Harry Litman [00:00:07] Welcome to Talking Feds, a roundtable that brings together prominent former federal officials and special guests for a dynamic discussion of the most important political and legal topics of the day. I'm Harry Litman. President Biden's first full week in office was eventful on several fronts. 45 Republicans voted that Donald Trump's impeachment trial was unconstitutional, a dubious position that nevertheless suggested an acquittal at the trial beginning February 8th. Biden signed a flurry of executive orders on climate change. Wall Street had a roller coaster week with a steep dove, a partial rebound and a crazy exuberance for shares of a video game retailer.
And there was a rare bit of good news with the virus as new cases in the US, though not deaths, have fallen thirty five percent over the last three weeks. As Biden embarks on an ambitious agenda, the debris from the Trump years litters the political landscape. It's a Herculean task to try to clean up the mess and rebuild foundations strong enough to resist the next Trump. How does a democracy stay responsive to the people, yet still protect them from the worst effects of a demagog? Or is that even possible, especially with some 70 million citizens, and much of the Republican caucus in Congress, still in thrall to the former president?
That's our focus today and we have an ideal panel to talk it through - in fact, they wrote the book. They are Bob Bauer, Professor of Practice and Distinguished Scholar in residence at NYU Law School and co-director of NYU Legislative and Regulatory Process Clinic. Bob served as White House Counsel to President Obama and was named co-chair of the Presidential Commission on Election Administration in 2013. He is the co-author of After Trump Reconstructing the Presidency, an in-depth assessment of the damage to the constitutional system perpetrated by our just departed president, and an exposition of some dozens of concrete policy proposals to plug the gaps that Trump exploited. Bob, thank you very much for joining.
Bob Bauer [00:02:26] Thank you for having me.
Harry Litman [00:02:28] Jack Goldsmith, the Learned Hand professor of law at Harvard University, a senior fellow at the Hoover Institution at Stanford University, and the co-founder of the Lawfare blog. Jack served as assistant attorney general for the Office of Legal Counsel from 2003 to 2004 and special counsel to the Department of Defense from 2002 to 2003. He's a prolific author and I want to note just one from 2019 because it's sort of a departure for him but a total page turner. "In Hoffa's Shadow," about a suspect in the death of Jimmy Hoffa, who happens to have been Jack's stepfather. But most important for current purposes, he is that other co-author with Bob of After Trump. Jack, thanks for coming.
Jack Goldsmith [00:03:16] Thank you, Harry.
Harry Litman [00:03:17] And Jamie Gorelick, one of the best known litigators in the United States, she has been a partner at Wilmer Hale since 2003. Among her countless accolades, she's been named Lawyer of the Year by Best Lawyers in America and won the 2018 Lifetime Achiever Award by the American Lawyer. She served as the Deputy Attorney General of the United States from 1994 to 1997, where I can attest she inspired universal respect and ferocious loyalty. She also was a member of the bipartisan 9/11 Commission, as well as the General Counsel of the Department of Defense. Jamie, thank you so much for joining.
Jamie Gorelick [00:03:56] Glad to be here.
Harry Litman [00:03:57] Let's just start with a few high level questions and maybe through a political lens. Bob and Jack, you've said the reason we wrote the book is that we worry about a more competent Trump presidency in the future. How likely is that? Trump, I think, did a lot more damage than most people, certainly than I anticipated, and did capitalize on vulnerabilities in the political system that we didn't know existed. But he was in so many ways a singular president, and not least because of this remarkable sort of shamelessness and imperviousness to norms. So does it make sense in the first place to try to regulate against that kind of singular figure? And is there a risk that in doing so, you sort of deform the system as it exists for 99 percent of normal times in the country?
Jack Goldsmith [00:04:51] So that's a great question. We obviously think it was, that it was worth proposing these reforms. There is a danger, and we talk about this upfront in the book that one presidency can create problems for the operation of the presidency for other presidencies. So in trying to deal with one problem, the last problem, you could make it harder for the next president. For two reasons at least, we think that these reforms are important despite the fact that Trump was a singular figure. One is some of these reforms we now believe some issues like tax disclosure, mandatory tax disclosure for presidents and presidential candidates, conflict of interest rules, things that were accepted as norms by both parties and presidents of both parties, and there are other issues, for decades and decades and that were followed as a matter of norms.
