JANUARY 15, 2021
CONTRIBUTOR’S NOTE: In the review below, I explore the arguments in favor of prosecuting President Trump after he leaves office for federal and state crimes. After my review was written, on January 2, 2021, Trump pressured Brad Raffensperger, the Georgia secretary of state, to reverse the results of the presidential election in his state. On January 6, Trump incited his followers to mount a siege on the Capitol. In addition to the potential crimes discussed in my review, the president’s actions during his final month in office also deserve to be investigated and, if warranted, prosecuted under federal, state, and municipal law.
AS THE NIGHTMARE of President Donald J. Trump comes to an end, we have some reassuring news: a Republican and a Democrat, with knowledge and experience about the American presidency, have already taken a hard look at the last four years, identifying the gaps and uncertainties in the law that have allowed Trump to make a travesty of our system, and offering a blueprint the country can use to repair the damage. They have carefully diagnosed just how naïvely our democracy depends on our leaders to follow unwritten norms of conduct, and they outline specifically how Congress, the Department of Justice, and other agencies could codify these norms into law to ensure greater accountability in the future. And they take a serious look at whether Trump should be investigated and, if warranted, prosecuted for the crimes he has committed before and after becoming president of the United States.
The experts are Bob Bauer and Jack Goldsmith, and in their new book, After Trump: Reconstructing the Presidency, they propose concrete changes “to the laws, regulations, and norms that govern the presidency in what is the first attempt to think comprehensively about the proper shape of a post-Trump executive branch.”
Bauer served as White House counsel to President Obama, who named him co-chair of the Presidential Commission on Election Administration. He is a professor of Practice and Distinguished Scholar in Residence at New York University School of Law (on leave), as well as the co-director of the university’s Legislative and Regulatory Process Clinic. Most recently, Bauer successfully headed President-elect Joe Biden’s legal team, designing and supervising the multi-state response to over 30 legal challenges Trump unsuccessfully mounted to try to undo Biden’s victory.
Goldsmith is the Learned Hand Professor at Harvard Law School, co-founder of Lawfare, and a senior fellow at the Hoover Institution. He served as legal counsel to George W. Bush’s White House as assistant attorney general in the Office of Legal Counsel in 2003–’04.
The authors explain that they have written extensively on the presidency, “supportive of presidential power in some contexts and critical of it in others.” Together they have accomplished the feat of explaining this broad and complex legal and political arena in a clear and engaging manner easy for lay readers to understand, while providing the incoming Biden administration with 50 detailed proposals and 28 pages of appendices containing a summary of each reform and draft amendments which literally can be copied and pasted directly into new legislation and regulations. They cover such important areas as foreign state influence in elections, financial conflicts of interest, disclosure of tax returns, protecting a free press, the pardon power, justice department independence, the role of special counsels, the federal bureaucracy, investigating past administrations, White House counsel, war powers and nuclear weapons, vacancies reform, and congressional oversight.
Since “Trump operated the presidency in ways that defied widely held assumptions about how a president might use and abuse the powers of the office,” the authors write, Trump’s “mercurial personality, pathological mendacity, shamelessness, open disrespect for law and norms, vicious attacks on officials and institutions, intermingling of public and private interest, and indifference to facts did enormous damage to the great office that he assumed on January 20, 2017.” And that was written even before Trump undermined confidence in the integrity of the elections and disrupted the 224-year norm of ensuring his successor a peaceful and efficient transition, all during a deadly pandemic. Writing before the 2020 election, Bauer and Goldsmith offer their advice to whoever follows Trump, whether it be on January 20, 2021, or January 20, 2025. Fortunately, for the sake of our country, it is sooner rather than later, and their proposals can immediately be put to good use.
