The Oath and the Office: A Guide to the Constitution for Future Presidents
Articles,  Blog

The Oath and the Office: A Guide to the Constitution for Future Presidents


Good evening, everyone. It’s great to see
so many people here on a beautiful Friday afternoon
in Providence, Rhode Island. My name is Richard Locke. I’m a professor of
Political Science and international
public affairs, and I currently
serve as provost. And it’s a great pleasure for
me to welcome you to Brown– some of you back to Brown– and all of you to tonight’s
Meiklejohn lecture, which is sponsored by the
Taubman Center for American Politics and Policy. Now, before I invite the Taubman
Center director, professor Susan Moffitt, to the
stage to introduce our distinguished
speakers, I want to just offer a few brief
remarks about the significance of tonight’s lecture. Brown is actually
incredibly fortunate to have a number
of named lectures. And these named lectures
give us opportunities to bring exceptional scholars,
but also practitioners to campus to speak on
a wide range of topics. And these lectures–
many of you I’ve seen attending these lectures. These lectures, as you
know, animate our campus. And together with our
teaching and research, they are an essential
part of what we try to do, which is to advance knowledge
and educate future leaders. And tonight we have
this additional bonus, since the Meiklejohn
lecture series has allowed us to bring
two extraordinary alumni– Chris Hayes and Kate Shaw– back to campus. So thank you so
much for being here. It’s really wonderful
to welcome you back. The Alexander
Meiklejohn Lecture was named for Brown alumnus and
former Brown Dean Alexander Meiklejohn, and focuses
on the theme of freedom and the US Constitution, which
we will be talking about today. And thanks, Corey, for
giving us the opportunity to talk about these
important issues. Alexander Meiklejohn
graduated from Brown in 1893 and served as its dean
from 1901 to 1912. Supreme Court Justice
William Douglas delivered the first
Meiklejohn lecture in 1963. But more recent speakers include
NPR legal affairs correspondent Nina Totenberg and Harvard
University Law professor and former law school
Dean Martha Minow. Now, we are delighted to be
launching the academic year with the timely and important
discussion on the US Constitution and why current
and future aspiring presidents should understand it
and be guided by it. These are challenging times
for several core institutions in our country, for different
branches of our government for the media, for the
fundamental principles like the separation of power
and checks and balances. But also for higher education,
for universities like Brown. The core underlying
values of universities like Brown are
being challenged– core values like the importance
of scientific research and facts to help us
understand let alone mitigate great challenges like
climate change, the centrality of critical thinking
and free inquiry as we come together to
try to think through some of society’s most
pressing issues, and the fundamental importance
of diversity and policies like affirmative
action that help us create truly diverse
and inclusive communities. All of these basic principles
are under attack these days– under attack by different
agencies of our government. Just think of the
Department of Education, Department of Justice, and
what they’re doing or trying to do with affirmative action. Think of parts of our media–
not these parts of our media, but other parts of our media– and, of course, other
external lobbies. And so, as members of
this university community, I think it’s really important
that we sort of double down and try to do a better job
translating all the great work we do in our teaching,
our research, our outreach to a broader public
and to policymakers so that we can not only
resist these attacks but also, and more importantly,
so that we can continue to serve as agents
of social mobility and positive social
change in our society. This is our core mission. This is what
universities can be, should be, and this is what
our society today really needs us to be. That’s true for
higher education, but I would say it’s true
for many other institutions in our society today. And this is why today’s
session is especially timely and important. So to introduce
tonight’s panelists and set the stage
for our discussion, please join me in welcoming
professor of political science and director of the Taubman
Center, Susan Moffitt. Thanks. [APPLAUSE] Welcome. It’s great to see
you all here tonight. I’m Susan Moffitt, the
director of the Taubman Center for American
Politics and Policy. The Taubman Center focuses its
research and its programming on three themes– the cost of living, the value
of democracy, and the price of security. And the Meiklejohn lecture
is an important part of our programming each year
on the concept of democracy, as the provost mentioned. Alexander Meiklejohn was not
only a Brown University alumni, but he was also a renowned
civil libertarian. So important, in fact, that
Corey mentions it in his book. Corey writes that, “Meiklejohn
transformed free speech from a right of
personal expression into an article of
democratic rule.” I look forward to talking
about that more with all of you tonight. And in the spirit of Alexander
Meiklejohn, an alumnus of Brown University, we’re
delighted to welcome back two alumni of Brown University,
Kate Shaw and Chris Hayes. Kate Shaw is a professor
of law and the co-director of the Floersheimer Center
for Constitutional Democracy at Cardozo School of Law. Before joining the
faculty of Cardozo she worked in the White
House Counsel’s office as a special assistant
to the president, and associate counsel
to the president. She clerked for Justice John
Paul Stevens of the US Supreme Court and for Richard Posner of
the US Court of Appeals Seventh Circuit. Professor Shaw is an expert
on a wide range of topics, some of which you read
about in her publications today, including constitutional
law, administrative law, the Supreme Court,
election law, and gender and sexual orientation law. She’s a prolific scholar
whose work appears in many leading law journals. Chris Hayes is the
host of the Emmy award winning MSNBC program
“All In with Chris Hayes.” he is also the editor
at large of The Nation. Chris has been a fellow at
Harvard University’s Safra Center for Ethics, as well as
a fellow at the New America Foundation. His essays,
articles, and reviews appear widely and cover a range
of important political and social issues, including union
organizing, the intersection of politics and technology,
and economic democracy. His latest book, A
Colony and a Nation, is going to be the
topic of conversation here at Brown University
tomorrow morning. Chris and Kate, welcome. We’re delighted to
have you back at Brown. We hope you come
again soon and often. And Corey Brettschneider is
professor of political science here at Brown University. He works at the intersection
of constitutional law and democratic theory. He’s written many influential
articles and several books on constitutional law. His latest one, of course,
is The Oath and the Office, the topic of our
conversation tonight which Kirkus calls “required
reading for all Americans.” Corey, thank you for giving
us such a great reason to get together tonight. And our time
together tonight will unfold in the following way. Corey will begin with about
20 minutes of discussion of his book, and then
we’ll turn the floor over to Kate who will offer some
commentary for about 10 or 15 minutes. Chris will then offer some
commentary for about 10 or 15 minutes, and then they
will engage in conversation together for about
another 20 minutes. And then we will open up
the floor to your questions. We very much look forward
to your questions. But because there are
so many of us tonight, we would invite us all to
be mindful of our air time. This includes me. So when it is your
turn to ask a question, please ask one direct
question and then share the air with
your colleagues. We can then continue our
conversation out in the foyer afterwards for a book
signing reception afterwards. Now, will you please all join
me in very warmly welcoming Kate Shaw, Chris Hayes,