Trump has now shown that one can violate those and get away with it, and there's just not any justification for that. It's not the kind of things that are going to be a problem for any president with integrity, and those things we think shouldn't be left to norms any longer. They should be governed by law. So that should be done, and we don't think there's any normative justification for not doing that, regardless of who the next president is. Then there's a cluster of concerns and a large motivation for the book, and that is that there will be another Trump. And it won't look just like Donald Trump and it won't have his singular characteristics. And it might be left wing and it might be right wing and it might be something else. But there's definitely still a large populist strain in the country. There's definitely still an anti-elitist strain. Trump has shown the power of demagog politics and we think that we need to prepare, and it would be irresponsible not to prepare for another demagogic-type president that might not look like Trump. And we think we can do so, and we propose a bunch of ways to do so that won't hamper a presidency with integrity.
Harry Litman [00:06:34] That's an interesting question, the sort of rise of a person like Trump. I was reviewing the Federalist Papers in preparation for this, and Hamilton actually wrote in Federalist 68 that the process of election affords a moral certainty that the office of president will never fall to the lot of any man who's not in an eminent degree endowed with the requisite qualifications, and goes on to sort of discount the probability of a demagogue arising. You trace in the book the possibility of a future trump, the even more scary, more competent Trump to the general democratization of the nomination process, the sort of withdrawal of party forces and more of a popular control over who gets the nomination. Is that fair and is that what you think makes the prospect of another Trump more tangible?
Bob Bauer [00:07:29] Yes. But let me let me just say one thing, which is I think the counterpoint to the Hamilton citation of yours a minute ago, and that is, yes, their view was that if given the structure of the constitutional arrangements, given the safeguards they thought they had put in place, the framers believed that they had erected some safeguards against the election of a demagog or as Madison put it, I think in number ten, against the unworthy candidate who practiced sort of the vicious arts by which elections are sometimes won. And the arrangement that they put in place doesn't have those same safeguards any longer. Or let's put it this way, they don't have the same safeguards and are not erected to the same effect. The structures have changed significantly. The assumptions behind the election of candidates are very different today.
Harry Litman [00:08:16] Is that basically because of the rise of the party system?
Bob Bauer [00:08:18] That's right. There's no question that party competition has a good bit to do with it. Most significantly, there is no filtering mechanism any longer, the parties don't play that role. So when Donald Trump took over the Republican Party, the Republican Party didn't, if you will, resist. Remember, there was some discussion that the party in Cleveland would rise up to defend itself against Trump, and it didn't do that. And the general view is that candidates, whoever they may be, whatever their most recent party affiliation might have been, should be free to enter the primary competitions of the major parties. In some cases, they don't rely on any support except their own bank accounts and an attempt to rise to the top. And so there isn't anything to stop that from happening any longer.
Harry Litman [00:08:58] Let me ask just about then. So if we're going to be doing these reforms, is it feasible to think that they can be initiated, say now? What political people or offices might we look to to take the lead in this sort of clean up project? In the wake of, say, Watergate, there was a broad social consensus that we needed to do things, and it led to the church commission and a number of things. Here, you still have a very strong Trump base and a party that seems to be afraid of him and a president who has a lot of other things to do. If these proposals were to be run with, who do you see as taking the baton and running? And I wanted to include in this and maybe ask Jamie, who was so close with and has known Merrick Garland for many years, whether that would be something that he would actually try to make part of his tenure.
Jamie Gorelick [00:09:52] Well, to the extent that the norms that were broken are norms that involve the Department of Justice, I think you will see certainly his practice changing, although a lot of the practice that needs changing is the behavior of the president, and Joe Biden is not going to do these things. And I would note actually I was thinking, Jack, as you were speaking, that one of the main things that has changed is that a president can speak via Twitter or something else. All of the norms about the relationship between the Justice Department and the White House were premised on the idea that there would be a conversation or a writing that went between the White House and the Justice Department and the processes that were set up or designed to force that conversation to be between the attorney general and the deputy attorney general on one hand, and the White House counsel and the deputy White House counsel on the other.