Bauer and Goldsmith identify four related factors that have characterized the Trump presidency. First, Trump has been “indifferent to the nonlegal norms of presidential behavior that have been established since Watergate to constrain presidential power and ensure presidential accountability.” Second, “Trump has merged the institution of the presidency with his personal interests and has used the former to serve the latter like no previous occupant of the office.” Third, “Trump has aggressively and often mendaciously attacked core institutions of American democracy — especially the press, the judiciary, Congress, state and local governments, and many elements of his own executive branch, including the Justice Department and the intelligence agencies.” And fourth, “Trump deploys authoritarian rhetoric and threatens authoritarian action, often before large crowds, even if he typically does not follow through,” claiming “that he is not bound by the law, or that he wants to break free of it.”
All told, what the authors see is “classic demagogic behavior” (emphasis in the original), quoting Eric A. Posner’s definition in The Demagogue’s Playbook: The Battle for American Democracy from the Founders to Trump (2020):
[A] charismatic, amoral person who obtains the support of the people through dishonesty, emotional manipulation, and the exploitation of social divisions; who targets the political elites, blaming them for everything that has gone wrong; and who tries to destroy institutions — legal, political, religious, social — and other sources of power that stand in their way.
But Bauer and Goldsmith caution against the school of thought that sees Trump’s problems as “personal to him and are not structural or pervasive ones that demand reform.” Instead, the authors argue that even before Trump took office, many of the laws and norms governing the presidency were defective; that beyond the White House, other elements of the executive branch suffer from inadequate guidance and accountability; that even before Trump, our deeply polarized politics were leading presidents and congressional allies to give less weight to institutional practices that stood in the way of their achieving short-term political aims; and that after Trump, “the American people also may continue to elect presidents who distrust elites or profess to do so, who reject expertise and create ‘alternative facts,’ who attack and circumvent formal governing institutions, and who disrespect traditional principles of governance.”
The authors add the astute and terrifying possibility that despite Trump’s destructiveness, and despite the fact that he has often been incompetent at operating the levers of the presidency to achieve his ends, a “future president might have a better command of the governance tools of the presidency than Trump, and be defter in circumventing legal and norms-based limits.” Therefore, now is the ideal time to strengthen the legal restraints on the presidency and transform unwritten norms into enforceable guardrails before a more competent authoritarian is elected.
Before we turn to those much needed reforms, the nation must first decide what to do about Trump himself. He has been denied reelection. Consequently, he will lose the immunity — not found in any statute or court ruling, but merely in a 1973 legal opinion from the Office of Legal Counsel — that he has enjoyed for the last four years from investigation and potential prosecution for any federal crimes he has committed before or during his presidency.
Bauer and Goldsmith agree on all the reforms recommended in After Trump, but they have shades of disagreement on the question of how Trump should be held accountable. Bauer argues that Trump “should face a full investigation as determined by the merits of the matter and that he should not receive a blanket prospective pardon.” Goldsmith argues “for extreme caution in a criminal investigation of a prior president for acts done in office.”
Bauer readily acknowledges that the criminal prosecution of an ex-president, especially by a successor who just defeated him at the polls, would be unprecedented in American history and “carries a significant risk of inflaming the already-deep partisan divisions in the country.” However, on the other side “is the comparable, if not weightier, risk of establishing a ‘norm’ that [the] president is ‘above the law.’”
Bauer points out that there is already a pending criminal investigation being conducted by Manhattan district attorney Cyrus R. Vance, who, according to court filings, is looking into “potentially widespread and protracted criminal conduct” at the Trump Organization that may include tax fraud, insurance fraud, money laundering, and violation of New York’s racketeering statute. Thus a decision by the Biden administration not to prosecute Trump would not entirely spare the country the “risk of inflaming the already-deep partisan divisions in the country.”
Bauer is critical of Gerald Ford’s decision to pardon Richard Nixon in the name of “healing the country,” which was done without transparency and without following any clear and well-defined process. Bauer argues that when it comes to Trump, “[s]ound prosecutorial judgment and tightly developed and presented cases are essential to dispel to the extent possible any suspicion that the law has been weaponized for political purposes.” Essential “to achieving these goals is the operation of law enforcement on a fully independent basis, free of partisan influence or pressures.”
