage in the processes that the statute requires and the disclosure that the statute requires in future years, or even right now, with respect to previous presidents’ records?

So it’s that whole series of different possible implications.

Okay, one more question on this. With regard to—just explain for people who aren’t expert on how the executive branch works—why is this important? Why is it important to retain presidential records? Why do we have this statute?

What is the danger of senior executive branch officials communicating on Signal or destroying records, putting them in a burn bag—which might be happening anyway, very hard to enforce in certain corners? Is it for history’s sake? Is it for accountability’s sake? What is the claim that it is important this statute exist and be abided by?

So I think the statute itself, and the legislative history behind it, and OLC’s testimony about it, and the Supreme Court’s decision in the Nixon case, all articulate what you could say are four different purposes for the retention and the ultimate disclosure.

Perhaps the most important one is, you say, just so the nation can understand its history and the way its government has worked, right? That the people—you know, it’s mentioned historians—but the idea is that people who study American government can explain to the world and to the governed how their government has acted, you know, for all the reasons we care about history, right?

It’s sort of obvious, and the Supreme Court states that right up front as the principal virtue of this statute, right, is to preserve the Republic’s history. It would be a little bit odd not to preserve them, you know—to hide what the government has done from the eyes of the public for centuries to come.

And then all three branches of the government itself have an interest in the preservation, which is reflected in the so-called special access provisions of the Act.

So, most importantly, the next president—and the one after him, and the one after her, and so on and so on—might have a great need to know what their predecessors have done in terms of negotiations with foreign countries, in terms of legislative strategy, all sorts of reasons.

I mean, Jack, we’ve worked in government. Of course, we’re constantly referring to records of what our offices have done in the past, right? That’s what you do every 15 minutes. That’s the only way you can do your job properly. So the executive branch has that.

Or, in particular cases, it could be that DOJ has a need for it if it’s investigating certain activities. And that’s what happened during the Biden administration, when DOJ was investigating Trump’s taking documents to Mar-a-Lago. The FBI had an investigation, and they asked NARA for those documents so that they could investigate what the former president had done. So there might be law enforcement reasons as well.

So the public—you know, public/history—and the executive, I think, are the two most important, but there are two others as well.

Congress might want to see some of the documents and have a need for them. And so, for instance, in this Congress, Representative Comer has requested from the archives—and the archives has given Comer, like my understanding is, enormous numbers of Biden presidential records—for his investigation of the autopen controversy and all manner of other things, for congressional oversight and consideration of future legislation and what have you.

And then the judiciary—like in the Nixon tapes case—you might have criminal or civil cases in which there’s a grand jury subpoena or a judicial subpoena for presidential records, and this statute also allows that.

So it’s the people and history, it’s the executive, it’s Congress, and it’s the judiciary—all of which have needs for these things.

And I think you also touched on probably one of the big motivations, which is the whole Mar-a-Lago documents matter, which is clearly still a thorn in the president’s side. He’s still upset about the Presidential Records Act—it was implicated in that—and he would like to unwind anything that could suggest that what he did was unlawful. He would like to unwind it and show it was illegitimate.

I think, at some level, they may want to be destroying documents now and manipulating the historical record, but I think that’s also—

It could be. There is this reference—I think you and I discussed briefly—in the OLC opinion that you could extrapolate from it and say, oh, and by the way, one implication of our holding is that this whole criminal investigation for violations of this Act was itself unconstitutional or invalid, because the statute is.

I mean, I think that was the driver of the whole thing.

Okay, let’s get to the constitutional arguments. OLC said, first, that the Presidential Records Act exceeds Congress’s enumerated and implied powers—i.e., there is no basis in Article I for Congress to enact this statute. What do you think about that?

So, Jack, I haven’t run into anyone from any political persuasion or any administration who thinks that these arguments—which take up the bulk of the OLC opinion—have any plausibility at all.

But explain why.

So, I will explain. It’s both what’s there and, most importantly, what’s not there. So, very briefly on what’s there—and we can go into this in greater detail, but I’m not sure it matters much other than as a reflection of OLC—OLC goes on for pages and pages about congressional oversight authority, for instance, which is really almost neither here nor there. It also takes extraordinarily—

Explain why it’s neither here nor there. OLC spends a lot of time talking about Congress’s powers of oversight, and this is important for the Supreme Court decision in Mazars and the like that it relies on. So why does it use that frame, and what’s wrong with using that?

You got me. It’s a weird frame to use.

But why? Why is it a weird frame to use?

Because those cases—Mazars and other oversight cases—are cases about when a congressional committee is seeking information with respect to its oversight authority or its impeachment authority from the executive, and it’s a particular request for particular documents.

And the Court has come up with various different doctrines related to when and under what circumstances presidents can resist, or executive branch officials—or private parties in Mazars—can resist those sorts of claims for congressional oversight. And that raises a whole slew of questions about: Is Congress’s interest in this particular investigation valid? Does it outweigh the needs of the president? Are there privilege questions at play?

It’s very case-specific, very document-specific, very specific to a particular congressional investigation. And those cases and those doctrines just have never been considered with respect to a facial challenge to a statute—which, yes, as I just mentioned, sometimes, like with Comer, Congress might use the PRA for oversight purposes—but that’s hardly the most important application of this statute.

Okay, so I agree with you. It’s not obvious why the constitutionality of a piece of legislation is viewed as an example of oversight, which we tend to think is more contextual and specific.

So what is the right lens for thinking about this? They say that Congress has no Article I authority to regulate. So what is the strongest basis of Article I authority?

So I actually think there are at least three fonts of obvious congressional power here, only one of which is in Article I, by the way.

And the one that’s in Article I is just the Necessary and Proper Clause. It’s necessary and proper for Congress to carry into execution the laws that it has created. Congress creates—except for the President and the Vice President—all of the positions within the Office of the White House, right, the Executive Office of the President.

It appropriates funds for all of the materials—other than a private phone—to be making these sorts of records. It basically creates the structure of the executive branch, but for the president. And obviously, Congress enacts laws all the time that regulate the funding and operations and limitations of what folks in the Executive Office of the President, like the agencies, can do.

That’s just ordinary, everyday Necessary and Proper Clause legislation with respect to both congressional money and congressionally created positions and functions. That’s number one.

But two others are sort of even more prominent. One is the one the Supreme Court mentioned. Now, I will say here—I said Nixon made six or seven different constitutional arguments—it’s noteworthy that he did not argue—none of them was that Congress lacked the affirmative authority to enact his statute, right?

Like, this argument was so disfavored that even Nixon, who was throwing everything in the kitchen sink in the case, did not make it.

So one of them is the one the Court held was sort of the basis—and it’s kind of an inherent power of government to preserve the history of its operations, right? Imagine if you were writing a constitution for anything—for any government, a nation, a state, a city, a private institution—of course your lawmaking body would be—it would be assumed—you’d have the power to preserve the records of your own operations.

Like, who wouldn’t put that in the Constitution? So it’s that inherent power to preserve our nation’s history, which is what the Supreme Court referred to, among other things, in the Nixon case.

So there’s those two. And then the one that’s most prominently missing—which isn’t in Article I, but in Article IV—is Congress has the power to enact regulations with respect to government property—property of the United States—the Property Clause, which the OLC opinion doesn’t even mention.

It was mentioned in the lower court decisions in the Nixon case, and it was invoked by OLC when this statute was being contemplated. It is completely inexplicable why OLC—it didn’t—it either didn’t occur to anyone in OLC to think about the Property Clause; they don’t challenge that it’s government property, interestingly; they don’t mention it either.

Either someone did mention it to them, that they ought to address that question, or they didn’t look at the briefs in the old cases, and they didn’t talk to anyone who would have told them. I think it’s fair to say, Jack, that virtually anyone—any career lawyers in OLC or at the archives—would have told them in five minutes, what are you talking about? There’s the Property Clause.

I agree with you. They should have definitely addressed the Property Clause, especially since the government has relied on the Property Clause in very closely analogous contexts.

Does it matter—the Property Clause in Article IV—it comes in the context of talking about territories. It does say “property of the territories.” And what is the exact language? Congress shall have the power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States.

So do you think, in the Property Clause, they were—when they were focused on territories—they were just thinking about all government property, and that’s where they put it instead of Article I?

I don’t know about instead of Article I, but in addition to Article I. I think even if there weren’t a Property Clause, I think there’s a very strong argument.

I agree, but I’m just trying to figure out the relevance of the Property Clause. Obviously, the Necessary and Proper Clause in Article I applies to all government powers, so it doesn’t matter for that purpose that the Property Clause is in Article IV. I’m just wondering whether the Property Clause had this type of legislation in mind. I’m not even talking about it as an original matter. I’m just talking about whether they just focused on territories here—this is Article IV that is about horizontal sovereignty.

It clearly includes chattels and real property and buildings and materials and the stapler. You and I couldn’t take staplers home from the office because it was government property.

Here, I think it’s sufficient just to quote OLC—this is Larry Hammond of OLC testifying in 1978: “It is well established that the work product of government employees prepared at the direction of their employer or in the course of their duties is government property. Should Congress choose to extend this principle to cover records prepared or received by the president in the course of his duties, no substantial problems would, in our view, be raised.”

And then they did mention the Property Clause there. But I’m not sure exactly what your question is.

I’m just trying, for the general reader, to point out—I think that the Property Clause is probably deeply relevant here, and I think it has been treated as deeply relevant for a long time in the government. And it is remarkable that OLC didn’t even mention it.

I’m just pointing out that this is in Article IV, in a context that seems to be something else, and what you’re saying is basically this hasn’t mattered to the understanding of the Property Clause in the past.

I’ve never studied—quite honestly, I’ve never had any occasion to study—the full scope of the Property Clause. I do know that in the preliminary injunction motion that was recently filed in a case that we’ll talk about in a few minutes, the plaintiffs do have a little riff on the scope of the Property Clause. I haven’t really carefully looked at it.

Okay. What about the second argument, Marty? The second argument is that the Presidential Records Act aggrandizes the legislative branch at the expense of the constitutional independence and autonomy of the executive.

Yeah. So, just to put that in the context of this opinion—so what’s kind of shocking about the opinion: There are about 40 pages of analysis. The first 25 to 30 are on this—are just this sort of diversion about the lack of affirmative authority by Congress and oversight authorities and all this stuff, without talking about some of the most important authorities.

And then only then do you get to sort of this backup argument, they say it’s in conjunction with, which is effectively a separation-of-powers argument. It amounts to an argument that this statute unduly impinges upon or chills the conduct of the President’s activities in ways that will prevent him from performing his constitutional and statutory duties.

And that is the first argument that the Court addressed in the Nixon v. Administrator case, right? So perhaps the reason they relegated this to the back end of the opinion is they were going to have to deal with the Supreme Court case directly on point—and something they only mention in a footnote—with OLC testimony about this Act that addressed this question and rejected this constitutional objection, said that it was meritless, especially after the Supreme Court opinion.

So they use the word “aggrandizement.” I don’t think—it’s not necessary for your viewers—but that’s the wrong term. The aggrandizement question is just when Congress inserts itself into executive functions. There’s nothing like that in the statute here. So OLC is misusing that whole concept.

What they’re thinking about is—I think the argument is that the Nixon v. Administrator of General Services—that case engaged in a style of separation-of-powers analysis that the Supreme Court is not inclined to address now.

So the OLC seemed to be saying—I think they refer to it as the ancien régime of separation of powers—and there was a Brennan opinion, there was a kind of balancing test that the Court doesn’t really go in for now.

So, I mean, I have a response to that, but I’m wondering what your response to that is. Is that relevant here?

Well, I’d like to hear your response. You’re right about what their argument is. So they spend a page or so saying that Nixon’s distinguishable.

Actually, this is an easier case than Nixon in two ways. Here, the documents are government property—they weren’t in Nixon. And there, the way that OLC purports to distinguish Nixon is that that was only with respect to one president, not all presidents, and therefore it was more acceptable. Actually, that was the constitutional problem that was most acute to the justices there. This is better because it’s not a class of one.

So they don’t really make much of an effort to say it’s distinguishable. But what they say is basically—they use the word “wrong.” They say the Supreme Court was wrong. It’s the ancien régime, right? It basically—it’s a Bill Brennan opinion, therefore it must be wrong—is the not-so-subtle subtext there.

This is from a different era. We are just—it’s just a sort of—I don’t know if I’ve ever seen this in an OLC opinion, Jack. I’m wondering if you know of another example where OLC is saying even if there’s a Supreme Court precedent directly on point—and OLC has testified that it makes this an easy question—we are hereby not going to follow that because we think the Supreme Court got it wrong.

So I don’t think they quite said that. I agree —

They literally say it’s wrong.

I know they say it’s wrong, but they also distinguish it.

I’m saying the distinguishing is pathetic.

But they’re not—it’s a different statute, it was a different structure. It didn’t rule on the constitutional question of Congress’s power because they just assumed it.

No, on this one, though, on the intrusion into the president’s functioning—the Court did address that directly. That was the principal claim made there. And when OLC gets around to explaining why—

I agree—so here’s why I think, they didn’t really get into this, but what is the separation-of-powers analysis they would like? It’s a more formalistic one. But I don’t really understand how that helps them, because to me, if it’s a formalistic analysis, you start with Article I power.

And I think, for all the reasons you explained—especially the Property Clause, but the others as well, maybe not the inherent powers argument today, although that’s been an important argument in this context—I think Congress clearly has Article I power here to define and regulate government property.

Article IV. And Article I, yeah.

Article IV, but with the Necessary and Proper Clause on top of it.

And then the question is, well, you know, does the president have some exclusive power vis-à-vis this? And here’s what I don’t really understand. The president is claiming—it’s an Article II argument, something about the office of the president—but they’re relying on an Article II argument to say that the president has a private—in a way, kind of private—control and can do what the president wants with these documents.

I don’t see how you get an exclusive—I don’t even know where it would come from—the exclusive Article II power to dispose of this property as the president wishes. That’s the part that I think a formalistic analysis—

I’m going to make an analogy in a minute that’ll be a bit provocative, just because I just taught it to my separation-of-powers students, but let me hold that for a second.

I think I agree with you—I don’t see what’s there. I think it’s important for your viewers to understand that this statute bends over backwards in several ways to preserve presidential prerogatives and to ensure that there is not an undue burden on the president’s functioning.

It allows not only the current president at the time of a dispute, but even a former president, to raise an executive privilege claim, to have that adjudicated by the courts if it gets to that point, right? To get to the courts—it gives the former presidents a lot of control to make it so that, for 12 years, there’s basically not very much access to this. There’s no judicial review of archives decisions to withhold documents until the 12 years is up.

This is an extremely solicitous-of-the-president statute, which is not surprising because Carter was signing the statute, right? The president was approving this, so it’s got all these protections built in.

So then the obvious question is, well, how does this really make the president’s performance of his or her duties any more difficult? And the one concrete example they give—it’s like, I don’t know if I would have ever had the guts to write this—is it takes up too much time of the White House Counsel’s Office to advise the president on how to comply with the PRA.

I hope I don’t have to explain why that’s not a very good constitutional argument.

Explain why.

Well, for one thing, the Office of White House Counsel is created and appropriated by Congress for the purpose of advising the president how to comply with the law. To say that that’s diverting them from their functions is kind of a non sequitur. That is the purpose of that office.

And, you know, Congress doesn’t have to create a White House Counsel at all, right? There wasn’t much of a White House Counsel’s Office until after Watergate. And I just don’t even see how one would constitutionalize that argument.

And that can’t be what’s going on, right? They want to be able to destroy these documents. The broader claim is that even non-privileged communications—because remember, the privileged communications are going to remain secret—but non-privileged communications, the knowledge that they will come to light 12 years later or something like that, or be available to Congress or the FBI or a judicial subpoena in a shorter amount of time, will so chill the operations of the executive branch that they won’t be able to do their job properly.

And, you know, the plaintiffs’ main response to that is, well, it hasn’t chilled. The presidency has been working just fine for 50 years, thank you very much. The statute has not really had much of a detrimental impact at all.

Do you think—but do you agree with me that they don’t really explain how it is that Article II can create an exclusive power in the executive branch for the president to do what he wants with the document?

No, they don’t make either a legal argument to that effect or even one that sort of resonates in terms of the facts. I think, you know, if you press them with truth serum, they would say something like just the ordinary human thing, right?

Which is, a lot of people these days do things by phone or try not to create records, right? If you’re going to be more candid, more forthright, if you don’t have to write something down for, you know, history’s preservation, right? If you know no one will ever know what was going on, you will be more candid, even apart from executive privilege claims.

And I guess, in some respects, that’s true, right? That’s the way we are—when we have a pretty certain idea that someone we’re speaking to will never repeat it elsewhere, we tend to be a little bit more candid than if we know that it might come out 12 years later.

So I think that the strongest practical argument—it’s not really an argument, but a practical line in the opinion, and let me flesh this out before you comment—is when it says, well, if Congress can regulate presidential records, they could regulate Supreme Court records. And they’re going to say that district court records.

And I actually think that’s right. Congress could regulate records of the federal judiciary, including the Supreme Court. I think it would have to be done differently to take into account the very different structure of Article II and the ways in which administrations turn over, with judges retiring while their colleagues are still in the Court and the like.

But I have no doubt that Congress could enact a constitutional Federal Judiciary Records Act of some scope, but I do think this is going to give judges pause. What do you think about that?

I agree with that. It’s a common move in constitutional adjudication that might get up to the Supreme Court to say, well, what if this were you? Sam Alito’s out there publicly having said Congress can’t regulate the Supreme Court at all—that’s clearly not right. Congress has regulated the Supreme Court a good deal over the years.

Well, it can determine how many people are on the Court.

Yeah, when its term shall be, in a million different ways. Yes, it could require this. You might say there are questions about whether the judicial power—as you know, there’s a handful of cases that have construed those pretty vague words to impose some sort of baseline thing that Congress cannot regulate.

The judicial power includes the power to issue a final judgment that can’t be reopened by the legislature. I suppose someone might make an argument that having complete control over records infinitely into the future is part of what it means to be exercising the judicial power. I don’t know what that argument would look like.

I think it’s kind of tough. I mean, you’re really getting into whether the institution—the branch’s control over its deliberations—is something it is the master of. And once you acknowledge that the executive branch can deliberate however it wants, but it has to preserve a record of those deliberations when a record was created, I think that the same basic argument has to apply to Article III.

Although, again, I think there would have to be different kinds of accommodations. I don’t see how you could craft an argument—maybe just my lack of imagination—based on the judicial power to distinguish it from the executive power in terms of Congress’s ability to—

I agree, but you can imagine—and we’ll talk in a minute about whether DOJ will defend the merits of the OLC opinion—but you can imagine that, if they do, and it’s getting up to the Supreme Court, yeah, you start from really provocative hypotheticals.

Could Congress pass a law requiring that the justices videotape their Friday conferences so that, 40 years later, people can understand what their deliberations were? There are some who think maybe Congress can’t even require videotaping of oral arguments, that that’s something off-limits to Congress. I don’t think that’s a very good argument, but the Supreme Court would not take well to that statute on any of that.

This is why I mentioned it. I think this is—set aside the fancy doctrinal arguments—this is going to be the main intuitive argument that’s going to give many members of the judiciary, and I think members of the Supreme Court, pause in trying to understand how—well, you say that it doesn’t impact deliberations and it doesn’t affect the operation of Article II, but boy, we can imagine how it would impact us, so maybe we need to—

Obviously, the executive branch is just so very differently structured and organized, with a very different function from the judiciary, but I still think it’s going to be, if not on the surface, in the background.

No doubt, no doubt about it.

So let’s talk about—there’s a lawsuit, and it’s brought by scholars’ associations that are seeking a variety of injunctions and mandamus and declarations of unconstitutionality of various things related to the OLC opinion and the follow-up on it.

I mean, do you have any general thoughts about the lawsuit? The obvious questions are that, even if they have a powerful case on the merits—and I think that they do—the obvious questions are: do they have a right to sue, and especially, is there standing?

Yep, I think that’s exactly right. So just a little background for your readers—and maybe we’ll know more, maybe we can do a follow-up in the next couple of weeks as this goes on.

So the case was originally assigned to Judge Howell in the District of Columbia. It’s now been given to Judge John Bates, who’s a very, very serious—Judge Howell is as well—a very serious and scholarly and thoughtful judge who’s written on separation-of-powers cases before.

Interestingly enough, I don’t have any doubt that Judge Bates and the appellate courts would rule for the plaintiffs on the merits if the merits are eventually reached. I don’t think this is a hard case at all.

Okay, we just spent a long time talking about the merits. Let’s talk about getting to the merits.

Yes—and getting to the merits. So just to tee it up: there’s a motion for a preliminary injunction that is pending. The plaintiffs asked for expedited consideration; the government opposed that.

The plaintiffs said to the government, we’re willing to give you more time to write your brief if you will just agree that you won’t violate the Presidential Records Act while the PI is being litigated. The government refused to do that. So it sort of definitely leads to the suggestion that they are currently not complying with the statute in one manner or another—we don’t know how—or more than one. So Judge Bates ruled for the plaintiffs.

They pretty much said they weren’t complying with it, as I read. They sent instructions to have people continue to do things with records that were not as broad as the Presidential Records Act, which makes me—

It seems that way. But it’s going to be a little bit vague to Judge Bates exactly how—what are they doing with this OLC opinion, and how much are they doing that’s irreparable, that cannot be repaired?

I’ll ask that question.

So anyway, he’s expedited the briefing. The government’s brief is due Tuesday—so in four days. It’ll be very interesting to see whether they limit their arguments just to the standing/justiciability arguments or reach the merits. And the hearing is, I believe, on May 5th for the PI.

You said a second ago—and I still want to get your views, to the extent you can offer them, on justiciability—but you said a second ago you weren’t even sure the government was going to. I think the government—I don’t have any doubt that the government’s going to be all-in in defense of this position.

The position the president wants is the position the White House wants. There’s an OLC opinion on it. I don’t see why—I agree it’s going to be hard to square with some past representations, but I don’t see—But there is some slippage in some of—

All right. You may be right. I think this is a great challenge for the Civil Division and the Office of the Solicitor General, because I just think the arguments here are extraordinarily weak and would effectively require a district court judge or a court of appeals to disregard a governing Supreme Court precedent and OLC testimony from the ’70s.

Yeah, I don’t think OLC testimony won’t cut much weight.

No, but it’s reflective of how easy the question was, right? So one thing that’s interesting to me as a strategic matter is that the plaintiffs have asked for injunctive relief against several different defendants in the executive branch. One is the archives—that they should comply, and therefore they shouldn’t refuse to disclose something on the ground that this is unconstitutional.

Another is against all the sort of other officials within the Executive Office of the President—that they should comply with their retention requirements. Obviously, the requirements that take place on January 20th, 2029—those are three years away, right? So those requirements are three years away.

And they’ve made one claim—they’ve actually asked the court to set aside the OLC opinion, which I kind of think is not a thing.

Yeah, that is a—when I read that, I thought—

That was overreaching. A declaration that it’s wrong is all you need. There’s no such thing as setting aside an opinion.

And also, what is—they talked about final agency action here under the APA. What is that?

Well, that’s as to NARA. NARA is the only entity that’s—well, yes, there’s a claim against the attorney general about the OLC opinion. I don’t think that’s going to have any legs.

What is the final agency action by NARA? It would be not complying—systematically not complying with its obligation.

Anyway, one thing that’s interestingly not in the case is that they have not asked for any injunctive relief against President Trump in his official capacity. They are asking to enjoin him, once he becomes a private citizen again at the end of his term, from taking or destroying the documents.

But they are not seeking an injunction against the president’s own destruction of or failure to preserve documents that he’s involved in. Now, I know why they’re doing that, because, as you and I know, there’s this old Civil War–era case, Mississippi v. Johnson, that Justice Scalia was very fond of, that suggests that the judiciary doesn’t have the power to enjoin the president directly.

And I think there are a lot of justices on the Supreme Court—and there are justices—but I think it’s a very, very bad, incorrect reading of that case and of the Constitution. I think there are historical examples of presidents who have been enjoined, but I think that’s the reason the plaintiffs are not seeking an injunction against Trump.

I think that’s prudent, actually.

And it might be prudent. Okay, so what are the problems? The problems are potentially cause of action—although there are a bunch of cases where the Court has said, Armstrong, Free Enterprise Fund, that there’s an implied equitable cause of action to seek an injunction against executive branch officials for not complying with statutes.

The really hard question for Judge Bates, I think, is going to be standing. We haven’t seen the government’s brief yet. And I think it’ll be something like the following: yes, these organizations—the American Historical Association, American Oversight—they make requests under the PRA for enormous numbers of presidential records all the time. That’s what they’re in the business of doing.

And if all the records were being destroyed, you could be pretty sure that they would be injured at some point down the line. And the only way to prevent that injury is to act now, to not allow the destruction.

But right now, it’s a black box about which records aren’t being retained, which ones are being destroyed. Do we know for sure that anything they would ever seek from NARA would be destroyed? We don’t know for sure. And therefore, it’s kind of a speculation question.

It’s like a Clapper kind of thing—it sounds very Clapper-ish, but without the national security overhang of Clapper.

So on the one hand, this seems rather speculative, because it’s hard to identify particular documents that they will not have access to that they otherwise would have. But on the other hand, if you don’t issue an injunction now, anything that’s destroyed now—there’s no way of getting that back.

So it’s kind of a—I don’t know that it’s controlled by any particular—it’s got a weird mix of standing issues, I think.

That’s a problem—the Clapper problem, we’ll call it. It’s not exactly like Clapper, but it’s a cousin, maybe. Is that going to be a problem for any plaintiff, I think? Or is there—or can you imagine a plaintiff that would get around the Clapper argument?

It’s very easy to imagine a plaintiff, right? So if the following took place, right: If NARA has thousands of requests right now for presidential records, right—including from the first Trump administration, because five years just passed since the end of the first Trump administration—they’re processing them. They always take a long time. They’re always late on processing. They have a huge volume of things.

If they were to ever say, no, we would give you this document, but now that it’s unconstitutional, we don’t have to, that would obviously give someone standing. But I don’t think they’re going to do that anytime soon, if I had to predict.

Like, I’m not sure what they’re doing over at NARA, or if they’ve even been given instructions on what to do with pending requests, right? And so that would create standing, but that might not occur for six months or 18 months—who knows? And in the meantime, a lot of damage could have been done.

So that’s the problem. You get this case—the Court has said many times, including in Clapper, that even in a case where no one would have standing, that doesn’t mean you have to have adjudication. But the Court cares about whether the government would be able to violate a statute without anyone having standing.

And so I think this is a really tough question going forward. If I were Judge Bates, I sure would want to know—unlike in Clapper, where you couldn’t kind of publicly find out what the NSA was doing—here, there’s no national security reason you can’t find out.

Not yet.

Not yet. It’s all national security—

It will be raised. That’s coming, I bet.

Oh, even like, just tell us what you’re doing with presidential records? There’s no privilege claim or national security.

This is an administration that has made national security claims wildly, so I think it’s coming, but—

Okay, if I were Judge Bates, I would think he would be inclined to see whether there’s a way—I don’t, I haven’t thought about this very hard—to insist that the government reveal something about how it’s implementing the OLC opinion.

Do you think it can do that? Rules on standing as a condition of—

No, no—as a—because that will determine standing.

Yeah, so he has to connect those things.

Yeah, and I haven’t thought that through, Jack, quite honestly.

No, but I think that’s right.

What do you think? Do you think the district judge has that power, kind of?

I think if there’s a powerful standing argument, there will be a claim that they can’t get to the merits, and they would construe that question as a merits question. So I think it’s prudent, if he can, to tie that question into trying to understand whether there’s standing.

If I’m a district court judge, that’s what I would do.

Yeah, I think most of the action is going to be on this question, at least in the near term.

All right—anything else?

I don’t think so. Did we cover most of what you wanted to cover?

Everything on my list. Thanks so much, Marty.

Thank you, Jack. It’s always a pleasure and an honor to talk to you about these things. I hope it’s interesting to your viewers.

It will be.

The Presidential Records Act!

I know—If they stay for the whole hour. Thanks very much.

Take care.

Mentioned:

• Sarah Isgur, Last Branch Standing: A Potentially Surprising, Occasionally Witty Journey Inside Today’s Supreme Court (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, I’m chatting with Sarah Isger about her new book, her first book, Last Branch Standing: A Potentially Surprising, Occasionally Witty Journey Inside Today’s Supreme Court. Sarah needs no introduction, but I’ll give her one.

She’s the editor of SCOTUSblog. She’s the host of the Advisory Opinions podcast. She’s a legal analyst for ABC News, and she’s arguably my most famous former student—and certainly the most famous student who went to so few classes of mine, that is, who skipped so many classes. Is that fair, Sarah?

Sarah Isgur: With your permission. That’s important.

Okay. All right. So, this is great. I love the book. Why don’t we start by just telling us what the title means?

So, the title came at the last possible hour for this book, as we were trying to figure out what would be fun and explain the thesis of the book in as few words as possible, like a hipster coffee shop. And Last Branch Standing is supposed to capture this separation-of-powers crisis that we’re in right now, where, if the founders were walking around today—this is what Scott, my husband, and I were talking about that night over a bottle of wine—if the founders were walking around today, I think they would be stunned.

They would look at Congress, and just their assumptions over how ambition would work would have failed. And they would be really sad about Congress. I think they would look at the presidency and be basically like, oh, James Madison wrote down the definition of tyranny for you guys, and you just thought of it as a checklist. How great. They’d be horrified by that.

But I think they’d look at the Supreme Court and say, yeah, that’s about right. It looks a little different. There are nine justices. They have their own building. But we wanted something removed from the majority, from the mobs that we were so afraid of—direct democracy. We wanted an independent branch, and we wanted it to be counter-majoritarian to the other two branches, to protect people’s rights against the government, against different parts of the government from one another.

And they’re the last branch actually doing their constitutional function, while the other two branches fail in opposite directions.

You don’t think—so I agree with that, and I think they would be most surprised about Congress and the presidency and the directions they went in. And I agree that the Court is probably more like what the framers imagined. But the Court—it’s the Court’s jurisdiction, broadly considered, in terms of the number and types of really controversial cases that it takes on, and the really extraordinary importance it’s had in American life really since the beginning, or near the beginning. You think they would have thought, yeah, that’s about what we expected?

I think so. I mean, they let each branch sort of develop itself. I think they knew there would be almost like a—I mean, they didn’t know who Darwin was—but a Darwinian process for each of these branches to some extent.