And then you have the president just speaking to everyone, including whoever might be able to hear it at the Justice Department. So there are a lot of things that have changed. The one event that I would point to, Harry, as a model was the lapsing of the independent counsel law. It was allowed to lapse by both parties when both of them could have been gored by it. So depending on what the substance of the changes would be, you could imagine a circumstance where no one knows who's going to be constrained by what, and they jump off the cliff together. I mean, there was bipartisan agreement that the independent counsel law was distorting of our justice system for different reasons from the left and the right. But they came to the same place.
Harry Litman [00:11:36] Yeah, I want to be talking about that among the concrete proposals. And it's the first thing I thought of when Jack mentioned about fighting the last war. It seems the perfect example of we've had two systems in place and the independent counsel statute, to my mind, seems perfectly adapted to the Mueller investigation and the special counsel perfectly adapted to the star. And I'm not sure where we go from there.
Jamie Gorelick [00:12:01] Let me just say, my point was not about the independent counsel law. It was about the the process of consensus. Yes, you could develop an agreement between the political parties that changes should be put in place because at a time when nobody knows who's going to be affected.
Harry Litman [00:12:18] Yeah, I suppose that's possible. I wonder who initiates here, especially if since, as you say, things figure to quiet down quite a bit. Let me ask actually, Jack and Bob, if you think there's a realistic prospect that people remember the recent past well enough to try, in fact, to initiate some of these proposals.
Bob Bauer [00:12:40] You are right, there's a tendency to use a phrase that you hear now, and I think, unfortunately, the number of context that there's a tendency for the political process to, quote, move on and for the public to be urged to quote unquote, move on. And then we move past an experience far faster than we should when we should be absorbing and responding to it and also learning from it in a way that enables us potentially to protect against reoccurrence. It's going to require a combination of outside pressures, some at least consistent focus on these reforms that has brought into the media and brought to the Congress. And to the extent that it's necessary to the administration, to move at least some of this forward, to keep attention paid to it in some way. No question about that. And it may be that it is a question of setting priorities. I suspect it is.
And starting with Jack and I refer to it this way, I think a couple of times in the book as these sort of lower hanging fruit here, the sort of reforms on which there ought to be some bipartisan consensus like financial conflict of interest regulations, and maybe even, because the House has started to move in this direction, reform of the pardon power. So it's not all going to get done. The one thing I do want to stress, however, is that beyond the practice in the Department of Justice, that is to the better personnel with high ethical standards who are not going to repeat the mistakes of their predecessors. There's also the opportunity to strengthen by internal regulation, some of the safeguards against the politicization of the Department of Justice. And I think we've seen enough in the last few years to prompt some consideration of that in the Garland Department of Justice, and I think we all hope to see that.
Jamie Gorelick [00:14:13] Bob, that's the sort of thing that can be just tossed by a new administration. If in the Biden administration, a regulation is put in place with regard to contacts with the White House, a new administration can put in place a new regulation. What meaningfully have you achieved?
Bob Bauer [00:14:33] It is important to reaffirm the standards. What I use as an example, and maybe it's one of a kind, but I don't think it's insignificant. Jimmy Carter began on his presidency in the post Watergate period by signing into effect an executive order that set out executive branch wide ethics standards to supplement the ones already in place. And in every succeeding administration, the public and the press expects, certainly the press expects, that presidents will do the same, and even Donald Trump signed into effect on the first day in office an ethics code. I think that with the right structuring and the right focus and adequate public attention. One administration at least creates a demand that the next administration defend its unwillingness to do that. One administration makes an issue of regulation that would have the effect of plugging gaps in the deep politicization structures, and the next administration is going to have to explain why it wants to reopen those gaps. So I think it serves some purpose, it's not a guarantee, and of course, that's one of the reasons why in our book, Jack and I recommend a mix of internal regulation and legislative reform.
Jack Goldsmith [00:15:38] I think it's important, and I agree with Jamie's point, that if one administration changed the regulations, another one can certainly come in and in theory change them. But these things are stickier than that, I think. And it's important to realize the extent to which most - not all, but most of the norm breaking that went on in the Trump administration came from the president's mouth and Twitter feed. And, yes, Barr broke a few norms, but for the most part, we should appreciate and remember the extent to which the Department of Justice didn't carry out the president's wishes, the extent to which the norms and the laws that inform the norms held. I mean, no one, if you read volume two of the Mueller report, no one in the White House or in the Justice Department would go along with the president's pressure.
