Law professors JACK GOLDSMITH and BOB BAUER discuss ways to fix the presidency, keep executive power in check, and safeguard democracy. They lay out 50 ideas for reforms in their book, After Trump: Reconstructing the Presidency, which addresses issues like conflicts of interest, foreign influence on elections, abuse of pardon power, law enforcement independence, and domestic emergency powers. We’ll talk with Goldsmith, who was head of the Justice Department’s Office of Legal Counsel in George W. Bush administration, and Bauer, who was Obama’s Whitehouse counsel.
On President Trump’s rejection of the election results
Marty Moss-Coane: If President Trump never accepts the results of the 2020 election, does not attend the inauguration, and I think there’s a good chance those things will not happen. How much has he damaged the presidency?
Bob Bauer: In my view, he shattered a critically important norm. That isn’t to say it won’t be restored and that future presidents absorbing the lessons of this bitter experience now won’t revert to the norm. I hope they do. I suspect they will. But it is just hard to underestimate the significance of an American president behaving this way — not simply refusing to concede, but launching an all out assault, an all out rhetorical assault, on the election, making baseless claims of fraud, authorizing one lawsuit after another. He’s lost a total of forty-three baseless lawsuits since the election was decided. And there are more lawsuits filed either by his campaign or his allies virtually every day. And he just continues to lose. But the lawsuits are simply an aide to this overall messaging that at least some substantial portion of the public that supported him should not accept the results of the election. That’s extraordinary. Absolutely extraordinary and very damaging.
On whether the system is holding
MMC: I mean, it is interesting that the Trump campaign has largely lost in court, whether it’s a local court or Pennsylvania Supreme Court, for instance. Federal judges as well have ruled against the campaign. Can we say, Jack, that the system or at least part of the system is holding?
Jack Goldsmith: Yes, I actually think this is a very important point. And and again, it leads to a more general point about the Trump presidency. It’s been a very scary time, but it’s also a time in which we can say that the institutions concerning our democracy and electoral transfer under unprecedented and indeed unimaginable pressure by the strongest institutional player in the country to corrupt the system. And it looks like it’s failing and it’s failing because actors at the state level and the federal level, Republican and Democrat, are resisting.