But part of the reason I think we feel that the Court is the final arbiter of so many of our culture-war, political, partisan fights right now is because the other two branches have failed. So take the mail-in ballot case or the remain-in-Mexico case just from this term. And that’s supposed to be just the Court saying—interpreting what a congressional statute means. Did they mean yes or did they mean no for this exact example that the state of Mississippi or the executive branch wants to do?

And if the Court says yes, but Congress is like, no, that’s not what we meant, Congress would just pass a statute the next day or amend the current statute and make it more clear, like they did, for instance, in the Voting Rights Act. Because nobody believes that Congress will do that, because nobody believes that the amendment process still works, is also part of this problem.

The Court becomes the final word on all of these questions. And so the fight for who these justices are, the fight for how these cases are decided—it has just turned the temperature up to boiling.

Yeah. So I want to come back—we’re going to talk mostly about executive power, since that’s what we do here—but I want to ask you a few more questions about the Court. I’m going to come back and ask you about the Court as the final word when we talk about Trump’s attitude towards the Court, because I think that’s another thing that the framers would be surprised about. But first, before we get to executive power, you’ve got a general theory in the book about the decisional dynamics on the Court, and it’s not as simple as conservatives versus liberals. Can you just basically sketch it?

Yeah. So I went into college as a math major and quickly dropped that, with future dreams of finding a mentor like Jack Goldsmith. But at that point, I had no idea. Anyway, so think back to high school algebra and your little grid paper of a vertical axis and a horizontal axis.

That horizontal axis is ideology. I don’t think it’s partisanship, but conservative to liberal, or something along those lines. But if you actually want to predict how the cases are going to come out, that’s not very helpful. Only 15 percent of the cases last term were decided with all of the liberals in dissent, and 15 percent of the cases, by the way, were decided with only conservatives in dissent as well. It was literally the exact same number of cases, and I sort of like that symmetry from last term.

So I talk about this vertical axis, and it’s this idea of something like institutionalism—how much you care about stare decisis. I like to compare Gorsuch and Kavanaugh. I mean, they’re twins in their résumés. They’re the same amount of conservative, right? They come up through the Federalist Society rock-tumbling system for justices, and they both end up on the Court nominated by the same president.

They only sided on the same side of the “V,” so to speak, 50 percent of the time last term. And it’s not because they’re so different on that ideological axis; it’s because they’re so far apart on that institutional axis. Justice Gorsuch thinks of himself as just Justice Gorsuch—“just Neil,” we could call it. And so his vote is all he can give you. He looks at the law and the facts inside the four corners, and what Neil thinks of that—that’s it. That’s his role.

I think Justice Kavanaugh thinks of himself as part of a choir, a middle school group project, if you will. The Court is speaking with one voice. He’s simply a member of that body. But it’s not about what he wants or what he thinks. And so if he can take out a paragraph and get another vote, they can narrow the aperture or not take that case—that is what he views as his role on the Court. They’re just very different views of that institutionalism part.

And the other institutionalists are Justice Barrett and the chief justice, and the other non-institutionalists—is that what you call them?

I have called them that. I mean, I could use some better branding if someone has ideas. So, in their high school lunch cafeteria—you know, who sits with who at lunch—you have the chief, Barrett, and Kavanaugh. They’re sort of our popular kids. They’re going to be in the majority the most—you know, jocks on the football team.

You have our freaks-and-geeks table of Alito, Thomas, and Gorsuch. They’re sitting together, but they don’t actually talk to each other at lunch. And then, you know, we have our high-academic-nerd crew—maybe Kagan, Sotomayor, and Jackson—although Kagan is a high institutionalist, whereas Jackson is a very low institutionalist.

And so you’ll see Kagan break off a lot more. A lot of 7–2 decisions from last term, and the interim docket dissents that Justice Jackson has written with our sort of most strident language—Justice Kagan joined none of those dissents. And I think, again, it’s not an ideological difference; it’s an institutionalism difference.

And Justice Kagan’s role as a strategy maker—you know, if she’s going to be in dissent, if she’s going to be more liberal, how do you get to the outcomes or prevent the outcomes that you don’t want? And Justice Jackson is like, my job, like Justice Gorsuch, is just to say, nope, that’s wrong. Nope, you’re wrong. Nope, I hate this. That’s not how Justice Kagan views her job.

Do you think institutionalists have—I don’t know how you’d measure this, because I can imagine both sides of the argument—do they have more power on the Court because they are more pragmatic about the details and more willing to find something, say, to achieve a majority? So therefore, they’re more—why don’t you give us the numbers on how often the institutionalists are in the majority? They must be in the majority much more often, I take it. Is that right?

Way, way more often. Justice Kavanaugh has been in the majority more than any justice in modern history. Over all of the terms he’s been on the Court, I think we’re at 93% on average. The chief, of course, is in the 90s over most of his tenure. Justice Barrett is the third, but she’s still at like 90–91%.

But it gets to this question of what it means to be influential. I think Justice Gorsuch and Justice Jackson, on opposite ends of that ideological spectrum but quite close together in terms of how they view their jobs, would say, no, no—influence is not being in the majority. It’s not being the fifth vote that’s deciding a case.

Influence is being John Marshall Harlan or being Justice Scalia. It is having a theory of the law and sticking to it and passing that on to posterity and future generations. My percentage in the majority is irrelevant to my influence on the American experiment.

And Justice Thomas has been on the Court for a long time, but he’s arguably an example of that, I take it.

I think so too. Although, as he’s handing off the baton of text, history, and tradition, that Rahimi case has to scare him a little bit. He seems to be deciding this in line with Bruen—his text, history, and tradition coming-out party—and all of his potential protégés on the Court are like, yeah, yeah, we’re definitely doing your test, but it’s coming out the opposite way you think it should.

Which, if you’re Justice Thomas on your way out the door—whether it’s this year or in 10 years—that’s not great.

Okay, I want to shift to executive power. So what is your basic take on the Court dealing with Trump 2.0? You know, there was a period in which the narrative was the Court is totally under the thumb of the Trump administration or totally caving to the Trump administration. That narrative, I think, is much more difficult to sustain now for a variety of reasons.

But what the Court has been dealing with—what I take it is the challenge of the Trump administration—is a very, very aggressive conception of executive power and a very aggressive, critical, harsh attitude towards the federal courts, at least the lower courts.

Well, I mean, the smartest person on this issue is my favorite former law professor, Jack Goldsmith, who has written extensively on it, and I associate myself with all of his remarks on this topic.

But what I think is helpful is to step back in sort of these grand projects that the Court has undertaken from time to time. In the Rehnquist Court, I think you start to see the beginning of a Commerce Clause project, right? This idea that Congress has exceeded its constitutional bounds of a limited government.

And so, of course, Morrison and Lopez and these other cases in the ’90s sort of don’t go anywhere, but that’s because the two branches change so dramatically. When Obama comes into office and does the “pen and phone” thing, the constitutional crisis that the Court has in its lap looks totally different than it did in the ’90s.

It’s not Congress with a Wickard problem—legislating every problem it sees in the world instead of leaving it to the states, the vertical federalism problem. It’s this horizontal separation of powers, where the president is just leaving Congress behind at the end of the hundred-year Progressive Era experiment of replacing Congress with the administrative state.

And so I think the Roberts Court has thought here now for two decades: this is our constitutional crisis to try to rebalance—not in any one case, but over the course of many cases and many presidents—because what the Court has that the other two branches don’t have is longevity. We’ve had so few chief justices—17—compared to nearly 50 presidents.

And so you have Roberts, over the course of Obama and Trump and Biden and now Trump again, limiting presidential power, giving the president more accountability over, for instance, personnel or money to spend within the presidency, but making it a weaker presidency.

Now, they can’t make Congress do their job, but they can let the problems pile up and hope that the incentives change such that voters wake up and say, I actually want people in Congress who are going to deal with this, because clapping at a Rose Garden ceremony and then actually having the Court strike it down—or having the next president repeal it the second he gets into office—ain’t working for immigration or climate change or name any other problem you want.

So I think that the Court has been quite consistent in that. I think that’s what Trump is upset about. The idea that they’re in Trump’s pocket—it’s literally the opposite, in my opinion, in looking at all of these cases.

Yes, what—he won 17 interim docket decisions in a row? Those were basically repeat cases. They were all about the same two issues. And in the meantime, every substantive policy thing by this administration: Alien Enemies, federalizing the National Guard, tariffs, and (I mean, does anyone think birthright citizenship is turning out any other way?) birthright citizenship—the four biggest policy things of his presidency to date—the Court is going to say or has said no. And it said it with his own nominees in the majority.

OK, so I basically agree with that. But just let me add a few things and clarify it. When you said that they are weakening the presidency, you’re talking about—you’re not talking about vertical control. You’re not talking about the unitary executive, the president’s control over especially senior executive branch officials in so-called independent agencies.

But it might go further than that—we don’t know. And the Court has, in a lot of interim orders, decisions—and probably going to happen in Slaughter—is siding with the Trump administration on that. And the Trump administration has run with that.

Now, I would say about that that the Court was already moving in that direction, and it was going to go in that direction no matter who was president. In fact, Collins was the last unitary executive decision before Trump 2.0—Collins during the Biden administration. The Biden administration was already engaging in fairly aggressive, at least from a historical baseline, removal strategies. So the Court was going to go in that direction in any event in terms of—because they believe it. They’ve been believing it since Free Enterprise Fund, if not earlier. They were going to empower the president to assert vertical control.

Justice Kavanaugh was writing about this in 2008, in 2013—long before he was a twinkle in any justice’s eye.

Yeah. So I’ll say two things about that, and I think that’s exactly right. One, Trump took that possibility—he ran with it. He’s been pushing it much, much more aggressively than any president, certainly more aggressively than a Democratic president.

And the only thing I find thus far—and we don’t know how Slaughter, the FTC case, Humphrey’s Executor case is going to turn out—the only thing I find surprising thus far is that the Court seems to be really sticking to its guns, even though we’ve got this hyper-aggressive, maybe even abusively aggressive unitary executive. Is that fair?

Yes. I think my hypothesis is that they try very hard not to think about any one person as president, and so they don’t want to be reflexively making rules for a president who is abusing the power. They want to come up with the sort of platonic rules for a presidency.

So they want a more politically accountable president in a law review article sense, but they want a weaker presidency. I think this, by the way, is potentially a flaw of the current model of the Supreme Court, where we have such narrow lanes for how to become a Supreme Court justice and the resume items you have to pick up along the way of your journey.

And it is professionalized—overly professionalized—the view of the justices of their jobs. And when they take cert, they answer questions, not cases. And you look at what this Court looks like compared to the Brown v. Board of Education Court, and you’re like, this must be a totally different group that we’re trying to build here.

You know, Justice Jackson hadn’t gone to law school. Eight of the nine had served in the military. Five or so had held elected office. You could come from anywhere and be a Supreme Court justice, especially if you were a political rival of the president.

And yet here we have this almost law professor who’s worked in the executive branch, who’s been a circuit judge for a long time. You’ve ideally clerked for the justice you’re replacing on the Court—the chief, Kavanaugh, and Jackson all replaced their justices. I mean, that’s getting a little bit much.

But I think that explains why they’re not too fixated on what Donald Trump is doing with these rules. They’re writing law review articles in the form of concurrences.

But—I agree. The reason it’s surprising—and it could be admirable that they are sticking to their guns in the face of this—is they really mean it. This shows that they really mean it, come whatever the consequences.

And we’re going to see how they write the Slaughter case and whether it’s a very, very broad conception of the unitary executive or whether it’s a narrow ruling. What do you think? I predict a narrowish ruling.

I think this could be quite broad. Oh my God, we disagree about something.

But I think they could—first of all, they could decide the case without even overruling Humphrey’s Executor.

That’s true, yes.

I think they’ll overrule Humphrey’s. But the oral argument was so concerned with all of the collateral implications of doing that—for non-Article III courts, for military courts, for administrative agencies, basically for all of the intersection between admin law and federal courts—that I think they’re going to try to write in a way that doesn’t deal with those implications. Do you think that’s right?

I think it’s certainly what the chief wants. I just don’t know if he gets to five. And, of course, it’s very different being the fifth vote versus the sixth vote, as I think we can sort of intuitively figure out.

I think the impeachment example is a fun one—like, let’s go to Congress and just how humans work. If you know that President Trump is not going to be removed from office and you’re a senator, you know the votes aren’t there—why would you vote to convict? You don’t come at the king and miss.

Well, same thing. If you’re the fifth vote, you decide which way the case comes out. That’s very different than if there already are five votes and you’re like, let’s jump in, see if I can narrow this—that’s the Kagan role, if you will. That’s why she is the seventh vote so often.

So in a case like Slaughter, we know there are five votes to overturn Humphrey’s. The question in this case is, interestingly, who’s the sixth and seventh potential vote, and how much does the chief want to have a larger majority instead of 6–3, and what’s he willing to trade for it?

And by the way, just to clarify for those—I don’t mean trade in some other case. They don’t trade across cases. I mean trade within the Slaughter case to narrow the ruling.

Right. And the tariff case was also consistent. So they’ll go along with a powerful presidency in terms of vertical power, but in terms of weakening the presidency, you mean in terms of the president being able to read vague or old statutes or statutes that arguably don’t give him the power. This is the major questions doctrine. This is the tariff ruling.

That case was hugely important because when the president started yelling and screaming and going crazy against the Court, my thought was, exactly what they wanted, because it shows that they’re willing to do this major questions thing—whether it’s coherent or not—even in a Republican presidency, when it matters the most to Donald Trump. Do you agree with that?

Hundred percent agree. Donald Trump’s attacks on the courts have been a gift to the chief justice at a time where the Court’s legitimacy and credibility has been a central focus, for all those reasons we talk about with the other two branches failing and the Court being the last word.

It is great for them to be attacked by a president reeling on losses and really bring those to the forefront of the media narrative. It’s arguably what’s built the court—Jefferson, Jackson, Lincoln, FDR—withstanding that type of political pressure and lasting through it. Because again, these chief justices, they last through three, four, five presidents. That’s what’s made this institution.

Right. Not everybody appreciates that point. I think it’s exactly right.

So let’s talk about Trump and the Court. Until the tariff case, the strategy of the administration seems to have been just be as difficult and abusive as possible towards lower courts. If you’re not defying the decisions, you’re coming very close to doing it—having competent lawyers, in many cases, don’t always follow judicial orders. Just totally abusive towards the lower courts, seemingly as part of the strategy.

At the same time, fawning over the Supreme Court. The SG is fawning over the Supreme Court, saying that you listen to their decisions, even if it’s not binding on him. The president also fawning towards the Supreme Court until the tariff case.

The president has not stopped being critical of the Court since then. The question is—there was a lot of worry last year. It seems to have dissipated, but now, with the birthright citizenship case probably going against the president, do you think there’s a danger of President Trump defying the Court?

No, because of the number of people it would take in that case. There’s a difference between implementing something in defiance of the Court and ignoring the Court to stop doing something. The other branches ignored Brown v. Board of Education for 10 years and then, of course, continued to quasi-ignore it even after that. That was fine in terms of the Court’s legitimacy and credibility.

You mean ignoring in terms of not enforcing it vigorously?

They didn’t enforce it at all. Schools didn’t desegregate.

That’s the states and the local governments. But the executive—

I just mean the political actors involved. At that time, it was far more about vertical federalism than now. Not doing something is much easier to do if you’re president. That’s the Jackson ignoring-the-Court example. FDR had prepared a speech, if the Court had come out the other way on the Gold Clause cases, saying, sorry, this is too important to the economy—we’re just going to ignore them.

Trump wouldn’t really be ignoring the Supreme Court in the birthright citizenship case. He would have to implement something and have a whole lot of other executive branch officials affirmatively do things in the face of all sorts of injunctions and mandamuses.

And even if he promised them pardons—no, it just gets too messy and too difficult. And look what he did with tariffs. He didn’t ignore it. He pulled down those tariffs immediately while railing against them.

But do you think if you lose the birthright citizenship case and he tells—and he orders the government to still not process citizenship in accordance with the statute or the Court’s ruling—do you think executive branch lawyers carry out those directives to defy the Court? Is there a point at which—do you have a sense—people in the Justice Department will draw the line at overt defiance of the Supreme Court? Would that be a problem for the president, or do you think he could pull it off?

There are a lot of DOJ lawyers who had prestigious jobs in the law before this. They will need jobs in the law after this. I don’t see it happening—not with those. The ones that make the headlines are sort of in the clown car. But I don’t know anyone in the SG’s office who isn’t a serious person, who would work at a major firm afterwards and isn’t going to be willing to blow that up. And clients aren’t going to hire you if that’s what you’re known for.

Interesting. Okay, two more questions. First, are we going to see retirements this summer? Do you have a prediction about that?

Boy, that Alito thing can go either way. CT—no, not happening. That I feel more confident about. Justice Alito is like a teetering for me. I think the fact that he’s writing a book means he thinks he’s nearing the end of his tenure, but I don’t find that the book coming out the first week of the term, when they’d be hearing oral arguments, to be some definitive statement either way.

His book sells much better if he’s still on the Court. On the other hand, it’s hard to do a book tour when you’re sitting in arguments. He’s got twin grandbabies he’d probably like to spend time with. His wife has a whole lot of flags that still need to be flown at various places. He loves solitude and animals.

But it’s also where he gets his socialization from—his clerks, whom he adores. His clerks—I talk about this in the book—describe him as maybe not talkative, but as the warmest boss and someone who cares deeply. I have this example where he argued all sorts of cases before the Supreme Court, and you get your white goose quill each time you argue. Oral advocates really prize those goose quills.

Some of them frame each one with the briefs. You can find out a lot about a person from where they keep their quills. Justice Alito’s are in one of those free vases that you might get with a flower arrangement on a shelf in his chambers. But you’ve got to dig through some other stuff, including a pink plushy axolotl that one clerk class gave him as an inside joke.

And it’s like this metaphor—his clerks literally come before his own memories, ego, career. He’s invested in them now, and I think he really enjoys that part of the job.

Okay, last question. You talk about Supreme Court reform in the book. I think that if the Democrats win the presidency in the next term, that they’re going to be under enormous pressure—at least, yeah, I would say enormous pressure—to reciprocate some of the Trump weaponization. Or they might not call it that—they might call it recalibrating, they might call it accountability.

But I think one thing that they’re sure to think about doing—and we already hear about this—is to try to do something aggressive with the Court. I predict that the easiest thing will be packing the Court, adding seats to the Court. You already hear talk about this among serious Democratic politicians.

And you already hear them saying that the justification is going to be that Trump v. United States is what led to Trump acting the way he’s acting, which I don’t think is right. So my question is: Do you think it’s likely, if there’s a Democratic president and they control the Congress, that we’ll see a serious Court-packing plan? And how do you think that will work out, if so?

This is sort of like that being-the-fifth-vote thing. I think there’s a lot of senators who are happy to talk a lot of game on the campaign trail about packing the Court, but it’s very different when you’re the one.

I mean, these aren’t stupid people. They know they’ll be destroying the Court and having an independent third branch of government—which sometimes is a real pain. You know, when they’re striking down Biden’s student loan forgiveness plan, when they’re striking down vaccine mandates, you shake your fist and scream at the clouds.

But it’s also what struck down Trump’s tariffs, birthright citizenship. You need a third branch that is counter-majoritarian, that has buy-in from both sides when they’re out of power, to stop the other party from doing things that are unconstitutional.

So regardless of what these guys say, in the end—maybe this is wishful thinking, but I don’t think so—I think these guys love their country more than they love the partisan politics or hate the other side.

Okay, I think we’ll be testing that proposition if the Democrats win in 2028. Sarah, thanks very much. Congratulations on your book, and thanks for chatting with me.

Thanks for having me.

Mentioned:

• Curtis A. Bradley, Historical Gloss and Foreign Affairs: Constitutional Authority in Practice (2024)

Thumbnail: President Trump participates in a press conference during the 2025 NATO Summit at the World Forum in The Hague, Netherlands. (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: Today I’m chatting with my friend and co-author Curt Bradley at the University of Chicago Law School. Curt’s most recent book, Historical Gloss and Foreign Affairs, is relevant to the topic we’re discussing today, which is whether President Trump has the authority to withdraw the United States from the North Atlantic Treaty of 1949, which established the NATO alliance. Everybody knows about Article 5 of the NATO treaty’s collective self-defense provision.

Less well known is that Article 13 of the treaty provides that any party may cease to be a party one year after its notice of denunciation. So the Senate in 1949 gave its consent, two-thirds consent, to that treaty. The president ratified the treaty.

It came into force, and it’s been in force ever since. Curt, in a second, we’re going to talk about the significance of a statute that proposed to restrict the president’s power to withdraw. But before we get to that, let’s just talk about the kind of naked constitutional issue.

Can the president, if there were no statute, could he withdraw the United States from this treaty?

Curt Bradley: Yeah, and thanks for talking with me about this, Jack. So the text of the Constitution does not give us much help on your question. All it tells us is how the U.S. government makes treaties, which it says requires two-thirds of the Senate to agree with the president to make treaties. And as you mentioned, that’s how the North Atlantic Treaty was concluded in the late 1940s. There’s nothing in the text of the Constitution that specifically talks about how the U.S. government can get out of treaties. Presumably it can get out of treaties like other nations—the other side’s breaching the treaty.

Or in the case of modern treaties like the NATO treaty, the treaties themselves say that the nations, usually with notice, can get out. But our Constitution doesn’t give us a lot of guidance about how that’s supposed to happen. In at least modern terms—the modern era—presidents have, for the most part, acted unilaterally in pulling the United States out of treaties when they think that’s warranted.

And that’s been true for probably a hundred years or so. There are a few counterexamples since the early 20th century, but for the most part, when the U.S. is pulled out of treaties, it has been through presidential action. And most of those withdrawals have not been controversial.

A lot of them are kind of low-level treaties, noncontroversial treaties where Congress doesn’t seem to have a strong view. A few times it’s been controversial, but the fact is the practice has been for presidents to act in pulling the U.S. out of treaties and not seek Congress’s permission to do it, particularly when there’s a clause like in the NATO treaty where it specifically says each party can withdraw. Presidents have used those sorts of clauses many times.

And so even though the text doesn’t give us much guidance, if you look to historical practice, it now is pretty heavily on the side of some presidential power here.

Okay. I have a couple of questions about that. First of all, you wrote a whole book about this, but why should we care about historical practice?

I mean, you basically said for a hundred years presidents have been doing this. Why should that matter? Why shouldn’t we be looking at the text of the Constitution and what the framers thought, et cetera, et cetera?

Yeah. I mean, I think if the text is clear, or maybe what the framers thought is clear, you might just use that. The problem for many foreign affairs issues, as you know, is the text is often not clear, or it doesn’t exist in this case, or the founding and current understanding is also often unclear or nonexistent.

Students have asked me, why isn’t there more in the text or the founding about pulling out of treaties? We don’t know for sure, but one possibility is they just didn’t think about it much. And the fact is we only had seven treaties at the founding.

We weren’t planning on pulling out of any of them at that particular time, and we now have many thousands of treaties. I don’t think they envisioned the numbers that would later come up in the 20th century. So it’s just, as you know, when they drafted the Constitution, they had a lot of priorities to deal with relating to experiences they’d had in the years before the Constitution.

Terminating treaties was just not high on the list of things to deal with. So that’s one theory, that they just literally didn’t think about it. So we may not know the answer to what the understanding is. And if you don’t, if you’re not sure about that, but we know the government has operated a certain way with some amount of acquiescence between the legislative and executive branches for a long time, there’s an argument for deferring to that in the absence of some better rule of decision.

And I will say courts often do that. They often, in foreign affairs, give a lot of weight to those kinds of practices. And not surprisingly, the executive lawyers who have to reason through these things on behalf of the president give a lot of weight, of course, when they advise presidents about what they can do. And I think, understandably, they look to what’s been done frequently in the past.

And so I don’t think that’s an unfair thing for executive lawyers to look to. And even Congress, surprisingly, maybe, Congress, when they have hearings on some of these issues, they actually sometimes just recite long bouts of practice as if that were important as well. So if all three branches are looking to it, then it does seem like it is a relevant part of our interpretive landscape.

So I just want to underscore something you said. Courts rely on this form of reasoning. It’s not just courts; it’s the Supreme Court.

The Supreme Court has, yeah.

Especially in separation-of-powers cases, especially in foreign affairs cases. Is that fair?

Absolutely fair. Just to give one example in foreign affairs, the case that many people know about—the Zivotofsky case about the president’s powers relating to recognition of foreign governments—a large part of that opinion is that the president has this power not because it’s specifically in the text, but because it has been the practice of government for a very long period of time.

And then there are other separation-of-powers cases from the Supreme Court that have the same style of reasoning. And again, if the texts were absolutely clear, there’d probably be less reason to do that. But many separation-of-powers issues don’t have a clear text for a variety of reasons.

Last constitutional question. Some people would say the text is clear and that the Vesting Clause speaks to this. And briefly—and you can fill in the arguments—the Vesting Clause is the idea that the executive power is, independently of other conferrals of power, given to the president, and that therefore all executive power, not otherwise allocated in Article II or Article I or somewhere else, resides in that Vesting Clause, and that the power to terminate treaties would flow from that. What about that argument?

Yeah, there’s some smart academic proponents of that idea, although I don’t think the majority of people writing about constitutional law agree with it. What we do know is the Supreme Court, at least so far, has not agreed with it. The only advocate on the Supreme Court of that theory really has been Justice Thomas. And even Scalia, when he was still on the Court, dismissed it out of hand as not an appropriate source of authority.

The reason to be skeptical of it—two reasons. One, it would smuggle into that first clause of Article II a large and unspecified batch of powers into the executive, and one might be wary of just allowing that much argumentation for the executive branch. And interestingly, I’ve looked—I’ve looked at all of the founding debates at one point many years ago when I was writing about this—you can’t find any discussion of this theory, the Vesting Clause theory, in the thousands of pages of state ratifying debate.

They were debating everything else. They were all worried about replicating King George and giving too much executive power. Nobody seemed to think—advocates or opponents of the Constitution—that that clause was giving some package of powers. And I don’t always want to put weight on what’s not in the record, but it’s surprising there’s no record of anybody thinking that out loud.

And then maybe the really telling point for treaty termination: no president thought the Vesting Clause gave them the treaty termination power throughout the first hundred years of American history. In fact, the practice was they weren’t sure, but they thought probably they had to go to Congress. And nobody argued they had this implied power under the Vesting Clause.

It’d be kind of weird for the executive not to know they have this big font of authority if it really were an understanding of that period. So, you know, if you believe in that, that’s obviously an easy solution. You could just say, it’s not in the text—it all goes to the president. But the Supreme Court has not gone that direction, and I don’t think there’s enough evidence in the founding period to embrace that idea.

Okay. So we’ve been talking about—we basically just discussed how the president could probably terminate the NATO treaty. Just one last question on this.

In his power to terminate the NATO treaty, is it your view that he has to comply with the one-year notification requirement? In other words, the practice is that the president can withdraw, but is the practice that the president has to withdraw within the terms of the treaty—i.e., I guess exercising a Take Care power or something like that? Or does he just have the power to blow it off altogether?

Yeah, I think it’s almost a logical point. And even aggressive presidents on termination have generally accepted that if they use one of these withdrawal clauses, they have to follow the notice period.

There’s a logical reason, which is they could say they’re out in one minute, but the rest of the world’s going to assume you’re in until the period has elapsed. So you can say a lot of things, but technically you’d have to wait until it’s understood that you’re out.

And interestingly, even this president and other presidents who have exercised the authority of withdrawal have almost always done it understanding they have to wait for the time period to elapse. And when President Trump—I’ll just give an example—his first term initiated withdrawal from the Paris Climate Change Treaty, that had a long period, the way it was structured, several years. He waited until it was over.

And he’s been aggressive about a lot of things, but seemed to accept that at least that’s one limit. It’s not obviously a major limit, but for NATO it would mean we’d have to wait a year before a withdrawal was effective.

Yeah. I’ll just note, before moving on to the statutory issue, that one oddity of the 1949 treaty, as you know, is that there’s a duty that the notice of the termination be given to the United States—not the United Nations—but to notify the United States. So in this case, the United States will have to notify itself of President Trump.

It just means nobody thought we would ever withdraw from this cornerstone of Western defense. And indeed, I would say until now, one of the points of very bipartisan agreement in the country was in the value of NATO. So this is a change in understandings in the country and also in the world.

That relates to one other thing, though, which is one reason why presidents assert that they can do these withdrawals is under international law, notices received by a head of state are just presumptively deemed to be valid ones—ones that trigger these periods of notice.

And if there were ever any doubt, obviously Trump is receiving his own notice, weirdly, if he initiated withdrawal here. But in any event, even another depository would deem the president’s notice to be a valid one just presumptively, because heads of state are just thought under international law to have this sort of authority.

Okay. Now we’re going to move on to the harder question, which is Senator Rubio, when he was a senator—now Secretary of State Rubio—joined with Senator Kaine in sponsoring a bill because he was very worried about President Trump’s first-term threats to withdraw from NATO.

And they sponsored a bill that ended up being a law. I think it was enacted in late 2023. I’m just going to read you the main provision of it: “The president shall not suspend, terminate, denounce, or withdraw the United States from the North Atlantic Treaty”—that’s a quote—and then I’m paraphrasing—except with two-thirds Senate consent or an act of Congress.

So basically, Congress is saying you can’t do this thing that you’ve been doing for a hundred years without getting our buy-in—either congressional buy-in or two-thirds Senate buy-in. How does that change the legality of the issue?

Yeah. And my own view is that really does have a significant effect on the legality. I looked at the voting margins, by the way, on that, and it passed, as I would have expected, with bipartisan majorities.

The Senate vote on that was 87 to 13, by the way, with Rubio and others joining it. And in Trump’s first term, when he started grousing about NATO, there was a lot of pushback by Republicans as well as Democrats. I don’t know whether we’d see as much this time.

But what we know is that we have a law on the books—a federal statute that was passed by two houses of Congress, signed into law by the past president. And the strong presumption in American law is that presidents have to follow the law, and duly enacted statutes are binding on the government.

So that puts Trump in a very different posture, I think, than just trying to pull out of a treaty where Congress is silent—where it hasn’t tried to legislate to the contrary. And it really puts at least the strong burden of proof on the president to explain why they don’t have to follow a duly enacted statute.