Goldsmith is more cautious when it comes to the question of investigating, and, if warranted, prosecuting Trump, but he does not categorically rule it out. He readily acknowledges Trump’s outrageous behavior but asks the harder question whether Trump has actually violated any federal criminal statutes, especially since in his opinion the law surrounding obstruction of justice, for example, is “so muddled.” He points out that an investigation, criminal trial, and subsequent appeals will take several years, consuming enormous time and money. He argues that “appropriate accountability does not necessarily mean criminal liability, even if crimes were committed.” A former president’s actions could be “made public, examined, and judged” by elections, hearings, public scrutiny, and condemnation, “9/11-style” truth commissions, and ostracization.
Goldsmith admits that it “might seem strange to give a president immunity from criminal prosecution for public crimes while in office to avoid destabilizing the presidency, and then to give him a pass on the criminal law after office in order to avoid destabilizing the nation.” But he counters with the questionable speculation that in the absence of a post-presidential prosecution, “it seems doubtful that a future president will look at Trump’s difficult time in office, and his fate after office, and feel incentivized to commit crimes.”
Really? How is the fact that Trump is not prosecuted a disincentive? And what does Goldsmith mean by Trump’s “fate after office”? If his “fate” means he gets away with indictable federal crimes, that is hardly a disincentive to future presidents. It is certainly not a disincentive to Trump himself, who has refused to concede to Biden and persists in feeding the lie that the 2020 election was “rigged.” Trump chose Thanksgiving Day to call the United States a “Third World country” due to “massive fraud” in the election. He declared: “We were robbed. We were robbed. I won by hundreds of thousands of votes. Everyone knows that.” He continues to undermine confidence in the electoral system by claiming that if “the media were honest and big tech was fair, it wouldn’t even be a contest.” The next day, he renewed his threat to disrupt a peaceful transition by tweeting that Biden would only be allowed to enter the White House “if he can prove his 80,000,000 votes were not fraudulent.”
Goldsmith offers the naïve promise that “there will inevitably be a thorough vetting of Trump’s presidential term by Congress, the press, and the public, and it will not be pretty for Trump.” It is disappointing that such an astute lawyer as Goldsmith would blur the distinction between an examination by Congress, the press, and the public of Trump’s politics and policies and a criminal investigation and potential prosecution by the Department of Justice. The former is simply no substitute for the latter.
Finally, Goldsmith invokes the precedent of President Barack Obama deciding not to investigate, let alone prosecute, former president George W. Bush on charges of authorizing torture and other violations of the law during the War on Terror. Obama reneged on a campaign promise to ask his attorney general to “immediately review the information” and determine if an inquiry is warranted. Instead, he chose, in his words, to “look forward as opposed to looking backwards.” Obama rationalized his decision by saying he had banned torture so that chapter was over. It didn’t make sense then and its doesn’t now. It remains a lasting stain on his presidency.
Ford justified his pardon of Nixon by claiming it would help “heal” the country. In fact, he titled his autobiography A Time to Heal. There is certainly something soothing about the idea of healing the nation, which suggests that with this act of mercy and compassion, the slate is wiped clean and the country can move on. The idea of healing is derived from the worlds of medicine and psychology. It means to make the body and mind free from injury or disease; to make one sound, whole and well again; to restore one to good health. But what doctor would tell a patient suffering from a serious illness or infectious disease to leave it untreated? What therapist would tell a client suffering from long-term depression to just look forward and not look back? The body politic cannot “heal” by ignoring what ails it, leaving the illness to fester. By talking about “healing” and “looking forward,” without addressing the crimes of their predecessors, Ford and Obama were ignoring the serious underlying disorders facing the country; they were not making us sound, whole, and well again.