And that was in part because there was a norm against resisting that, and in part because they were worried about the obstruction of justice statute and its uncertain application. So I think that the norms that are established in the Justice Department and the practices that established mattered more than people give them credit for, even though they're not like enforceable laws. Some other examples, some of the reforms aren't just about setting norms, they're about clarifying responsibilities in ways that weren't clarified before and should be clarified in ways going forward that we think will take away a lot of the politicization. There was a lot of uncertainty about the allocation of authority and unclarity about the allocation of authority between the FBI and the Justice Department that the inspector general noted in both the Hillary Clinton investigation report and in the Carter Page report.
And that's the kind of thing that we think could be clarified. We think that those important decisions should be made in the attorney general's office, that they shouldn't be dealable, that a future FBI director should not have discretion to do some of the things that Director Comey did, or that the norms were not clarified enough that he could do what he did. So there's a lot of clarity that could be brought to bear that we think will also improve the government. So I think that these norms and these regulations in these patterns of behavior stickier than we think, which is not to say that they're perfect. And that's why, again, none of these solutions are perfect. They're all about moving the guardrails, so to speak. And we do think there's important statutory reforms that need to be done in conjunction with these internal reforms.
Harry Litman [00:17:56] So, yes, I mean, you are sort of building different bricks and you make a pretty persuasive case in the book, actually, that the norms held more with the exception of the present. And you do have the feeling, looking back on it that the times when they bent, it was under, I think, of a few times where the deputy attorney general, Rod Rosenstein, definitely abridged some of the norms, but there was a feeling of really walking against the wind. To Jamie's point though, I just wanted to do a postscript because Trump himself did, as Bob said, enact that code coming in. But in the hubbub at the end, not everybody knew that he simply just withdrew it. So his sort of great drain the swamp ethical guidelines for the executive branch at the end, he just said, never mind.
Jack Goldsmith [00:18:39] Exactly, but the White House, for example, the contacts policy that every administration, as Jamie was alluding to, every administration comes in with a new version, some variation on the theme. And that was true in the Trump administration as well, but those guidelines never applied to the president. They never purported to tell the president what he could or couldn't say. I don't think the president was ever mentioned in any of those guidelines. They were always about White House DOJ, and they're always about ensuring that the relationship between the White House counsel and the attorney general and the head of the agencies, et cetera, et cetera.
Harry Litman [00:19:08] Can I push back on that and ask Jamie? Because they don't say that in text, but I would have actually thought that the norm had some power, you know, during the Clinton investigation. I don't think he would have willy nilly picked up the phone and called, well, certainly not Janet Reno. But that's sort of the point in part of norms, right, that they have a kind of open-endedness and a cultural force that can apply outside their bounds.
Jamie Gorelick [00:19:34] I think Jack is saying that the letter itself doesn't apply to the president.
Jack Goldsmith [00:19:38] That's all I was saying. I wasn't saying there wasn't a norm that applied to the president. I was just saying that a lot of these policies technically weren't dealing with the situation presented by Trump. I do think that there were powerful norms about speaking about ongoing prosecutions that presidents adhered to prior to Trump.
Jamie Gorelick [00:19:55] I frankly thought that the letter itself applied to the president and the vice president and everyone in the White House. There is a letter that has been exchanged, if you will, between the White House and the Justice Department at the outset of every administration going back decades, that basically says communications between the Justice Department and the White House on enforcement matters must be in this very tight channel between the White House counsel and his or her deputy and the attorney general and his or her deputy. And it doesn't declare what you may or may not say, it assumes that people in those positions will exercise the appropriate judgment. And as far as I know, that is what happened. I mean, there was a view that that letter, the so-called no contacts policy, meant no contacts, and that if you ever were to get a call from someone in the White House about a pending enforcement matter, I mean, you would like, hang up. And so the question then is what to do about that?
When people started to focus on the fact that Trump was signaling via his tweets what he wanted to have happen in enforcement matters, people called and I remember reporters calling me and say, well what is the policy? And I described the policy, and they they looked at the letter and they said, but all this does is channel communications. It doesn't say that he can't do that. And that is true. It doesn't say that the White House can't have a conversation. And the, and the one thing I would like to get to is what is the consequence of saying you can't have a conversation? Because I actually think that that has profound potential consequences for the Justice Department if it can't in any way speak to the White House about an enforcement matter.