And I think that should become difficult for the president. I’m not saying the president could never disregard a statute—we know there are a few instances where Congress might overreach, and a president might have that ability—but it should be a pretty narrow set of instances where we would accept that a president can disregard a duly enacted law.

And I certainly think the presumption should be against the president when we get in that posture.

Okay. But before I ask you why—and I’ve got some thoughts coming too—I just want to point out, I think you agree with this: the Office of Legal Counsel in the Justice Department has issued opinions that take an extremely robust view prior to this event, going back to the first term.

And indeed, in a series of legal opinions going back decades that build on some related powers about the president’s power over diplomacy, the president’s power to negotiate, and the like—in an opinion, I think in 2020, about the Open Skies Treaty, which involved, I think, congressional notice before they pulled out—OLC said that that congressional statute is not binding on us.

And I just want to read one sentence from that. This is the key sentence that makes me think that this OLC certainly is going to say, “No problem, Mr. President.” The sentence from the—and I’m not going to go through the analysis from OLC—is: “Congress cannot regulate the president’s decision to exercise a right of the United States to withdraw from a treaty.”

And they talked about the president’s exclusive authority to execute treaties and to conduct diplomacy. They drew on the Vesting Clause and the like. So we don’t have to—you don’t have to answer that directly—but I’m just wondering: I have no doubt that Trump will get permission from the Justice Department, especially since they have to do whatever he says and his interpretation is binding on it.

But how would the court think about it differently? I mean, is it because there was this practice of concurrent authority going back to the beginning? Is it because the more recent hundred-year practice is just about presidential power to terminate in the absence of congressional restriction? How would you—or how would the court—do you think about it?

Yeah. So I think everybody can accept there probably are some examples where the president has some exclusive authority. That would be authority that Congress just can’t restrict.

And the one major foreign affairs case we have is that Zivotofsky case from 2015, where the Supreme Court did hold that Congress can’t restrict the president’s power to decide which governments to recognize and what territories they have. But one of the things the Court emphasized there a lot was the longstanding history not only of presidents doing recognition, but insisting that it was exclusive and pushing Congress back whenever Congress—even in the 19th century—started to try to intrude on that domain.

So we had a much longer history of certainly the executive maintaining that it was exclusive and really Congress, in a number of ways, backing off from efforts to regulate the executive.

The picture does look different to me for treaty termination for two reasons. One, so for recognition, nobody ever thinks the president has to start by going to Congress to decide on recognition. We’re already starting with unilateral presidential action and then asking another question about whether Congress could come in.

For treaties, we know that Congress has to come in at the beginning. So we’re not starting out in a kind of unilateral presidential space in the way we would say for recognition. And the history, to my mind, looks different.

The first hundred years of American practice, presidents worked with Congress to terminate treaties and appeared to believe they needed to do so and did not claim, unlike for recognition, that they had some exclusive domain here. And then you’ve adverted to the other part of the answer, which is even in the 20th century, when they started being more unilateral, they, for the most part, did not insist they could do it in the face of statutory commands.

To the contrary, we have seen that assertion pretty recently—you mentioned the Open Skies opinion from 2020—but interestingly, I looked at an opinion OLC gave two years before that. Trump was thinking about pulling out of the NAFTA trade agreement. At that point he didn’t, but he was thinking about it.

OLC decided he had the authority, but a large part of their opinion is he has that authority because Congress has not tried to restrict it. I looked back this morning—so a big part of their reasoning was he has this authority because Congress has not limited it. That would all be irrelevant if it’s true that Congress can’t regulate at all.

And within two years now, they’re saying in the Open Skies treaty that that’s all irrelevant. But that is not fully consistent with the way they approached it even two years earlier. So we don’t have a long tradition of some acceptance by the government institutions that Congress is just disabled from this space, particularly given that we know they have to be involved in the space to create these obligations like the NATO agreement.

So I just don’t think there’s enough history there to argue that somehow Congress is foreclosed from regulating at all. And since the presumption, in my mind—and this is like Justice Jackson’s views in the Youngstown case—the presumption should be very much against finding one of these exclusive rights of authority, because once you say something’s exclusive, there are no checks and balances on the topic anymore. The president has no checks at all legally.

So the burden ought to be very heavy against the president on this. I don’t see him carrying it for this issue, but you’re absolutely right about what his lawyers will likely argue. They’ll argue that because it concerns foreign affairs and diplomacy, Congress has no ability to limit his decision-making.

But I don’t think that’s true. And if you think about that, what can the United States do in foreign affairs? Oh—impose tariffs. Well, it turns out Congress can limit that, and the Supreme Court just upheld their limits on the tariff laws. Why? In part because they’re in statutes that Congress has passed, and we assume the president has to stick with those statutes.

So I think that may be a precedent that would hurt his chances as well.

Okay. Several follow-ups. First, I agree with everything you just said, but some qualifications. Jackson definitely, in his Category 3 in Youngstown, suggested there’s a heavy burden—it was very hard for the president to prevail in Category 3.

I’ll just point out that in both Zivotofsky and in Trump v. United States, where the president prevailed in that Category 3 arena, the Court didn’t pause over any idea that there was some huge burden for the president to overcome. They just didn’t seem to think that at all.

They just looked at whether there was an exclusive power or not. So I agree that’s a good description of Jackson, but it’s not even the way the Court proceeded in Zivotofsky. I don’t think you disagree with that, is it?

No, I don’t disagree with that. I view that as more specific to the kind of issue in Zivotofsky. But if I were in the executive branch, of course, I would argue probably more broadly than what I’ve just said. You could read the case more broadly if you wanted to, for sure.

Does your argument—in talking about the president—the fact that in the Zivotofsky case, where the president recognizes he didn’t even need to go to Congress, that’s just a unilateral presidential power that he can effectuate—does that mean you would think about this congressional restriction differently if this were a pure executive agreement that the president made under his own Article II power, which it wasn’t?

Yeah, certainly some of those. So if we think there might be some sole executive agreements—those are the kind the president makes on his or her own authority—there are probably some kinds of those that might actually fall into exclusive presidential power.

So one of the earliest sole executive agreements Madison made—for exchange of prisoners of war and humane treatment of the prisoners in the War of 1812—it may be that’s like in a domain where the president not only can make an agreement but really is the exclusive actor. And there might be some limits on what Congress could do in that commander-in-chief space.

But I wouldn’t define it as to whether the president happened to make it on his or her own, because they do that aggressively as well. I would want to know the subject matter. And since we know that—I don’t think anybody argues, as far as I know—that the president could have made the NATO agreement without the legislative branch. At least that’s my view anyway. And they certainly didn’t. At least there we know we’re in a space where the president thought they had to get the Senate involved.

And I would also add, I would say it was always pretty settled in American history that the president could act for recognition issues—they always had. It’s still debated whether the president can act on their own ever for pulling out of treaties. I think the better answer is they now can. But given that we’re debating that, it’s really pushing it to say not only can they do this contested thing—pull us out of a treaty on their own—but they can somehow disable the legislative branch across the board on that same topic.

I just think that’s a very aggressive kind of argumentation.

I can imagine someone arguing something like this: that, look, there’s a treaty—the Senate, they follow the treaty process—the treaty that they agreed to has a termination provision, and the president has a concurrent authority to exercise that. Maybe the Senate or the Congress could have withdrawn if they wanted to exercise that power.

But there haven’t been, I don’t think, a whole lot of statutes like this statute that purports to restrict the president from withdrawing. I agree. And you might think that the president—where does Congress get the power to kind of interfere with a treaty?

Which makes me think about the last-in-time rule, the rule that the last in time between a statute and a treaty prevails. Is that the reason why Congress can come in here and change the termination rule? Is it something like whatever its Necessary and Proper powers are, plus the last-in-time rule? Is that what’s going on here?

Well, I guess I’ll stop there.

I mean, I don’t think it’s exactly right, but I agree with you. We all agree—and it’s always been settled—that a majority of Congress can just nullify the domestic effects of a treaty the day after the president ratifies it, if they can get the statute through. Now, that’s not quite the same.

But this is the international effects.

Exactly. So it’s not quite the same because it wouldn’t change the international effects, although as a practical matter we might then absolutely need to withdraw if we’re in kind of permanent breach domestically. And in fact, some of the early presidential withdrawals in the early 20th century were because Congress had started to override the trade treaties, and the presidents felt like they had to get out at that point because why be in breach?

I don’t think it’s quite the same as that, although that’s probably adjacent to this. I think the Necessary and Proper Clause certainly gives Congress lots of powers to implement treaties—that’s always been settled—to provide standards for what we do under the treaties.

Imagine if, in the NATO treaty, the Senate had said, “We agree to this treaty, but you can’t use Article 13 to pull out unless you come back to us.” Well, that would have been maybe part of their advice and consent to the treaty. But if they can do that—and I think they probably could have done that—it’s not clear why Congress has less power to do that.

You’d have to have an explanation why the Senate could have done it, but somehow Congress cannot do it. I’m not sure what that explanation would be.

Okay. So it seems like there’d be strong arguments—in any event, very strong arguments—against the president’s power to terminate in light of the statute. But then the question comes: can anybody sue?

Because if no one can sue to vindicate Congress’s exercise of authority here, the president can, quote unquote, ‘get away with it.’ So what do you think about the plausibility of someone either having standing to sue or whether this will be viewed by courts as a political question?

Yeah. What we do know from the case law is that it’s unlikely the courts would allow Congress to sue. And you know some of these cases as well as I do. The Court has just really been strict in recent years about letting Congress sue the executive over things like this. So I’m thinking that’s not likely.

There’d be some senators or members of the House who would like to sue, but I doubt they’ll be allowed to do it. So the question is whether there are private parties who have enough of an injury, if we pull out of NATO, to justify what we would call standing.

There might be, and they would have to want to sue. But I was thinking to myself there may be contractors to NATO—U.S. contractors who would lose money if we pull out—long-term contracts—or even U.S. individuals who are employed to NATO. They’re not U.S. government employees, but they work for NATO. They would lose their jobs if the U.S. pulled out.

Those are plenty enough harm to generate what we call standing in terms of the economic harm. So if there are people like that or companies like that, then they might have standing.

And I actually think standing is the most difficult issue to get this to court. If you could find some parties—probably private parties—with an economic harm from the U.S., because remember their allegation would be: We will lose money because Trump is violating the law. That’s usually enough to get you into court, and a lot of cases against Trump are like that.

So if you can find somebody with an injury like that who has standing, then actually I think there’s a reasonable chance of getting to the merits.

Now, the big doctrine you mentioned that you might otherwise think about is the political question doctrine. And in the lower courts—I’ve looked at this—they do apply that doctrine with some regularity to dismiss difficult foreign affairs cases.

But one signal I think the Supreme Court has given is that doctrine does not have much life when there’s a direct conflict between a statute and presidential action. And in the first part of the Zivotofsky case—the initial one—that seemed to be the gist. Most of the justices, except for Breyer, just dismissed the political question doctrine. They said it is for the courts to decide whether the president has to follow a statute. That was how they defined the issue in Zivotofsky.

So even though it had lots of political repercussions—all about the Middle East and everything else—the Court thought when you have a direct conflict between a statute and presidential action, the only arbitral body available at that point is the court.

Because Congress has done what it can—it legislated in 2023 here. The president is saying no. And it looks like they might say that’s not a political question; they can decide the constitutionality of that statute.

So I actually think my inclination a few months ago—and I was thinking about this—would be really hard to get this to court. But I think if some private parties emerge who would lose money, we might actually see some real litigation over it.

And remember, we have a year. If Trump actually starts the notice process, that’s enough time for litigation to unfold and see what the courts are willing to do about it. So I think there’s a real chance.

Okay, last question. I want you to talk about Goldwater v. Carter. And this was about treaty withdrawal and the Supreme Court, in a complex decision, decided not to adjudicate.

And I’m wondering if you just explain briefly what happened in Goldwater, but also, do you think Zivotofsky changed Goldwater, or do you think Goldwater is distinguishable, or both?

Yeah, I’ll start with that. I think I’ll explain what Goldwater is, which is President Carter, when he was recognizing mainland China in the 1970s, decided as part of that he needed to pull the U.S. out of the mutual defense treaty we had had with Taiwan since the 1950s. And he did it unilaterally.

It probably would have been controversial in Congress because his China policy was controversial. That got litigated all the way up to the Supreme Court. And four of the justices said it was a political question—deciding whether he could terminate this treaty or not.

There was a fifth vote to dismiss the case by Justice Powell, who said it wasn’t really ripe from his perspective, because Congress really hadn’t pushed back. There was no resolution even in the Senate to oppose it. And Powell said he didn’t think it was a political question, but he thought the courts in these cases ought to wait until there’s really kind of an impasse between the two branches.

But I actually think both the plurality in Goldwater and, of course, Powell’s views are very differently implicated here. Because I don’t think the Goldwater plurality was talking about a situation when there’s a clear statute on point and the president is saying, “I just don’t have to follow that statute.”

And in any event, Zivotofsky is a supplement, because that’s a holding of the majority of the Court more recently that basically says if the question is whether the president has to follow a statute, even in foreign affairs, it’s not a political question—it’s a question for the courts.

And Goldwater was not faced with that. There was no statute in Goldwater—not even a resolution or anything. And then, of course, Powell’s view is even easier to show it would be met here. He said, “Congress, if you really feel strongly about it, pass a law, and then we’ll decide.” Well, that’s what Congress has done.

So I actually think Goldwater is pretty easy to distinguish, and it’s not a majority holding in any event. And I think the Court today, as far as I can read them, has a kind of narrow view of the political question doctrine, at least when Congress has actually taken some action.

All right. Great analysis, Kurt. Thanks very much.

I appreciate it. It’s been fun. Thank you.

Thumbnail: President Donald Trump attends the Dignified Transfer of remains of six U.S. soldiers killed in an Iranian drone strike in Kuwait. (Official White House by Daniel Torok.)

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 afternoon, Bob.

Bob Bauer: Good afternoon.

Today we’re going to discuss issues on the horizon in the war in Iran with respect to Congress, and I’m going to start off with some background, and then we’re going to go over three or four kind of fundamental issues on the horizon.

The operation began without congressional authorization on February 28th, about four weeks ago. The United States, apparently led by Vice President Vance, is reportedly in a negotiation with Iran through Pakistan to reach a ceasefire or a peace deal. In recent days, the Pentagon has ordered thousands of Marines and several more battleships to the Middle East. Both parties in Congress have complained that the administration has kept them in the dark in terms of objectives, costs, and timelines for combat operations in Iran. And a Pew Research poll from two days ago showed that 61 percent of Americans disapprove of President Trump’s handling of the conflict, while 37 approve.

So that’s the background. The first issue we should discuss are the efforts in Congress this month to stop the war. There have been three votes earlier this month, all failing by 47 to 53, and all pursuant to fast-track procedures to stop the conflict. And all three of them had language as follows: Congress hereby directs the president to remove the United States Armed Forces from hostilities within or against Iran. And as I said, the votes on that proposition failed.

Yesterday, The New York Times reported that Senator Murkowski of Alaska, Republican Senator Murkowski, is working with a group of senators for a formal authorization of force, and the Times story suggested that she’s focusing on an authorization to try to put some constraints around it, and I believe to try to get the president to engage Congress more, give Congress more information about what’s going on. So that’s what’s going on. What are your thoughts, first of all, Bob, about these votes in Congress and the politics slash law of this?

It’s always very difficult at the outset—and now we’re several weeks into it—but at the outset of a conflict like this, with the deployment of U.S. force in fulfillment, however described, however variously described, national security objectives, for Congress to vote to terminate the hostility. So three times Congress has voted on it; three times Congress has declined to cast that vote.

What will be interesting in the Murkowski case is how she’s going to craft a resolution that hits, if you will, the political sweet spot for a number of members. On the one hand, she’s asking them to take an unpopular step, which is to authorize a very unpopular war, and on the other hand, in some way setting parameters. She wants to give them the opportunity to say that they’ve expressed reservations and that there’s some limits or restrictions that they want to hold the administration to. And how she does that will be extremely interesting, because the core vote to authorize is a very tough vote at this point with a 37 approval rating for this war. And we don’t know yet because we haven’t seen the text.

And we can’t assume that the 53 members of the Senate who voted against the proposition that the war should stop would all be available to actually go on the record authorizing the war, right?

Correct.

And why is that? Just flesh that out. Why is that vote different? Why is it that we can’t expect that the 53 senators who voted to block the resolution to stop the war—it’s one thing to block a resolution to stop war; it’s another thing to affirmatively vote to authorize the war—and I’m just wondering what the political difference is?

The political—I think where she’s headed, and again this is based on very limited news reports—but I think what she wants to do is give them an opportunity to vote an authorization, but with exceptions, giving them an opportunity to say, well, I voted to authorize, I originally blocked an irresponsible Democratic resolution to stop the war, now I’m voting an authorization, but I have real concerns about the way the administration is proceeding here. So this authorization is in some way restrictive or conditional, and the question is, how does she establish that kind of cover?

Right. I mean, how unusual is it that in a war of this consequence, the president has basically stiff-armed Congress completely? I mean, I think there’s been a little bit of explanation about what’s going on in closed sessions, but even Republicans are now complaining that they don’t know what the objectives are. They’re worried about the cost. They’re worried about the timelines. They’re worried about the buildup.

How unusual is it for a president to engage in a conflict like this without making a greater effort to get Congress at least on board in terms of telling them what’s going on and what the expectation should be?

I think it’s unusual. I don’t know that I can call to mind immediately any cases like it. The risk that an administration runs proceeding the way this administration is going is that, as the public—and the polls certainly reflect this—begins to become increasingly restive about this war and oppose it, it cannot look even to its own natural allies for support, because those allies are hearing from voters, they’re seeing the public opinion polling, and yet there’s no background of building up trust, of presenting rationales, and appearing to take congressional questions seriously and answering them.

So they haven’t laid the foundation for the tough times. And one of the most significant steps that an administration can take to prepare itself for a deployment of force like this is to lay a foundation so that, as unpredictable as things can be, as unpredictable as these deployments can unfold, it has some foundation that it can fall back on. And this administration has none. It has just simply stiff-armed both parties. And that can come back to haunt them.

I think it very much can come back to haunt them. It means basically that Trump entirely owns it, no matter what happens. So if this somehow ended up in a spectacular victory over Iran, in which a new dawn rose over the Middle East and there was peace and prosperity, Trump would completely get credit for that. He owns that completely. But he also is going to own all of the downsides, including the military downsides, the security downsides, and the economic downsides—completely owns it.

No question about it. And things are not going to be tidied up that way. Whatever victory he ultimately tries to declare, however this all concludes, if conclusion is the right word, there will not be in the immediate prospect a resolution that is as tidy and satisfactory as the one that you hypothesize—he might be looking for a new dawn for the Middle East, a complete victory for the United States, a restoration of the economy. He said the other day he was confident that this war would end soon and immediately the economy would be restored, or at least the rate of inflation would drop rapidly. All of that is not going to happen. So he owns all of that. He owns all of the downside, with very limited opportunity to claim a major upside.

Wait is that a prediction that there can’t be a major upside here, or that if there is a major upside, he won’t get credit for it?

I think that there will be a very disputed upside, if there’s an upside. And I was just responding to your comment—well, if it all concludes and it appears that a new dawn is rising in the Middle East, I don’t think anything like that is going to be clear.

Already, the United States, having called for regime change at the very beginning, having said they were giving the Iranian people a chance to rebel and take their government back—already now we have the vice president of the United States commissioned to negotiate with that regime. I mean, the other day—I just have to mention this—the other day the president was asked about the Strait of Hormuz, and he said, well, you know, eventually it’ll be administered jointly. And the question was—I think the follow-up question was—well, how would it be administered jointly? Me and an ayatollah? That's a far, far cry from saying we're going to topple this government and the people will have a new day.

Okay, let’s talk about funding. The administration’s been hinting in the last week that it’s going to seek supplemental appropriations, perhaps as high as 200 billion dollars. And this has already been an extremely expensive war. I think they’ve put in requests for shifting around funding authorities. There’s talk about, I believe, about taking assets deployed in Ukraine and bringing them to the United States, either monetary or military assets.

How do you view—I mean, I have a legal point to make about this—but how do you view this aspect of things? Do you think he can get a $200 billion appropriation? Is that something likely?

The little I’ve seen in the news suggests that he may be able to do so, but everyone in Congress is aware, and I think the evidence is pretty strong, that this is extremely unpopular. It puts a dollar, if you will, exclamation mark on public disaffection with this war. The public was displeased enough, or restless enough, about the financial commitments made to Ukraine. Here’s 200 billion dollars, and Secretary of Defense Hegseth has said that’s not a fixed number, so he may need more. And I just think it adds to his political woes to a very significant degree.

Is that because that 200 billion dollars is not being directed to domestic matters, and it’s being directed, as you say, on an unpopular conflict. Is that the reason?

Yes. It puts a number on what people don’t care for in the first place, which is a war that they don’t approve of, with major consequences for the U.S. economy, which are being experienced when they thought he campaigned on the exact opposite set of objectives.

So the only other issue I want to make on this is that Congress—someone might write about this next week—Congress needs to be careful how it crafts any appropriation that it gives for this conflict, because an appropriation for a war can be deemed to be an authorization for the war, even though the War Powers Resolution says that appropriations should not be deemed as authorizations.

There’s an OLC opinion that says that, despite what the War Powers Resolution says, a subsequent appropriation, if it clearly authorizes the war, can do so. So there’s an issue about whether, in giving money for the war, Congress will be authorizing it, and it needs to be very careful how it words that appropriation.

Okay, on the War Powers Resolution, there’s a 60-day clock—the War Powers Resolution 60 to 90 days, or there’s a 30-day extension the president can give. The War Powers Resolution, after that clock runs, mandates withdrawal of troops that have been introduced into hostilities. We’re still probably two months away from that clock.

Would a normal administration be thinking about the War Powers clock this early?

Well, a normal administration would certainly do so in the same way that I mentioned earlier. A normal administration would be trying to lay a political foundation, establish more political support for this deployment of force, for this war. But this administration isn’t doing it, and I don’t think this administration is worrying about the War Powers Resolution at all.

It’s taken the explicit position that the statute is unconstitutional. And just the other day—I mean, in the last 24 hours—the president was essentially sneering at the whole question of whether it was a war or something else. He said, well, I won’t say war. He said something to the effect of, I won’t say war because I’m told I shouldn’t say war, so I’ll just call it a military operation.

He was taunting anybody who thought that the distinction was meaningful. And, by the way, I just want to take that really quickly back to the point you made about the care Congress ought to be taking in crafting support by appropriations. Here again, there’s maybe something at stake for Congress on that, but there’s nothing at stake for the administration. It just wants the money, and I don’t think it matters to them one way or the other whether, from the congressional point of view, it strengthens or weakens the case under the War Powers Resolution, because it doesn’t accept the authority of the War Powers Resolution anyway.

Yeah, so on the point that I think President Trump, Vice President Vance, and Secretary of State Rubio have all said in the last year that the War Powers Resolution is unconstitutional—and every administration has held—so that is a fraught and ambiguous statement.

There are many parts of the War Powers Resolution, and it’s not clear which part they say is unconstitutional. The legislative veto part of the original War Powers Resolution is not operational because of Chadha. They probably weren’t thinking about that. There’s discussion in the War Powers Resolution about what the president’s Article II powers are; presidents have disagreed with that articulation.

They might have been talking about the 60-day clock and saying that the War Powers Resolution was unconstitutional. There’s still an OLC opinion on the books, I believe going back to 1980, that says to the contrary—it is constitutional. I wouldn’t be surprised if they said the 60-day clock, or the 60/90-day clock, is unconstitutional and that Congress cannot, through that automatic procedure, terminate the president’s deployment.

It’s not clear, but they also have so many other options under the War Powers Resolution. They could conceivably say, depending on the state of the war—although it’s not moving in this direction now—that there’s not hostilities. There’s an old interpretive move going back to the Reagan administration that the Obama administration did for a while with the Islamic State: Every wave of a new use of force is a new introduction into hostilities and therefore restarts the clock. That seems preposterous, but it’s been done before.

I guess I don’t think, whether it’s through one of those interpretive moves or whether it’s through unconstitutionality, I don’t think that they’re going to be bothered legally by the clock. But politically, it’s a salient point to focus congressional deliberation. Do you think that’s right?

In what sense do you mean?

I mean the fact that—you know—you were there when there was a 60/90-day clock coming up on Libya, and I’m wondering whether that clock, whether it’s legally enforceable or not, is that kind of forcing mechanism to focus on the legality and politics of what’s going on?

Yes. The reason I asked a question about politically—you know, to what extent is the public focused on the legality question—and I suspect very little. They just simply don’t like the war for all sorts of reasons.

But take the Libya example. Yeah, the administration was very focused on that. It took a controversial legal position to avoid the problem with the 60-day clock, and then it sent the then-State Department Legal Adviser, Harold Koh, to Capitol Hill in June of 2011 to testify at length in defense of the legal position that they took. So they cared about it, and they wanted to take the position that their position was a lawful one and consistent with OLC precedent and also congressional intent behind the War Powers Resolution.

I don’t think we’re going to see this administration breaking a sweat on that topic. And I want to just add one other point: The president—you know, we get the presidents we have, with all their character and personality—this president is inclined to put on massive shows of machismo or muscularity. Think about the “bomb, bomb, bomb Iran” or the Truth Social videos that he ran after the bombings in Iran in June of last year, the video game montage that was recently put on, drawing on various movies and scenes of conflict and heroism, Hegseth’s martial rhetoric. . .

All of that just cuts completely against any concern whatsoever about constraint. It all depends on him and what he thinks he should be able to do, which is why you get that kind of language from him. And I think that plays into his general contempt for the constitutional issue.

Yeah. Okay, speaking of the constitutional issue—and so whatever the constitutional rules are about the use of force are contested—but there are a set of very permissive OLC opinions that we’ve discussed before, and that probably most of our listeners know about.

Those opinions, I say, are very permissive, but they do sometimes say that there is, or hint that there might be, one limit at least, and that is a prolonged and substantial military engagement involving exposure of U.S. military personnel to significant risk over a substantial period. If the conflict arises to that, and OLC says that ground troops is a good marker of that, then OLC has said that the president must, or might have to, go to Congress to get an authorization.

So there’s a question whether even out of the OLC opinions, if this conflict continues to ramp up—especially if the president introduces so-called boots on the ground—that the OLC opinions that say the president has to go to Congress might come into play.

My own view is that these opinions are very wishy-washy. There are a whole bunch of other opinions that OLC can and probably would rely on, including some that you and I, eight years ago, wrote to the Justice Department asking them to withdraw—opinions related to Iraq 20-some-odd years ago—and also opinions about self-defense.

So I don’t expect OLC to tell the president that he can’t continue with the war, but there is this issue about the language in the opinions being implicated.

Yes, and you know, you and I talked offline about one thing that I think this conflict really brings to the surface. This nature, scope, and duration test has been debated in recent years primarily against the background of whether the United States would have boots on the ground, and there was a significant risk of American casualties, even if the United States itself was using force and training fire on the enemy—whether it was encountering any high likelihood of return fire that could kill American servicemen and women. That’s the way this has been debated; that’s the context in which it has been debated.

But what we see currently, which I think requires really rethinking this old model, is a war that has caused the largest oil supply disruption in history—literally in history—in which the United States has also lost billions of dollars, according to Wall Street Journal reporting, and sensitive equipment, including drones and radar, and has had a convulsive effect on international relations.

So it’s a deployment of force, the significance of which—which in turn, of course, involves what we think of as Congress’s role—the significance of which cannot be measured only in terms of the anticipated loss of American servicemen or women or casualties.

So it’s a good point. I’ll point out that even on the kind of risk to troops, there have been 13 casualties thus far and many hundreds, I think, of injuries to U.S. servicemen and women growing out of the war—that’s the first point.

Your point is that this has been a massively consequential and costly war beyond loss of troops—troop death, and troop injury—and that the test should take that into account.

I mean, certainly, if we go back to the very beginning, what were the framers trying to do? It’s not clear how they did it—whether they did it with the Declare War Clause or with control over the standing army—that remains contested. It’s not clear exactly what the Declare War Clause meant, but it’s pretty clear that the framers wanted to ensure that the president did not use U.S. troops abroad in a consequential way that was going to be consequential for the country without getting the people, through Congress, on board.

And you’re pointing out that this war, even if there were no U.S. casualties, has been massively consequential financially and in terms of the economy, and probably will be for a very long time, and that a president should be required by law—and if not by law, by political prudence—to go to Congress and get Congress on board.

I’ll note that both President Bushes, in both Iraq wars—the first and second—President Bush in the first and second Iraq wars, they both claimed the authority to send the troops to Iraq and to use force there. They claimed the Article II authority without the need to get Congress on board, yet in both instances they both went to Congress in a tough situation, when it wasn’t clear in both cases that they were going to get the authorization, and they got Congress on board.

Whether that was a constitutional or a political imperative, they both sensed—they didn’t think it was a constitutional imperative, at least that’s what they said—but they both sensed that the stakes were so big that they needed to get Congress on board. And that thus far has not been, obviously, the impulse of the Trump administration.

That’s right, and I think the 37 percent approval rating reflects in part the absence of any effort to really build public support for this effort, or, as we said earlier, to line up political allies that would help build and reinforce that public support. And the price that a government pays for that is extremely high.

They’re making the point—this probably goes to their rejection of the constitutional issues—they’re making the point repeatedly, Trump has done so, Hegseth has done so, they’re not putting any limits on this war. Sometimes Trump says that it’s a matter of weeks—he may say that periodically because he wants to calm the markets—but both of them have made it clear that it ends when they say it will end.

Right, and this gets to the point you were making about President Trump saying, “I’m not supposed to say it’s a war.” I mean, I’m surprised he even knows that, because that communication came from his lawyers—but the idea in the OLC opinions is that if something is a war in the constitutional sense, Congress has to approve it, and that the conflicts that OLC has approved in recent decades have not been wars in the constitutional sense that require congressional authorization.

So that’s why he made that distinction, kind of dismissing the whole thing. But they’ve also, as you say, not taken anything off the table. They have not tried to say this is going to be limited along any dimension, and that is in serious tension with the OLC opinions.

Yes. You know, you can think about all sorts of things that could happen, right?