The decision to pardon Nixon and let Bush off scot-free set bad examples that presidents are in fact above the law and will not be held accountable for their crimes. The lesson Trump learned was that Nixon was right: “When the President does it, that means it is not illegal.” If Nixon and Bush had been prosecuted, it would have served as a serious warning to all future presidents: break the law and you will prosecuted.
More importantly, the circumstances surrounding Presidents Nixon, Bush, and Trump are crucially different. Nixon resigned, accepted a pardon, and receded permanently from public life. Bush had already served two terms as president and could not run again. He too left the public stage. Trump remains front and center. Under the Constitution, he could again seek the presidency as early as 2024, and at a recent White House Christmas party, he told his supporters “I’ll see you in four years.” The last pre-election Gallup poll showed that 94 percent of Republicans — 97 percent of conservatives — approved of how Trump was doing his job. Over 74 million Americans voted for him, and he had 88 million followers on Twitter. And to keep their attention, it is rumored Trump will start his own TV network to challenge Fox News. Trump has already established a political action committee, which he can use not only to fund his reelection but to support Republican candidates for the next four years. By December 1, he had raised $170 million after losing the election. Chris Cillizza, CNN editor-at-large, argued that it is “very hard to imagine anyone can keep Trump from the 2024 nomination if he wants it.” Trump is doing nothing to “heal” the country. To fail to hold Trump accountable for federal crimes committed before and after he became president would serve as a dangerous precedent for future presidents, an ominous confirmation that Trump was indeed above the law, and an enormous incentive to renew his lawlessness if he succeeds in being elected president in 2024.
Despite his reservations about prosecuting Trump for his presidential crimes, Goldsmith is more sanguine about prosecuting him for crimes committed before he was elected. He concludes his analysis of this issue by noting that “[i]nvestigations of the president for crimes committed before the presidency or in a private capacity raise fewer hard legal issues and are easier to justify once the president leaves office.”
Bauer and Goldsmith are not the only ones giving serious thought to whether Trump should be investigated and prosecuted. In November, Jonathan Mahler, journalist and staff writer for The New York Times since 2001, wrote an extensive cover story for the Times’s Sunday magazine entitled, “Can America Restore the Rule of Law Without Prosecuting Trump?” (November 22, 2020). After acknowledging that prosecuting Trump would present the risks posed by Bauer and Goldsmith, Mahler asks,
[H]ow does the country move on from a president whose disregard for the law has been so constant and pervasive?
Every president seeks to exploit the immense power of the office, but Trump’s exploitation of this power represents a difference in both degree and kind. Never before had a president leveraged so much of the “energy” of the executive branch — Alexander Hamilton’s word — to advance his personal interests. […] Trump stretched the limits of his authority not just to enrich himself and his family but to block investigations into his personal and official conduct and to maintain his grip on power.
Mahler argues that Trump’s behavior does not exist on the same spectrum as that of his post-Watergate predecessors. Mahler proposes that one should look at Trump’s “possibly criminal conduct not as a byproduct of the pursuit of a political agenda but as a central self-perpetuating feature of his tenure.” It “connects his life as a businessman to his entry into politics and then onward across his four years as president.” As Mahler sees it,
One potentially illegal act led Trump to the next: from his law-bending moves as a businessman, to his questionable campaign-finance practices, to his willingness to interfere with investigations into his conduct, to his acts of public corruption and, finally, to the seemingly illegal abuse of the powers of his office in order to remain in office.
Mahler concedes that the stakes of prosecuting Trump may be high, “but so are the costs of not prosecuting him, which would send a dangerous message, one that transcends even the presidency, about the country’s commitment to the rule of law.” Mahler quotes Anne Milgram, the former attorney general of New Jersey, who points out that “[t]his whole presidency has been about someone who thought he was above the law. If he isn’t held accountable for possible crimes, then he literally was above the law.”