Bob Bauer [00:21:49] Can I introduce a slightly darker note here about norms for a second? And that is I agree that some of them held and behaviors of officials influenced by norms were better, more stalwart in the face of challenge than some people might have feared. But at the same time, I think norms also reflect widely accepted parameters at a particular moment in our politics. And some of these norms are under pressures that Donald Trump didn't generate, he exploited them. As an example, by the way, which is why I want to bring it into the DOJ conversation, is what we mean when we say that the White House doesn't involve itself in enforcement matters. And, Jamie, that something it would be helpful to sort of explore here.
What do we mean by intervention in enforcement matters? Trump was perplexed that he was told apparently time and again that he shouldn't direct the prosecution of identified parties, whether they were political enemies or whoever else it might have been the ones on a given day to have prosecuted. But we all know that a president might have motives to prosecute that are entirely consistent with policies that they've articulated. Take a candidate who has campaigned on, say, making Wall Street executives accountable for financial abuses, and is answering a complaint that not enough accountability was achieved in the wake of the 2008 financial crisis.
And this president comes to the conclusion that his or her Department of Justice has just simply not been robust enough in responding to press reports of abuse on Wall Street, and he wants to see prosecutions. He wants to see senior executives whose names show up in the paper investigated thoroughly for misdeeds that the public expects to be addressed in some fashion. Can that president say to the White House counsel, I read this horrific story in The New York Times this morning about executive acts of financial institution, why I want that SOB investigated! The channel is certainly the correct one, the communication went to the White House counsel. White House counsel calls the deputy attorney general and says investigate. Now, is that improper?
Jamie Gorelick [00:23:47] Yes, that's the exact point I'm making, is that the letter itself, the no contacts policy itself, isn't really a no contact policy. I think everyone would agree that short of the very last thing you said, Bob, it is entirely appropriate for a president to say, I want my Department of Justice to throw the book at the kind of financial crimes that we saw on the financial crisis. George Bush actually said that to Larry Thompson and set up a whole rubric for doing that. That's different, of course, from saying go indict so-and-so.
Bob Bauer [00:24:21] Didn't say indict, though. Let me push you on that, if I could a little bit. What if in the White House press briefing room, the White House press secretary is asked, we read this morning about this outlandish, apparent scheme on Wall Street. Is the president concerned? Yes, the president is absolutely concerned. Does the president expect the Department of Justice to look into the matter? Well, we think the president's concerned about matters like this. And so, yes...so in another sense, it's an exercise in signaling. Why shouldn't, some would say, the president said, yes, the president expects the Department of Justice to look into this. Would you view that as an interference in the enforcement process?
Jamie Gorelick [00:24:55] I personally don't. This is why I worry about turning norms into rules. I had a couple of occasions to talk to one of your predecessors, Bob, about enforcement matters that reflected significant policy issues within the department, and I think that the president ought to be able to weigh in on the policy matters, I'm distinguishing that from this happened, saying to Attorney General Barr, I don't like the way that my former national security adviser was punished here. I would like you to do whatever you can to change the result in the prosecution of Mike Flynn. I see those as two quite different things.
Jack Goldsmith [00:25:38] And if I might say, that's an important distinction. We are not proposing, and in fact, we acknowledge more so than many people are willing to acknowledge, that the president under Article II has significant authority to direct the attorney general in his law enforcement priorities. There are plenty of examples in the 19th centuries of presidents getting involved in particular prosecutions. We accept that, and we don't purport to change that. What we're concerned about is when the president gets involved in directly self-interested law enforcement matters, things when he's trying to protect himself, when he's trying perhaps to obstruct justice, things that look like obstruction of justice or when he's trying to use law enforcement matters against his political opponents.
Those are the dangerous situations. They are very hard to regulate, but precisely because presidents do have this authority, precisely because there situations when the Justice Department might appropriately go after, in an enforcement or investigation, a member of a different party. But Trump really highlighted the weaknesses of the norms and the law when it comes to presidents trying to manipulate law enforcement to protect themselves, protect their friends and hurt their enemies. And he went further in that regard, arguably further in some dimensions than Nixon, and those are the areas we're focused on. We're not, in general focused on things that Jamie was worried about. And by the way, this is not something everyone agrees with, but we wouldn't - I wouldn't, I don't think Bob would want to alter what Jamie said should be the normal practice. I think we actually acknowledge that in the book.