You could think about a cyberattack on the United States that the Iranians engineer that wipes out energy infrastructure in the United States, water desalination. . . You could think of a single drone attack in the United States, two or three terror attacks in the United States, bombs that are set off that completely tank the stock market. . . all of which is a result of this “military operation.”

And it’s just not part of the debate about when the president owes Congress and the public an explanation and some kind of legislative buy-in. It’s just not part of that debate.

I agree. First of all, he’s going to own it completely.

Yes, he is.

Whatever happens negatively, they’ll try to say it would have happened anyway—this is what we went to war to prevent, they were going to do this—but that’s going to be a tough argument to make.

But we’ve just really become deadened, on your second point, to the politics here. The idea that this is really Congress’s responsibility—and it really is Congress’s responsibility—the whole frame of understanding war powers has shifted to the one-man-decides model, and then Congress bickers from the sidelines. And, you know, if things get really bad, they may do something. That whole model is just out of culture. I mean, all of these things should be being debated; they should be being debated front and center, and they’re not.

Right, and Congress has not, and there are ways to do it, certainly beyond the one suggestion that I made in my posting, Congress isn’t even putting itself on the record on the legal issues. It’s just voting up or down to terminate the hostilities.

The findings that vary among the three, from Kaine to Murphy—the findings vary because there’s a little bit more detail built into the finding section about Trump having referred to war, some of the rhetoric that is contrary to any suggestion there’s anything other than a war—but Congress is not—there’s no—how would I call it—line in the sand that Congress is drawing legally.

It doesn’t have a mechanism for really doing so. It hasn’t attempted to do so. So when all of this is over with, we still won’t know a lot more, except that public pressure could cause this war to end earlier than it otherwise might, about when Congress believes the president owes that responsibility.

This is just a massive structural difference between Congress and the president.

Yes.

Presidents always have an incentive to justify their Article II power, and they can ensure that it can happen by the unitary nature of the executive, and basically the interpretive power flows from the president through the Justice Department down to OLC.

I mean, the reason that there aren’t legal findings in any of these resolutions is it would make it even harder to get the votes, because specifying in a list of congressional findings the nature of the president’s powers—it was hard enough to do, and they failed, in the War Powers Resolution. Doing that on the fly in findings in a law like this is—I agree with you—it would be great if Congress could do it, but they just can’t. They’re not structurally able to form that consensus.

Even the War Powers Resolution, when they were at the maximum consensus about the president’s powers and Congress’s powers—even there, there was vagueness in how they described the president’s Article II powers. It’s just a very hard thing for a decentralized body, divided by parties, to reach consensus on.

Yes.

All right. Thanks very much.

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.

Jack Goldsmith: Today, I’m going to talk to my colleague and friend, Cass Sunstein, about his new book, Separation of Powers: How to Preserve Liberty in Troubled Times. Cass, thanks for chatting.

Cass Sunstein: Thanks so much for having me.

So, your book is about all aspects of separation of powers, and you focus on the judicial branch and the legislative branch, as well as the executive branch. But since this is for Executive Functions, we’re going to talk about executive power mostly.

The subtitle of your book, which is about separation of powers, is How to Preserve Liberty in Troubled Times. And Chapter Six is entitled, “The Executive is the Most Dangerous Branch.” So how do these things relate together? And why is the executive branch the most dangerous branch? And what does that have to do with liberty?

What I saw, particularly in my White House job, was the massive knowledge advantage the executive branch has, and the massive advantage it has by virtue of the power of initiative. So courts, of course, are the glamorous entities for law students, often, but they’re after the fact. Sometimes they’re really after the fact. Sometimes they don’t get involved at all. And sometimes they don’t know what they’re doing.

And when they don’t know what they’re doing, part of the time they know they don’t know what they’re doing. And that creates a kind of humility and modesty, which is both salutary and sometimes dangerous. So the courts are in a weaker position.

Congress—I was flabbergasted to see in my second stint, that is, in the Office of Information and Regulatory Affairs—is often flailing. And it’s not really their fault. They have to get re-elected, the members. Their staffs aren’t nearly as numerous or as expert as the executive branch’s staffs.

So Congress is frequently thinking, you know, this is wrong, what you did. And Congress might be right on that, but really doesn’t have anything like the understanding that the executive branch does. And it is able to hold a hearing and maybe annoy. And sometimes it’s able to write a letter, which can cause a stream of events to follow, including potentially a subpoena.

But the executive branch really is front and center of the apparatus of governance. And when I was there, of course, in the Obama administration, I didn’t particularly lament that. But I did notice it and thought that the most beautiful and wonderful things that happen in our country are frequently a product of executive branch creativity. And some of the least beautiful things are either potentially, or in fact, a product of—let’s call it—executive branch creativity.

But most people, when they think about the dangers of the executive branch, don’t think about its information advantages. They think about the fact that it exercises the sword of the community, that it has coercive power, and that it can take the initiative to exercise those powers. So how does that factor in, and how does that relate to this knowledge or information point?

Okay, they’re closely related. So suppose the executive branch wants to issue a bunch of regulations that are, let’s say, costly or harmful, or motivated by politics rather than by really figuring out what’s best. It can do that. And then the very fact that it’s issuing regulations often causes change on the ground.

And the people who try to stop it from happening might make arguments to the public or to courts that are in the direction of, let’s just say, inadequately informed. And the executive branch will have a machine of response. And that can, on the regulatory side—which is a keen interest of mine in two of my three stints—on the regulatory side, just the knowledge and the authority to initiate can make all the difference.

So you might even say you’re going to issue a regulation. It might involve the environment, it might involve immigration, it might involve safety in the air. And then the private sector is just going to do stuff, knowing that the executive branch might act, and thinking it doesn’t want to be behind the game as the game starts.

And because the executive branch knows a ton, the private sector knows that it’s going to have an uphill battle in winning in court, even though it might win. And even if it wins in court, it might win late. And that might mean there’s all sorts of economic consequences.

Of course, when people think of the prosecutorial authority of the executive branch, which I think is what you have in mind, I saw that in the Department of Justice—not that close, but pretty close, because it was the same building. And I saw it at the Department of Homeland Security; ICE—I work closely with ICE—the executive branch can do all sorts of things to bring enforcement power to bear.

And it knows things. So in a contest with people outside the executive branch, those people might lose, not because they’re wrong, but just because they don’t know enough. Now, it is often the case—and we’ve seen this under both the Biden administration and Trump administration—that the executive branch is going to lose in court a lot. But there’s a lot that doesn’t go to court at all. And if it doesn’t go to court, then the executive branch typically wins.

Yeah. So those are the two points I was going to make. The second one first—so much, I mean, you say in the book that the executive may—I’m sorry—you talk about how courts can constrain the executive branch. And I’m going to talk about an important example that you mentioned in a second.

But so many of the things that the executive branch does, and it can take the initiative on, whether it has superior information or not, it can do—and there’s no judicial review. So many things, when I was at OLC, very few things that I worked on in OLC ever appeared in court, either because it was secret, or because of just justiciability, standing, and related things, or because no one had a cause of action.

So it seems that the executive branch has a massive advantage, not just because of information and because of its coercive power, but also because there’s, in many circumstances, no checking branch, or potentially Congress.

That’s true. Let me tell you two stories, shall I?

In one discussion we had in the executive branch, the Department of Homeland Security was in a contest with another department, which I won’t name for reasons that will become clear. The other department wanted to do something that was thought by it to be in the public interest, very much so, and left of center in a way that that department really liked.

The Department of Homeland Security thought that that was—it was unlawful—that the preferred option by the other department violated governing statutes. And we said that, and the other department said, look, no one left standing to sue us. So we’ll completely succeed; no one is standing to sue.

And the Department of Homeland Security said, you know, we took an oath to follow the law, the Constitution, the Take Care Clause, took an oath—we have to follow the law. And the other department said—I remember this as if it was yesterday—said no court has ever struck down an act of the executive branch solely on the ground that it violated the oath, which suggested they missed the point, that even if courts wouldn’t be involved, it was still inconsistent with the law.

And in that particular discussion, the Department of Homeland Security prevailed, because people agreed you shouldn’t do something that violates the law, even if there’s no court involvement. So that happens. I’m sure you know that. It happens a lot.

Does it happen all the time? Not. It doesn’t happen all the time.

So that’s one story of the role of legal constraints when things are working well, with no judicial involvement. I think it was just today announced that the Department of Homeland Security, my old department, is going to return to the BRIC program, which is basically a resilience program in the face of weather-related harm, like flooding or wildfire.

And the Trump administration had abandoned this program, the BRIC program, something I had some work to do on when I was there. And the court said, you can’t just abandon the program. A court did get involved in a suit brought by 22 states.

And the Trump administration just said, okay, we’ll go forward with it, which suggests, though you’re right, of course, there’s a serious category of cases in which there’s no court involvement. Still, there are a lot of cases in which there is. And that’s a beautiful thing from the standpoint of the separation of powers.

I just want to underscore something you said, which is, though in those cases where there’s no judicial review, it really depends on the integrity of the lawyers inside the executive branch. And, you know, executive branch lawyers have their own interpretive principles, their own institutional constraints, their own attitudes toward law.

But there’s such a large percentage of cases where the executive acts without effective judicial review that that form of internal review is just vitally important. And that’s not really separation of powers, formally.

You’re right. It has an integration of powers, where it’s the executive authority and interpretive authority. And if the executive has a strong policy preference—meaning the political leadership—maybe the lawyers will recede, or that the lawyers will try to figure out a path, even if it’s really not a legitimate path.

One thing that I observed, and that we’ve been circling around, I think does have a separation of powers component, which is the morality of legality. And let’s just name it, where an executive branch lawyer thinks that there’s a moral obligation to follow the law, which is independent of anything else and a trump card.

And the reason that it has a separation of powers component is that typically what legality amounts to is fidelity to congressional instructions.

Right.

For the Constitution, which is not really a separation of powers issue.

But so you describe—you say this is one of the most important—I’m going to move on to an area where the executive is effectively checked, and it’s vitally important. You say—I’m going to read from the book—that this is one of the most important paragraphs in the book, you think, and I’m quoting from it now:

It is also true and fundamental that the executive power and the judicial power are separated in the sense that the executive initiates cases, including prosecutions, and judges decide on both facts and law. If the Department of Justice thinks that you have committed a crime, it cannot put you in jail just because it wants to do that. It has to prove its case before an independent tribunal, and often with a jury.

And you might have added, with a grand jury intervening. That point has been vitally important in the last year and a half, and has, I think, is a more important separation of powers point, as a fundamental constraint protection of liberty, than people appreciated before recently.

I agree completely. So the words that you kindly read were written kind of low temperature, in the background, where it was, you know, a recognition. But if you write them now, there’s a lot more heat in the sentences.

And it is the case that, you know, if you love the current president or not so much, the idea that any president can put people in criminal jeopardy without the buffer, the independence of court—that’s Kafka. It’s kind of literally Kafka. And it’s a nightmare from the standpoint of liberty.

Yeah. And the framers—I mean, as you say, you made this point outside of—you wrote this point outside of the current heat—but it’s kind of a foundational point. It goes back to the framers. They designed this system with this protection of liberty in mind.

Completely. So Hamilton, in an obscure passage in the Federalist, celebrated constitutional review, but said it’s not with a view to infractions of the Constitution alone that the independent judiciary is important. And he talked about a civilizing effect.

And, you know, we could write a book about that. But part of the civilizing effect is making sure that the facts of the law are supportive of the charge, and that, you know, for a large number of people, some of whom were in the newspapers, most of whom are not, that is a lifeline.

Okay. I want to move on to what you call in the book the “grand narrative.” And I think it’s fair to say this is a grand narrative about administrative law, but it might be a grand narrative about executive power. What is the grand narrative, and why is it important?

When I was in law school the day before yesterday, the majority of us thought Article One gives legislative power to Congress. That’s true, which means that Congress can’t give open-ended authority to the executive branch by telling the executive branch to do what’s reasonable or feasible—that that is a violation of Article One, Section One.

Article Two gives executive power to the president, which means there can’t be independent agencies like the Federal Communications Commission and the Federal Trade Commission that excise executive power from the president and give it to other people. That’s very, very bad—or so we thought.

And Article Three gives judicial power to judges protected by independence, life tenure, salary guarantees, and that means that adjudication can’t be exercised outside of those independent people. And yet the Social Security Administration and many other executive officials are engaged in adjudication.

So what we thought back in the day was that there’s sequential violations of Article One, Article Two, and Article Three. And that’s the grand narrative—that the Constitution created these entities, and then the New Deal or the Great Society, or maybe Woodrow Wilson, did something horrible, which was to take a red pen to Article One, Section One; Article Two, Section One; Article Three.

And that’s terrible. And the grand narrative suggests we have to go back to the original constitutional settlement, which was, you know, very focused on self-government and why our country became independent. That’s not a trivial matter.

And also very focused on liberty. And so the obligation of the legal culture now is to obey the lesson of the grand narrative, which is to restore the beauty and pristineness of what the Constitution plainly says. That’s the grand narrative.

And I’m going to flesh this out, and I want to talk about the Slaughter case, which has raised these issues exquisitely since you wrote the book. But what is your basic take on it? I mean, what is your take on the grand narrative?

It’s a little false. And it’s a little made up. And it’s a little bit simple. And it’s too cool for school. That’s actually the phrase—too cool for school was made for this. It’s very cool, but in school, it’s just not going to work.

And the reason is that, as simple and seductive as it sounds, it has a very tendentious understanding of Article One, Article Two, and Article Three. I say not, you know, baseless or ridiculous understanding of Article One, Article Two, and Article Three, but it has a tendentious understanding.

So we have to investigate each of the three. The idea that Congress isn’t permitted to grant discretionary authority to the executive branch—that’s the first part of the grand narrative, or the one that tends to get people’s juices flowing most.

This is the non-delegation doctrine, is that correct?

Yeah, yeah, yeah. So let’s take one idea, which is Congress can grant as much discretion to the executive as it wants. Then it’s exercising lawmaking, and the executive is implementing pursuant to the admittedly open-ended grant of discretion.

So one view is that’s fine. If Congress says, do what you think best to handle immigration or to handle climate change, no problem—that’s how Congress has made the law. That’s one view, and a lot of people hold that view. It has some historical support.

I think that view isn’t justified by the history. So let’s have a more modest view, which is that broad grants of discretion are fine, and the founding generation understood them to be fine. If it’s completely open-ended, it’s not fine.

So that’s not inconsistent with the founding settlement. But if you say, do it to the extent feasible, or do it to the extent practicable, or do it to the extent reasonable, those things are consistent with what the founding generation itself did, with very little in the way of constitutional objection.

So that part of the grand narrative—let’s just say—is historically reckless.

So you mean false from an originalist perspective? Yeah, completely, yeah. And because, as you’ve written, there may be reasons today, given the change in the nature of government, where we might view these things differently. I agree with you. I think that the originalist debate on that has cut pretty strongly, based on what the early Congress did and how the early courts understood what the early Congress did, to allow pretty broad, broad delegations.

So I concur in that. What’s next?

Okay. So let’s say—and I want to underline your point—that we could think, on originalist grounds, an aggressive restriction on Congress’s power to give discretion to the executive branch is very hard to defend. But we could say that some kind of non-delegation doctrine is essential now, given the nature of executive power. And I think that’s an interesting view, and not at all preposterous.

And I want to come back to that idea later.

Okay. So on the second part of the three-part grand narrative—we actually have three grand narratives—the second part is that Congress can’t authorize officials to exercise executive authority without the president’s removal power untrammeled.

And that would mean that little me, as a 20-something in the Office of Legal Counsel, would be an at-will employee of the president, notwithstanding the Civil Service Act. I wasn’t that. As a staffer, I had for-cause protection.

Under the second part of the grand narrative, that would be constitutionally very suspicious. Worse than that, from the standpoint of the second part of the grand narrative, is the Federal Communications Commission, the Federal Trade Commission, the Nuclear Regulatory Commission, the Federal Reserve Board, et cetera.

— explain why? It’s because of the restrictions on the president’s removal power.

Because the executive power is being taken out of the president’s domain—and what part of Article II, Section 1, do you not understand? Executive power is vested in a President of the United States.

That view—the view that the strongly unitary president is constitutionally mandatory—it hasn’t taken the kind of battering that the non-delegation doctrine has taken, but it’s suffered some very serious blows.

So, if you’re a boxing fan, it’s Muhammad Ali—jab, jab, jab, jab, jab, jab—rather than George Foreman knocking you out. And the jab, jab, jab, jab, jab consists of findings that the early Congress probably thought it had the authority to limit the president’s removal authority over principal officers. It just decided not to exercise that authority.

So there wasn’t a consensus in the founding period that the president had unlimited removal authority over the people who execute the laws, or at least this is a very hard historical question.

But on that one, I mean, you started off by saying you weren’t removable. We’re talking about the grand narrative about the unitary executive here and the president’s removal power. And a couple of points—and I’m wondering if you agree.

One is it’s not at all clear what the pure theory entails, that the president can control every person in the executive branch on every decision, no matter what it looks like. The court has never gone nearly that far in its case law.

Even Myers acknowledged that there could be constraints on the president’s removal power of certain officials, right? And the originalist point doesn’t really get at whether, you know, these multi-member independent agencies with massive combined—whatever kind of powers you want to call rulemaking and adjudication—it doesn’t really speak to that, does it?

Well, I agree. But the people who believe in a strongly unitary president, I think, should agree—and many do—and, as you say, Myers did, that the civil service law is okay, because the lower-level officials are, through the chain of command, subject to policy control by the president.

But if you have a principal officer, like people who are running the Securities and Exchange Commission, the view is—the unitary executive view that I think Chief Justice Roberts holds, and that many law professors hold—the constitutional settlement doesn’t allow that.

So the multi-member commissions, whose heads are for-cause protected against the president—that I thought, when I worked in the Justice Department as a kid lawyer, I thought that was a constitutional atrocity. And I think a lot of people, on originalist grounds, think that.

It’s not clear that, on originalist grounds, they’re wrong. That’s my view. It’s a really hard question. I think it’s 60–40, 40–60.

Yeah. Okay. So a lot of this issue has come up in the slaughter case, which is about the constitutionality of the independent commissioners on the FTC. And everybody thinks, based on the oral argument—and, frankly, based on the last three or four unitary executive cases concerning removal, anyway—that the Court is going to say that the president does have the authority to remove the members of the FTC, and that his removal power extends that far, at least.

I just want to assume that’s true and try to think through the implications. And I think this goes to the heart of your book. And I want to do so by listening to two sets of questions by Justice Kagan at the oral argument in Slaughter, where I think she raised, as I say, issues that go to the heart of your book, and I want to see what you think about them.

So here’s the first clip from Justice Kagan in the Slaughter argument.

The idea is that the president was supposed to do the executing, but he wasn’t supposed to do the legislating, and he wasn’t supposed to do the judging. And here’s my next proposition, which I think you have to agree with, because we just look around the government and it’s obviously true.

Some people think it’s a real distortion from what the founders thought, but what you think of as executive branch agencies, including independent agencies, they do a lot of legislating and they do a lot of judging. And you listed it a bunch of times. You said this is obviously executive power.

Why is it obviously executive power? Because they’re doing a lot of rulemaking, and they’re doing a lot of adjudications leading to enforcement. And those are—although we’ve said that this is executive power in some sense—but they’re legislative functions. That’s what rulemaking is. They’re adjudicative functions.

And isn’t it problematic, given what we know about the founder’s vision, that what this is going to amount to, at the end of the day, is putting not only all executive power in the president, but an incredible amount of legislative slash rulemaking power and judging in the president’s hands?

Okay. So I'm very keen about what you think about that. Is Justice Kagan embracing or rejecting the grand narrative? Is she embracing a different narrative? What do you make of that set of questions?

Okay. I think she is kind of embracing it, thinking that the exercise of rulemaking authority by the executive is a constitutional violation, and the exercise of adjudicative authority by the executive is a constitutional violation. I don’t think it’s right, though.

So rulemaking—suppose there’s a statute that says, on a diagnosis of cancer, the Occupational Safety and Health Administration has to require some reporting. And then the Occupational Health Safety Administration defines what a diagnosis is through rule.

Now, there’s not a lot of room to say what’s a diagnosis. There’s not a lot of discretion there. It’s a pretty mechanical—maybe that’s an overstatement—but it’s not a big exercise in policymaking, open-ended policymaking authority.

So this is a way of saying rulemaking can be just a form of execution unless we insist it isn’t, but it might not involve much in the way of discretion at all. It might be that you decide whether the permissible level of some pollutant is 9.11111 or 9.11112, and you do that through a rule.

That isn’t an exercise of legislative authority unless we insist that any rulemaking is—and why would we do that? Rulemaking has been around a long, long time. The idea that rulemaking, because it’s rulemaking, is legislation—which Justice Kagan, my former dean, is saying—I think, on reflection, she wouldn’t accept her own proposition.

But I think there’s a way of interpreting it, and this is going to bring me to the second clip. I don’t think—I’m fairly confident—Justice Kagan is not saying that rulemaking is an exercise of Article I legislative power, and that adjudication is an exercise of Article III judicial power.

I think what she’s saying is that there’s a massive concentration of various powers that we call executive, but that, as you talk about in your book, have adjudicative elements and have discretionary lawmaking elements, whether it’s the exercise of legislative power or not.

And I think she’s just pointing out the extraordinary concentration of power in the executive that now the court is on the road to saying the president can do with what he wants. I think—so let me run the second clip, which I think enlightens the first one, and then you can tell me what you think.

Here’s been the bargain over the last century, and I think it has been a bargain. Congress has given these agencies a lot—a lot of work to do that is not traditionally executive work—that is more along the lines of: make rules when we issue broad delegations, and do lots of adjudications that set the rules for industries and entire bodies of governance, right?

And they’ve given all of that power to these agencies, largely with it in mind that the agencies are not under the control of a single person, of the president, but that indeed Congress has a great deal of influence over them too.

And if you take away a half of this bargain, you end up with just massive, uncontrolled, unchecked power in the hands of the president. And it’s really hard to affect both sides of this bargain, because it’s already been done.

So the result of what you want is that the president is going to have massive, unchecked, uncontrolled power, not only to do traditional execution, but to make law through legislative and adjudicative frameworks.

So Cass, I want you to comment on that. I just want to point out, because I thought this was remarkable, that in the same oral argument, Justice Gorsuch and Justice Barrett make similar claims about this bargain, and wondering whether the elimination of the removal power leaves the president in a commanding position that maybe Congress might not have wanted.

I think that’s a great comment by Justice Kagan, and it shouldn’t be surprising because she taught administrative law for many years, and she’s an expert—a field expert.

So let me tell you a story that exemplifies what she’s worrying over. When the Consumer Bureau was created, I was in the government and spent a lot of time working on the legislation that led to it. And we discussed a lot whether the Consumer Bureau should be an executive agency or an independent agency.

And whatever the right call as a matter of policy, it was completely clear at the time that to get that legislation through Congress with the Consumer Bureau being an executive agency would have been really difficult and possibly impossible. And pause over that, if you would.

It’s the deal that Justice Kagan is discussing in action, where Congress thought, okay, we’ll create this Consumer Bureau, and it’s going to have a lot of power, but we’re not going to make it subject to the president, because if we did, then the president would have a lot of power.

And you can see this through agency after agency. With respect to the Federal Communications Commission, whatever exactly happened at the time, the idea of Congress creating an FCC that controls the communications sector and that is run by employees of the president—it doesn’t matter what your political party is—that should make people’s blood run cold.

So the deal that she’s describing—that’s real. Now, what to do about that is a very nice question. If you say all of these agencies exercising rulemaking and adjudicatory authority are now under the president’s thumb, that does unsettle the congressional understanding that led to the creation of those agencies.

Does that argue—I don't think you talked about this in your book, and I actually don't know if you've written about this, but you probably have—what severability regime does that argue for? Does that argue for getting rid of the removal restrictions, or does it argue for taking down the whole thing, because Congress would not have given the one without the other?

This is really hard. So if you believe that the strongly unitary vision is constitutionally correct, then you just have to insist on that, and the severability questions become very reasonably answered in the direction of throwing the whole statutes into the garbage. But that itself is a cataclysm.

And that’s something that’s a little like a French Revolution, which a tradition-loving, occasionally Burkean court should be really nervous about. So we throw the SEC statute down, we make the NLRB not exist anymore, because of a contentious but plausible, maybe more likely than not, right—we’d have to investigate that severability argument.

So my own view is that the constitutional attack on the independent agencies should be resisted on the ground that the constitutional question either is an originalist matter or as a matter of what do we do, given where we are, which is what Justice Kagan is asking.

It’s a hard question. And to throw out decades of precedent on which our government’s institutions rely on the basis of a contentious, maybe right theory—that we shouldn’t do.

So I would be in favor of amping up a little bit the president's policy control over the independent agencies through interpretation of the existing statutes, which give him power to fire for inefficiency, neglect of duty, malfeasance in office. I'd ramp those up a little bit, but basically not throw Washington on these issues into a tailspin where it's going like this.

Okay. Here’s my last question. It’s clear that the court’s moving in the direction of unitariness and a broader removal power and more presidential vertical control.

Some people, including some conservatives on the court, think that the complement to that—the important complement to that—is to narrow the president’s ability to rely on vague statements to do novel things. And this comes under the heading of the major questions doctrine. And there are some people that see those things as going hand in hand.

I think Justice Gorsuch is the loudest articulator of this view. So you talked about the major questions doctrine in the book. Just what do you think of the major questions doctrine, especially given the more unitary executive?

And how do you read the Learning Resources tariffs case and the major questions doctrine after that? This case came down after your book.

Yeah. Okay. So let me state two views and then try to figure out which I like better.

So view one is the major questions doctrine is a made up thing by people who don’t like administrative authority. And as Justice Barrett has said repeatedly, to create made up substantive canons isn’t a very judicial thing to do. It sounds more like policy stuff.

And, you know, if the president lacks authority under the statute as rightly interpreted, which I think is correct in the school loans case, then the executive should lose. But to have a doctrine that puts a special thumb on the scales against the executive when it’s doing something big—that’s a little like the old canon that statutes in derogation of the common law shall be narrowly construed, which seems, by current lights, a little too policy-generated, and we shouldn’t do it.

So that, I think, has a lot of force behind it. And it says don’t develop new canons of construction that suit your policy preferences.

The other idea is we should be a bit more upbeat on the major questions doctrine, partly because of the breadth of current executive power, partly because of the misallocation, by constitutional lights, of discretionary action—let’s just call it—from the legislature to the executive.

And on that view, the major questions doctrine isn’t a terrible idea. It says if, you know, the president is going to try to forgive school loans, or the president is going to try to shift from coal to solar and wind, or the president is going to have a tariff regime, Congress must explicitly authorize it.

I’m kind of talking myself into it as a plausible idea that isn’t bizarrely adapted to the situation in which we find ourselves. So the second view, which is a little bullish on the major questions doctrine, I like better than I did seven years ago.

So the second view—you can disagree if you disagree—strikes me as closer to Justice Barrett’s conception of the major questions doctrine, which is a little softer, more contextual, as she puts it. She views it as just an instantiation of textualism, although it’s a very—it seems to me—I don’t want to say squishy, but soft version of textualism.

I mean, is that—is her—and, by the way, she and Justice Gorsuch, who have sharply opposing views, substantive canon versus contextual interpretation of the major questions doctrine, both joined the formulation by the Chief Justice, which was shrewdly ambiguous on this debate.

I mean, is that the more attractive way to see the major questions doctrine?

It is, it’s more humble. So what Barrett’s doing—there’s a passage by Wittgenstein in Philosophical Investigations, where he says, I tell you, teach the children a game. You teach them gambling.

Is that consistent with the instruction—simplifying Wittgenstein—but the basic idea is it isn’t—that if you say teach the children a game, you didn’t mean gambling.

And Barrett says, basically, that if you have a reaction to what the interpretation is, you need Congress squarely to have authorized it. And that’s because the what—“what?”—the skeptical “what” reflects how communication works.

And so if there’s some agency doing something completely new, and it seems, you know, well beyond what anyone had ever thought, Congress must squarely authorize it. That is humbler.

I think in the end, the distance between Gorsuch and Barrett is less substantively large than it seems. There’s clearly a big difference in temperament, where the separation of powers—heavy artillery—Gorsuch loves, and Barrett is very cautious about.

But Barrett needs some claims about Article 1, Section 1, I think, to get her more cautious, maybe softly textualist wannabe argument going. So it’s—I like it better. I even think that the Barrett view isn’t so far from Kagan’s view in the end.

But it’s—it is singing a slow, soft, quiet, short version of Gorsuch’s song.

It also seems more on the road to—or resonant of, or in the vicinity of—some kind of purposivism, because you can only say “what?” if you have a sense of what the statute was for.

Yeah, I think so.

You have a sense that some executive action is just not what they meant. So it seems—it seems like a modified, strongly modified to me version of what I understood textualism to be.

Yeah, I think so. I think, you know, I really admire her effort to be within textualist boundaries and not wanting judges making things up. That’s kind of her thing.

And it does have a disciplining effect. And it is part and parcel of her caution and humility. You’re right that in I teach the children a game, I teach them gambling, you need a sense of the purpose of the instruction to get that gambling answer to be the wrong answer.

Okay, Cass, thanks very much. Terrific book. It’s about much more than executive power, which is what we focused on, and well worth reading.

Thank you.

Thank you so much.

Thumbnail: FBI Joint Terrorism Task Force photo. (U.S. Government Work.)

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: In light of the U.S. attacks on Iran over the weekend, the Department of Homeland Security and the FBI announced a heightened alert for domestic attacks, including cyberattacks, and U.S. Northern Command, which covers the United States, basically sent out a signal of heightened security on U.S. military and related bases. I think it’s important to understand how the U.S. government infrastructure would normally operate to deal with such threats and what the main concerns and issues this government faces are. I’m very grateful that Elizabeth Sherwood-Randall has agreed to talk about these issues.

Liz has a long career in U.S. national security and most recently was the White House Homeland Security Advisor from January 2021 through January 2025, a position now held by Stephen Miller. Liz is a senior fellow at the Harvard Kennedy School’s Belfer Center. Liz, thank you for coming on to talk about this today.

Elizabeth Sherwood-Randall: Thanks for inviting me today, Jack.

I would like for you to walk us through how, if you were sitting in your old chair in the White House, you would be thinking about these issues. What would you be doing in the current situation if there were a military conflict abroad that implicated domestic threats? What would you be doing?