and Corey Brettschneider? [APPLAUSE] Thank you all. Thanks for coming. Kate and Chris, thanks
for coming back. As I look out there
I see there are a good number of young people. And my guess is that there’s at
least one person out there who thinks, you know what? I could probably be president
of the United States. Now, that might have
been true before, but now there is an
especially low bar so there might be
more than one of you. There might be a couple. So let’s talk
about what you need to know if you want to be
president of the United States, given that many of you are
probably thinking about it just now. We have to begin
with Article Two. That lays out the
job description. Article One, of course,
sets up the Congress. And Article Two gives
a set of powers– very specific powers– to
the president, but also limits them. The powers are
granted with the idea that the president
won’t go beyond that. And the place that you
really see that up front is in the requirement
of an oath of office. It’s actually spelled
out word for word. I don’t want to get it wrong,
so I’m going to read it to you. Article Two says that
literally in the first second you become president
the first thing you do is you read the following thing. “I do solemnly swear”–
you can also affirm– “that I will faithfully
execute the office of President of the United States and will,
to the best of my ability, preserve, protect, and defend
the Constitution of the United States.” Now, that idea of
the oath is probably pretty different from the
reasons that a lot of people might be motivated to
run in the first place. You might want to have the
control of Air Force One. You might want the
White House and the cook and all of the things
that come with it. But the idea of the oath is
of a constrained presidency. I think that’s not
something that we often see in our politics, get that
idea that we would run for the modesty of the office. I’ll say that
wasn’t true for me. When I was about nine my father
worked for a local politician. And the biggest event of the
year where we lived in Queens was Queens Day. And Queens Day was in
the middle of the summer. It was– Chris is
from the Bronx, so I guess he didn’t
come to Queens Day, but maybe he joined us. I was walking behind this
politician and the mayor of New York City, Ed Koch. They were in front of me. It was a huge– maybe the
biggest moment of my life up to that point. And Koch– when he would walk
he would throw his arms back. And he’d say, how am I doing? How am I doing? He’s walking around this parade. And it was so hot. He turns to an
aide next to him– actually, it’s the politician. He says, you know what? I’d like some ice
cream, vanilla. And the politician
turns back and snaps at the aide walking next to
me and says, get the mayor a vanilla ice cream. This guy runs across the
field at, like, top speed, grabs the vanilla ice cream. Somehow without toppling
it, brings it back and hands the mayor
this vanilla ice cream. And you know what
I said to myself? I want to be mayor
of New York City. [LAUGHTER] Of course. Now, that idea of being mayor– [? where ?]
[? I some ?] had it– there was another guy from
Queens who might have attended an event like this– is very different from the idea
of the constrained presidency that I laid out, the
idea of Article Two. The person who got it best– the right understanding,
not the ice cream version– the right idea of the
presidency was, of course– maybe not a surprise
to all of you– but the second inaugural
address by George Washington. It is so short. It’s 135 words. I’m going to read it to you,
or at least the highlight. He said, I’ve just taken the
oath of office, specifically this oath which I am about– [? or, ?] he’s
about to take it– “about to take in your presence,
that if it shall be in any instance violated
willingly or knowingly, the injunctions thereof,
I may– besides incurring constitutional punishment–
be subject to the upbraidings of all who are witness
of the present ceremony.” That’s it. And think of the
meaning of the words. Right? That is the idea
of the constrained, limited presidency. He’s saying, I’m about
to take the oath. But once I take
it, what it binds me to is this idea of the
office, which is limited. Not only that, but
if I mess it up, if I violate the
Constitution, then stop me. Do two things specifically. Criticize me or upbraid
me, and also subject me to constitutional punishment. That’s the lost idea
of the presidency that I’m hoping to get us
back into tonight, to describe to you, to talk about. And notice when we look at,
as Washington did, the oath very carefully– it’s not
just not to violate it, but it’s to preserve,
protect, and defend the Constitution of
the United States. Not the country. This isn’t war-like language. It’s the language of restraint. And that’s the idea
of the presidency, I think, that we’ve lost
as time has gone on. Not just in the
present moment, where things are being brought
into relief enough that we’re really aware of
them, but before that as well. In fact, I think it
probably started– if you look at Woodrow
Wilson’s presidency, Wilson had a very different
idea of the oath of office from Washington. He was actually a constitutional
scholar, a constitutional law professor at Princeton. He knew what he
was talking about and he knew what he was doing. His idea of the presidency was
that it was a unique office, that the president
was, in his terms, a leader who had direct
authorization from the people in the country to
go in many ways beyond the Constitution itself. It wasn’t just Article Two
that gave him the power. It was the election
of the people. And that, he thought,
gave him a unique role. Not just an equal role
in Washington’s inaugural he was talking to members
of the other branches, to members of the Senate and
the House of Representatives. There was an idea
of, the presidency is equal among the branches. Wilson was trying to
break out of that. Now, one way that he did
it was with the creation– the bully pulpit was probably
created by Teddy Roosevelt, but he used it to
constitutional effect to go beyond these other
branches of government. He had a press office
and deliberately tried to use the bully pulpit
in order to rally the people of the United States
to pressure Congress to act in the way that he wanted. He wasn’t going to be beholden
to these other branches. When you look at the
content of what he said, it wasn’t terrific. In fact, it was way
worse than that. A lot of the things that we
might in the present moment think are unprecedented
when it comes to race and ethnic prejudice were
present in large part during that presidency. So in Birth of a Nation– a film
celebrating the Ku Klux Klan– Wilson is celebrated
with two block quotes that are taken
from his scholarly work praising the Klan. And rather than
hide from that, he highlights it using the
bully pulpit, newly created, to film Birth of a Nation
in the White House. Playing, of course, to his
southern constituency– at least part of it
that wanted to see this sort of racialized speech. Now, he knew better. As I said, he was a
constitutional law professor. He knew about the
equal protection clause of the 14th Amendment
and the idea that the Constitution meant
respect for people, regardless of race or ethnicity. And I believe that
he should have known that the decision at
the time, Plessy v. Ferguson, separate but equal, was wrong. Now, when it came
to the bully pulpit, courts aren’t going to
police presidential speech. They’re not going to say,
say this, or, don’t say that. We’ll talk more about that. But a president
has an obligation. Right? Not just to do what
the courts require, but to preserve, protect,
and defend the Constitution. And that speech was, in
many ways, opposed to it. Now, the tricky thing for
a president– and this gets to Meiklejohn, who we’ve
heard twice about already. Terrific. My favorite unpublished
author, whose book has not been republished in
a long time since the ’60s, but should be. But Meiklejohn
stressed the idea that, although early in the
century during Wilson’s time for instance, people
could be punished for unpopular or
wrong-headed speech, that we should have a simple
rule of the First Amendment. Viewpoint neutrality. Everyone is respected