Jamie Gorelick [00:27:03] And on the political part, Trump interfering with the prosecutions of people he was close to. But I don't think there's hardly anyone who worked in the Department of Justice, bottom to top, who would disagree with the line that you've drawn.
Jack Goldsmith [00:27:17] Yeah, but the tricky part is figuring out how to accomplish it.
Harry Litman [00:27:21] Yeah, well, I think in general, I mean, this is making an important point about norms versus laws. I mean, in the Federalist 68 world where you have people with ultimate judgment, et cetera, there are many times where norms are a greater virtue, exactly as Jamie is saying, because they allow for the flexibility when it's needed, and it's very hard to legislate what that would be in advance. I want to ask you first about the special counsel. You have several concrete issues here. You call in general for especially a requirement, I guess imposed within the executive branch, and this is another aside to our previous conversation. But of course, there's always the risk that a future administration will take a very strong view of Article II and actually not follow some of the things that have been passed in a regulatory way. But you call especially for the requirement of a full factual report by a special counsel or an independent counsel. And so what problem are you responding to there?
Jack Goldsmith [00:28:26] Let me just preface by saying we have a lot of fine-grained in the weeds proposals for the special counsel. We basically think that the 1999 regulations that replaced the independent counsel statute and that the move from the independent counsel statute to the 1999 regulations was a move in the right direction in a couple of ways. We think that ultimately the decisions have to be grounded and the legal decisions have to be made by the attorney general. We don't think that having a fully kind of a really independent counsel is a good idea in these contexts. So we we agree with the thrust of the regulations, and we basically try to enhance what they try to do with the one exception of what you just talked about. Let me also say there's no perfect solution.
You're trying to predict the future and we're working it out over time, but I do think the regulations learned from the statute experience, and and I think, frankly, for the most part, there were problems with them under the Mueller investigation. That was the first time they've really ever been given a full test. But in any event, the point that you just raised is a point where we kind of depart from the regulations, and that is the regulations tried to - they didn't like the experience with Starr and his impeachment report. And there was a statutory requirement or authorization for the independent counsel to send a report to Congress related to impeachment. The regulations took that out. They call for a report. They didn't call it an impeachment report, but they were clearly trying to move in the other direction of less reporting. Less public reporting gave the attorney general discretion. I don't think the regulations contemplated a four hundred and some-odd report like Mueller filed, which was in effect, in my judgment, an impeachment report.
We think that in these high status cases that the account, the so-called accountability function of the. Special counsel, the gathering of facts and reporting to the public is inevitably going to happen, and we think that is an important function of the special counsel and we would try to protect the special counsel's ability to perform that function. And there are dangers with that, but we basically think that the special counsel should be given some protection from the attorney general and some independence to develop the facts within the law is determined by the attorney general. And then the attorney general has lots of authority on the back end to make legal decisions and the like, but there is a reporting role for the special counsel to report these facts publicly. So we try to build that into the regulations. There's a counterargument to that, but we don't think it should be an impeachment report, we think it should be factual. But basically that's that's the argument. And that's a departure from the regulations and emphasis that's different from the regulations.
Harry Litman [00:30:55] Would you have a Trump rule six? Would you have the authority to disclose grand jury material?
Bob Bauer [00:31:00] I think that we suggest that the special counsel, if I remember correctly, said that the special counsel can take into account grand jury secrecy and privacy considerations. What came to mind immediately? Maybe it's the wrong thing to come to mind, something like the famous Starr appendix.
Jamie Gorelick [00:31:16] You could have, in essence, two different reports. To me, the most important thing about the independent counsel rules from the point of view of the Justice Department having lived through the Reno years when we just had one after another, it was ridiculous, is that there should be very few circumstances in which the Justice Department cannot find someone within its ranks who is independent and competent to do an investigation. There should be very few circumstances and the reason for that is it is distorting. There is no way that most of the time that was spent by most of those independent counsels would have been spent by any normal prosecutor. And it exacted an enormous toll to the members of the cabinet and others who were subject to that, and intentionally subject for a very long time.