Mahler analyzes the full gamut of potential criminal charges Trump is facing. He believes that an election-law case against Trump would be the most appealing to a Biden Justice Department. When Michael Cohen, Trump’s personal lawyer and self-described “fixer,” pleaded guilty to violating two campaign-finance laws in the Southern District of New York, Cohen testified under oath in federal court that Trump had directed him to arrange for the hush-money payments to Stormy Daniels and Karen McDougal. Trump was actually part of the investigation but was protected by the Justice Department policy against indicting a sitting president. He was infamously named in the prosecution’s filings as an unindicted co-conspirator in the case — “Individual 1.”
According to Mahler, there is not much disagreement among the campaign-finance experts he interviewed about whether Trump could be indicted.
The hush-money payments to Daniels and McDougal were clearly meant to prevent the disclosure of information that could have damaged Trump’s campaign. As such, they almost certainly violated several campaign-finance laws, including the prohibition against accepting contributions in excess of $2,700 and the failure to properly report contributions to the Federal Election Commission.
And because the amount of money involved exceeded $25,000, the violations would be considered felonies; each one would be punishable by up to five years in prison. Judging from the facts and the experts he talked to, Mahler sees it as “a strong case” because “there is already material evidence of the scheme: Cohen presented congressional investigators with copies of canceled checks from Trump and the Trump Organization — reimbursements for the payments that he made to Daniels and that the Trump Organization classified as legal fees.” Campaign-finance laws were designed to limit the influence of private actors in elections, according to Paul S. Ryan, the vice president of policy and litigation at the election-watchdog group Common Cause, “to prevent not only the actual corruption of public officials but even the appearance of corruption that could undermine voter faith in government.”
The next most likely focus of a criminal prosecution is obstruction of justice and public corruption. Mahler reminds us that in connection with Robert Mueller’s investigation of the Trump campaign’s Russia connections, Mueller began a parallel inquiry into whether the president’s resistance to the initial investigation constituted obstruction of justice. Although Mueller proceeded as though he did not have the authority to indict a sitting president, the second volume of his report detailed 10 potentially obstructive acts. As soon as the report was released in the spring of 2019, more than 700 former federal prosecutors from Republican and Democratic administrations signed an open letter stating that if those same acts had been committed by anyone but the president, they would have resulted in multiple felony charges. Mahler reports that there is “broad agreement among the dozens of prosecutors and legal experts with whom I spoke that Mueller presented more than enough evidence to seek a grand-jury indictment against Trump for obstruction.” Mahler adds that “[o]bstructing justice is the mechanism by which powerful people try to place themselves above the law,” although he cautions that an obstructive act requires “corrupt intent,” which would mean “convincing 12 members of a jury that the president had corrupt motives.”
As far as public corruption goes, according to some of the prosecutors Mahler spoke to, two possible charges are conspiracy to defraud the United States and extortion. As part of the impeachment inquiry, the House Judiciary Committee also identified bribery (18 U.S. Code § 201), wire fraud (18 U.S. Code § 1343), and honest-services fraud (18 U.S. Code § 1346) as crimes Trump may have committed. “We thought it was important that the American people understand that the president of the United States engaged in conduct for which any other citizen could, and likely would, have been prosecuted,” Barry Berke, a white-collar defense lawyer who served as special counsel to the committee, told Mahler.
Mahler also points to an area of possible criminal exposure for Trump that has received scant attention. In “the final weeks of his term, Trump moved into a new sphere of potential criminality, directing all of the weight of the government’s executive branch toward his re-election effort.” He turned “the White House into a stage prop for the Republican National Convention, pardoning a former prisoner and participating in a naturalization ceremony as part of the festivities.” In October, days after checking out of Walter Reed hospital with COVID-19, Trump held a campaign rally on the South Lawn. (And after Mahler’s article was finished, Trump called the Republican members of the Wayne County Board of Canvassers in Michigan while they were in the midst of considering whether to certify the election results, and he also invited Michigan Republican lawmakers involved in the ongoing election process to attend a private meeting in the Oval Office, after which they stayed at the Trump International Hotel.)