regardless of their opinion, and not penalized for it. Early in the Republic there
was a very different idea. John Adams signed
and the Congress passed the Alien
Sedition Act, making it a crime to criticize the
president of the United States. Interestingly, you could
criticize the vice president of the United States, a
member of a different party– Thomas Jefferson. This was a partisan
use of the criminal law to go after your opponents. Now, what Meiklejohn
helped to do– and I’m very honored to be
giving the Meiklejohn lecture– was to change the rules so
that wouldn’t happen again. There was no Supreme
Court, by the way, at the time that was going
to intervene on behalf of the First Amendment
and stop John Adams, who was using the law to criminalize
opposition speech that just opposed him. But later, due to Meiklejohn
and several court decisions, the rule came about that
no person, no Congress, no executive order, no
president can make a law that punishes based on opinion. Now, you start to see
one of the dilemmas. A president has to
respect even speech that opposes the Constitution, even
speech like the Ku Klux Klan the recent jurisprudence
has brought about. So how can a president both
respect speech but also defend the Constitution? He or she can’t do it
through the criminal law. And one answer again, I
think, is in the bully pulpit. So when you think of the
second President Bush, after 9/11 he said Islam
is a religion of peace. He spoke out in favor of
Islam, of protecting it, even though there were
many criticizing it. President Obama didn’t
ban the burning of a Koran on the west coast of
the United States. He said we have to protect
it, but also he, like Bush, sought to condemn it. A president has to
recognize that you can’t use the presidency
to make speech illegal, but a president also has to
use his or her own speech to protect, preserve, and defend
the Constitution of the United States. Now, courts would intervene to
stop a president, I believe, or stop anyone– a government official–
that tried to shut down, criminally, speech like
the Alien and Sedition Act. But there are other moments
where presidents actually might not be stopped by courts. One is in the Eighth Amendment. A president has
to respect the ban on cruel and unusual punishment,
but many courts have refused– in fact, courts
have not intervened when presidents– when the
second President Bush had a policy of torture in order
to extract information, or waterboarding. But part of the point
is that it’s not about– and there is an
argument for this. Justice Scalia, for instance,
says that’s not punishment. Punishment is only
after a criminal trial. But the idea of the
Eighth Amendment is to stop a
president or a King– going back– to get
rid of that idea, that a high official
can use power in order to subordinate,
to use violence in order to subordinate. And that was the original
idea of the British constraint on Kingly power,
to not allow a King to torture his or her political
opponents into submission. But if a court is not
going to intervene to protect those rights,
it’s up to a president and up to citizens. Many of you, by the way, are
not going to be president, I’m sorry to tell you. But you are going
to vote for one. And that’s why
when you vote it’s essential to think
about the oath that a president will take. Because courts won’t always
be there to stop him or her. Let me move to a
different amendment. The 14th Amendment, as I said,
guarantees equal protection of the law. And a related idea,
the First Amendment bans the establishment
of religion or the discrimination against
people based on religion– the free exercise clause. Those three clauses stand
for a very simple idea. We don’t make laws or executive
orders based on prejudice. Now, we know that we have
a president currently who campaigned on the idea
of a complete and total shut down of Muslim immigration
into the United States. And then, when he
became the president, passed a series of
what in the beginning were pretty obviously
Muslim bans, banning several
Muslim-majority countries from having any entry
into the United States. And over time, with
Rudolph Giuliani’s help– Rudolph Giuliani,
as he said, was asked to take the Muslim
ban and make it legal. Those words got papered over. The ban got tweaked in order
to make it look constitutional. In my opinion,
the original views of President Trump that
were stated very cleanly during the election
and were stated clearly after he took the oath of
office, were animus-based. they were motivations for this
executive order that were based on the disparagement of Islam. The belief, irrationally,
that the entire religion, unlike George Bush
said, was a danger. Now, when the Supreme
Court had the moment where it could stop a
president, four justices did exactly what I’m saying. They said this is a
ban based on animus, and we’re not going to allow it. Four said we have to defer to
a president in, especially, foreign relations. And one Justice, Kennedy, who
many of us were counting on, sort of tried to
split the difference. He ultimately voted
with the majority, but he wanted to
defer to the president and didn’t strike down
this executive order. So ideally, in my view,
that is a place where courts should have intervened. That was the wrong decision. But it is also an example of
why there is no such thing as the Constitution police. The Constitution isn’t
self-reinforcing. It just doesn’t happen that
it will become enforced. We need citizens
who are not only going to elect a president
that respects the Constitution, but who are going
to nominate– and we need a Congress who are going
to confirm justices who are also going to preserve,
protect, and defend it in the face of animus. This thing doesn’t work
unless citizens have it as part of their vocabulary,
unless they are using it on a regular basis
when they vote and when they demand that
the people running for office make that a priority. So what do you do? These are three instances where
a president might go astray, shutting down speech that
he or she disagrees with, calling for torture or allowing
it within the White House, and this idea of animus-based
executive orders. What do you do when a president
disregards the oath of office? How do you stop a president? That’s the last third of the
book that I’m focused on. Washington, notice, in calling
for constitutional punishment for himself is recognizing
that the office is different than the person. The office, in an important
way, is above the person, distinct from the
person who occupies it. And the person can
disgrace the office, such as to require
constitutional punishment. I don’t think he thought he
was going to be subject to it, but he was sending a message
to future presidents, thus the subtitle of
the book, that they might be deserving and subject
to constitutional punishment. So how do you do it? Let me say something first about
the ongoing question– very live. Used to be a hypothetical, now a
very live question– of whether or not you can indict
a sitting president. The framers just
disagreed about this. Alexander Hamilton seemed to
think impeachment came first, and after removal when
the former president was a private citizen, then
a criminal indictment could be possible. James Wilson and the Ratifying
Convention in Pennsylvania said the opposite. A president basically can
be subject to indictment. They don’t help us much. But what does help
us is case law. US v. Nixon. Eight to zero,
making it very clear, that one principle–
that my 11-year-old, to whom the book is
dedicated, can understand. A president is
not above the law. A president who
breaks the law can be subject to a criminal
subpoena for information. But more than that. Not just during a criminal
trial, as was the case there. And you heard Judge
Kavanaugh tried to limit the idea to a criminal trial. But more generally,
in a grand jury. And more than that, I
believe, the principle stands for the idea that
a sitting president, distinct from concerns
about impeachment, can be subject to
criminal indictment. Now, there’s a memo
that says otherwise. There are actually two– one written during the
Nixon administration, and one written later during
the Clinton administration. This is a bipartisan
problem, this idea of making immune a