So, Jack, the Homeland Security Advisor role at the White House was born right after 9/11. I lived for four years in a basement SCIF — a secure compartmented information facility, a room with no windows in the West Wing — where I worked basically 24/7 to ensure that we kept Americans safe. The job responsibilities include keeping Americans safe at home and also Americans around the world.

So wherever our people are — our diplomats, our military service members, our intelligence community — we watch out for them from that post. If this had been anticipated, which it clearly was for some time internally as the military preparations got underway, I would have been working for weeks to get us ready for the homeland implications of the attack on Iran that began over the weekend.

And we would have worked across the federal enterprise with every relevant department and agency to ensure that we were prepared for the possibility that there could be homeland consequences of these attacks, as well as for the possibility that there could be retaliation against our personnel in the region of the attacks and around the world.

In addition, we would have worked to ensure that we were aligned with our state and local counterparts. For example, the Department of Justice and its Federal Bureau of Investigation would be working anticipatorily through the FBI’s field offices — more than 50 around the country — to ensure that local law enforcement was ready for what might happen and was monitoring carefully for the possibility that there could be an increase in threats to American citizens.

Finally, importantly, we would have been working with allies and partners to prepare them as well. We’ve already seen significant retaliation against our partners in the region. In that case, one of the things we look at is whether we need to prepare to remove American personnel and representatives in the region or elsewhere, and to develop plans for evacuating American citizens — which is a quite complex operation, especially in a situation of live conflict.

So all of that work would have been done in advance to ensure that we were ready, and that in the event of adverse incidents at home or around the world, we could respond quickly to help our citizens.

Okay, I want to unpack that, and I want to focus on the at-home part of it, just so we can — otherwise I think it’ll be too much. You talked about what you called working “across the federal enterprise.” Can you give us the high points of what that looks like? You mentioned FBI and DOJ dealing with state and local officials, and I want to get to state and local in more depth in a second. But what is FBI and DOJ doing in this context? And how did it look from the White House?

So, the federal enterprise is large and has many different capabilities. We certainly would have involved in the work I described the FBI and DOJ, the Department of Homeland Security, the Department of Defense, and the intelligence community. Those are the key departments and agencies you would want to have at the table to begin planning for what you need to do.

We would be meeting in the Situation Room — a classified setting, obviously — where you can have confidential discussions. The objective would be for the leader of each department and agency to come forward with: here are the things I think we need to worry about if this happens, and here’s what I propose to do about it. Then you develop a coordinated plan.

And basically there’s an operational tempo in a situation like this in which you’re probably meeting every day — whether in person or on screen — to ensure that everyone is working together like the many instruments of an orchestra playing well together to prepare for what may be coming our way.

The Department of Homeland Security, for example — what would they be worrying about, in the time in which I served? Certainly they’d be looking at whether there would be cyberattacks. That would be a very important element of this. Right off the bat, we had an entity that has now been basically stripped of much of its capability at DHS called the Cybersecurity and Infrastructure Security Agency.

It would have been the tip of the spear in doing that work, alongside the FBI, which would be doing the investigative work to identify what’s happening on networks and to ensure that every possible capability was activated in support of those on the front lines — our government networks, but also the whole nation’s networks: cyber effects, telecommunications, financial systems, and health systems, as you well know. So that would be an example of the kind of work we’d be doing in advance to make sure we were, as I would describe it, “shields up” — that you get ready in advance to prevent and to be ready to mitigate any consequences of anything that might happen.

Okay, let me follow up on that. Two related questions. One, how would what DHS is doing in a heightened alert situation differ from what it’s normally doing? What would that look like? And DHS isn’t the only entity focused on cybersecurity, I’m sure, I mean, the FBI has a role there. So how does the government get activated when there’s a heightened cybersecurity threat?

In a heightened environment, what you’re doing is you are previewing to your partners, whether they are the state and local partners I mentioned, whether it’s the homeland security representatives in each state, the governor’s teams, the local law enforcement across the nation — you’re working with counterparts across the nation. Oh, and I should have mentioned, I’m sorry, the private sector, importantly. So, for example, on cyber, all of the providers of capabilities in this country, you’re working collaboratively to say, these are the kinds of tactics, techniques, and procedures that we have seen this adversary use in the past. Here is what you should be watching for.

That’s a capability the federal government can provide. And we provide that based on our intelligence capabilities, and we provide it based on our experience in doing this work. And so what you say is: Here’s what we anticipate may happen. And here’s what you need to be doing. And here are the resources we can make available to you if you need help.

Now, it’s possible that that would be very difficult to do if you’re trying to keep operational security around a military attack. The thing is, the president had been previewing that there could well be military action for some time. So that would have given a pretext for doing this because it was already out in the public domain that there was some consideration of undertaking an operation. And you could therefore do this work and say, should anything happen, here are the things we want to be sure we’re ready for.

Okay, what else would the FBI be doing? I mean, I take it that it might — I don’t know — but I take it that there are confidential sources that it would be working in a more aggressive way. I take it that it had, again, I’m speculating, that there are probably a list of suspects or people that it might be worried about that it would give extra attention to. Is that right? And what else would it be doing?

Jack, that is right. And I think what we see in a system in which the government is working effectively to bring to bear all the tools in the toolkit is that we bring together foreign intelligence information that gives us insight into what bad actors may be trying to do. And we merge that with domestic information that is available through the investigative work that is done on an ongoing basis by the FBI, where they are tracking numerous people over time — criminal networks, drug traffickers, potential terrorist actors.

Of course, you have to have an actual legal basis for bringing somebody in if you decide that they are trending toward violence and you need to take action. Much of the time there’s wait and watch, to gather more information, to ascertain whether there are networks of people working together. In the effort to be as effective as possible, not to just blow an investigation early, but rather to gather as much as you can, to do the greatest work that you can to break up anything that may be threatening to Americans.

So we saw this in a variety of contexts in the homeland, and there’s press reporting on some of the work we did in the years in which I was in this Homeland Security Advisor role with some ISIS members who were in the homeland. And that work was painstaking law enforcement work, took a great deal of time and effort. And ultimately, when it became evident that there was a possibility that these individuals would cause harm to Americans, we worked with the Department of Homeland Security to use our immigration authorities to remove them from the country. And that was a very good example, again, of collaboration between two entities that work in the homeland security space.

You mentioned the integration of foreign and domestic intelligence, which, I guess, typically tends to be collected by different entities. Can you talk about the challenge of that, how the coordination is done and where?

Of course, we’re very, very careful about any collection on Americans. We have very strict laws around the civil liberties and privacy of American citizens. So what we’re working to do is gather information about foreign actors and, to the extent necessary, bring it together with information that is gathered by state and local law enforcement and the FBI about developments in the homeland.

It’s all done very rigorously and generally without any involvement of the White House whatsoever, because that work is privileged information and the White House does not get involved in it. But when there is an action that will be taken — for example, there might be a case brought against an individual — then that becomes potentially public knowledge and you may find out about it in the news. It is not necessarily the case that the White House will know about that in advance because of how carefully protected those processes are of investigation and prosecution under traditional norms of conduct of the Department of Justice and the FBI.

We haven’t mentioned, I don’t think, the Office of the Director of National Counterterrorism and the National Counterterrorism Center. Could you speak to the roles that they play?

So after 9/11, the National Counterterrorism Center was created because, as you’ll recall, there was a diagnosis that one of the reasons we experienced what we experienced on 9/11 was that the dots were not being connected across all the different points of information that had been gathered, and where we might have known that this was happening and been able to prevent it had we connected those dots. So NCTC was established as a clearinghouse for all the intelligence information that is related to terrorism.

And experts are based in NCTC, coming from all the different intelligence agencies, in order to do the painstaking analysis that leads to that connection of the dots and which shows that there is a risk here of this individual or this group in this location or these locations for which we need to be prepared. We want to try to disrupt what they’re doing, if at all possible. And so we want to get ahead of the action that they might take.

That function was one that I relied on very, very heavily. And indeed, the head of the National Counterterrorism Center was often in these meetings that I convened regularly to ensure that we were seeing all of the developments in the international sphere and aligning them with what we knew was happening in the homeland. And so we would have in meetings together the head of NCTC, the appropriate representative from the Department of Justice and the FBI, similarly from DHS, similarly from other departments and agencies, so that there was cross-referencing and people would know that this was happening, this may affect your personnel, you may be able to contribute something to doing something about this. Let’s all come together to ensure that we prepare in every way, we prevent wherever possible, and if we can’t prevent, then we’re ready to respond effectively.

Okay. Can you talk about the distinction between a foreign agent in the United States or a suspected foreign agent in the United States versus someone in the United States who’s not an agent of a foreign power but who might be a threat of some sort through inspiration?

Yeah, so when I think about possible terrorism in the homeland, I think about three categories, Jack. One is a terrorist who is directed by one of the terrorist groups overseas to conduct an attack in the homeland, like 9/11, for example, with Al-Qaeda. You could see Lebanese Hezbollah or Hamas. You could see the IRGC today try to conduct an attack in the homeland where it’s funded and organized by a foreign terrorist group or by a state sponsor of terrorism — in that case, Iran for the IRGC or Hamas.

Second is a terrorist who is seeded into the country, who would be potentially in what might be called a sleeper cell. That could be an individual who is more of a mercenary than an actual believer in the ideology of the group that is directing his or her action, and they could be here for a long period of time, and they may or may not ever take action. But that’s also a challenge for our law enforcement agencies to suss out and to track and to discern whether somebody is trending toward action or whether they are here potentially with some motivation that is supported by a foreign entity but not necessarily intending to do something immediately.

And the third, and quite importantly, especially at this moment, is a homegrown terrorist who is inspired by but not directed by one of the foreign terrorist groups. So a good example of that would be the individual who was a former military service member who conducted a terrorist attack on January 1st, 2025, in New Orleans. And in that case, this individual was inspired by ISIS but was not directed by ISIS, to the best of our knowledge. And he committed mass murder on New Year’s Day, of course, in New Orleans.

So those are three different kinds of actors who we have to be monitoring for and trying to disrupt. The lone wolf actors in the homeland are particularly difficult. And it’s possible — we don’t know the full story yet about what happened in Austin — but it is conceivable that that individual falls into that category.

And that’s something that right now law enforcement will be working very, very hard to ascertain: whether there’s any intelligence about that individual; indications of conversations of direction or support to that individual from a foreign actor; what his connections are in the homeland. Was he acting in any group? Are there others who might do similar things with whom he is in contact? And how quickly can that be disrupted if that is the case?

And so that would be work that would be happening in real time, with the FBI as the tip of the spear.

I don’t know if you can speak to this, but do you have a view on either the impact on all of these considerations of the funding lapse in the Department of Homeland Security or the firing of career officials by the Trump administration across the intelligence and law enforcement terrain, including in the FBI, which does both of those things? Do you have a view about how either one of those things might affect protecting the homeland at the moment?

I do. So I have relied very heavily on the deep expert competence of people across the federal enterprise who do very unglamorous work every day to keep Americans safe. And that includes the people in the Department of Justice and the FBI who do this work that we were discussing, the people in the Department of Homeland Security at the Cybersecurity and Infrastructure Security Agency, at the Transportation Safety Administration, at FEMA, at the Secret Service, in the intelligence community — the professionals who are connecting those dots.

The fact that so much of the federal homeland enterprise has been diverted to focusing on immigration enforcement concerns me greatly. And if coupled with the mass departures and firings, in some cases, of very senior experienced leadership in these departments and agencies, we have a real risk of not having the human capacity we need to do the investigative work to prevent and disrupt attacks in the homeland. It’s hard enough when you have everybody in place and working closely together, as I described it.

When you’ve had such dislocation, reorientation, and loss of human capacity, it really does raise the risk that we could suffer experiences that we do not need to suffer in the homeland. I hope very much that that is not the case. And I hope that we’re able to withstand what may be coming our way.

We also need to count on our foreign partners in this regard, Jack. And as I mentioned earlier, that would have been an early element of the equation for me in terms of preparation. I can think of a number of instances in which my foreign counterparts called me to warn me about something and said, this is what we’re seeing in our intelligence. We are worried this is coming your way. And without that tip, we would not have been shields up at the time.

And so the relationships we have, the trusting relationships we have with our foreign counterparts, and between the — again — the departments and agencies that work with their foreign counterparts, FBI counterparts, intelligence community counterparts, all of that really matters right now to ensure that we’re getting the cooperation we need to get early warning and to prevent bad things from happening.

You spoke about the diversion of FBI resources from counterterrorism to immigration-related matters. I believe I read that last year, during last year’s attack on Iran, that those resources came back to the FBI to work on counterterrorism. I haven’t yet read anything on that, but it might well have happened. Do you have any thoughts on the going back and forth, if that’s what’s happening?

It’s hard to know without more detail. I saw the same reporting. I would say that this work is so detailed. It’s so continuous. It’s not something you do episodically and then drop it to follow the leads that were given, to be in communities with your counterparts, staying on top of emerging potential threats, to track people who are potentially trending toward violence. You want to have continuity, not episodic engagement.

And so I would say my strong view would be it would be better to have people in place continuously. That said, if people have been brought back and if there’s capability that’s being put on this challenge, that’s better. And it is also, I’d say, an important moment for the administration to consider a rebalance, because what we know is that, in general, these attacks don’t happen immediately. It may take weeks to months, especially if you’re trying to position somebody to conduct something at scale. And so we have some time to prevent if we get organized to do so.

In addition, some of these things are years in the making, and the radicalization of human beings can be several years in the making, too. And so one of the things we’ve known, tragically, is that the Hamas attack on Israel in October of 2023 and the subsequent consequences of that in terms of the ongoing crisis in Gaza have led to radicalization of individuals who are more likely now, after 18 months or two years, to be trending toward violence. That is the trajectory, in general, we have seen of people who have been radicalized over time.

That does not mean that somebody wouldn’t be motivated today. And an interesting additional and worrisome point is that we’ve seen the confluence of groups come together who previously were divided by an ideological divide in the Islamic world between Sunni and Shia. And so though Hamas is a Sunni group, quite quickly many of the Shia groups became involved in a parallel activity in support of Hamas, whether it’s Lebanese Hezbollah, which just attacked Israel overnight (this morning, Israel time), or the Houthis, or we have seen other groups as well, ISIS and Al Qaeda, in the wake of the crisis in the Middle East, call for solidarity with Hamas against the United States, Israel, and their allies.

So we could see additional actions by groups that are not directly involved in the conflict but want to express solidarity with Iran in this moment. We don’t know that that will happen. We have seen Lebanese Hezbollah, which is an Iranian-supported terrorist group, act. We’ll need to see what others decide to do. But again, we should be shields up for all of this, to make no assumptions.

Can I ask you — I’ve got two more questions. The first one is to ask you to go back. You mentioned at the beginning the importance of state and local authorities. I think people might be surprised to learn how absolutely crucial they are in these types of threats. Could you say more about that and how the federal government intersects?

I can’t say enough about that, actually. This is the way our country is supposed to work. We have the capabilities residing in communities where our law enforcement is supposed to be out in the community, feeling the pulse of the community, understanding what is trending and identifying it for possible action if need be.

Now, that can also be abused in certain circumstances, and we have wrestled with that as well. But in cases related to terrorism, optimally what is happening is that our local law enforcement is working closely with the FBI team that is in the region of that community to receive information and provide information. So there’s a two-way street that is full of activity all the time, in exchanging information about what is happening so that we are not blind, so that we know we’re seeing something happen here, and the locals may ask for help — may ask for help in immediate response should something be emerging, or may ask for help in trying to investigate and prosecute and disrupt something.

And that has to be, as I said, ongoing, and there has to be a trusted relationship. One of the things that’s happened in the last 14 months is that we’ve seen many departures of individuals in the FBI offices around the country who were in leadership roles — the special agents in charge, their deputies, and others — who have left for various reasons in frustration over the rule of law not being implemented. And so that also degrades our capacity to work in communities because we don’t have those trusted relationships that we’re building on.

Last question: do you have a view about — you know, we’ve talked about certain resources going from national security/counterterrorism to maybe national security immigration enforcement. And it seems in the administration’s mind, anyway, that there’s been a trade-off and a perceived need to rebalance and then maybe readjust that balance. Do you have any views about how the heightened threat now and possible threats — and again, this is speculative, from the Iran conflict, which seems to be, seems as we’re speaking on Monday afternoon like it’s going to be going on for at least many weeks — how that is going to affect other items, domestic agenda items of the administration, especially immigration enforcement?

Yeah. I mean, Jack, there’s a scenario that I worry about, which is that if there are terror attacks in the homeland and the military is fully engaged overseas in an escalating conflict, as you’ve just suggested, it could well be — we hope that’s not the case, but we don’t know where this is going. That could lead to a presidential decision to activate more military service members from the National Guard in the homeland to support, in his view, the suppression of violence or of civic unrest, or to manage terrorism if he perceives that there’s a rise in terrorist threats or activities.

That would be a development that will cause us to question whether it is necessary. There seems to have been an interest in doing this, obviously, in a number of communities over the last year. And if there is a heightened terror threat in the homeland, I could foresee that there would be an inclination to use that as a justification for putting more service members — potentially National Guard members — in our communities to provide security when the military is occupied overseas.

So we don’t know whether that will happen, but it’s something to watch because of the trends that we’ve already seen.

Okay, Liz, thank you very much. I appreciate it.

Thank you so much for giving me this opportunity to talk with you.

Thumbnail: President Donald Trump announces the administration’s plans to invoke tariffs under the International Emergency Economic Powers Act on April 2, 2025. (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: As everybody knows, on Friday the Supreme Court ruled in Learning Resources that the International Emergency Economic Powers Act, or IEEPA, does not authorize the tariffs that President Trump has imposed under that statute. The president has begun to assert substitute tariffs under other statutes, which raise a whole host of legal issues. But today we’re going to discuss a follow-on from last week’s case — an issue that the Court did not address and did not say a word about — namely, what is the remedy, if any, including refunds, for the tariffs that were collected unlawfully under IEEPA?

These tariffs have been estimated to be in the range of $130 to $175 billion, or maybe even more.

To discuss this with us, we’ve got Matthew Seligman, who’s a fellow at the Constitutional Law Center at Stanford. He filed an amicus brief on behalf of former government officials and legal scholars in Learning Resources opposing the government’s tariffs, and he also represents importers who may seek refunds following Learning Resources.

Good afternoon, Matthew.

Matthew Seligman: Thanks for having me, Jack.

So I would like this to be just a primer on how to understand the issue of refunds — or whatever other remedies may be available. I think we should start very basic. Why don’t you just tell us how tariff collection works and how it worked for these IEEPA tariffs?

Sure. So we’ll start with the basic legal and logistical framework for how tariff duties are assessed.

When an importer brings goods into the United States at a port of entry — whether that’s a physical port, an airport, or a land crossing — the Customs and Border Protection agency assesses a duty based on the customs declaration. There will be a provisional amount of money that’s paid.

Then sometime after that — the legal limit is up to a year afterward — CBP will liquidate, or finalize, the customs assessment, the duty assessment. So that’s how the collection process works.

Importantly, since the IEEPA tariffs were imposed in early 2025, leading up to so-called Liberation Day in April 2025, CBP has been collecting these tariff duties all along.

Now, importantly, even though the Court of International Trade — which is the specialized federal court that handles these types of trade disputes — held that the government, the president, didn’t have the authority to impose these tariffs, it stayed its decision. And that decision has been stayed throughout this litigation.

As a result, the government has continued to collect these billions and billions of dollars of tariffs, even though a federal court had already ruled that they were unlawful.

Right. So if I understand you correctly, there’s a provisional assessment and then there’s a kind of final assessment, which is called the liquidation. Is that correct?

Yeah, that’s right.

And do we have a sense — maybe we don’t — what percentage of the tariffs have been liquidated or not, i.e., subject to a final assessment?

The best public data that we have on this comes from a filing that DOJ made in a Court of International Trade case in early December. It attached a declaration from a CBP official.

As of December 10, there had been approximately 34 million entries. Each time, say, a container comes in for an importer, it creates an entry. That’s the legal object for which the duty is assessed.

So there have been 34 million of these entries as of December 10.

Thirty-four million or thirty-four thousand?

Thirty-four million. And those 34 million entries were for over 300,000 separate importers.

As of Dec. 10, DOJ represented that 19.2 million of them had not yet been liquidated, which means that about 50 percent had been. And that was in early December. We’ve had two and a half months since then.

OK, so we’ve got a giant mix of liquidated and unliquidated assessments. Is that right? Is that the right word?

Yeah — entries, because each time a container comes in, there’s an entry.

OK. So the Supreme Court ruled that the government collected these funds unlawfully. I think that’s the right reading of Learning Resources. Do you agree with that?

Absolutely.

OK. So then, in a normal case — and this has happened before — when customs collects duties that turn out to be unlawful, what does the normal refund process look like? Is there a normal refund process?

There is, but it involves an agency process.

Once an entry is liquidated, the importer — the importer of record, who actually paid the duty — has 180 days, and only 180 days, to file a protest within CBP.

Now ordinarily, the types of disputes involved are things like whether the category of goods was correct — maybe the goods were categorized incorrectly and should have come in under a different classification with a different percentage rate. Occasionally there are instances where there’s a question about the legality of the tariff duty at all.

This is the process through which refunds are supposed to be sought.

OK. And I take it that the refund is not going to be automatic. The government is not going to start, after this decision, cutting checks to the importers who paid the IEEPA tariff. So, I take it — is it true that to recover, the importer who paid has to file some type of process?

For most cases, that’s going to be correct.

So I want to be precise here. For the entries that aren’t liquidated yet, the government could just choose to liquidate them at a level lower than the initial assessment. It could say, “OK, the Supreme Court has ruled; we’re going to follow the ruling, and we’re going to liquidate these entries at the lower level, subtracting out the unlawful IEEPA tariff duties.”

It has the power to do that. Whether it will exercise that power is an open question. We can watch what the president and some of his advisers said over the weekend — it doesn’t seem likely to me — but it’s at least possible.

But why would that only apply to unliquidated entries and not liquidated ones?

Because the process always works this way: the entry is initially made and then liquidated. CBP has unilateral and discretionary authority to make adjustments to the amount of the duty that was initially assessed at the time of liquidation.

After liquidation, there’s actually a 90-day period when CBP can voluntarily reliquidate. But after that, there’s no longer any kind of discretionary authority on the part of CBP — or the federal government more generally — to just cut checks.

So someone has to seek to recover the funds.

That’s right. And the big question then is going to be whether they have to file protests or whether they can sue directly in court.

Filing protests before the—

Before CBP. So it’s an interagency process.

So it’s an administrative process before CBP, or going directly to the Court of International Trade.

That’s correct. And there’s been some disagreement among trade lawyers about which of those two approaches is viable.

OK, and I take it this is all that question — that foundational question. Assuming that the government is not going to start cutting checks, which I think we can assume — the president, as you alluded, said that this is going to be in litigation for five years. So I guess that suggests that the president, anyway, thinks that there’s going to be a lot of contestation here.

So that’s a foundational question: whether you go to CBP first in an administrative process versus going straight to the Court of International Trade. And does that turn on the liquidated–unliquidated distinction?

It turns on something else. And so the question about whether you go to court first, or whether you have to protest and then — if the protest is denied — then go to court, has to do with whether the administrative exhaustion requirement — that you have to go through this agency process first and give the agency a chance — is mandatory or not.

And there is some uncertainty in the precedent of the Court of International Trade about whether it’s mandatory. I think that ultimately there’s a significant likelihood that the Federal Circuit — which is the appellate court for the Court of International Trade — or eventually the Supreme Court again, is going to say that the administrative exhaustion requirement — that you have to protest and only then can you go to court if the protest is denied — is mandatory. I think there’s a pretty significant chance that the appellate courts are ultimately going to hold that that’s mandatory.

OK, and I take it just to be clear, because I don’t understand this area of law very well, that it’s the importers who paid that can bring the claims. They’re the only ones that can bring the claims.

That’s right. And this is something that’s been discussed more broadly, because as the economic impact of the tariffs has been discussed over the last year, there’s been this question about whether, and how much, the cost of the tariffs has been passed on from the importer to a retailer and then to consumers. And the answer to that is: some. And it’s hard to say exactly how much.

But the only party that has standing to challenge the assessment of the duty that was paid to the federal government is the importer of record. Whether there are other legal remedies down the line is a separate question. You know, whether consumers can sue companies is a completely separate question. But as far as seeking a refund of the tariff duty that was paid from the federal government, only importers can do that.

OK, before we get to what the government might argue, it just seems like this process is going to be a nightmare because of the scale of the issue. I mean, is CBP and/or the Court of International Trade set up to process all of these claims at this scale?

The short answer is, it seems that — like — no. And in fact, in that December filing that DOJ made —

What case was that again? Tell us about that case.

So that case was called AGS. And so there were about 1,500 — maybe 1,700 — companies, importers, that had filed lawsuits in the Court of International Trade back in November and December, even before the court had ruled. And the relief that those importers sought from the court was an injunction telling CBP not to liquidate any more entries.

And the hope there was that if CBP stopped liquidating entries, then once the Supreme Court ruled that the tariffs are unlawful, CBP could just liquidate at the lower levels. I think that was an optimistic request in a variety of ways. And ultimately the Court of International Trade denied the motion for an injunction.

And part of the reason why it did — the principal reason why it did — is because DOJ represented, and CBP represented, that it would be a complete logistical nightmare for them to suddenly stop liquidating. And it would create this rush of bureaucratic process all at once once the court rules one way or another. And so the government claimed then that it was going to be too much of a problem for them to put a stop on the process.

But now they’re in a situation where they are going to have to do it — and even more process — because they’re going to have to handle these protests and/or lawsuits, which is even more than they would have had to deal with if they had just stopped liquidation and voluntarily given the money back.

OK, and what — yeah, that’s good. So what has the U.S. government, in its legal filings — has it represented anything that it’s going to stop from re-litigating? What has it represented about — I mean — legal defenses, qualifications on a duty to refund, anything about the proper process? What representations has the government made?

In that AGS case, DOJ represented — along with its representations in maybe two dozen other similar cases, which were all consolidated together — that it would not oppose an eventual court order ordering CBP to re-liquidate previously liquidated entries for the plaintiffs. And that last phrase — DOJ was absolutely consistent in limiting its concession to relief for the plaintiffs in that case.

And that ends up being really important, because what it means is that what I think a lot of importers and general observers of this process may think — well, OK, look, all of these cases are basically the same. Why don’t we just have one case, and then the Court of International Trade says, OK, the Supreme Court ruled — we’re just going to order refunds for everybody?

And what DOJ has been saying — and this connects with a case that the Supreme Court decided last year about universal injunctions, Trump v. CASA — DOJ was saying that it was only conceding that the court had the power to issue that refund relief for the plaintiffs who have actually sued, not for anybody else.

The plaintiffs who had sued before Learning Resources was decided to allege that the tariffs were unlawful.

That the tariffs were unlawful and that they sought this relief about an injunction.

So are you suggesting that the government might argue that anyone who didn’t sue before Learning Resources can’t now bring suit and recover?

No, I don’t think it’s going to say that. I think what it’s going to say — and I think there’s actually a Supreme Court precedent that we can talk about that supports this view — is that they will grant refund relief, if they stick to this concession, to importers who sue later, but not to importers who don’t sue.

Yeah. In other words, there’s not going to be universal relief. That’s why you mentioned CASA.

That’s exactly correct. Yeah.

So you have to sue to get the refund. And the government is suggesting that you won’t get a refund unless you sue. Although my read of CASA was that the Supreme Court, if it issues relief, that decision would be binding on the government universally. So maybe — and again, we’re getting ahead of ourselves a little bit — a fast track to the Supreme Court might be one way to get universal relief.

Yeah, that’s absolutely right. I mean, my read of CASA is the same as yours. And I think that the Supreme Court did — you know, we can talk or not about whether this is a principled distinction that the Supreme Court made between its own remedial powers and the remedial powers of lower federal courts — but it did seem to hold for itself the authority to eventually order universal injunctions in a way that the lower courts cannot.

But the best-case scenario here is that we have cases that go to the Court of International Trade, and then the Federal Circuit, and the Supreme Court. And so maybe the Supreme Court ends up stepping in there and ordering a universal injunction. But we don’t know that for certain.

But are there no other — I mean, the Court obviously in CASA left open the possibility of many other forms of aggregate universal relief, just not universal injunctions — the class action process, complete relief, etc. Are there not other mechanisms that could, in effect, be like a class action here? It seems like there are a handful of jurisdictional issues that need to be resolved that are common to all of these cases — or at least maybe they could be clumped into two or three categories. Is that a possibility?

So the Court of International Trade does have its own class action rule, Rule 23. Whether that’s viable or not depends on a couple of other sort of antecedent jurisdictional issues. What I can say is that there has never once in history, as far as I can tell, been a class that was certified in the Court of International Trade seeking refunds of tariff duties paid.

Now, it’s certainly true that this is the largest tariff refund set of cases that has ever existed in American history, but it’s not the first. And so the reason why — and we can talk a little bit more about this jurisdictional question later that goes to whether you have to protest first or not — is that the jurisdictional provision, or venue provision, for challenging a protest says that only the importer of record can sue. And so it seems that that precludes the possibility of class action aggregation.

And there’s some precedent in the Court of International Trade to say that. And even if Rule 23 is viable for challenges to protests, there are going to be individualized issues. OK — did you exhaust your administrative remedies? Did you protest in a timely way? Was your protest properly filed in all of the technical ways that it needs to be? So even if Rule 23 is available, just as a general matter there’s going to be a serious question about whether Rule 23 is satisfied, because the government will likely argue that those individual issues predominate over the common ones.

Are there no common issues that could be lopped off and put into some kind of aggregate litigation, the way a claims process normally does these things? Is there nothing within the current set of rules or statutory jurisdictions that allows that?

I mean, I think the main common issue has already been decided — whether the tariffs were unlawful. The Supreme Court has already rendered its decision about that.

Now, there may be other arguments the government makes about why it doesn’t have to pay the money back. I tend to think those are quite weak arguments, but it may make some arguments about, well, equitably speaking it’s too much money for the government to have to pay back. There have been some gestures about that from the administration. So that could be a common issue as well.

But as is often the case in class action law, the liability issues are common — but the question of predominance really comes down to the relief.

Right. So that suggests to me one of two things. Either — and again I’m speculating — a lot of potential plaintiffs aren’t going to sue, because the money they might get back, discounted by the probability of recovery, will be dwarfed by litigation costs. That would mean the firms that paid a whole lot of money are going to bring the suits.