I mean, Starr prolonged one piece of it that my successor handed him that A, shouldn't have gone to him, and B, it should have been concluded right away. And everyone knew what the bottom line was, they knew what he concluded and he just held on to it for two years. That was obscene. And so I would say it should be, in order to keep regular order, there really should be very few circumstances in which you go outside of the department. Now, having said that, what happened with my partner, Bob Mueller, was also an outrage. I mean, it was an impeachment report. It was here are the facts, you Congress do your job, and they never got it. They never got it.
Harry Litman [00:32:50] Yeah. I mean, it struck me as a report, you know, just leaving aside whether there was retribution for criminal conduct, that the nation as a whole doesn't fully know the facts is, I think, a huge problem. Now, one reason, of course, which is the ability under the current regime for the attorney general to dictate. And I note that in several of your proposals involving the tweaking of the special counsel provisions, you basically rely on attorney general notification to Congress, which I think proved not equal to the task in the last go round with Bill Barr.
Jamie Gorelick [00:33:29] I think history would have been very different if in real time, when Mueller finished his report, it went to the Hill.
Harry Litman [00:33:36] It strikes me you don't disagree with - I mean, don't speak to timing, but you really say that one thing the attorney general shouldn't be able to impede is the production and publication of a factual report, yes?
Bob Bauer [00:33:48] We have an appendix in which we do have the text for just a few of our proposals. So that is to say, some sort of model. Texas, for argument's sake, and there are timelines built into it. There's a calendar for assuring, to the extent that you can assure these things, with the regulation, obviously, that the president could change, but a timelines for the production of the public report and its transmittal to Congress, yes. I don't recall how long the delay was, but I don't know that it was fatal. And the way it was spun certainly was an issue, but I think ultimately it was the difference between public expectation of the report and the content of the report that doomed any impeachment effort based on it.
Harry Litman [00:34:24] It raises a really important general question because we focus on Trump and his aberrations, but a big part of the last four years has been by power or persuasion or whatever else, his ability to keep in thrall the entire Republican Senate. And as long as that was going to be the case, you know, who knows which of these reforms would actually be effective.
Bob Bauer [00:34:48] What I was referring to is that the expectation that there would be some very strong findings on collusion, the expectation that he would reach a conclusion about obstruction of justice. When that turned out not to be the case, I think the impeachment balloon lost most of its air.
Jamie Gorelick [00:35:03] You may be right.
Harry Litman [00:35:04] A very interesting, and pretty radical proposal here and Bob, I'll ask you about it, given your background, is the dramatic shrinking of the White House counsel's office. So can you describe that and explain how you think it dovetails with the abuses of the last administration?
Bob Bauer [00:35:22] We begin the chapter on the White House counsel by talking about the sort of controversial history of the office, the fear that people have had, that the White House counsel is just too much under the thumb of the president, who often reflects personal and political relationships with the president in too often a way that the president can shop for the advice that the president wants, as the White House counsel is a member of the White House senior staff. And so where's that team jersey, if you will, or who will be seen to be wearing the team jersey? And then we talk about Trump's expectations, which were constantly frustrated. We don't know everything that happened in the last few months with Pat Cipollone, but we certainly know that he had his conflict with Don McGahn. And we know a good bit about the experience with McGahn, and Trump's frustration wasn't, again, wasn't Roy Cohn. He didn't understand why it was he had a lawyer who just wouldn't do what he asked him to do.
And it made me reflect on a job that was the best job I will ever have, I enjoyed every minute of it, that really at the end of the day, while the president, for practical reasons, does need to have legal advisers in the building, available, downstairs to the Oval Office on a moment's notice, available to the senior staff, that the building of a small law firm in the White House sucks so much credibility and authority away, at least on the issues the president cares about, from other component agencies including the Department of Justice, that I think it's dangerous, and it would be far better to have the White House counsel and a couple of deputies in the White House who would have the core analytic support function return to the Department of Justice, that's where it was until basically the Nixon administration, although I know there was some more lawyering in the Kennedy and Johnson administrations in the White House counsel's office, but it didn't develop in the form that we have it today until the 1960s. And think it's a good balance to have the senior lawyers in the White House, but the body of lawyers who are going to attend to legal questions like that from the president located in the Department of Justice.