sitting president. And they rest on two ideas. One is the notion that
the president is special and that he or she is the
head of the executive branch, and the whole branch
will be imperiled if there is an indictment. Basically, the idea
that the President is too busy running the
country or the executive branch in order to be
subject to indictment. That was answered in the Paula
Jones case, Clinton v. Jones, with a very simple point. The courts can work
with the president. The president has a scheduler. The nuclear suitcase can
be moved around the Earth at a moment’s notice. They can figure out how to
make time for legal proceedings if a president is criminal. The more important argument–
and mistaken argument, I think– is about the
dignity of the office. That the dignity of the office
somehow immunizes a president from indictment. And I think that’s
answered by Washington. The person who
occupies the office is distinct from the office. The office is, in many
ways, above that person. Such that, if that person
disgraces the office they should be subject
to, as Washington said, constitutional punishment. I don’t know that he was
referring to indictment, but the point that he was
making certainly applies there. Let me say something
about our friends James Madison and
Thomas Jefferson, who I mentioned early on. I said that their party was
basically shut down by Adams. There was a time in which
it was illegal to criticize the president, even if you
were the vice president. Now, what did they do? They left Philadelphia, the
capitol– the sitting vice president and the main drafter
of the Constitution, who wrote the main notes
that we have about it. They went back to
their home state of Virginia and they got
their legislatures in Virginia and Kentucky to pass
a resolution saying– not that the law was nullified. Jefferson toyed with
that in a draft– but that they
wouldn’t enforce it. They weren’t going to cooperate
with the federal government. Now, that’s a sort of
less-obvious strategy about resisting a president. But when you look
to California– I have a former Brown
student who introduced me to his uncle, Miguel Marquez,
who I talk about in the book– who’s leading the charge
against the attempt to require localities to cooperate with
ICE and hold for 48 hours people who are suspected
of being undocumented just because they’ve been
stopped for a traffic violation. That’s the tradition here
of Jefferson and Madison refusing to cooperate
legally with federal agencies in matters especially
that are unconstitutional. That court case is going
through the courts now, and Marquez and his team
have won some very important [? early ?] victories. A less-obvious way of resisting. The final way I’m
not going to say that much about, because I think
you all have opinions about it. But the idea of
impeachment, I think, has to be kept very distinct
from the criminal question of indictment. There is no category of high
crime in the criminal law. If you take 1L
criminal law you’re going to learn about a
unit called “high crimes.” It’s a political category. And to me what it’s
about is the idea of misdemeaning,
lowering one’s self when it comes to the office. A political criteria for
thinking about whether or not there is a president that has
so disgraced the office and so disregarded the
oath that he or she might be subject by the
Congress to a political form of constitutional punishment. Now, I’ll just sum
up by saying this is a very different
idea of the presidency than Wilson had, certainly
that many scholars have. Many people have called for
expanded power of a president. I saw in a bookstore today a
pre-Trump book about the need for a tougher presidency,
a more powerful one. And I’m trying to make the
case for Washington’s vision, of an Article-Two-bound,
limited presidency. That means respect. Not just not violating
the Constitution when it comes to free speech
or the Eighth Amendment ban on cruel and unusual punishment. It means going beyond
that and doing– even when the courts don’t require
you, as a future president, to respect the Constitution–
going out of your way to do so. So, yes, there is
no jurisprudence saying the Eighth
Amendment bans torture for the extraction
of information by the executive branch. But a president that we elect
has to respect that rule. A president also, in
his or her own speech, has to use that speech to
defend the Constitution. Not to, as Wilson did,
disregard or disgrace them. And then I ended, after
talking about these provisions, with the idea of indictment. Yes. There is disagreement. I don’t want to doubt it. This is something that
courts will have to decide. A future Supreme
Court might well decide that question, including
perhaps a Judge Kavanaugh depending on what happens. But in my view the
right answer is yes. A president is
not above the law. That idea in US v. Nixon
and in Clinton v. Jones. Supreme Court cases
rather than memos written by mid-level Justice
Department officials. I talked about state
resistance, a less-obvious form of stopping a president. And then finally the clear form
of constitutional punishment that all of us have to reflect
on, the idea of high crimes and misdemeanors and what it
means to not just in a moment violate the oath of
office but to continually do so such that that is
the appropriate response from our members of Congress. This won’t happen naturally. There is no Constitution police. But it will happen if citizens
demand it of a chief executive. And citizens demand
it as well of a Congress who is going
to appoint a justice that will have the
charge of protecting the Constitution against even
a powerful president that might disregard it. So, thank you. [APPLAUSE] OK. So let me start by saying it
is such a privilege to be back at Brown for Chris and
I. And I don’t know if anyone said we’re married. We’re married, and we brought
our three kids to campus for the first time. I actually think I’m
going to start calling you my co-panelist, actually. But so we are, all of us,
delighted to be back here. And so, Corey, thank you so
much for writing this great book and for affording us the
opportunity to come back. As Susan mentioned, before
I was a law professor I spent a couple of years
as a White House lawyer in the Obama administration. And when Corey stopped to
check his notes to be sure that he got the language
of the constitutional oath right it reminded me
of those amazing events of the first 24 hours of
the Obama administration, which was– right? Some of you may
be aware of this, but the Chief Justice has, for
a number of presidential cycles, administered the oath
of office on January 20, the constitutionally-set
day for the inauguration. And Chief Justice
Roberts came onstage on this frigid cold
day, January 20, 2008, and had no notes with
him, and so slightly flubbed the oath of office. And so President Obama
took a slightly wrong constitutional oath
in the first seconds that he was the president. There are a couple
of transposed words and a couple of omitted words. And I was in the White House
Counsel’s office at the time. And this has all been reported,
so I’m not breaking any news. But there was a little
bit of a question that first day, like, is
this– is there a problem? Is he really the president? So the next day the Chief
Justice and the president had a quiet do-over in which
the Chief Justice administered the prescribed
constitutional language, and the president
repeated it back. So had he taken any major
steps in that first 24 hours, could there have
been a question about his being duly-authorized? Because, as Corey
says, the language of the presidential oath
is in the Constitution. Other federal officials
have to take oaths and those oaths are referenced,
but only the president’s oath is actually spelled out
verbatim in the Constitution. So I tell this story
because I do feel privileged I’ve worked for a president who
I think took both the letter and the spirit of the
constitutional oath incredibly seriously. OK. So I was going to talk
about a few things that are in some of the things you
highlighted in your opening, Corey. But I’ll say I loved
reading this book over the course of
the last few weeks against the backdrop of
the Kavanaugh confirmation hearings. And I don’t mean the recent