Or, if there can be a fast-track representative case that produces universal relief in the Supreme Court, that might be a way of getting broader refund relief.

A third option seems unlikely to me: that Congress could impose some process to expedite all this stuff.

Yeah. I’ll address your third possibility first. That’s clearly the best outcome — and I think there is approximately zero chance of it happening as long as President Trump is president. Any legislation Congress passed, even if it were willing to do it, you have to think the president would veto. So I think that the best solution here — that Congress creates a streamlined administrative process — is probably off the table for political reasons.

Then we get to whether smaller importers — those who don’t already have trade counsel at outside law firms — will have effective access to relief. And even within that, I think there are two categories that are worth breaking out. The first category is, you know, if it turns out that filing a lawsuit in the Court of International Trade is necessary, there's a $400 filing fee.

And so there are going to be some importers where, even if they had pro bono legal representation, you know, there are going to be tens of thousands of — you know — small, small, small importers. You know, somebody who has an Etsy shop or something like that, where it literally is not going to be worth paying the filing fee to get their money back. And that seems like a remedial failing.

But even if you're above that, then you're going to have the range of importers where it does make sense for them to pay the filing fee. And the question is going to be the structure of the legal profession's ability to provide that representation in a cost-effective way. And that's a very serious problem, because trade law is a specialized practice. And, you know, the big firms are really expensive.

So do you have — is there any way for you to guesstimate? The answer is probably no, but I’m going to ask you if you can do it anyway. I mean, what percentage is it? Again, this is maybe impossible to assess, but what percentage might we be talking about of potential plaintiffs who were assessed these tariffs that just is not going to — probably not going to — be cost-effective to try to get refunds? Is there any way to know that number or percentage?

The best information that we have on this — the best data — is that the thousand importers that had the highest volume of tariff payments account for approximately 80 percent of the total dollar value. And so if we do the math and just pick the midpoint of the estimates — let’s say there’s been $150 billion dollars’ worth of tariffs collected since the beginning of 2025 — that means that there’s $125 dollars that goes to these big companies that presumably have their trade counsel and they’re going to be fine. And then there’s another $30 billion dollars that is going to everybody else.

Now, some of those at the top end — you know, the thousand-and-first-largest importer — maybe they can hire a Wall Street law firm. But there’s going to be — you know — I think it’s fair to say tens of billions of dollars that the government has taken illegally. And there’s a real question about whether the importers are going to be able to, as a practical matter, get that money back.

And are the thousand big firms that you just talked about — are they the ones largely who have already brought suits last fall?

Interestingly, no. And this goes to some of the issues that you and Bob have talked about more generally. So there are some big companies like Costco, for example, who brought suit. But a lot of them are smaller companies, and interestingly ones that are owned by private equity firms.

The big companies — the biggest, biggest payers — Walmart, Amazon, and so on, have not filed, too. Now, the reason why is they didn't need to. It was not yet time where they needed to take a public stand. And notice that the plaintiffs in Learning Resources — it was Learning Resources, you know — and then one of the other cases was brought by a small clothing company called Princess Awesome that makes sort of little girls' clothes — that's sort of positivity about Wonder Girl.

And these are small businesses. And the best guess that I can give about why that is is that large corporations like Walmart, like Amazon, have been concerned about the possibility of retribution from the administration.

Yeah. And I take it — that’s what I would have assumed before you said it. And that’s happened in other contexts. I wonder — do you — is there any sense in the news about how these big companies that could get potentially large refunds are thinking about the financial gains versus the political and retributive costs?

I think the best indication that we have is that the trade associations are already issuing press releases calling on the federal government to give immediate refunds — you know, holding aside the fact whether that was even possible. But, you know, the fact that the trade associations are out there now speaking clearly — you know, we don't yet have press releases from Walmart. But, you know, I think that, you know, before they thought it was maybe unnecessary for them to stick out their nose. But now, you know, this could be $10 billion for Walmart. I think that's just — yeah — it's real money. And so I don't think that they're going to just let it slide.

Yeah. OK, what else — what else haven’t we discussed that’s important in understanding this issue? Is there anything else?

I mean, the only other thing that I think is really important here is — well, I’ll say two things. The first is that these administrative exhaustion requirements — the Court of International Trade has been a little bit wishy-washy. And actually, in the AGS case that we talked about before — which was the Costco, etc., those other companies had sued in December.

The court, when it denied the motion for an injunction, said essentially that there was an avenue for judicial review that didn’t require protesting. And that draws on a line of cases going back about 25 years in the Court of International Trade and the Federal Circuit that suggested that this protest administrative exhaustion requirement was at least sometimes optional if it was futile. Now — and the argument here is that protesting would be futile because CBP was just following orders from the executive order.

Now, I think that futility argument is weaker now than it was before, because the executive order has been determined by the Supreme Court to be unlawful. But even beyond that, there’s a lot of Supreme Court precedent that says that when you have a statutory exhaustion requirement, it’s mandatory. And courts can’t carve out exceptions to that. So I think that there’s a significant risk that what the Court of International Trade has already said about these cases is actually going to get reversed on appeal.

So let me ask you one final question. Politico said in the story in the last couple of days — I'm just going to read from it — the Justice Department and parties in the tariff litigation have already asked the Court of International Trade to establish a steering committee to coordinate the more than 1,000 refund-related cases now pending. A common step in large, complex trade disputes. Was that the Rule 23 process you were talking about earlier, or is that something else?

No, that’s something else. And this is something that is borrowed from the multidistrict litigation process for mass torts. And so these are cases where — so the most famous recent one is there’s a military base, Camp Lejeune, where there were toxic chemicals, and some tens of thousands — maybe even hundreds of thousands — of service members and their families were exposed to these toxic chemicals and got a variety of forms of cancer.

Now, this can’t be a class action, because every case has — you know — you have to have the medical records for every case, et cetera. So they’re individual cases, but they get grouped together in one court that then handles all of these cases and comes up with a judicial administrative process to make it more efficient. And it often — so the process often involves picking what are called bellwether cases to go to trial first.

Now, in these tariff cases, there’s not going to be a trial, but it makes sense that they would litigate one or just a handful of cases first to see what the government’s defenses are, and then sort of come to a judicial determination about whether those defenses are valid, whether it has to go to the Supreme Court again or not. And then whatever the legal resolution of those cases, those bellwether cases would just apply to all of the other cases that had been filed in court. But that still requires everybody to file a lawsuit.

Right. So last question — and it's a bit of a wrap-up, but it may be repetitive. So one question is: who can take the initiative? Which institution can take the initiative to make this more efficient and more fair — this process of refunding the illegally collected, the illegally collected moneys?

Congress could do so, but it's not going to. The Trump administration could maximally refund unilaterally within whatever the law permits it to. Probably unlikely, I'm guessing. We've just been through a couple of different alternatives that the Court of International Trade might pursue. We've talked about a fast-track case in the Supreme Court, which might be able to give a type of universal relief. Is there anybody else in the system anywhere that could improve this process, or are those the options?

Those are the options, as best I can tell. You know, I think it's worth underscoring again — Congress could fix this problem, but Congress and the president won't do it. CBP could, as you say, maximally within the procedures and legal framework that exists right now. You know, it's remarkable — CBP is, as of today, still assessing IEEPA tariffs because they haven't issued new guidance. And it's not until they issue new guidance that they'll stop assessing IEEPA tariffs. And so, you know, the level of administrative — let's just say slow walking — is remarkable.

Yeah. OK, thank you very much, Matthew. That was elucidating.

Thanks, Jack.

Mentioned:

• “The Bad News in the D.C. Grand Jury’s Refusal to Indict Six Members of Congress” by Bob Bauer (Executive Functions, Feb. 12, 2026)

Thumbnail: President Donald Trump on Nov. 20, 2025 calls for the prosecution of lawmakers who urged service members to refuse unlawful orders. (Truth Social.)

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.

This morning, we’re going to discuss actions taken by the Trump administration against six Democratic members of Congress, all former military or intelligence officials who are serving in Congress, and who produced a video in which they counseled that members of the U.S. military can or must refuse legal orders, which is a true statement of law.

The president had an allergic reaction to that and said that they should be arrested and put on trial. Subsequently, Secretary of Defense Hegseth criticized in particular Senator Mark Kelly, who is a retired naval captain subject to retirement benefits, saying that he acted illegally in trying to influence the chain of command and to influence discipline in the military, and suggesting that he could be subject to criminal actions, and also suggesting he could be subject to his retirement benefits being reviewed and perhaps reduced.

And then subsequently, DOD took that action against Senator Kelly to try to reduce his retirement benefits. Senator Kelly sued the Department of Defense, and yesterday Judge Leon issued a preliminary injunction enjoining those proceedings against him.

And also earlier this week, we learned that a grand jury in the District of Columbia refused to indict the six members of Congress who produced the video under — I believe — the statute that the U.S. Attorney in the District of Columbia had sought indictment for was 18 U.S. Code 2387, which talks about interference with the loyalty, morale, or the discipline of the military or naval forces.

So these were members of Congress speaking out in their capacities as members of Congress. The Trump administration tried to bring legal proceedings against them and failed on both counts.

Let’s start with Judge Leon’s decision yesterday, the injunction enjoining this Hegseth–DOD action. What do you think about it?

It’s a very strong opinion, strongly expressed. He doesn’t, by the way, review all of the defenses that Senator Kelly put forward. He didn’t really address the separation of powers questions or speech and debate questions.

He layered the fact that Senator Kelly is a sitting member of Congress in an opinion that was largely focused on his First Amendment rights as a retired serviceman. But it’s very difficult to see the opinion as anything but strong. By the way, it’s, as I said, strongly expressed. I lost count of the number of exclamation marks. He literally showers the government with contempt and does not see the issue as a close one.

Yeah, I didn’t think the exclamation marks were terribly judicious, but I agree the opinion was largely persuasive. There are a couple of difficult legal issues. The whole question of the scope of judicial review and the timing of judicial review over discretionary military actions like this is a little murky to me, and his analysis of that was pretty compressed.

There’s also an open question about — I have no doubt at the end of the day that this was retaliation for the exercise of First Amendment rights and that Senator Kelly will prevail at some point — but there’s also an open legal question about whether, let me just say that members of the military have significantly diminished First Amendment rights. So one question is whether, as a retired member of the military, still subject to military discipline, receiving military benefits, subject to being called up again, Senator Kelly — how much, if at all, are his First Amendment rights diminished?

And how is that impacted by the fact that he sits on the Armed Services Committee and the Intelligence Committee and is a member of Congress? These are all novel issues that will ultimately need to be worked out. But it’s an amazing rebuke, especially coming in the context of the grand jury refusal to indict — which almost never happens.

It’s so rare that a grand jury fails to indict. We’ve seen it a lot in this administration, but this was an especially noteworthy one.

It certainly was. There’s a report out that the U.S. attorney brought somebody onto the case who hasn’t practiced law for a number of years. I mean, we may be seeing again the effects — I’ll have to look into this a little bit more closely — but the effects again in this case of a Department of Justice that is thin on talent and having difficulty recruiting people who you would want to bring the cases that they care the most about.

But I think it’s troubling that they sought to bring the case at all. I mean, I want to go back to something the judge, as I said, layers into the opinion, but doesn’t put as much stress on it as I would have liked to see. And that is that Senator Kelly is a sitting United States Senator, and the administration threatened him and pursued him with legal action for fundamentally disagreeing with the administration — and disagreeing with the administration by articulating, as you point out, a point of law that is absolutely correct, as stated was absolutely correct.

That may not make any difference in some respects because perhaps they could have disagreed with each other about whether that point of law was correct. In this case, it clearly was. But I just think the attack on sitting members of Congress — the weaponization of the law against them over what is flatly a fundamental policy or legal difference — is an extraordinary expansion in the weaponization program of this administration.

Right. I mean, the civil case by the Defense Department over Kelly’s retirement benefits raised a lot of technical questions. I’m confident Kelly will prevail ultimately. But the criminal action against members of Congress, some of whom weren’t in the military, for stating an opinion about the legality of the Defense Department’s actions is — I’m not sure — I don’t think it’s actually going to fall within the speech and debate clause — but it can’t be the case that the administration can retaliate with criminal process against a member of Congress for offering opinions about the legality or even the prudence or whatever of the Defense Department’s actions.

And the fact that a grand jury wouldn’t indict is pretty good evidence of how thin the legal case was.

I could not agree more. It’s astonishing, as I said before, just remarkable that the case was brought. Remarkable that — and admirable that — the grand jury rejected it.

Let me ask you this, Bob. You said this is an extraordinary case of weaponization, and I agree. I mean, the president gave marching orders when he had this allergic reaction, and the U.S. attorney in the District of Columbia and the secretary of defense tried to execute those marching orders, and they both failed, at least as of today.

But one — someone might say, well, this is an example of failed weaponization. It didn’t work. The courts or the legal system rebuked both efforts, and therefore this is a victory against weaponization. I don’t think that’s your view, right?

No, I don’t. I think there’s — as I wrote in a piece yesterday — it’s good news and the bad news. The good news is the grand jury rejected it. The bad news is that the administration — and there had to have been lawyers in the administration who knew the case was weak — brought it anyway. And that suggests that they’re hell bent on pursuing these paths.

And we should never discount the costs of these kinds of cases being brought, even if they’re brought ultimately unsuccessfully. They target people. They put them to the expense of defending themselves. They have to deal with leaks in the press and the entire communications problem around looming criminal action against them. These are not costless.

And the message that the administration is sending is we are prepared to do this to our political enemies. I think that — that — that is extremely dangerous. There’s no reason to think that because they failed in this instance, they won’t attempt to do it again.

Right. And I want to emphasize that point. I mean, the impact of these cases, even if they fail, is not limited to the six Democratic lawmakers. What the administration is basically saying is we will use every tool at our disposal, and we don’t care if we win or lose in court. We’ll use every tool at our disposal to do harm to people who disagree with us.

And you know, Senator Kelly is retired and he’s got another salary and he’s going to be fine no matter what happens. But the impact of this goes beyond Congress. It goes throughout DOD. I think that they’re — I’m confident that this has a chilling effect on every action within DOD in terms of whether people are afraid to disagree over some matter. The lawyers who are offering legal advice, I’m sure, are impacted about this.

The deterrent effect is much broader, even if they lose, than these six, because it’s costly. It’s reputationally costly. It’s stressful, and people don’t like to go through this. So I think even though these cases failed, they’re like many things in the administration: they lose in court, but they might still win — and within their worldview of what counts as winning.

Absolutely. We’ve seen this in other areas — unrelated areas. I mean, they’re related in theme, but they involve not a conflict between Congress and the executive branch, but the executive branch and private organizations. The attack on the law firms — these executive orders were issued. They’re no longer being issued. There are no new ones after the wave, the first wave that the administration issued, but they were able to create a kind of interim environment in which it appears from the reporting large law firms are thinking hard about taking steps that could conceivably provoke the administration.

Now, maybe that period of time has passed because the administration appears to have moved on from these attacks on the law firms. But there’s no question there’s an intimidation factor. The administration is perfectly happy to generate, to put into play, even if it knows that ultimately it’s not going to win.

It's not going to win in court, but it can still win within the executive branch and even vis-à-vis Congress. You can imagine some members of Congress being intimidated at the margins by this.

Absolutely. Now, it is interesting, speaking of the grand jury rejecting the charges, it is interesting that in this instance we have heard Republican members — and not the ones from whom we hear dissent from time to time, but Republican members generally — expressing grave reservations about the steps that were taken against the six Democratic lawmakers. So that’s interesting. They recognize that this is a problem for everybody — Democrats and Republicans — and for the institution of the Congress as a whole.

So that may have some effect on the administration — that in this instance the president may not be able to rely on his own party to support him in this course of action.

But those steps — I mean, they didn't do anything about it. There was no pushback from Congress as an institution. I agree there were a few members on the Republican side who said this wasn't a good idea. But one would have imagined a much more robust reaction across the aisle from Congress at this pretty aggressive intrusion on congressional prerogatives.

Yes, but it's also possible that if there's a next round, the response will be more robust, especially in light of the grand jury. It’s so embarrassing to the Department of Justice, just turning those charges away, just rebuffing the government in the submission of those charges. And it may strengthen the hand of Republicans who say that, you know, they cannot support this and pressuring the administration to desist. Again, I'm speculating — maybe not.

So let’s talk about — in your piece yesterday, you proposed a reform. You talked about how bad this is from a separation of powers and free speech perspective in terms of congressional prerogatives. And you proposed a reform, not for now, but for later. After this administration, you proposed a reform to dampen the executive branch’s ability to bring a criminal action like they did — tried to bring — in the District of Columbia. Why don’t you just outline that?

Certainly. It seems to me that this is a category of criminal prosecution that the executive branch should not be able to proceed with in an unfettered fashion. So I proposed that the Attorney General of the United States be required to apply to the United States Court of Appeals — a division of the United States Court of Appeals — for the appointment of a special counsel in any case where they are targeting a sitting member of Congress.

Now, we know from United States that the Attorney General cannot — the executive, the president — cannot be dispossessed entirely of the power to exercise prosecutorial discretion, proceed with the prosecution. So the Attorney General would have the ultimate say. But at a minimum, the Attorney General would not be able to pick the lawyers who evaluate and ultimately decide whether to bring the case.

The court would appoint such a lawyer, presumably to appoint a lawyer that had the reputation and background that would suggest an independence of judgment — that would confront the administration over the merits or lack of merits of a particular prosecution.

Just to make this short, the special counsel would have to report to the Attorney General, but any steps that the Attorney General made to overrule a prosecutorial choice by the special counsel would have to be reported to the Congress. And in the end, if the special counsel recommends against prosecution, the Attorney General decides to proceed anyway, that too — that decision to overrule the special counsel — would have to be made known to the Congress.

And at that point, there’s nothing more that can be done by law. The ordinary operation of politics would have to do the work, and the administration would have to defend a prosecution that was brought in the face of a recommendation of the contrary by the special counsel.

But yes, it’s a little bit of a — it’s an echo of the independent counsel statute of old, but that statute was directed toward investigation of wrongdoing in the executive branch to try to introduce some independence in the executive branch prosecution, if you will, of itself. And this is different. This is an attempt to shore up the separation of powers and to protect the Congress from what we see the Trump administration doing right here.

It would seem to me that members of both sides of the aisle would have an interest in a reform of this nature.

So I disagree, not surprisingly. I don’t think it’s going to be fruitful to discuss much whether this proposal would be constitutional. I tend to doubt it. I would have doubted it before Trump v. United States. I especially doubt it after Trump v.United States, given what the Court said about the president in robust terms and in an extreme context about the president’s exclusive power over investigation and prosecution.

But setting the constitutional issue aside, I just don’t think it’s a good idea. And the reason I don’t think it’s a good idea is I just don’t think it’s — Congress has plenty of tools to protect itself that don’t require it micromanaging how the executive branch chooses lawyers and brings prosecutions, which I think is a bad idea. It could change the criminal laws. It could just fix the criminal laws. It could exclude Congress from whatever criminal laws it wanted. It could put conditions on the criminal laws for when they’re implicated. Congress also has a constitutional speech and debate clause that it can — to protect itself.

And moreover, one of the big problems with the independent counsel statute was that it politicized the courts. The courts got in the business. It was very controversial when the courts appointed Ken Starr to pursue Bill Clinton. And one of the things that were mentioned in the 1990s, when there was unanimous agreement that the independent counsel statute was terrible, was it had the impact of politicizing the courts.

So why wouldn’t it be better for Congress to stay within its lane of its Article I powers? You’re going to tell me this is an Article I power — but why wouldn’t it be better for them to simply change the criminal law that can apply to them?

It won’t do it for a couple of reasons. There are major collective action problems we’re all familiar with. We also know that we live in a system — and it doesn’t look like it’s going to change anytime soon — where we have a separation of parties rather than a separation of powers that seems to significantly diminish Congress’s interest in or ability to defend its institutional prerogatives. And I don’t think that we should leave it to Congress in this era of our politics to give up that kind of ground.

I think we should take steps to shore up Congress’s ability to protect itself and to provide it with incentives to protect itself. So I think that on paper everything you say is correct about Congress having the tools to respond, but it cannot be counted upon to use those tools. We probably should doubt that it will use those tools.

Also, the courts here have a much more limited role under my proposal than they did under the independent counsel statute. Here they’re limited to counsel selection. They don’t have any ongoing supervisory role. They were much more deeply enmeshed in the operation of the independent counsel statute. So I’m taking into account that experience. And I think in that respect, I think that the factor of politicized judicial involvement — or the risk of politicizing judiciary — is diminished.

And let me just close. I’m sure I won’t persuade you on this. I just set out in the piece the reasons why I thought there was constitutional space for affirming a reform of this kind. But we are in a completely different era now where, contrary to the concerns, for example, that Justice Scalia entered in his famous dissent in Morrison v. Olson upholding the independent counsel law, the risk of weaponization here is of a completely different order. And this is an anti-weaponization statute or reform. The one that I’m proposing is an anti-weaponization reform. And Justice Scalia was concerned that the independent counsel statute was a weaponization vehicle. So it’s the exact opposite. My reform would flip it into a completely different function. That’s how I see it.

I’ll say a couple of things, and I’ll give you the last word.

One, I think you can call it anti-weaponization, and I understand the differences with the independent counsel statute. Every one of these things — experience since Watergate has shown — that every one of these mechanisms to try to put a prosecutor with some distance from the attorney general has ultimately become very, very politicized and weaponized. And I think that would happen here too.

Second, the court’s decision to choose a lawyer is going to be massively controversial, and that will become politicized in the courts — even if they have no more ongoing role — that would become part of the political debate in ways that I think were terrible for courts back then, and I think would be now.

And third of all, I don’t understand a world in which — yes, separation of parties, not powers, which means it’s very hard for Congress to pass legislation — but I don’t understand a world in which Congress could pass legislation to do this statute that pretty clearly gets into the Article II business, would have the support in Congress — the bipartisan support in Congress — to do a reform of that type, but not do a reform of substantive criminal law.

I mean, basically, those are two separate options for Congress enacting statutes, and it seems to me that if Congress is worried about how the president might enforce criminal law against it, it should change the criminal law and not try to change the Article II process.

Well, before I respond, can I ask you one question? What kind of reform of the criminal law — if something had other tools they have to punish the executive for doing this — what other reform of the criminal law do you have in mind?

I mean, we don’t know quite what statute, but the statute that apparently — if it’s 18 U.S. Code 2347 — the statute could say this statute does not apply to members of Congress. So members of Congress are just not subject to the criminal prohibition about interfering with, impairing, or influencing the loyalty, morale, or discipline of the military. And any statute in which they thought that there was a chance of that happening, they could go through and act within their prerogatives to control the content of federal criminal law, to give themselves the space they think they need to be able to exercise their First Amendment rights.

And moreover — I mean, your proposal applies not just in weaponization cases, but it would apply in genuine cases of congressional corruption. Basically, you’re saying that in a real case of congressional corruption, that the Justice Department is going to have to be stuck with whomever the court says should prosecute that case. I just don’t think that is a good solution when Congress has more direct solutions.

Well, let me just — a few closing points about that. First of all, I’m totally open to statute-by-statute amendment to protect the Congress in circumstances like this. I’d have no objection to that. And if it turns out it’s easier for Congress to do that — which is a pretty thoroughgoing law reform project — than what I propose, then at least, you know, you and I share the same objective, and there’s a law reform that maybe we can agree on. So I’m totally fine with that.

Even public corruption cases in the past have been highly controversial. The administration can — any administration can — gin up a public corruption case under the very elastic theories of criminal liability that we have against a member of Congress that is 100 percent powered by political animus. And that has been a claim that, you know, maybe rightly or partially or wrongly, defendant members of Congress have made in the past — that they’ve been picked out for a particular charge because the administration is trying to take them out politically. And so I don’t see any problem with, as you put it, sticking the administration with a court-appointed lawyer in those circumstances.

I just think that what we are seeing now with this administration is a commitment to weaponization, as you point out, that is indifferent to the merits and is looking to achieve an intimidation factor that requires a radical rethinking of constraints on the executive branch, where it is trying to, in effect, dominate the United States Congress, where it’s trying to basically undermine the ability of the United States Congress to perform a critical constitutional checking function.

And we could say, well, when Donald Trump leaves, that’ll end. I don’t know that that’s the case. We see it, and we should respond to it in some way. But, by the way, I do like your suggestion of going statute by statute. I just wonder whether that — as I said — sort of thorough law reform project is more likely or less likely than what I propose. But I think it’s a perfectly good idea to address the problem that way, too.

Well, let's end on that note of semi-agreement.

Yes, it's good.

Thank you, Bob.

Thank you, Jack.

Since this chat was recorded, President Trump today signaled support for the Chagos sovereignty transfer, or at least a rollback of his criticism.  He also said: “If the lease deal, sometime in the future, ever falls apart, or anyone threatens or endangers US operations and forces at our Base, I retain the right to Militarily secure and reinforce the American presence in Diego Garcia.”

Mentioned:

• “Britain’s Chagos Deal Can’t Go Forward Without U.S. Consent” by Richard Ekin (National Review, Jan. 30, 2026.)

Thumbnail: Diego Garcia photographed by the Sentinel 2 satellite in 2021. (European Space Agency / CNES).

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’s chat is about Great Britain’s plan to hand control of the Chagos Islands in the Indian Ocean to the Republic of Mauritius. This event may seem irrelevant to executive functions, but it is quite relevant for two reasons. The Chagos Islands are home to the vitally important U.S.–U.K. military base, Diego Garcia.

And until yesterday, anyway—and the news reports are still unclear on this—President Trump has been a strident critic of the impending deal. To help sort this out, I’m going to chat with Professor Richard Ekins, who is a professor of law and constitutional government at Oxford, a distinguished global professor of law at Notre Dame, and head of the Judicial Power Project at Policy Exchange, a leading U.K. think tank. Professor Ekins is an expert on this matter, and he’s been very critical, in publications both in the United Kingdom and the United States, of the British government’s plan to return sovereignty over the islands to Mauritius.

Richard, good morning. Can you explain, for listeners who don’t know much—if anything—about this, the background to this episode?

Richard Ekins: Sure. So, the Chagos Islands are an archipelago of about 60 islands in the Indian Ocean, 300 miles south of the Maldives, 1,300 miles northeast of Mauritius. As you say, the Diego Garcia base is located therein.

Diego Garcia is far and away the biggest island in the archipelago and exceedingly well located, sometimes referred to as the Malta of the Indian Ocean—a single aircraft carrier, as your term is familiar, I’m sure. So, a very, very significant base. The Chagos Islands became part of the British Empire in 1814, as part of the Treaty of Paris.

They were, before that, French, and ceded to the U.K., to Britain, in 1814, along with Mauritius and the Seychelles. And in 1965, the Chagos Islands were excised from the colonial territory of Mauritius. They were nominally administered as part of the colony of Mauritius, despite being a very long way away and having no meaningful connection other than that sort of accident of colonial boundaries.

So, they were excised from the colony of Mauritius, renamed the British Indian Ocean Territory, and preparations were made for a U.S.–U.K. military facility. The Mauritian government was compensated for this. This was in advance of independence.

Mauritius became independent in 1968. The people who lived on the Chagos Islands, the Chagossians, were removed from the islands, and the base was built. In 1982, Mauritius initiated a claim to the Chagos Islands, having otherwise said, well, they’re British.

Mauritius played quite an effective hand through the international institutions across the subsequent decades. I think it did a very effective job of leveraging the injustice done to the Chagossians, who were removed in a pretty high-handed fashion, without adequate compensation being paid.

In 2017, Mauritius persuaded the General Assembly to refer the question of the Chagos Islands to the International Court of Justice for an advisory opinion. That was over the head of the U.K. and the U.S., who said this was an inappropriate matter for an advisory opinion—there’s a live dispute between Mauritius and the U.K.

In 2019, the International Court of Justice issued an advisory opinion saying the decolonization process in the Chagos Islands had been incomplete. The U.K. government said, well, it’s an advisory opinion; we’re not going to do anything about it, thank you very much.

In 2021, a special chamber of the International Tribunal for the Law of the Sea, in a dispute between the Maldives and Mauritius, took for granted that the 2019 advisory opinion had established that Mauritius was sovereign.

In 2022, the then Conservative government of the U.K. entered into negotiations with Mauritius about the future of the Chagos Islands. I published my first paper for Policy Exchange on this matter in 2023, saying it was a very bad idea to hand the islands over.

The then government didn’t. But in October 2024, shortly after they came into office, the new Labour government of the U.K. reached an agreement with Mauritius to transfer sovereignty and lease back Diego Garcia for 99 years, with substantial annual payments to be made each year for continued use of the base—or the island for the base, I should say.

The agreement has yet to be ratified. It was officially signed in May 2025, but the parliamentary process for ratification hasn’t been completed, and it’s not clear, obviously, whether the U.S. administration supports it or not. That’s where we’re at.

Okay, great. So, I want to talk about legal issues first, and then we can talk about policy issues, and they may blend together. So, there’s a 1966 treaty between the United Kingdom and the United States that says the territory shall remain under United Kingdom sovereignty—referring to the Chagos, I believe, or Diego Garcia?

No, referring to the whole Chagos Islands, and actually an island chain off to the west of the Indian Ocean, too. That was handed over to the Seychelles when they became independent in 1976.

Okay, and you’ve argued—and I think the U.K. government has acknowledged—that United States consent under that treaty, the 1966 treaty, is a prerequisite to the transfer of sovereignty to Mauritius. So, did I get that right, and can you explain that?

Exactly. I mean, this came sort of to light in some public discussion only a few weeks ago, when President Trump came out and denounced the agreement on the 20th of January. I think the U.K. government had understandably thought American consent was in the bag, but it was made clear—by me and by others—that we have a treaty commitment, the U.K. to the U.S., that the Chagos Islands will remain under U.K. sovereignty. And unless that’s changed, if we go ahead and transfer sovereignty to Mauritius, we’ll be in breach of the 1966 treaty.

So, that treaty has to change—that agreement has to change—before ratification can go ahead, at least can go ahead without the U.K. immediately being in breach of the treaty with the U.S., and being in breach of its treaty with Mauritius, because we agree in that treaty that we’re not breaching any other obligations when we hand the islands over.