Harry Litman [00:37:13] And Jack, you had that job. So I gather the specific worry is that it somehow undermines the authority of OLC, or at least gives the president a counterpoint to always raise. Did you experience that?
Jack Goldsmith [00:37:25] I felt it on one occasion, when the White House counsel advised the president to disregard one of my opinions. But was happy when it changed his mind two days later. But other than that, I would say that, look, OLC's power vis a vis the White House counsel is often a function of not the kind of thing Bob was talking about, but who the White House Counsel is, who the attorney general is, who the head of OLC is, and who the president is. And that's a shifting relationship. I did not feel that the White House counsel was overbearing. This proposal is really not about giving OLC more power, about kind of trying to take the politicization of legal advice out of the White House.
Jamie Gorelick [00:38:03] Let me make two comments. One is I didn't experience, Bob, what you are talking about. In the Clinton administration, the White House Counsel's office did not opine on anything that I could see, that did not have backing from the Justice Department, that's number one. And number two, no important decision of the Office of Legal Counsel went to the White House without plenary review in my office with the solicitor general, with the head of the civil division, the head of the criminal division, whoever the relevant parties would be. We took that really, really seriously. And I didn't, I didn't feel that the White House counsel's office was telling us what to do. They would call and say the president wants to do X. Is it lawful? That's the right question. And we would give them our answer. One are the norms that should be put in place is that there is that plenary review so you don't get an end around with somebody calling from the White House and getting their favorite person in OLC to write an opinion, which the head of OLC, let alone the attorney general and the deputy attorney general, don't agree with.
Harry Litman [00:39:11] Just to raise a hypothetical. OK, I think I'll call quick audible here, because I want to get to one more question, and it's this. Why are Republicans staying with Trump until the bitter end when they deserted Nixon for what seems like less egregious behavior?
Bob Bauer [00:39:32] The circumstances of Nixon's, they're very different. The Republican Party as a whole had started to walk away from Nixon at the very end. It is my recollection, in part because of the belief that he lost control of the government. He was inexperienced, and people thought he might not be the most charismatic person in the world. But at the same time, he was a powerful president, effective president his party thought, representing sort of a muscular proponent for the party's policies, and he was horribly enfeebled. And I think that ultimately is what led the Republican Party to walk away from him. Plus, of course, he was caught with a smoking gun tape with the complete collapse of his defense.
Jamie Gorelick [00:40:10] There was that. There was that.
Jack Goldsmith [00:40:12] Yeah, but Trump was caught with a smoking gun.
Bob Bauer [00:40:14] Well that's why, I think that's where the time has changed. I think that, I think that the Republican Party has changed, and the reason that Republican members of Congress appear to be unwilling to break with him is very simply because his base isn't walking away from him in the way that Nixon's base walked away from him.
Harry Litman [00:40:27] Right. And that, I'm sure you talked about tweets and news, I'm sure it's all connected to that. Oy vey, I wish we had more time. Thank you very much to Bob, Jack and Jamie, and thank you very much, listeners, for tuning in to Talking Feds. If you like what you've heard, please tell a friend to subscribe to us on Apple Podcasts or wherever they get their podcasts, and please take a moment to rate and review this podcast. You can follow us on Twitter @TalkingFedsPod to find out about future episodes and other Feds-related content. You can check us out on the web, talkingfeds.com , where we have full episode transcripts, and you can elect to see our latest offerings on Patreon, where we post discussions about special topics exclusively for supporters. Submit your questions to questions@talkingfeds.com , whether it's for Five Words or Fewer or general questions about the inner workings of the legal system for our Sidebar segments.
And if you go to our website, you'll find a link to submit questions live on audio, and if we select them, we'll play your tape during the episode. Talking Feds is produced by Jennifer Bassett and Rebecca Lowe Patton. Our editor is Justin Wright. David Lieberman and Rosie Dawn Griffin are our contributing writers. Production assistance by Matt McArdle. Our consulting producer is Andrea Carla Michaels. Our gratitude, as always, to the amazing Philip Glass, who graciously lets us use his music. Talking Feds is a production of Dalito, LLC. I'm Harry Litman, see you next time.