sexual assault allegations. Right? I’m talking about right after
Labor Day, the week in which Judge Kavanaugh sort of came
before the Senate Judiciary Committee and was pressed
by members of the Committee on questions of
presidential power, on the president’s ability
to remove federal officers, on when and why the
Supreme Court is justified in overruling a prior
case in the relative competence of courts and
agencies to interpret statutes passed by Congress. And these hearings are
no doubt less informative than they might be. Right? Nominees duck and weave. Senators are preening
for cameras in some ways more than engaging
deeply with nominees. Follow-up questions
are often lacking. But they do hold
out this promise of inviting all of the members
of the political community into this conversation about
how the Constitution should be interpreted,
about some of what its sort of most-opaque
language might mean. And I think all that was really
present during that first week of September. And there was a good deal
of public engagement. And the numbers– at least
some of them that I saw– bore that out. People were interested. And they aren’t always in
questions of the Supreme Court and the Constitution. I don’t know about
on campus here, but at the law school, Cardozo,
where I teach in Manhattan, we just put a screen in the
student lounge up for the week and played the hearings. And people really turned out
to watch them and discuss them. And so in that regard
it actually reminded me of something early in
this administration that Corey mentioned, which
is the first iteration of President Trump’s travel ban. And it’s not in any way– there
were just certain, I think, similarities. And what I mean by
that is, the president had issued one week
into the administration the first iteration
of this travel ban. Right? It prohibited entry
into United States– sorry– by individuals
from a handful of Muslim-majority countries. It temporarily suspended
all refugee admissions, which later dropped out but
was a pretty significant part of the first order, which
we sort of forget about. It indefinitely suspended the
admission of Syrian refugees. And the order was
challenged immediately in a Brooklyn district
court and then by the states of
Washington and Minnesota on a number of both statutory
and constitutional grounds. But even before the challenges
could make their way into court, volunteer
lawyers were on the ground in
airports searching out individuals and family members
who had been denied admission. And at the Brooklyn
courthouse Chris and I were actually there. We had diverted– we were on
our way to a dinner party, and then diverted
to the courthouse so that Chris could do
a live shot from outside of the courthouse on a
Saturday night, I think it was. And a Cardozo law
student was involved in passing a note to
the ACLU lawyer who was arguing before the
district court judge, and someone ended up
getting pulled off a plane. The Brooklyn judge issued
a temporary restraining order and several other district
courts followed suit quickly. But in that chaotic
first 12 or 24 hours, it wasn’t totally clear what
was happening on the ground. And these occasional
reports would surface that denials of
admission were still ongoing. There was a lot of fear. There was a lot of uncertainty. And then it slowly became
clear that the administration was heeding courts’ rulings. Right? That the Department of
Homeland Security and the State Department were sending
word to the field that the policy was on hold,
that the courts had spoken. And in some ways that’s
completely unremarkable. But it was a campaign in an
early administration that had disregarded a lot of norms. And I think a lot
of people watched with genuine uncertainty
regarding how all of this would end. Abiding by judicial
rulings is a norm. Right? That can be challenged. That can be broken. But here it wasn’t. And the administration
actually didn’t even walk up to the line, I think. And I think that was
for a lot of reasons. And the courts themselves
obviously issued these rulings, and that was a big part of it. But individual lawyers
and law students who worked on these
cases; lawyers at the Department
of Justice, I think, who were steeped in the
norms that judgments are binding in our
system; the press, which stayed relentlessly
focused on this story in those days. And then this last
one is critical. Engaged members of the
political community. And one little example of this. I remember the first oral
argument in the Ninth Circuit. It’s an appellate argument,
not even in the Supreme Court. It was live-streamed on the
Ninth Circuit’s website, and 50,000– and it
wasn’t even video. It was just the audio. 50,000 people listened to the
audio of an oral argument out of the Ninth Circuit. That was just the live-stream
from the court itself. And then CNN played
the Audio Live, and that’s several hundred– MSNBC did not, I don’t think. But that was– it was
a lot of engagement for an issue like this. And I think that matters. I think it mattered, and I
think it continues to matter. So talking about Kavanaugh,
talking about the travel ban. Right? Those are about the courts. And Corey’s written a book
obviously about the presidency, but I think they’re connected. So the book is a wonderful
and accessible primer on the presidency. So, it’s succinct. It’s thorough. It walks through
the obligations that are incumbent on a president
who takes the oath of office seriously, and
sort of believes in the direct obligations
the Constitution imposes on him or her, regardless of
what courts might do or say. So, as was obvious, I think,
in the mode of address of the lecture, the book
purports at points to be written to a future president. And I’m used to mostly
reading law review articles, and I think it took me a
minute to sort of adjust to this mode of address
that the book utilizes from time to time. But I came to find
this mode of address, of the reader as
future president, really effective and
really important. And for two distinct
and related reasons. One, it requires the
reader to occupy this role of future constitutional actor. And I think that is
wonderful, especially for students and young people
who are reading this book. And two, because obviously
most of us won’t be president. It does serve as a
constant reminder in the midst of this overview
of the Constitution’s key provisions that
we are all members of this political and
constitutional community with important roles to play. And the address
reinforces all of that. So the books is, I think,
in some ways idealistic and certainly optimistic. It cites several times
Madison’s famous quote, “if angels were to govern men,
neither external or internal controls on government
would be necessary.” But it also sketches the figure
of a president of great virtue. And I think it’s
unapologetic in suggesting that this is the appropriate
standard to which presidents should be held. But, if they don’t hold
themselves to such standards the system does have,
as Corey discussed, a number of mechanisms
for responding. And I do think that that
is, in some ways, what happened with the travel ban. Right? The public reacted in some
ways out of the visceral sense that our constitution doesn’t
permit an order like this. Whether or not that intuition
actually matched up perfectly with doctrine– right? What was wrong with it? Was an equality problem? Was it a religious
discrimination? Was it about due process? But I don’t think
that much matters. Right? Because it was this sort
of constitutional intuition that that kind of
animated and mobilized. And different courts came down
in different ways about what the sort of infirmity–
whether it was statutory or constitutional in the order,
or the different iterations of the order– was. But that, I think, is
what drove the reaction and the mobilization. And, although it’s
absolutely right that the administration
ultimately does prevail and the order is upheld,
it’s the third iteration of the order. And so it is largely because
of all of this activity that precedes the final Supreme Court
determination that the order is narrowed to the extent
that it is by the time it goes before
the Supreme Court. And to bring things
back to judge Kavanaugh, also, as Corey says, the