So a couple of questions here. First of all, I guess we should first talk about what is the U.S. position as of Thursday morning? I mean, President Trump several weeks ago said this was a stupid idea; the impending transfer represented, “total weakness,” and was great stupidity.

It seemed then that he was going to veto this or wasn’t going to give consent. In the last 36 to 48 hours, I’ve read news reports in Great Britain—but less certain in the U.S. news reports—that President Trump is indeed going to consent. There’s been some agreement reached.

Can you tell us where things stand as of Thursday?

Well, it is unclear, as you say. So, there were news reports last night in the U.K. that, surprisingly, in a way, President Trump was going to sign off, and that Number 10 was awaiting a phone call from President Trump to sign off, so to speak—which was a surprise.

And the news reports suggest that somehow Prime Minister Starmer had persuaded him that all was well. It’s a suggestion that further security assurances were going to be given by the U.K. to the U.S. Quite unclear what that means. Quite unclear, actually, how the U.K. would be in a position to give further assurances, unless that means reopening the treaty with Mauritius—but there’s been no suggestion of that yet.

So, we have to wait and see if it’s true, in fact, if that is President Trump’s position, and if he is, in fact, going to let this go forward.

Okay. Let’s talk about what’s been in the background—the security assurances. Just explain why Diego Garcia is so important and what the concerns are from a military, national security, defense perspective. Just list the concerns as you see them from transferring sovereignty from Great Britain to Mauritius.

Well, so it’s an exceedingly significant air and naval base because of its location—very good for projecting power into all sorts of utterly critical locations. I think that’s acknowledged by—

Flesh that out, I mean, a little bit.

Oh, so, well, I’m not a military expert, but I think given the—

The standard understanding of the importance of Diego Garcia.

Sure. So, it was used throughout the Iraq wars. It’s a base that is within striking range of the Persian Gulf and the Straits of Malacca. And if you’re looking at the map, it’s sort of right in an utterly critical position for, sort of, dominating the Indian Ocean—maybe not dominating, but projecting power from.

So, there are very good reasons why the U.K. has wanted to retain control for defense purposes, and why the U.S. has viewed it as very significant too. And I think there are a host of important U.S. Navy facilities there, and Air Force, and so on.

So, it’s, I think, very widely acknowledged to be extremely significant. The question is, in the U.K. government’s argument for, sort of, handing the islands over to Mauritius is: yes, it’s a very significant base; they’re not attempting to diminish it. It’s because of its significance that we have to reach an agreement with Mauritius. That’s their argument—or at least their headline argument. There’s another argument going on beneath, I think.

I don’t buy the argument, because I think exchanging U.K. sovereignty, subject to Mauritian challenge, for Mauritian sovereignty, subject to the terms of the treaty, is a bad trade. I think it’s a bad trade for a host of reasons—but to begin with—the term of the lease agreement is 99 years. There is an option of renewal, but the option is not practically enforceable, I think, and one could certainly foresee it not being capable of being actually exercised.

And it’s perfectly foreseeable that in 99 years this will remain an utterly critical strategic asset, which would be foolish to yield—not to be able to continue to exercise, or worse, to be taken up by a hostile state, the obvious one being China, but who knows what things are like in 100 years.

So, I think it’s short-sighted. But even within the 99-year period, I think exchanging U.K. sovereignty—again, subject to Mauritian challenge—for Mauritian sovereignty introduces dangers that are not otherwise there.

And the dangers being that, yes, the U.K. and the U.S., according to the terms of the treaty, will remain in sort of exclusive control of Diego Garcia, and there are some related legal risks we’ll probably come to, but they’ll stay there on the island.

But there are a lot of other islands in the archipelago, and their use—or their misuse—would be a security risk for Diego Garcia. Now, the terms of the treaty provide for the exclusion of foreign military forces from there, but there are options open, including Chinese fishing vessels, or nominal scientific installations, or so on and so forth, where, if projects go ahead there—which the U.K., as it stands, could simply deny and evict—things could go ahead that pose a threat to the base.

So, what are the—two questions, actually. One: what is the reason beneath the stated reason why the British government is doing this?

Yeah, so I said the reason beneath. I think there’s a mix of two. So, one is post-colonial guilt, which is related to—it’s maybe part and parcel of the same thing—but the Chagossians, as I said, were badly treated in the late ’60s, early ’70s.

Now, they’ve been compensated, and in a sense more recently compensated. Very many of them are now British citizens, but there’s, I think, understandably, a kind of guilty conscience about what went on. And Mauritius has done a very good job at leveraging that injustice and that guilty conscience into a “you can remedy it by transferring sovereignty to us.”

That’s certainly the view of many international human rights lawyers and similar. Now, I think it’s nonsense in a way. I think actually going ahead with this treaty will compound the injustice rather than address it, because Mauritius has a very poor record for how it deals with the Chagossians. Most Chagossian groups are opposed to the treaty.

So, it’s a misleading ground for action, but I think it’s part of what’s in the mix.

The other ground, which maybe is even more interesting, is I think there’s a certain vision of international law that’s driving the present government. The present government was led—Keir Starmer was a distinguished human rights lawyer; his attorney general was a leading human rights lawyer as well.

They have a certain understanding of international law, human rights, that I think drives their approach to governing. And this was a decision made, you know, to hand the Chagos Islands over—a decision made early on in their government, before, frankly, things started to go wrong and they had to think more prosaically about the project of governing.

And it’s an early speech given by our attorney general where he refers to the succession of the Chagos Islands to Mauritius as, “this showcases our sort of total commitment to the rule of law.” Now, again, I think this is nonsense.

I don’t think international law requires the U.K. to hand the islands over. I think, in fact, we’re surrendering to the abuse of international adjudication—effectively letting an International Court of Justice advisory opinion function like a binding adjudication—when the U.K. didn’t consent to adjudication, doesn’t have to consent to adjudication, and yet is being—having that sovereign right subverted.

But I think that that’s definitely part of what’s going on. And you can partly tell that not least by public statements, but also what the Labour Party was saying when they were in opposition, where there were many appeals to the international rule of law as just making it obvious we have to hand the islands over.

Okay, I want to come back to that vision of international law in a moment, but let’s move to, I think, what you’re referring to when you talk about legal risk for the United States. So, explain what potential restrictions there are under the transfer of sovereignty treaty between Great Britain and Mauritius—what possible restrictions there could be on the United States’ use of the base.

I’m thinking about—and it’s actually a different treaty; you can explain this to us—the possible storing and usage of nuclear weapons from there, and the use of force generally. Can you explain what the legal regimes are that might impact that?

Sure. So, I mean, the terms of the treaty: the Chagos Islands, including Diego Garcia, become sovereign Mauritian territory, but the U.K. will have effectively exclusive control over Diego Garcia. So, it will be a U.K.-based—well, U.K. facility—which is jointly operated with the United States.

And the U.K. will undertake various commitments to Mauritius in relation to this, one of which is that all operations that take place out of Diego Garcia will be compliant with international law, which obviously includes prohibitions on the use of force.

And U.K. consent is required before Diego Garcia is used for U.S. operations. That’s the case now; it’s the case after this treaty goes ahead. And so, the U.K. really will be undertaking to Mauritius that it won’t let the U.S. use the base as a base for military operations unless it’s compliant with international law prohibitions on the use of force.

So, it’s perfectly foreseeable if, say, the agreement were in place now and President Trump decided to tamper with his reaction against Iran in support of the protesters—serious argument, of course; not saying compelling, but serious argument—that that would not be compliant with international law, and that would place pressure on the U.K. to deny use of the base to the United States for that purpose.

And now, those arguments would loom large with the U.K. in any case, but Mauritius would have standing to insist that we were in breach of the agreement if it took the view that the actions that were going on there were non-compliant.

So, I think you’re adding in not just, you know, what does the U.K. think about the use of force? The U.K. may take a different view to Mauritius, especially if Mauritius comes under pressure—as is entirely foreseeable, I think, in the medium term.

But—and what about the Treaty of—is it Pelindaba?

Pelindaba, yeah—nuclear-weapon-free zone. So, Mauritius, along with a lot of other African states, has undertaken to prohibit the stationing of nuclear weapons on its territory. If this treaty goes ahead, Diego Garcia will be Mauritian territory, and the Treaty of Pelindaba will apply.

And so, Mauritius will be required, as a matter of that treaty, to prohibit the stationing of nuclear weapons on Diego Garcia. Now, the U.K. government seems to have either persuaded itself, or will think, there’s some way around this—that this just won’t be a problem.

And I don’t really know what they were thinking, other than maybe Mauritius just won’t be that interested; it’ll look away, which doesn’t seem a sustainable strategy—especially given that any signatory to the treaty can raise this as a concern, and there can be forced inspections to determine if nuclear weapons are being stationed.

There are arguments about what “stationing” means, but it seems there’s a pretty serious risk that the U.K. and the U.S. would be placing Mauritius in breach of the treaty.

And then, of course, Mauritius could say, well, you can’t place us in breach, and thus you’re in breach of the agreement, and we’re entitled to countermeasures—we can let the Chinese set up a base on the other islands without being in breach of the treaty ourselves, et cetera. It’s quite hard to know how this would exactly unfold.

It looks like there’s a pretty serious legal risk to me there.

So, this leads to the thing I really don’t understand about all of this. I understand the current U.K. government’s vision of international law, I understand that perspective. I understand the guilt argument clearly. I can understand why the U.K. might want to transfer sovereignty here.

What I don’t understand at all is why the U.S. is even thinking about giving consent. That vision of international law is the antithesis of the vision of international law that the Trump administration holds.

Given—just to go sideways a little bit—given the rhetoric and reality of what they’re trying to do in Greenland, and the importance that they place on control of strategically important landmasses for national security, and given the Trump administration’s vision of international law, and given the risks—whatever the risks actually are—we’re talking about international law, legal entanglements, and the politics related to those, and how that might influence decision-making in Washington.

But all of these things are things that the Trump administration is not remotely interested in, doesn’t care about. So, I’m having a very hard time understanding, in light of all that, why the Trump administration is even considering consent to this.

Is there a good answer to that?

Well, I share your bemusement as part of the answer. I mean, when Trump was elected, I think the British government were deeply worried that he would veto the agreement for sure. They put considerable effort into persuading him and the administration that it was the right thing to do.

My impression—and it might be, you know, it’s not based on anything inside—is that Trump was willing to go along with it, maybe sentimental attachment to Britain, or maybe Keir Starmer is somehow awfully persuasive when he’s one-on-one with the president. I don’t know.

He was willing to go along with it without looking too closely at the detail, perhaps. Surprising, because I think, like you, that he places a premium on control, and it’s pretty surprising to think that a—what really is a campaign of lawfare, or harassment by legal means, and it is abusive international law, I think, rather than international law as it probably is conceived—it’s strange to think you’d be complicit in the surrender to that.

Now, it looks, two weeks ago, as though President Trump had, in a sense, turned his mind back to this and was not liking what he saw. Maybe that’s still the case today—unclear.

But it certainly does seem surprising to prefer Mauritian sovereignty, when Mauritius is clearly going to be a target of Chinese subversion. I think it is a risk to U.K. sovereignty.

So then—this is my last question. It’s still a puzzle to me. It sounds like it’s a bit of a puzzle to you, too, about the U.S. position.

What possible security guarantees could the British have given the Americans? This is what’s being reported in the news—that…

Yeah, I find this very mysterious.

Just, is there anything that they could have said or done that actually would give the U.S. assurance on these questions, or is that—

Well, I mean, we’re just going off the reporting, of course. So, maybe the assurances—I mean, this wouldn’t be giving new assurances, would it? It would just be trying to explain why you think what you’ve already agreed is good enough, which, for the reasons we’ve been through, I don’t find persuasive.

I don’t see how the U.K. is in a position to give any further assurances unless it reopens the treaty with Mauritius and somehow reaches new terms. And if they do that, they could come up with a more watertight deal. But that’s going back to the beginning again, and there’s been no suggestion of that.

So, I don’t think the U.K. is in a position to offer further security assurances. And, you know, the kind of fundamental position—you hand over sovereignty; Mauritius will be sovereign, and it will have capacity to decide what happens in important respects. I mean, it’s not going to forcibly evict the U.S. Navy from Diego Garcia, obviously. But it can make life awfully difficult, and it can do so under a color of legal right, because it will be sovereign.

As it stands, it can try and make life difficult, which is what the British government fears, but it can only do so by abusing international institutions and by directly threatening U.S.–U.K. defense interests.

At that point, if Mauritius starts to threaten those defense interests, you should think, well, maybe you can take some measures in response. So, it’s a very strange sort of chain of reasoning.

All right. Well, we’ll see what happens. That was all very elucidating, Richard. Thank you very much.

You’re very welcome.

Mentioned:

• “Is the Administration Prepared to Deploy ICE to Police This Fall’s Elections?” by Bob Bauer (Executive Functions, Jan. 27, 2026)

Thumbnail: President Donald Trump speaks with members of the media before boarding Marine One on the South Lawn of the White House. (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.

This morning, we’re going to talk about two more examples of President Trump’s grievances from his first term, continuing to drive his conduct during his second term.

I’m speaking about the $10 billion lawsuit that he brought against the IRS and the Treasury Department for the leak of his income tax returns and information, and also the search warrant that was executed at an election center in Fulton County, Georgia for, quote, all physical ballots from the 2020 general election. I propose that we start with the Georgia matter first. Why don’t you tell us, just summarize what happened there?

As you say, there was a search warrant executed, a large number of boxes, I’ve seen press report reference to 700 boxes removed. This investigation, by the way, I think it’s important to note, was not conducted under the supervision of the U.S. attorney in the Northern District of Georgia. It was conducted by a U.S. attorney appointed to coordinate all civil and criminal cases of this nature, who holds an office, holds his office in the Eastern District of Missouri. I believe his name is Thomas Arbus. So what we have is, in effect, a 2020 election fraud special counsel. He can do this anywhere in the country.

He can supervise this anywhere in the country, and that’s what he’s doing in Georgia. Now, we have to keep in mind, I think this is all well known, but I think I’ll just emphasize it for the record here. The president has been focused on Georgia, among other states, where he believes fraud denied him the election in 2020.

He was confronted there with a claim completely to the contrary by the Republican Secretary of State, Brad Raffensperger. He famously, on a telephone call, asked Raffensperger to find the 11,000 plus votes that he needed to make up the margin against President Biden. And subsequently, the state of Georgia conducted a risk-limiting audit, which included a hand count that confirmed that President Biden had won the state by more than 12,000 votes.

There is no credible expert anywhere who has looked at this issue, much less with reference to the outcome of that hand count audit, who agrees with President Trump that there’s any evidence whatsoever of fraud in elections. He’s focused on Fulton County. That’s where these records were seized.

But I think we need to talk about the fundamental question as we go along of what this means for the use of law enforcement consistent with his claims of authority to overseas elections, the use of law enforcement generally for this purpose, and whether this is only a matter of grievance on his part that he’s continuing to pursue, or whether he’s laying the groundwork or testing the possibility of deploying these tactics in the future for future elections and in particular the midterms.

Okay, before we get to that hugely important question, can I just ask you one more question about the action that the government took? What could they, I mean, what is the point, do you think? I mean, we’re going to get to whether, you know, what the implications are for this use of federal executive power.

But before we get to that, is there any point to this particular raid or request for physical ballots from the 2020 general election? What is the ostensible purpose here?

It could fulfill a number of purposes. One is that it’s scratching his itch. He wants an investigation, he’s launched the investigation, he’s been thwarted at every turn in raising questions about it, and now he has struck out at Fulton County and he’s showing that he means it, that he doesn’t believe the election was honestly held and he wants an investigation.

That’s one thing. Secondly, he’s now raising new questions, presumably within his base in particular, I don’t know where else, about the election. After all, there’s now an active criminal investigation.

So in some sense, he’s taken an action that he can allege proves his point. A judge signed off on this warrant. There was some basis, presumably at law, for the seizure of this material.

So he’s creating facts on the ground, if you will, in support of his claim about a rigged election. And then thirdly, the last purpose is the one I know we’re going to get to, which is road testing the use of this kind of law enforcement authority as a means of addressing the control he’d like to exercise with respect to the midterms.

Okay. Why don’t you explain that? Explain what your concerns are, maybe tie it into the executive order that was issued last year.

Yes. So in the executive order that he issued in March, in which he took any number of actions to assert presidential authority over rulemaking in federal elections, he addressed mail-in voting, machinery, of course, both of which he believes is the basis or are the basis for fraud and rigged elections, strong views on the policies that states ought to be pursuing, for example, in providing their citizens with the option of mail voting.

And at the time he said — and I think it’s important for me to quote from what he said in a Truth Social post that accompanied the executive order. He wrote that the states must deal on these issues, on these fundamental rules issues with the federal government as represented by the president of the United States. The basic quote is they must also deal with the federal government. What the federal government is represented by the POTUS tells them for the good of our country to do.

So he’s taking a position that has no support in the constitutional text. The time, place, and manner rules confer the authority to make rules for the conduct of elections on states and localities, it resides with the states, and the Congress can intervene with respect to federal elections if it chooses to do so. There’s no mention of the president of the United States there.

Except, and I agree with you one hundred percent, but their theory is, well, that may be true, but there’s lots of federal law, civil and criminal law that relates to elections and the president is charged with the duty to faithfully execute the law. So doesn’t the president’s power come in that way, or is that the wrong way to think about it?

No, this is, I think, what is most worrying about what’s going on. Or he has strong views about not just what happened, but how the election system ought to be reformed. That implicates presidential authority, if you will, over rulemaking.

Rules that should be implemented, rules that should be appealed. Now, quite apart from the executive order, and there may be another one in the works, the use of the criminal justice system as a further wedge to seize control of or influence the course of the way election administrators perform their responsibilities around the country is something we need to be concerned about. It’s a claim that there are criminal issues, but the criminal issues are a pretext for inserting the federal government into the electoral process in the fashion that we may see now unfolding in Georgia.

So it has both a backward-looking, his grievance about 2020, and a forward-looking purpose, which is yet another means by which he can attempt to force federal control into the operation of states and the way they administer their elections.

But my question is — that goes to his purposes and his illicit or illegitimate purposes. My question is, isn’t it true that for a benign president, there is federal law enforcement authority related to criminal and civil law related to federal elections?

There absolutely is. And the question is —

That’s what he’s leveraging.

That’s what he’s leveraging, correct. And let me just add to that, there’s also the threat of it, the weaponization of the law for this purpose is potentially also something that he hopes will be a warning to election officials, even if he doesn’t necessarily deploy that force in the first instance.

And the last point on that I want to make real quickly is this, we haven’t talked about this piece of it. There are steps that he can take if he believes that the people have speculated about, if he believes that he needs to intervene in this election with the use of force in some fashion.

There are steps he can take, like the much discussed potential invocation of the Insurrection Act, as an exception to the Posse Comitatus statute, to deploy troops on the ground. And of course, he has already confronted the issues around his federalization of the National Guard. There are significant issues presented for him in both cases, but what about the use of law enforcement, just the use of law enforcement to bring force into these communities?

That’s what’s happened, of course, in Minnesota, and where it was specifically linked up to election security. In a letter that the Attorney General sent to Governor Walz, and we’ve written about this on our site, she linked cooperation with law enforcement in immigration matters with the state’s willingness to turn their voter rolls over for federal government inspection, which is a very hot issue and a point of contention between the states and the federal government at this time.

So let me ask you, can you just give a concrete example of how President Trump in the midterm elections might plausibly, illegitimately use his law enforcement power to influence, interrupt, or shape the outcome of an election? I assume we’re talking about congressional elections.

Yeah, for the moment we are, although, of course, you know, it’s a template that could carry over into presidential elections.

Just for this fall, what is a plausible use of this, plausible thing that he might do?

Well, so to sketch out a worst-case scenario here, or next-to-worst-case scenario, he alleges that fraud is afoot, that the only way, and he said this repeatedly, that Democrats can win elections is by cheating. All right, so right away he’s raised the presumption that there may be criminal legal violations afoot. So, he threatens on a number of fronts that he’s going to stop that fraud and he’s going to hold those who are responsible for it accountable.

That could mean he does invoke the Insurrection Act, there are some legal issues there we can discuss, but long and short of it, you know, he does that. Or alternatively, and I raised this issue in the post that we had up just the other day, he decides that he’s going to deploy ICE and he moves them either by threat, prepositions them or starts to move them into states in a way that, depending on timing, has a significant impact on voter confidence, voter concerns about their safety. It has a voter-suppressive effect.

And let’s assume he launches that only in the jurisdictions where, you know, he thinks it’s going to have an effect on Democratic turnout. Again, I’m sketching out the worst-case scenario. I’m not trying to, you know, put together here some fantastical ...

I want to be realistic about what could happen without at the same time saying that it will happen. But those are things that, looking at what he has said and done to this point, are not easily discounted as possibilities. And the point I want to stress here is the mere threat can have an effect even if he decides not to, you know, bring full force to bear down in a voting jurisdiction.

OK, given that what we’re talking about here are discretionary law enforcement decisions, basically, that as a matter of fact and as the Supreme Court has said in doctrine, the president has exclusive authority over, what, if anything, can be done to prepare for, redress, block, regulate these uses of federal law enforcement? It seems like it’s something that’s hard to stop.

I do think that the states can be prepared to move immediately into court. And for all the discretion that he can claim to exercise, I think the administration has significantly drawn down on its capital, if you will, on its credibility with the course on these issues. And so I think there are issues that you might not imagine a dissenting state could have prevailed upon in some other administration, that it might have a very good chance of getting a serious hearing about here, particularly in relation to the operation of the electoral process.

His positions are so aggressive, the position he took in the executive order is so completely without constitutional foundation. I think all of this suggests the states were in a position to potentially respond by taking emergency legal action. So I think that’s one thing that could make a very, very significant difference here that you might not otherwise think is possible.

So you’re talking about states going to federal court seeking injunctions against the president enforcing federal election law?

Absolutely. Yes, yes. And the other thing I’m going to say, and it’s significant in many, I think this needs to happen earlier rather than later.

It is hard to underestimate the degree to which civil society pressures can make an enormous difference. I mean, I think we have seen the effects of staunch resistance within all the relevant civil society sectors in the state of Minnesota and the effect that it’s had on public opinion generally. And I think drawing a line now and soon within these sectors.

How do you draw the lines? I mean, I don’t see how a federal court can issue an injunction or anyone has standing to seek the injunction until the president takes action or threatens in a way that’s very close to taking action.

I’m not well, I’m not referring to a legal action by civil society. I’m talking about pressure from the business community, faith communities. Lines are drawn into the sand.

You saw, for example, I would have liked to have seen it worded a little bit with a little bit more muscularity of the businesses in Minnesota, major businesses in Minnesota and a good number of them that signed a letter basically speaking to the escalation of this ice conflict in in Minnesota. I think that kind of pressure with the effect on public opinion that will have could make a significant difference in how the administration calculates his chances of success here and the decisions that it makes about what it’s prepared to do. And last but not least, let me say this election officials around the country, Democrats and Republicans really resent what he’s doing.

I mean, they resent the attack on professional election administration, the suggestion that there were parties to fraud in 2020, that they don’t know how to do their jobs. They can’t administer mail in voting. And then there’s a widespread frustration with that.

And they’re going to be speaking to their members of Congress and they’re going to be speaking to their communities. And I think that intersects with that larger civil society response that I think could make a difference here.

OK, let’s talk briefly about the lawsuit that President Trump brought, I think, yesterday, 10 billion dollars against the IRS and the Treasury Department in connection with the leak of his tax return information, his tax returns and tax return information during his first term. This is not a frivolous lawsuit. There are federal laws that allow someone whose tax returns are unlawfully disclosed to sue the federal government in federal court for damages.

And he’s got a non-frivolous Privacy Act claim as well. There are problems with it. I’m not saying he’s going to succeed.

There are statute of limitations issues. There’s a question whether the person who leaked the tax information was, in fact, an employee of the IRS, which is required under the statute. He was actually a contractor for Booz Allen.

So it’s not clear whether that counts as being an employee or officer of the United States as statute requires. And then there’s some problems with the Privacy Act claim as well. But setting those aside, I mean, it’s not a frivolous lawsuit on the merits, but it’s a strange one because of President Trump’s conception of his control over the executive branch, because he’s suing the federal government.

The Justice Department defends these lawsuits. They defend them very vigorously. Very analogous lawsuits brought in the past, even in connection with the same leak of information, have been defended robustly by the Justice Department.

Will President Trump allow his Justice Department to defend the lawsuit that he brought? Will he allow the Secretary of the Treasury, who is also the commissioner, the head of the IRS right now, will he allow him to be on the other side of the lawsuit against him? Will he demand that Pam Bondi settle with him for billions of dollars?

These are things that other presidents wouldn’t try. So this type of concern, for example, I don’t think arose to nearly the same degree, if at all, when Hunter Biden sued the IRS and the Justice Department defended. But they clearly arise here.

What thoughts do you have about that?

Well, I entirely agree that the questions that you raise about what it means for him to exercise, as he’s made it very clear he intends to do, full control of the executive branch, you know, those claims bear directly on the integrity of this legal action. Who really believes that the Department of Justice is in a position, even if not directly, in order to do so, to put up any kind of defense on the merits or to address this case in any way on the merits? He feels very strongly about this.

He’s made it very clear he believes he’s suffered not just speculative, but actual damages in the billions of dollars. He wants punitive damages, as I read the complaints, I recall the complaint as well. So what kind of integrity or guardrail is built into the operation of his version of the unitary executive in these circumstances?

Just one other quick point. Let’s assume, and this goes to how he conceives of the exercise of presidential power and the very personalized view he has of the president, that he believes he was wronged and that the Trump organization and his sons were wronged by the leak of his tax information and that he has some basis to believe that. And of course, the individual in question, who was, I think, a full-time contractor, has been sentenced for and held accountable under the criminal laws for this conduct.

The normal approach to all of the failures of the IRS security and screening procedures, the normal response would be to direct the IRS commissioner to tighten them up, to tighten them up so all taxpayers are protected. And he may be a particular example that he’s concerned with. But all taxpayers are protected by an improvement in these procedures.

And instead, he wants $10 billion because he’s singling out, in this instance, the wrong done to him. Instead of proceeding as president, it’s a matter of policy and legal authority. He’s proceeding through a private lawsuit to collect billions of dollars for the wrong done to him.

And I think that conception of the role that he has as president and sort of how he would respond in a circumstance like this of policy and administrative failure is extraordinarily telling. The only other thing I would say real quickly, the other thing I think about this, and this may be more of a political point than anything else, but it is quite remarkable. The lawsuit alleges that harm has been done not just to his reputation, but to his business, to his financial prospects, to the success of his business operations.

This against the background of the amount of money that Donald Trump and his family made in the presidency really strikes you. And it’s just remarkable that there was no second thought about making that kind of claim in that context.

So I’m not sure I agree with all of that. I don’t. I mean, it’s a very, it’s completely, it’s an unusual, it’s an unprecedented situation.

He does have plausible federal law claims against the government under both statutes that he invokes. They’re not frivolous claims. I’m not saying he’s going to win, but they’re not frivolous claims — unlike a lot of other lawsuits that he’s brought, for example, against the press, which I do believe to be frivolous. This is not a frivolous claim at all. You know, there already have been steps taken, as the IRS has argued in these lawsuits that have been brought out of these leaks to make sure they don’t happen in the future.

I’m not sure there’s much more for Trump to do. So for me, it’s, you know, I think it’s, I agree, extremely unusual. And it’s almost bizarre for the president to be suing the government for damages.

But he has a legal basis to do so. For me, the interesting question is, what is the Justice Department going to do in response? Are they even allowed to show up and defend?

What is the IRS going to do in response? Are they allowed to show up and defend? Are they allowed to make all the arguments they would normally make?

If they don’t make those arguments and Trump wins, what does that mean? What does that look like? Those are the types of questions that I think this case raises, as opposed to the legitimacy of him suing the government.

He has a legal claim, a plausible legal claim, it seems to me.

Well, let me let me just respond quickly to that, because it’s an interesting point of, I think, apparent disagreement between the two of us. When someone’s elected president of the United States, they surrender all sorts of private rights and privileges, if you will. They just agree to do that.

There’s certain things they cannot do. They cannot, for example, shake their security detail and go take a walk along the Potomac so that they can sort of reflect on things. There’s certain things they’re not expected to do, not and should not do, because they have a constitutional role, a constitutional role that puts them in a position of attending to the public interest at some considerable sacrifice, presumably, to private rights that they would otherwise want to exercise.

That’s what we want in a president. We don’t want a president, for example, speaking of the first topic we just discussed, to decide to use the criminal laws to strike back at his political opponents. That’s also a private grievance.

He ran for president as a candidate. He didn’t run for president. You know, he was an incumbent president in 2020, but he ran as a candidate.

And in his personal capacity, using the government to settle scores with political opposition is something that maybe as a candidate who lost, he might find various ways to do various claims to make. But we don’t expect him to do that as president with the full power of the U.S. government behind him. And I think the same thinking applies to his use of government power to settle scores with the government over the release of this tax information.

I accept all of that, except one thing, and I would not—I don’t think that it’s prudent for a president to do this. But when you say we don’t expect this to happen, I’m not sure who the we is. I mean, he ran on these grievances and he has a legitimate legal claim here.

I’m not saying it’s a good idea for him to sue or that it’s moral for him to sue. I’m just saying here, unlike in many of the lawsuits he’s brought, it seems to me he has a colorable legal claim and, you know, he’s exercising his legal rights. I agree with you that presidents have to give up all sorts of things.

This is completely one off. President has to give up a claim to a billion dollars in damages or ten billion dollars in damages if it’s that much. But I don’t know about that.

That is a judgment call about, you know, the norms of a president who has a plausible legal claim, who is motivated by grievance. And I don’t love this lawsuit. I just think it stands on a much different footing from a lot of the other lawsuits he’s brought in terms of its legal validity.

And it raises all sorts of completely very difficult questions about how the executive branch is going to function here.

How do you see it in relation, for example, to the lawsuits he’s filed against media organizations?

I think those are frivolous. Totally frivolous.

Well, ome of them resulted in multimillion dollars.

Totally frivolous and abuses of the government. They’re totally frivolous and abuses of government power. I don’t think — Let me put it this way — And I think you may agree with this. If he were a private citizen bringing this lawsuit, there would be no doubt about it that it would be fine to bring. And but I don’t I don’t think that the media suits, I think those are frivolous lawsuits.

This is not a frivolous lawsuit on the merits, is what I’m saying.

