Both Republicans and Democrats have voiced concerns over the past few decades about the expansion of presidential powers — some of it ceded by Congress looking for political cover, much of it a result of White House legal interpretations of constitutional gray areas. The balance of power now tilts in favor of the Oval Office, but since President Richard Nixon leaders have held themselves largely in check, respecting long-established informal rules and norms.
Then came President Trump. A self-described rule breaker, he has ignored tradition and standards of presidential decorum and tested the limits of the office, violating traditions, norms, and even laws, according to many legal scholars. The Constitution provides two tools intended to keep recalcitrant presidents in line: impeachment and reelection. But as the past four years — including these weeks before President-elect Joseph Biden’s inauguration on Jan. 20 — have demonstrated, these correctives do not always work as intended. And they won’t curb a president who may regularly act in problematic, but not illegal, fashion.
In a new book, “After Trump: Reconstructing the Presidency,” attorneys Bob Bauer ’73 and Jack L. Goldsmith, veterans of Democratic and Republican White Houses, respectively, propose what they say are long-overdue reforms to the Office of the President that can rein in future presidents who try to exploit the position for their political or personal benefit.
Goldsmith, Learned Hand Professor of Law at Harvard Law School, served as assistant attorney general in the Office of Legal Counsel during the George W. Bush administration. He writes frequently about national security, government, and politics, and is a founding editor of Lawfare. Bauer, a longtime legal adviser to President Barack Obama who is now advising the Biden campaign, is widely regarded as a leading authority on executive branch powers. He served as White House counsel from 2008 to 2011 and is now a professor of the practice and distinguished scholar in residence at NYU Law.
Bob Bauer and Jack L. Goldsmith
GAZETTE: Plenty of presidents have pushed the outer limits of executive branch power for their own political gain. Is Trump the only reason we need to “reconstruct the presidency”?
GOLDSMITH: There were norm violations and legal concerns before Trump. But in almost every one of these areas, [he] has acted in ways that make all of the problems that were on the radar screen before much, much, much worse. Trump has exposed a lot of ways of exploiting the presidency and skirting norms and skirting laws that we worry a future president can exploit.
Norms are principles of right action that are not backed by legal enforcement but rather are part of the culture of the executive branch. They’ve worked remarkably well since Watergate. A lot of the post-Watergate reforms were about instantiating norms in the executive branch to deal with problems, some of which can’t be regulated by law. Because the president under Article II of the Constitution controls the executive branch, for example, it’s very hard to have a legally independent entity examine the presidency. You have to do that through norms and internal regulations.
But some norms can and should be changed into enforceable laws. In the past, we had presidential tax disclosure and compliance with conflict of interest norms — everybody agreed that the president would abide by them. There was no need to have a law. Every president since Watergate abided by these norms. But if there’s a president who is shameless and wants to accept the political cost, they can be violated. Trump has done that over and over again in a number of ways that should never be allowed to happen again.
We believe in a strong presidency. We’re not trying to fundamentally diminish the office. A strong presidency is necessary in the dangerous and very complex world we live in and that’s why the presidency, over time, has gained so much power. But the question is whether the president is adequately accountable to law, to the public, and to the Congress. Those things have to go hand in hand if you’re going to have a strong presidency. It has to be adequately constrained.
GAZETTE: Given the partisanship in Washington, are there some areas ripe for reform that both sides are most likely to agree on?
BAUER: It does seem to us that there are basic issues around which a bipartisan consensus might be possible: Presidents should produce their tax returns, and we need more controls on financial conflict of interest. Every reform is going to require, some more than others, some balancing of interests where the objective is meaningful reform without damage to the president’s legitimate personal rights or constitutional role.
It seems quite simple to require the president (and vice president) to disclose their taxes. But how will the requirement be structured? What happens if he or she refuses to do it? What rights does Congress have to obtain them if the president won’t comply? What about the IRS audits of every president’s tax returns, which are conducted as a matter of IRS policy since the 1970s? Why shouldn’t the public see the results of those audits?
Under our proposal, the president would be compelled to produce his or her tax returns through the same statute that requires presidents to file a global picture of his or her financial interests: the Ethics in Government Act. The act would be amended to require the April 15 release of returns, with no extensions granted. All presidents have managed to comply with the April 15 deadline and that would be the expectation under this reform. And we would extend the tax disclosure requirement to members of the president’s family who occupy senior positions in the government. Trump has installed his son-in-law and his daughter in the West Wing: Their tax returns ought to be disclosed. And then, remedies for enforcement should be available. Congress could provide that the secretary of the Treasury produce the returns if the president doesn’t supply them as required by the law to the Office of Government Ethics for review of completeness and for public release. If the secretary of Treasury fails to do so, Congress should be specifically authorized to obtain relief in federal court.
GOLDSMITH: The devil is in the details. It’s not enough to say, “The president should disclose his tax returns.” You need to fit that into extant law and the extant obligations. You have to think about questions like, “What if he wants to get a delay? Is he allowed to?” The answer must be no. You have to worry about enforcement. It was really important to us to get down into those details because those details matter, frankly, if these reforms are going to work.