In 1939, Congress passed the Hatch Act to prevent federal officials from using their authority for partisan purposes. Mahler points out that most “presidential administrations have since taken pains to separate their public and political operations, so as not to break the law.” Although presidents and vice presidents are exempt from the statute’s civil provisions, the Hatch Act also has criminal provisions from which the president is not exempt, including a prohibition against using one’s official authority to influence a federal election. “That’s the very heart of the Hatch Act,” Kathleen Clark, a professor of legal and government ethics at the law school at Washington University in St. Louis, told Mahler. “Public power is for public good, not for private good.”
Mahler concludes that while the “nation may desire healing,” there is “also the matter of justice, and there is no guarantee that what feels right now will look right through the longer lens of history.” He suggests it may be time to rethink the wisdom of Ford’s decision to pardon Nixon: “It’s hard not to wonder if a Trump presidency would have been possible if Nixon had been criminally prosecuted rather than pardoned.” In fact, Mahler sees an opportunity for Biden, “a chance to repair more than just the damage of the last four years” but to recognize that “when a president brazenly flouts the law, electoral defeat might not be enough of a punishment.” To really move on from Trump, Mahler writes, “healing” may have “to mean something fundamentally different from what it has in the past — and that without accountability, it may in fact be impossible.”
Another recommendation that Trump should face potential criminal indictments comes from Andrew Weissmann, a senior prosecutor in Mueller’s special counsel investigation, who is now a senior fellow at the New York University School of Law and the author of Where Law Ends: Inside the Mueller Investigation. In an op-ed in The New York Times on November 28, 2020, Weissmann wrote that “as painful and hard as it may be for the country, I believe the next attorney general should investigate Mr. Trump and, if warranted, prosecute him for potential federal crimes.” Admitting that he does not come to this position lightly and warning against turning the United States “into an autocratic state, where law enforcement authorities are political weapons of the reigning party,” he finds that Trump’s “criminal exposure is clear.” As a senior member of the Mueller investigation, Weissmann reports that his team “amassed ample evidence to support a charge that Mr. Trump obstructed justice.” Consequently, he asks what “precedent is set if obstructing such an investigation is allowed to go unpunished and undeterred?”
Weissmann points out that Trump’s potential criminal liability goes further, reaching actions before taking office. The investigations by the Manhattan district attorney and New York attorney general “may well reveal evidence warranting additional federal charges,” since potential financial crimes were not explored in the Mueller investigation. He notes that the evidence revealed by the special counsel is not trivial and therefore removes “concerns that Mr. Trump is being singled out for something that would not be investigated or prosecuted if committed by anyone else.” Because some of the activities in question predate his presidency, “it would be untenable to permit Mr. Trump’s winning a federal election to immunize him from consequences for earlier crimes.” Indeed, we “would not countenance that result if a former president was found to have committed a serious violent crime.”
Sweeping under the rug Trump’s federal obstruction would be worse still, Weissmann writes. “The precedent set for not deterring a president’s obstruction of a special counsel investigation would be too costly: It would make any future special counsel investigation toothless and set the presidency de facto above the law.” Weissmann rejects the comparison to Ford pardoning Nixon. “Mr. Nixon paid a very heavy price by resigning from the presidency in disgrace for his conduct.”
In short, Weissmann concludes, “being president should mean you are more accountable, not less, to the rule of law.”
When he was running for president, Joe Biden promised the American people that he would not pardon Donald Trump. He went further and promised that although he would not direct his attorney general to investigate and prosecute Trump, if “that was the judgment that he violated the law and should be in fact, criminally prosecuted, then so be it.”
So be it is right. If President Biden is serious about restoring public faith in our system of government and the rule of law, he must keep these promises and set an example that no one, not even a president, is above the law.