opinion is a five-four opinion. And Justice Kennedy, the
day before announcing his retirement, writes a concurring
opinion that basically says, look, we’re not going to
strike this thing down, but the president’s statements–
because the statements were a major part of the plaintiff’s
case against the order– these statements are
genuinely troubling, and it’s just that courts
can’t do anything about it. Right? So he writes, “there are
numerous instances in which”– [? as ?] Kennedy
writes, “in which the statements and actions
of government officials are not subject to judicial
scrutiny or intervention. But that does not mean
those officials are free to disregard the
Constitution and the rights it proclaims and protects. The oath all officials take
to adhere to the Constitution is not confined to those spheres
in which the judiciary can correct or even comment upon
what those officials can do.” So, look. I think Corey thinks that
Justice Kennedy was wrong here and the courts could
have intervened, but if they don’t
there are other ways to hold president’s
accountable, and for the people to develop a better
understanding of what the Constitution
requires of the president and to use their powers to
hold presidents accountable when they fail to live
up to those obligations is one of the other
mechanisms, I think, that Corey identifies
and richly describes in the last third of the book. And with that I’ll wrap,
and I will look forward to discussing with
my co-panelists. Thank you. [APPLAUSE] So, this sort of jumps
off what Kate was saying. I think what I really
enjoyed about this book is that it forced me
to ask a really central, essential
question which, I think, I hadn’t quite phrased
in these terms yet but is what hangs over
me everyday in my work and all of us as
citizens right now. Which is, what keeps
it all together? What binds American
constitutionalism and American
self-governance within constitutional restraints? Like, what’s the
thing that does it? Why doesn’t it
descend into anarchy or why doesn’t it
descend into tyranny? And that’s the question. Right? There’s one set of
answers, I think, that have become very
popular– and Corey writes about in the book–
which centers on the text itself and originalism. Right? That there’s a kind of
almost [? Koranic ?] way of looking at
the Constitution, that it’s this sort of– in some civic sense–
divinely-inspired set of precepts and orders,
and the job of both judges and then justices on the
court and everyone else is to sort of understand
the Word, capital W. And that vision has
been remarkably powerful as an intellectual
force in American life, most notably through the
works of Antonin Scalia, who Corey writes about as well. But is really
unsatisfying for a variety of reasons, not just political. One of them is just,
it doesn’t really hold together intellectually. A great point that
Cory makes in the book is that judicial review itself
is not in the Constitution. The whole thing– like,
the thing that we want from the court, which is
that you can’t do that, the law is struck down– they were smart people
in Independence Hall in Philadelphia. They could have written into the
Constitution in Article Three the final word or the
final adjudication of constitutional matters shall
be retained by the courts. They didn’t do it. So the very sort of
principle of judicial review appears nowhere in the
text of the Constitution. So it’s very hard
to make the case that the text itself
is the thing– this charter that
was entered into back then is some bind on
future generations is actually what’s doing
the work of holding things together. So then there’s a question
of, it’s not the text itself. If it’s not originalism
and it’s not this charter that binds
together future generations, I think one way of thinking
about what holds it together– and it’s something
that we’ve come to talk about recently a lot–
are norms and institutions. Right? Norms, institutions, traditions. So expectations
of proper action. Institutions as they’re built
into structures, things that are funded with
people staffing them, and ways of being in
the world, behaviors that coincide institutionally. That all those things
sort of interlock. Expectations about what
is done and not done. And that, to me, strikes
me as a pretty salient way of thinking about it, but also
falls short for important ways as well, which I think Cory
points out in the book. The institutions change
dramatically and radically over the course of
the nation’s life. The entirety of the
administrative state doesn’t exist for basically
the first 100 years. It’s Congress, the
courts, a military, and a post-office
that’s basically like a ward-healer jobs program
for whichever party’s in power. And you don’t have all of
the multifaceted things that the state is
doing now then. The power to create the
modern administrative state, of course, comes by
constitutional means through a combination of
both statutory legislation and also constitutional
amendments, the income tax it funds, et cetera, et cetera. But those institutions
change in such a way that the institutional
constancy itself can’t be the thing that
binds things together because the institutions
change so much. And there’s also the fact
that the norms change. And I think this is actually a
crucial thing to think about. We talk about– it is often
the case today that we use unprecedented or
a violation of norms as an argument against the
actions of the president. But of course the two
greatest presidents in the American republic, in my
humble opinion, Abraham Lincoln and FDR, were norm-smashers
par excellence. Right? In fact, much of what makes
them great, much of what makes them stick
out from others, is the fact that they
disregarded many of the norms. As Corey writes in the book,
the Emancipation Proclamation is definitely a
departure from norms. And it seems like a
very weird argument to say, like, oh, here he is,
breaking those norms again. Just freeing the slaves
through executive order. [LAUGHTER] So there has to be some
framework other than norms and institutions to
think about what it is that’s holding things together. And I think what Corey really
persuasively argues in the book and that has been sort of
clarified things for me, is values. Values– constitutional
values– a set of values that animate
crucially a political culture. That really, when we’re talking
about what binds together American constitutional
democracy and to the extent we
maintain a free republic, is a political culture animated
by a certain set of values. The political culture–
I think a perfect example of the political culture
is exactly Kate’s point about the travel ban. What leads everyone to assent
to the court at that point is, yes, a norm. Right? There’s an established
norm and expectation. But, of course, norms had
already been broken long ago, and the president got
in front of a camera and said let’s ban one fifth
of the world’s population. Right? So we know that there
are certain norms he doesn’t care about. He’s been hectoring
his attorney general to open criminal inquiries
into his political opponents. But the political culture
at that crucial moment held, the political
culture animated by a set of values–
those set of values include separated powers,
religious liberty, due process, freedom of expression,
judicial review. Right? And that political culture
is animated by millions of different constitutional
actors steeped in that culture, animated by those values. Those include the line lawyers
at the Department of Justice, the judges who are
hearing the argument, the people in the White
House Counsel’s office, the people in the streets
outside the courts. All of those people are
participating in civic life through a prism of a shared
political culture that’s animated by those
constitutional values. And to me the
question then becomes about the health or lack of– the health of our current
political culture. Because political cultures
can be healthy or unhealthy. They can be virtuous or vicious. They can be clean or corrupt. And we know this
from when we look at the political cultures
across the 50 states, which vary greatly. The political culture of
governance in Rhode Island is very different
than political culture of governance in Minnesota. Very different governance