Well, just to just to add this, I mean, this is an interesting question, again, of what we what we expect presidents to give up so that we’re confident they’re attending not to their personal —

Bob, you keep saying we. Who is we?

Well, that’s a fair question. I believe that if you were to put the question and maybe I’m wrong, if it were polled, do you think that the president’s paramount concern as president should be the public interest and should be in those circumstances prepared to defer the pursuit of private interests? And by the way, this applies, of course, to his business activities.

I think the answer to the general question would be overwhelmingly, yes, that’s what we expect when we elect the president of the United States. So I think the we you’re right, I shouldn’t say we because there may be some dissent there, but I think there would be a general public view that his overriding responsibility here, even if it means some sacrifice of private rights, is to the public as a whole and to the administration of his office in the interest of everybody and not in the interest of his family or the Trump organization or himself and the billions of dollars like in this lawsuit.

I agree with that. I completely agree with that. I think it’s much more complicated here because this was an egregious violation of federal law, unprecedented in its scale and context in the run up to a campaign.

And I think, you know, again, I don’t like you know, I don’t like the tit for tat. I don’t like the president making money off the presidency. I would not have advised him to bring this lawsuit.

I just think it’s it’s different from the other ones. And it’s because it has a valid legal claim or not a valid legal claim, a plausible legal claim at the basis of it. I’m not sure we’re disagreeing.

I mean, I don’t disagree that this is not something I would want the president doing. I think there are a lot of people that are going to cheer it on. A lot of certainly a lot of his supporters will and even people who I think won’t necessarily be supportive of his lawsuit strategy in other contexts, like the media might think he was genuinely wronged here in violation of federal law in a way that’s entirely unprecedented and terrible for the country to have the IRS leaking presidential candidates’ and sitting presidents’ tax returns is really bad thing.

It wasn’t an action by the IRS as an institution. It was a failure on their part to stop this rogue contractor from accessing their —

I know, but there are rules about the way that Congress set up the system to have when this happened, it was so egregious that they contemplated that the individual whose tax returns were disclosed could sue the federal government for damages, which is an unusual thing. And there’s a separate claim for the fact that the IRS did not for the under the Privacy Act, for the notion that it didn’t take precautions, adequate precautions to prevent this type of thing, which they have admitted since then that their precautions and their systems were inadequate. So I just don’t think you can that one can discount what this is a response to.

I mean, I agree with you that this is you know, we’re out in Trump lalaland where he does things other presidents don’t do and they go beyond the traditional expectations of the office. This one just seems a little different to me.

Well, and so just and so where I hear it, I think what many probably a majority hope is that a president steps into that situation and says, look, I was wronged and maybe the Trump organization sues and he doesn’t, you know, maybe he says to his son, to the Trump organization, you bring the lawsuit. I can’t do it. I’m president of the United States.

Yeah. It’s the wrong thing for me to do.

Speaker 2

Yeah, I agree. I mean, this is this is not what I want my president doing. I agree with you.

I agree that it’s not what my president doing. I’m just saying that he was really and the Trump family and organization were seriously, seriously wronged here. It’s a serious violation of public trust and a serious violation of the law, whether they can recover or not.

And and, you know, it was it was a huge deal. So I just think the the fact that this was a huge deal and a serious breach of public trust, you know, way up there in terms of seriousness and the fact that there’s a plausible, though not airtight legal claim, makes this one different to me. I agree with you much better if just the Trump organization or his children sue.

Certainly, you know, again, President Biden’s son sued and that case was dismissed. And Biden Justice Department acted at arm’s length from the White House that, you know, that’s not going to happen here. But that would have been much better.

I agree. And that’s what a that’s what a normal president would have done in this situation. A normal president at most would have stayed out of it, would have shut himself off from the Justice Department and the IRS.

You know, if the Trump organization or the children want to bring the lawsuit, that’s their business. But there would be a firewall.

Correct. Exactly.

It would have been a much better way to do it. I completely agree.

And then the people who were responsible for the IRS for, you know, failing to enforce these safeguards are fired. There’s a huge reform project that’s put together. I mean, there’s so many things a president could do.

Well, I agree. OK, I’ll give you the last word on that — Thank you.

Thank you.

Mentioned:

• Saikrishna Bangalore Prakash, The Presidential Pardon: The Short Clause with a Long, Troubled History (2026)

• “Trump’s Circumvention of the Justice Department Clemency Process” by Jack Goldsmith and Matt Gluck (Lawfare, Dec. 29, 2020)

Thumbnail: President Gerald R. Ford Signing a Proclamation Granting Pardon to Former President Richard Nixon in the Oval Office. (Public Domain.)

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 Professor Sai Prakash of the University of Virginia Law School about his new book called The Presidential Pardon, The Short Clause with a Long Troubled History. I read the book in galleys and blurbed it as the best book written on the pardon power, which I think it is. And so, Sai, I’m thrilled to talk to you about your book today.

Sai Prakash: Well, I’m thrilled to be here with you today, Jack.

So, the pardon clause in the Constitution in Article Two has become hugely consequential in modern times. Let’s just start off with what it says and unpack that, and then we’ll go from there. The pardon clause says that the president “shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.”

As you say in the title of your book, a short clause, but it’s hugely significant. Can you just kind of unpack the clause and then we’ll go from there?

Sure, sure. So, the pardon and reprieves were preexisting concepts. They existed in England, and the idea is they want the president to be able to prevent the imposition of a punishment, that’s a reprieve, and usually temporary, and then also be able to fully forgive the offense against the United States. And so, that’s the pardon.

There are other kinds of clemency that are thought to be included, even though they’re not separately listed, like a commutation or an amnesty. So, even though they’re not listed, they’re just sort of thought to be there. And then the further thought is it’s got to be against the United States, and therefore, it doesn’t cover state offenses of various sorts.

So, can you just explain briefly what a commutation is and what a clemency is and how that relates to pardons and why it’s thought to be included in the clause?

Yeah. So, I mean, clemency is just an umbrella term for any kind of mercy. And there’s a sense in which the clause is about clemency as a whole, precisely because it goes beyond mere pardons and reprieve.

So, reprieve, we talked about, it’s just a respite in the punishment. It could be, you know, we’re going to temporarily suspend your prison time to let you free for a couple of weeks or months, or it could be we’re not going to execute you right away. We want to think about whether we should execute you a little more carefully and thoroughly, and maybe we’ll eventually pardon you.

So, that’s reprieve. And the other stuff, you know, is a commutation is basically saying we’re not going to say that you didn’t commit the offense. We’re not going to act as if you didn’t do anything wrong.

We’re going to shorten your sentence. You know, you had a 10-year prison term. We’re going to make it five years.

You had a three-year prison term. We’re going to make it time served. And so, the idea is it doesn’t erase the fact that you were found guilty of something or that you’ve done something wrong.

It just means that we think you should suffer less for it. And so, typically, it just means that we’re going to let you out early, earlier than you otherwise would be let out. And of course, I guess it could be issued before you actually serve time.

Theoretically, someone could be convicted, you know, they could be in the courtroom, and the punishment could be five years. And then, as they’re being taken to the jailhouse, the president might commute that to three years. That’s certainly a possibility.

But typically, a commutation is issued to someone who’s already in jail. An amnesty is a situation where the president decides that many people at once who are found guilty of particular crimes should get some form of clemency, either a commutation or a full pardon. And they’re often issued in conjunction with rebellions.

The idea is, if you lay your arms down, we promise you that we won’t prosecute you. And the way we memorialize that is through a pardon that says, if you lay down your arms, you get the pardon. Which brings us to another type of pardon, which is a conditional pardon.

And the conditional pardon says, you only get this if you do X first, or you only get this if you continue not to do X going forward. And so, it’s like a contract, right? You have to do something or refrain from doing something in order to get the pardon.

And the pardon no longer is effective if you violate the condition, right? And so, that’s why even though it doesn’t talk about commutations or conditional pardons or conditional amnesties, it’s thought to have all those components in part because talking about a pardon power would have been understood to include all those subsidiary authorities, even though not expressly mentioned.

So, that’s an extraordinary array of ways that a president has discretion to alleviate the consequences of commission or possible commission of a federal crime. And just to underscore what you said earlier, the pardon power is limited to, it only applies to federal crimes, not state crimes, right?

That’s right.

And just briefly, before we move on, what is the meaning of the exception for the pardon power does not apply, it says except in cases of impeachment. What is the purpose of that?

So, I think it’s twofold. They wanted to make it clear that the president couldn’t stop an impeachment by pardoning the person, but they also wanted to make it clear that the president couldn’t pardon a conviction by the Senate. So, it turns out in England that the crown for a time could pardon people after they were convicted by the House of Lords and thereby prevent whatever punishment that the House of Lords had attached to the conviction.

And they want to make it clear, you know, impeachment is really left to the House and conviction is left to the Senate and the punishment as limited as by the constitution is left to the Senate. And the president can’t just say, well, you know, I think you should continue to serve notwithstanding the conviction by the Senate, or I think I’m going to lift the bar on future office holding that the Senate can apply to convictions, impeachment convictions. He can’t do any of that, right?

The Senate gets to decide what the punishment is without any presidential interference and the House gets to conduct its impeachment trial without the possibility that the president will cut that short.

Okay. So, this is an extraordinary grant of discretion to the president. I mean, it’s an astoundingly broad grant of discretion.

In the same article of the constitution that says that the president has a duty to take care that the law be faithfully executed. So, and the framers were somewhat skeptical, at least many of them were about this new entity, the presidency they were creating and about whether this power might be too broad or get out of control. So, why?

Why include the pardon power in Article II?

So, I think it reflects several features of that age, several strands of thought of that age. I think criminal law was quite harsh in the 18th century. And there was a thought that someone somewhere in the government had to have authority to mitigate the harshness of the criminal law.

Many crimes were subject to capital punishment, far more than today. And there was a thought that we needed to have someone who could dispense mercy, maybe better fit the punishment of — the circumstances of the crime. Because laws are written in general terms, but you might think more factors are relevant.

Maybe we don’t want the courts to wade through a seven factor test, but maybe we think the president or someone else who can issue the pardon can or should do that to possibly mitigate the sentence. They also thought that it was important to have a pardon power in part because nations suffered from rebellions from time to time. And they thought a well-timed offer of pardon could nip the rebellion in the bud, basically lead people to lay down their arms.

So, the president would say, I’m going to pardon you if you lay down your arms. The people lay down their arms and then the pardon vests. And they will do that.

They will only lay down their arms if they’re certain that they’re actually going to be pardoned. If they’re fearful that the president will renege, well, then they’re not going to lay down their arms. It’s an all out struggle because if anything less than that is, their heads are on the chopping block, so to speak.

So, I think they think that’s going to be a feature of our politics. And there are sort of rebellions of various sorts in the early years. And of course, we had a very big rebellion in the 19th century.

But their experience was there was the rebellion up in Massachusetts, Shay’s Rebellion, and they thought this might be a regular feature of politics. And so, it was necessary to have it. Other reasons for a pardon power would be to create some measure of allegiance to the state.

The state is both punishing you, but also showing some forgiveness. And people are often quite grateful for their forgiveness. And this is certainly an aspect of English policy.

And so, you document in one of your early chapters, despite those reasons, why the Anti-Federalists in particular were very worried about this provision. To me, like so many other elements of the Federalist, Anti-Federalist debate, the Anti-Federalists were more prescient in understanding how the Constitution was going to work. Am I right about that?

Tell us what the critiques and worries were about the pardon power.

So, the pardon power looks very much like the British Crown’s pardon power in the 18th century, but it looks rather dissimilar with the pardon powers that existed in the states. So, at the state level, the governors or the plural executive councils don’t have this sort of broad authority. What they instead have is some executives have the power to reprieve, with the legislature having the power to pardon.

Other state executives have the power to pardon, but not in cases of treason or murder. There, they have a power to reprieve, and presumably, the state legislature can pardon. And then, of course, sometimes what you have is a plural executive that’s wielding the pardon, which is itself a built-in check on its exercise, because there’s going to be some deliberation and thought to whether to issue the pardon of the sort that you can’t necessarily guarantee if one person is the one wielding the pardon pen.

So, they see an array of pardon wielders with lots of checks on the pardon. And when they look at the U.S. Constitution, the proposed U.S. Constitution, they don’t see any checking function there. They don’t see any requirement of getting the Senate’s consent.

They don’t see any offenses that are accepted from the pardon power, like, say, treason. And then, they fear that the president will sometimes act contrary to the Constitution, perhaps try to overthrow the Constitution, install himself as a monarch. And they think, oh, it’s weird that the president can basically pardon the people that might help him try to overthrow the government.

And they say, this will prevent us from finding out that the president’s involved in the conspiracy, and it will prevent us from understanding the full extent of the conspiracy. And this is what the anti-federalists say, but it’s hardly some fantasy. I mean, I think Hamilton himself, in the Constitutional Convention, proposed a pardon power that didn’t cover treason.

He doesn’t tell you that, you know, as Publius, because he’s not revealing himself to be Hamilton. And, of course, the convention records are sealed at that point, and no one knows, you know, what people proposed. But the point I’m trying to make is that even strong advocates of executive power had some trepidations about giving the president as broad a power as was ultimately found in the Constitution.

And so then why, I have to say, I’m a little surprised that it prevailed. Why did it stay in there? What was the clinching argument?

Well, I think there’s the clinching argument with respect to not having a treason exception is, well, I mean, are you not going to be able to pardon rebels, right, during rebellion? Then they won’t lay down their arms. You need to have that authority.

And we can’t rely upon Congress, because, you know, today Congress kind of meets all year round, but Congress is not always in session. And if they’re not in session, are you going to wait, you know, are the rebels going to lay down their arms for six months while they’re waiting to figure out what Congress is going to do? But I actually think the bigger reason is everybody is looking at George Washington and thinking he’s going to be the first president, and they think this is a man of virtue and restraint, and he won’t abuse it.

And there are several people who say after the Constitution was drafted, this presidency would look rather different if people didn’t imagine Washington serving as the first president. And they remarked that the presidency was created for a man. And then they lamented this fact, they tended to be anti-federalists, they lamented this fact, and they said, you know, the presidency is far stronger than it should have been, in part because it’s George Washington who’s going to be the first president.

And they say, of course, not every president is going to be a Washington, and so we should have perhaps, you know, imposed more constraints.

Yeah, let me just ask you about that, because that argument about Washington being the first president was made, as I recall, with respect to lots of different elements of Article II, and everyone was sure Washington was going to be the first president, was sure he would exercise power responsibly, but as you just said, it was obvious that there were going to be presidents after Washington. So was the idea that Washington would set the precedents and kind of fill in the presidency and the implicit constraints on the presidency, and that would be the model going forward, or what was it?

Well, you know, I should mention a third thing. There are lots of able advocates of executive power in the convention, James Wilson, James Madison, to a certain extent, Gouverneur Morris. They have an experience with weak executives at the state level and at the national level.

At the state level, the executives are described as being ciphers and not serving as a counterweight to the state legislatures, and they don’t want to repeat that. And at the national level, you know, it’s a plural executive that’s divided, distracted, and lacks competence and expertise because delegates, you know, it’s the Continental Congress that’s the executive, and people come and go in the Continental Congress and don’t stay very long and don’t develop expertise and aren’t always around to superintend, you know, the officers who do the business on the ground.

So there’s a concerted effort to have a stronger executive. The losers in that battle, I think, are still right to say that the executive was far stronger than it would have been absent Washington. I think there’s just a general tendency, Jack, to focus on the present and what were the problems we’re trying to avoid and, you know, think in the short term, even for something as important as a constitution.

And, you know, it’s speculation on their part. I think they’re right to think that this would have affected the outcome. You know, I tell my class, if we wrote a constitution after Richard Nixon resigned, it would look rather different than Article II, even though you might say Richard Nixon, you know, is an aberration and most of our presidents weren’t like him.

I still think, you know, the presidency would look much weaker if the constitution were rewritten after Richard Nixon’s departure from office.

Fair point. Okay. The meat of the book, the middle of the book, is a really wonderful, colorful history of the uses and abuses of the pardon power.

I don’t want to march through every one because I want to get to current controversies, but can you just give us some of the highlights, say between Washington and up through the Trump era, some of the highlights of the abuses and maybe especially how they started to increase starting in the late 20th century? Sure.

Sure. Yeah. Well, I have a chapter on Washington’s wielding of the pardon pen because I just wanted to see what he did and think about, you know, the precedents he established.

And Washington was very careful and very thorough. He would seek out the views of the prosecuting attorney and the judge about whether the person merited clemency. And sometimes they would say yes, right?

Because they thought the law was X, but maybe this person shouldn’t have been punished. That actually happened from time to time. And then another thing that was interesting is Washington would always list multiple reasons in the pardon itself so that he could justify it to the world that he was pardoning this person because pardons, you know, even though they benefit one or two people, they are actually documents written to the world.

They’re they’re written as if, you know, they’re public documents to be read by by people like you or me. So I was just interested to see what he did and to see if there were any controversies. Some people said there were, but I don’t think so.

I don’t think there were any major controversies during the Washington administration. That changes with John Adams. There’s a rebellion called the Fries’s Rebellion in Pennsylvania four or five years after the Whiskey Rebellion during the Washington administration.

And they’re opposed to a house tax, a windows tax, a tax on windows, a direct tax. And, you know, there’s a lot of praising of the French Revolution and praising of guillotines. And several people are tried for treason and they’re convicted.

And John Adams pardons them all. His reason, he says, is that they shouldn’t have been they weren’t guilty of treason. They were just guilty of riot.

And so they were overcharged. But he doesn’t commute their convictions. He actually pardons them.

And federalists are up in arms about this. Now, federalists are, you know, they’re part of the same party as Adams, but there there’s a sort of an arch-federalist faction within the federalist party, the high federalists. And they don’t like Adams.

They think he’s soft on France and they think he’s, you know, soft in various other ways. And they claim that Adams did this for political reasons. They think that Adams did this in order to secure more electoral votes in Pennsylvania and to possibly run with Jefferson on some sort of unity ticket.

Obviously, the second thing never happens. But Adams does get more votes, more electoral votes in Pennsylvania in the 1800 election than he does in the previous election. And, you know, people do speculate that that’s why he did this.

Certainly he would have known that many Pennsylvanians wanted these folks to be pardoned in part because they know these people and they’re related to them. And, you know, maybe it couldn’t have been a bad thing that this would make him more popular in Pennsylvania. Whether that was his motivation or not, it’s really hard to fathom.

It’s always going to be hard to figure out whether the president is doing so for political reasons. The next controversy is Jefferson and his pardon of some allies. Abigail Adams excoriates Jefferson for pardoning people who had libeled or slandered John Adams.

And it’s, you know, it’s all kind of a tawdry affair. During the Civil War, post-Civil War, Johnson wants to run as the Democratic nominee for president. He’s the accidental president because Lincoln is assassinated.

And he’s told by several people, if you issue an amnesty while the Democrats are meeting in New York, it will help your candidacy. And he issues an amnesty on the first day of the convention. And he’s told this is very helpful to him.

He doesn’t end up getting the nomination, but people speculate that he issued the amnesty precisely to influence them. He was unsuccessful, but there was the speculation. And then we will do, you know, what you said, we’ll flash forward to more controversial stuff at the tail end of the 20th century.

We’ve got the Iran-Contra pardons where Lawrence Walsh is still investigating the Iran-Contra affair. George H. W. Bush was the vice president of Ronald Reagan during that controversy. And George H. W. Bush issues pardons of people that the, you know, Iran-Contra prosecutor Lawrence Walsh is continuing to investigate.

And Lawrence Walsh says this is the continuation, the completion of the coverup, because we won’t know everything that we need to know about Iran-Contra. So it’s very controversial at the time, certainly in those quarters who thought that President Bush would be implicated by the special prosecutor. The next kind of major controversy, as you know, is the Clinton pardons.

There’s the Mark Rich pardon, but there’s also pardons of members of the FALN, a terrorist group related to Puerto Rico, and some pardons of Hasidim Jews in New York. The latter two pardons are thought to help Hillary Clinton in her Senate campaign. And there’s speculation that, you know, she’s going to do better with the Puerto Rican vote and the Hasidim vote by virtue of these pardons.

And it’s probably true that she benefited from them in some way. And then the Mark Rich pardon was, you know, a situation where his former wife donates, I think, to the presidential library for Bill Clinton, and then she asked for a pardon for her husband, and her husband gets one. It doesn’t go through the ordinary process in the Justice Department.

They don’t, you know, approve of this pardon. That’s normally how pardon applications get to the president, at least in years past. And so there’s a firestorm about it, and both chambers of Congress investigate, and there’s a U.S. attorney investigation up in New York about it, but nothing comes of it. I mean, I guess I should mention the Nixon pardon by Ford, right? That’s pretty important, and that was quite controversial, and there was a claim that there was a corrupt bargain. That’s not quite late 20th century, but it does tar Gerald Ford for a long time.

So if we flash forward to the Biden and Trump administrations, you know, Joe Biden issues a bunch of pardons at the end of his term. He pardons his son after insisting for years that he won’t do that. He pardons members of his family because he fears that they will be unjustly prosecuted by Trump.

It turns out that his brother’s actually being investigated by his own Justice Department, and that’s cut short. Those pardons are controversial because they extend for 10 years. They cover a 10-year period, and they don’t list the offenses.

The Hunter Biden pardon covers all offenses, criminal or non-criminal. The pardon of his brothers and, you know, sisters and in-laws is only non-violent offenses, and so it’s kind of weird that the pardon of the son includes violent offenses, but this one doesn’t. And then, of course, there’s these, you know, what I call sort of, you know, pardoning people that Trump might prosecute category of pardons, including the January 6th committee.

I think Mark Milley, and the former head of the CDC, what’s his name? Famous scientist.

Dr. Fauci, Dr. Fauci.

Yes, Dr. Fauci. There’s all these people that are pardoned at the end who Biden says will be targeted by Trump, and there’s obviously some truth to that possibility. We’ve seen targeting going on now, but it’s controversial nonetheless because it suggests, you know, some people look at that and say, you’re just pardoning people that are your ideological allies who went after the president in some way, and it raises the possibility that Trump might do the same.

For Trump, you know, the most controversial pardon was the January 20th pardon of the January 6th-ers. He had campaigned on this, but he had suggested he wasn’t going to pardon the violent offenders, but he comes into office and doesn’t want to figure out, I think, who’s violent and who’s not, and he pardons almost all of them. A few of them get commutations, like 20 main people get commutations, but everybody else gets a full pardon, and it’s quite controversial.

Republicans actually criticize the president. Democrats obviously do so as well. As your listeners or your viewers are well aware, Republicans are very loath to criticize this president, so it’s unusual that they’re criticizing him.

He had campaigned on this, and so it wasn’t a secret that he was going to do something. The breadth of it was a bit of a surprise, but it portends the possibility of presidents running on campaign promises to pardon one or more groups and then hoping to secure their votes, their votes and the votes of friends and family. Obviously, if you knew someone who had stormed the Capitol on January 6th, you would feel great gratitude to someone who pardoned your loved one.

Both Biden and Trump made promises of pardons when they were running for office. Biden’s related to marijuana. He was clearly trying to get the youth vote.

Trump’s related to January 6th. Maybe he thought he would get votes, but it was also partly a view that the January Sixers were political prisoners of some sort, which would have played to his base and perhaps got him votes as well. We can imagine presidents running on promises to pardon tax offenders and environmental polluters or whoever’s part of their coalition.

I think we’re going to see more of this. Since the January 20th pardon of the January Sixers, Trump’s pardoned contributors to his campaign, people who owe potentially hundreds of millions of dollars in fines. That taboo about pardoning someone who contributed to your campaign no longer exists, at least during this presidency.

One has to wonder whether that taboo has just been utterly broken.

More generally, both in his first term and this term, Trump has made it practice of giving pardons to friends or friends of friends or people that he thinks are ideologically consonant with him. It’s not just seeming quid pro quos in some instances. It’s just kind of ideological pardons, it seems, and hundreds of them in the first term and now in the second term as well.

You have a line, and you just alluded to this, you have a line in the book where you talk about where we are with the pardon power today that’s pretty arresting. I’m going to read it. It says, as they wield the pen, presidents advance their ideological and personal agendas, shore up their electoral bases, inflict psychic wounds on their opponents, and wreak real injuries upon the rule of law.

That’s kind of where we are today with the pardon power. I expect Donald Trump to issue many, many hundreds, if not thousands of pardons at the end of his term, kind of picking up on what Biden did to preclude investigations by the next administration into his administration. Not to mention who knows how many hundreds or thousands of pardons he’ll issue in the interim, because basically, as you’ve described, the president can just wield the pen and it happens.

It’s the perfect power for Trump, because there’s no intermediary. He can just bark the order and it happens. Just talk about that.

Is that where we are today? Is this now a feature of the American constitutional landscape?

It’s certainly going to be a feature of this administration. I think it’s going to be a feature of subsequent administrations as well. It’s just far too tempting to be able to hand out goodies to your allies and friends and potential voters.

Let’s focus for a moment on Trump. I think you’re right that the president likes to be able to exercise a power that Congress can’t constrain and that the courts are unlikely to police. The courts may interpret a pardon more narrowly than the president wants, but the solution to that is just to issue another pardon.

There have been cases out of the January 6th pardons where the administration wanted to read the pardon broadly, the courts refused to do so, and then the president just issued a broader pardon. The only way that the courts can constrain the executive is if the executive doesn’t like the breadth of a pardon and the executive is trying to read it narrowly and the courts say, you’re wrong. That’s the only way in which the president can lose.

If the president wants a broader pardon to someone, the president can unilaterally do that. I think this is a very tempting tool for the president. He can see the advantages of it.

You alluded to the ideological basis for some of these pardons. The president apparently loves to hear that the prosecutors who prosecuted someone were driven by politics or driven by personal agendas of various sorts because everyone, it seems, who’s applying for a pardon is saying, I was railroaded by a corrupt prosecutor, basically mirroring the language the president uses. They just say this, I assume, without regard to whether the person was corrupt and whether they were railroaded or not.

I highly doubt that the system is working so poorly that people are being routinely prosecuted and found guilty on thin or flimsy evidence. They’re playing to the idea that the president feels that he was a victim of a process, and they’re just using the same language. That’s ideological.

It’s biographical, but it’s certainly ideological. It says there’s something wrong with the system. It’s interesting.

He’s pardoned people that aren’t Republicans, either as a means of trying to lure them over or some sort of sympathy with them. I think he was mad at Eric Adams for not running as a Republican. There was no condition on the pardon that Eric Adams become a Republican.

The same thing with the Texas House member that he pardoned, and then he was angry when he decided he was going to run again as a Democrat in the House election.

Right. President Trump was a businessman. He thinks in transactional terms.

Everything he thinks about is in transactional terms, really, when you think about it. He thinks there’s a transaction here, but of course, there’s nothing in the pardon suggesting there’s any condition on it that you have to run as a or become a Republican. They don’t view it that way.

They may have sought a pardon, but they didn’t agree to any conditions. He’s going to often find that his expectations are going to be thwarted if he thinks that he’s going to buy loyalty just by issuing pardons.

It seems to me, and you suggest this in the book, that we’re on the verge of the pardon power getting out of control. Whatever norm-based constraints were on it have been dissipating starting in the late 20th century, certainly accelerating under Trump one and then Biden and now under Trump two. What is to be done?

Do you think that reform of the pardon power is appropriate? If so, how should we think about reform?

Jack, you wrote a paper with, I think, a student or a lawyer about how Trump had bypassed the ordinary process for issuing a pardon. Ordinarily, you apply for a pardon with the Department of Justice. They vet it for years.

It goes through one vetting process in the office of pardon attorney, and then it goes to some higher level, I think it’s an assistant or deputy attorney general, who then makes a recommendation to the White House, who then conducts its own kind of review. And what happens certainly during the Trump administration, but the Biden administration as well, is that more people just apply directly with the White House, because why would you go through this long process if you have connections inside the White House? And how do you get connections inside the White House?

Either you know someone in the White House, or you pay someone who knows someone in the White House. And so that’s introduced more cronyism into the process and less vetting into the process. I think you’re absolutely right that we’ve entered into a new era.

I don’t think this will change with, say, a Democratic president. It’ll be too tempting for them to issue pardons to members of their coalition. Biden ran on a marijuana pardon, and he issued the pardon mere months before the midterm.

That is to say, he waited until mere months before the midterm to issue the pardon for some inexplicable reason. I mean, it’s not inexplicable. That’s sarcasm.

He was trying to get votes. He issued the marijuana pardon on the same day he issued the student debt relief. Both were designed to gin up the student vote, the youth vote for Biden, for the Democrats in the midterms.

Whether that worked or not is hard to say. But I just think it’s going to be too tempting. But you could have internal reform where the president commits to not pardoning someone unless they’re recommended by the Justice Department.

That’s what Jimmy Carter said he did in the wake of the Mark Rich pardon. He said, I never pardoned anybody that the DOJ hadn’t approved of. And so you can imagine someone running on that.

And then the question is, are they actually going to follow through on that? Because presidents have all kinds of promises that they make, that they are sincere about when they make them. And then the reality hits a little differently once they’re in the White House.

The other alternatives to have some sort of constitutional reform, the Supreme Court as of now has cut off statutory reform by saying that Congress can’t constrain the effect of a pardon. And I think they would have likewise suggested that Congress can’t limit the offenses that would be pardoned. And so that just leaves a constitutional route.

And of course, you could imagine any number of reforms, maybe saying that certain offenses couldn’t be pardoned, maybe saying that Congress has to approve of pardons, or maybe saying that one or two chambers could veto a pardon. I also discussed the possibility that we don’t have enough pardons, that the system is sort of set up to make it more difficult to get a pardon, far more difficult to get a pardon now, I think, than it would have been in the 18th century, in part because there’s far more people now and more offenders. And so it’s just hard to get to the president’s desk for him to make that decision.

And so maybe, you know, there certainly are people, progressive folks who think that there should be more pardons, not less. And they would kind of look askance at reforms that only made it more difficult to issue a pardon and perhaps didn’t create another route for perhaps securing one.

Well, Sai, it’s an extremely timely book. And I’m sure it’s going to be widely read because I think there’s going to be more and more agitation about the pardon power and what to do about it over the next three years, especially in the last few months of the Trump administration, I predict. So thanks very, very much.

Thanks so much, Jack, for having me. This has been a fun conversation.

Thank you.