Investigating and prosecuting Trump would address this particularly corrupt presidency, but that is only part of the ambitious job of reconstructing the American presidency. Bauer and Goldsmith do an excellent job diagnosing the ills that have plagued the presidency before and after Trump took office and prescribing specific remedies. A few examples suggest the breadth and depth of what is needed to avoid uncertainty and conflict in the future.
Bauer and Goldsmith recommend that Congress should specifically prohibit any mutual aid agreements between presidential campaigns and foreign governments; require political campaigns to report to the FBI any contacts from foreign states offering support or assistance; and amend the Federal Election Campaign Act to clarify the definition of a prohibited “foreign national contribution” to include services, materials, and information such as opposition research.
Congress should amend the Ethics in Government Act to require presidents, vice presidents, and other candidates for those offices to publicly disclose their tax returns, and if they fail to do so, to authorize Congress to direct the secretary of the treasury to do so. Congress should also bar the president from any formal or informal active or supervisory role in the oversight of any private business; require the president to report his or her income, holdings, and management of assets and investments; and require the Government Accountability Office to conduct and submit to Congress annual audits of the president’s compliance with conflict of interest rules.
Given that presidents such as Nixon and Trump attacked the media and interfered with the issuance of press credentials, Bauer and Goldsmith recommend that the federal government be prohibited from devoting investigatory and related resources to punish or retaliate against the press and provide that the Secret Service shall approve applications for press credentials unless the applicant fails to meet comparable standards used in the judicial and legislative branches. In addition, Congress should amend the Presidential Records Act to explicitly include a president’s personal social media accounts and deem such accounts “documentary material,” thereby disallowing the type of claim made by Trump that such accounts are personal communication channels from which critical commentary can be blocked.
And in light of the questions that have been raised during Trump’s term, Congress should prohibit self-pardons by the president and amend the bribery statute to establish criminal liability for a president who seeks to obstruct justice through the offer or exercise of the pardon power.
Given the uncertainties which arose during the Mueller investigation and the impeachment proceedings, Bauer and Goldsmith also recommend that Congress amend the law to specify that the president commits the crime of obstruction of justice when they
commit an obstructive act, with a nexus to an official proceeding, and with a corrupt intent, in three specific cases: (1) intervention to affect the outcome of elections; (2) protection of family members; and (3) self-protection, when the president is either the “subject” or the “target” of a criminal investigation.
(One could question why number two should not include any third party.)
In light of the intractable court proceedings Congress was forced to pursue to enforce subpoenas issued to Trump and his administration in response to his stonewalling during the oversight and impeachment proceedings, Bauer and Goldsmith recommend that Congress amend the jurisdictional statute to impose a duty on the courts to “advance on the docket and to expedite to the greatest possible extent the disposition of any” civil enforcement lawsuit and that the House and the Senate should have the option of skipping the District Court and going straight to a three-judge appellate panel with direct appeal to the Supreme Court.
For reasons they neglect to fully explain, Bauer and Goldsmith are willing to leave in place the memos from the Office of Legal Counsel asserting that a president cannot be indicted while in office. Instead they recommend that Congress toll (i.e., suspend) the statute of limitations for criminal acts committed by a president while in office or for offenses committed in the course of seeking election to the presidency. This is a bit disingenuous in the case of Goldsmith, since regardless of the statute of limitations, he questions whether Trump should be prosecuted at all.
Given the criticism James Comey received for his public statements shortly before the 2016 election regarding the investigation of Hillary Clinton’s emails, Bauer and Goldsmith recommend that special counsel regulations prohibit any investigative agency, including the FBI, from publicly announcing recommended charging decisions related to presidential candidates and campaigns and that no indictment be returned against any candidate within 60 days of a primary or general election.