in Illinois or in Texas or in California. Those are distinct
political cultures. The question now, I think,
before the country is, what is happening to
American political culture? Whether what’s happening
to political culture ends up being
permanent, whether it’s a permanent alteration to what
American political culture is, the political
culture that emanates from the constitutional
values that Corey describes, and how that’s going to affect
the nation going forward, how it affects our ability to
hang together going forward. And that, to me,
the reason I think this book is so
important and so good is because it
forces you to reckon with precisely that
fundamental elemental question at this crucial moment. All right. So now we’re going to talk. [LAUGHTER] It’s just a pause. [APPLAUSE] You don’t have to– no. Stop. [APPLAUSE CONTINUES] Yeah. So maybe just sort of– let’s talk about the
travel ban example, because I think it’s
such a perfect example. Like, it was this open question. Does this hold? What’s your understanding
of that moment in the context of the oath? Because that moment comes
about because the president is completely inured to the kind
of arguments you make here. I mean, he’s never
going to read the book. He doesn’t read. [LAUGHTER] But he also has– everything that’s
articulated here is entirely anathema to him. So you’ve got a
president who has no constitutional values
whatsoever and does this thing, and yet it still holds. Why? Yeah. I mean, I think that really–
both of your comments really get to this idea
at the core of the book, that the Constitution
is about the text. It is about the cases. But it’s more fundamentally
about values and principles. And when you elect
someone whose instinct is to see the Constitution
and the rule of law and really the idea of equality
under law as sort of anathema, things that he’s instinctually
trying to get away with or around,
that’s going to be a problem for a
president that we trust, who’s going to take the oath
and the values seriously. And, you know, I think he
thinks of the Constitution as sort of like real estate law. The lawyers go in there
and try to defend you so that you can get around it. So in the travel ban case,
when you look at his campaign statements– and I think
this came out in both of your comments– he just thinks,
what’s the problem? I want to shut down
Muslim immigration. He doesn’t know that
there’s an establishment clause or a free exercise
clause or a long history of equal protection. He just thinks, I
want to do that. I don’t like this. And so he acts. And over time–
not because there’s a doctrine of animus written
into the Constitution, but because the courts have
discerned, not just from one provision but from the
equal protection clause, from the idea that we don’t
have an official religion, the Establishment Clause,
and from the prohibition on making laws that prohibit
the free exercise of religion– the courts have wisely said
the motivation for a law can’t be based in hate. Or the technical way they put
it is, can’t be based in animus. So that’s why I thought the
courts, exactly as you said, performed extremely
well in the beginning and through several iterations,
and in the end it really came down to one vote. And the same person who
unfortunately really has this values-based idea of
the Constitution– Justice Kennedy designed
and brought into existence, as you well know, the idea of
not being able to discriminate not just based on
race or ethnicity but also based on
sexual orientation. He created that. And when he had his
key moment where he could use that value-based
reading of the Constitution, he fumbled. And so much the worse. Now, I think also, as Kate
said, all the more reason for us to pick up the– to do it ourselves and to
ensure that the culture has these values as part of them. So, thanks. I think that you both
perfectly captured what I was after in the book. Will you talk a
little bit about the– so this was written to
presidents, but the people that really– I mean, the president
makes a bunch of decisions, but the people that run the
White House are the staff. And you were a
White House staffer. Like, the degree to which–
as just a descriptive matter– these kinds of
concerns are animating, when you’re going to
work in the White House everyday in the White
House Counsel’s office? You don’t get as much,
like, orientation as you might expect to
being a White House lawyer. You sort of– I mean, I walked in, with a
lot of the White House staff, on inauguration day. And you are kind of in this
video-game-style responsive mode from basically
the first moment because things
are flying at you. And this was, I think,
especially true in January 2009 when you had the
financial crisis that needed to be that the
administration needed to work its way
out of, and doing financial regulatory
reform, trying to get health care
passed very quickly, the Supreme Court vacancy. I mean, I’m talking about my
particular experience, which is really all I can speak to. But I think it’s right that
there isn’t as much time to sit before
beginning to do the job and think deeply about sort
of– if you’re a White House lawyer, who are
your obligations to? You have the
particular president, you have the office
of the presidency, you have the federal
government, you have the American people, the
kind of client relation– it’s all complicated. And I think you
sort of just– it’s a kind of “building the airplane
while flying” sort of a style. And so there isn’t
as much time as you would hope to think deeply, I
think, about these questions before you’re in the position
of dispensing legal advice. And I think that’s true
of every White House. So I think that the culture– to return to your remarks– really does matter. And it’s sort of– if the ethos of a White House–
and I think this was very much true of the White House
that I worked in– is– you know, there
wasn’t ever a moment of anything self-regarding
or about sort of personal
advancement or anything like that that I think the
president or individual White House staffers were
ever animated by, ever. Attempting to sort of
discharge with sort of all of our– everyone’s
got limitations, but sort of to put all of
your training and energy to effectuating the
president’s policy, vision. And that was, to
put it very simply, just improving the sort of
conditions of all Americans. It was really that simple. And so it never felt like there
was any real hard questions about tension
between any proposed course of conduct and kind of
constitutional requirements. Because a lot of the
background assumptions, I think, aligned so well. And that’s– I mean, I probably
have an idealized vision of the president for whom I
worked, and these are all, obviously, people. But I think that
you only really have the hard questions
arise when there is misalignment or friction. And in some ways I think that
it’s almost sort of harder to figure out why it all
aligned or to even explain it, because it almost happened
at such a deep level that there was this alignment. Do you– one of the
things that you, I think, argue in the book– you do quite come out and
say it at certain points, is that the executive’s
grown too powerful. And that’s a deviation from
both the founders’ vision, but also our constitutional
values of divided governance. Is there something
salutary about having, like, an
aggressively-incompetent executive? [LAUGHTER] Theoretically. For the purpose of ratcheting
back executive power. Which, it does seem
to be like, OK, you want a lot of executive power? Here it is, in the hands
of this individual. And you’re seeing people
have these conversations. There’s actually
legislation about first-strike nuclear weapons. Like, should it be the
case the president can just annihilate a sizable
portion of the living souls on earth without any checks? And that question, which seems
an obvious and profound one we should wrestle with,
becomes much more front-of-mind in circumstances in which maybe
certain portions of population don’t trust the president
to dispatch that duty. Thanks. I mean, of course it depends
in part how this story ends. And my hope is that that’s
exactly how it ends. Not nuclear war. Right. No. Not, [INAUDIBLE] [? I think we’re all ?]