In light of the ongoing confusion over the intersecting authority of Congress and the president regarding declaring and making war and taking other military actions, Bauer and Goldsmith recommend that the Office of Legal Counsel withdraw its 2001 and 2002 opinions on war powers which took overly broad views of the president’s authority to use military force in anticipatory self-defense. In addition, Congress should replace the 2001 and 2002 Authorizations of the Use of Military Force in Afghanistan and Iraq, respectively, with updated definitions of “associated forces” and a two- to three-year “sunset” clause “which would force Congress to exercise its constitutional and democratic responsibilities to deliberate about and vote on (or at least address) the issue.”
Bauer and Goldsmith also recommend significant amendments to the War Powers Resolution to define and limit “inherent presidential powers of self-defense”; prohibit unilateral military intervention on “humanitarian grounds” without congressional authority; require consultation with, and reporting to, Congress regarding the use of military force; set clear restrictions on the president’s use of military force beyond 60 days; and forbid any funds from being expended for any use of force abroad inconsistent with the terms of the amended law.
Congress should also enact a statute specifying the only Congress can declare or authorize war in the constitutional sense and that the use of nuclear weapons would require a congressional act of war, except for an incoming nuclear attack or in self-defense in extreme and limited circumstances to defend vital interests of the United States or its allies, in which case the president must consult, if possible, with specified members of Congress. Congress should also clarify that Section 6 of the Atomic Energy Act is not a blanket authorization for the president to use nuclear weapons as he or she sees fit.
Given Trump’s use of federal agents to suppress lawful protests and his threat to invoke the Insurrection Act, Bauer and Goldsmith recommend that Congress amend the Act to require the president to consult with the governors and other state and local authorities concerning the deployment of troops to address an actual, ongoing, and serious threat to the safety of the citizens of any state. Furthermore, Congress should mandate a 30-day “sunset” provision for any such order and require the president to submit a report to Congress containing specific findings on the nature of the alleged threat and the projected time period for deployment.
Bauer and Goldsmith worry that “future presidents will learn from Trump’s novel exercise of presidential powers and exploit weaknesses in legal and normative constraints on the presidency even more effectively than he did.” Their illuminating book shows how other presidents “have skirted norms, but Trump has attacked them comprehensively and frequently, and disregarded them openly.”
When they wrote their book, the authors did not know that Trump would lose the 2020 election and that Joe Biden would be elected by a margin of over six million popular votes. Bauer and Goldsmith have done the country a public service by offering Biden a ready-made set of critical reforms. And since Bauer was the mastermind behind defeating almost three dozen lawsuits filed by Trump and his supporters, Biden will likely take Bauer’s recommendations very seriously.
Bauer and Goldsmith understood that if a new president took office in 2021, he would face one of the most difficult times in our nation’s history, requiring him “to reflect on what makes for a ‘strong’ presidency.” And they understood that the “strength of the institution, and of a particular presidency, is measured by its capacity for effective executive leadership.” Their final recommendation is that the next president balance “the energy and initiative championed by Hamilton in Federalist No. 70” with what Arthur Schlesinger Jr. called a “system of accountability that checks the abuse of executive power.”
We got a taste of what “after Trump” will look like, when President-elect Joe Biden gave his acceptance speech on November 9:
Americans have called on us to marshal the forces of decency and the forces of fairness. To marshal the forces of science and the forces of hope in the great battles of our time. The battle to control the virus. The battle to build prosperity. The battle to secure your family’s health care. The battle to achieve racial justice and root out systemic racism in this country. The battle to save the climate. The battle to restore decency, defend democracy, and give everybody in this country a fair shot.
He repeated his familiar refrain: “I ran as a proud Democrat. I will now be an American president. I will work as hard for those who didn’t vote for me — as those who did.” And never mentioning Trump by name, Biden declared: “Let this grim era of demonization in America begin to end — here and now.” He added, “Make no mistake: Too many dreams have been deferred for too long. We must make the promise of the country real for everybody — no matter their race, their ethnicity, their faith, their identity, or their disability.” Echoing Lincoln, Biden declared, “Our nation is shaped by the constant battle between our better angels and our darkest impulses. It is time for our better angels to prevail.”