pulling for that one. [LAUGHTER] No. But in war powers– I mean, that’s one of the
lessons that we have allowed. You know, it’s Congress that
initiates war and declares war, and it’s the president that
is the commander in chief. And we’ve strayed from that. And presidents seem
to have increased– and it’s a perfect storm
because the courts aren’t willing to stop that, and
presidents take on this idea that they can initiate. The War Powers
Act was a problem. So that’s one area that I
am pretty precise in saying, not just for this president but
really for future presidents, regardless of party, we have
to rein in a president’s war power. The other fundamental place
that is playing out right now is we used to– during the
Clinton administration– have a law that allowed an
independent prosecutor investigating a president,
looking into wrongdoing in the White House
and by the president, him or herself was protected
from firing unless there was good cause. And that law expired in
the Clinton administration partly because it was thought
that the abuses of Ken Starr were so extreme. And so I say in the
book, regardless of party we need a new law that protects
either this special prosecutor or we should go back
to the old system of having an independent
prosecutor protected unless you can show that he or
she is not doing the job right. Yeah. So one of the
things you saw in– if you really closely followed
the Kavanaugh confirmation hearings is you do have,
in constitutional and administrative doctrine, kind
of these two strains of cases. The cases that–
and, in particular, the case upholding the
independent counsel statute under which Ken
Starr was appointed, although the case
[? predated ?] the Starr appointment and investigation. So you have some
cases that do say a degree of independence
inside the executive branch is permissible. We don’t want too much kind of
roving independent authority, but a degree is permissible. And then you have
a strain that is very nervous from
the perspective of this unitary executive,
that the president sort of– all power in
the executive branch must ultimately flow
up to the president, and the president must
exercise genuine control over all subordinate officials
in the executive branch. And there’s just tension between
those two lines of cases. And we saw Judge
Kavanaugh’s sort of trying to suggest
that the ones that allow a degree of independence
inside the executive branch are fine and consistent
with constitutional design, but some of his writings have
suggested deep skepticism about that principle. And it may well be that,
to the extent that the– who knows what happens
with this confirmation– but that one of the
takeaways from this era is that the cases that do
find a degree of independence consistent with our independence
inside the executive branch apart from the president
to be consistent with our constitutional design,
are just [? now ?] going to be on safer footing. I think that’s an
absolute possibility. Because there’s case
law supporting a number of different positions. And it’s in this kind of
uneasy tension at the moment. Well, and it really
is something that is both essential through
the [? line of the ?] book and in the news right now, and
something that I don’t think I quite grasped until I read
the book because I’ve never taken constitutional law other
than sort of through osmosis– [LAUGHTER] And so I guess I
didn’t quite realize how central the question of
hiring and firing has been. Like, all the way to the Marbury
v. Madison is a hiring case. And the real, essential question
of who does the president have the power to fire and when? The first impeachment was
about hiring and firing. And it’s really the big question
before the country right now. Right? I mean, this question of,
was firing James Comey, for instance– which is
clearly, in some sense– not in some sense. In the letter of the law
is within the authority of the President of the
United States, unquestionably. But can you exercise your
constitutional authority in a way so obviously
inimical to the rule of law and to constitutional
values that it’s actually an action in furtherance
of obstruction of justice, and thus impeachable? And that’s like this sort
of elemental question right now that’s sort
of before the country. Yeah. And I think it also goes to
your other question, which is the idea that when we
see a president that we like– oh, Bill Clinton
is a good president. Let’s not have him
subject to investigation. And I think that’s been
the problem with the way that we view this. It’s been a partisan lens. And we need to start
abstracting and thinking about the presidency
more generally. I mean, to me, when you look
at the Saturday Night Massacre, where Richard Nixon kept
firing his attorneys general until he could get
a special prosecutor fired– you know, it turned out OK. He did resign. But that was a different
political culture. It was a different Congress. And my worry is now that this
president can get away with it. And so the next
time, to prevent us from ever being in a
situation like this again, that’s why I think
we need to create– the Congress needs to pass laws
that say the president is not above the law, and we’re going
to protect an investigation of the president from– not allow the president to be
a judge in his or her own case and just get rid and sweep away
an investigation of potentially criminal conduct. This is hopefully a
lesson for the country in the problem with an
unlimited or unbound presidency, and an argument for
why, to me– that’s exactly what I’m trying
to do in the book– for returning to
the rule of law. Maybe we’ll take questions
in a few minutes. One thing that I wanted you to
talk about, Kate, a little bit is the fact that there
is a kind of sort of interesting perspectival
thing happening in the book. Right? You’re the second person to
[? address ?] [? you as ?] [? the ?] president. And one thing I think
that happens– this is true in my job, cable news. From the outside it looks
incredibly powerful, and from the inside all
you feel are constraints. And I think that happens
to presidents all the time. I mean, they’re
like, man, I’m going to get in there and,
like, bada bing bada boom. And then next
thing you know it’s like, I don’t have my wall,
I don’t have my Muslim ban. I got– like, what do I got? I got bupkis. [LAUGHTER] And I think a lot of
presidents feel that way. Did you feel, working– like, what was the
sense of constraint working in the White House? Was that a presence? Because I think
that’s actually part of what our
constitutional values are, that sense of constraint,
and really maybe the frustration about it. Yeah. I think I felt this way in the
White House, and I think this– I feel this way now as
someone who thinks and writes about these things. The president is more
powerful today than historically, but also
quite constrained. Right? If you read the famous
Youngstown case, the president only
gets to act if he has constitutional authority or
specific statutory authority. So he is not just this kind
of roving power center. He has to have
power given to him through one of those
two specific mechanisms. And the Constitution only
gives the president– now, the spheres in which
he’s given power– foreign affairs,
military matters, the Commander in Chief Clause– those are really
important spheres. But when we’re talking about
making domestic policy, Congress is in
the driver’s seat. Right? It is as a descriptive
matter and, of course, normatively it should be. And so I think the
president absolutely does feel constrained. What the president
obviously does have, which is not explicitly
granted in the Constitution or in a statute but Corey
talks about in the book, is the power of
the bully pulpit. Right? So what the president can do
is go directly to the public and speak to the entire public
on behalf of the entire nation on matters both domestic
and international. And in that way wields
tremendous power. Right? But it’s a kind
of informal power, and I think the two
can be confused. Right? So that’s another
important lesson. Right? The president is constrained– both feels and actually is. And maybe just repeating
that and remembering it is important to actually
seeing a president act in a more constrained way. Well, it’s a great point
because you [? spend ?] a lot of time in the bully pulpit– which, by the way, I’m
sure everyone knew this, but it was new to me–
like, “bully” then just meant “awesome.” [LAUGHTER] Did everyone know that? You’re nodding your head. I didn’t know that. You spent a lot of time
in the bully pulpit– and it is fascinating to think
of the centrality of rhetoric in presidential speech
in the modern presidency as an entirely sort of
extra-constitutional development. I mean, when you
think about right now, particularly, it’s
like, oh my god. I can’t with the
presidential speech. Enough. I got– [LAUGHTER] You know, it’s a lot
of presidential speech. A lot of it, all the time. But none of that is– in the beginning there
was very little of it. And now it’s almost
like the majority of what the president does. Well, I mean, I think
when you look at Wilson– that was the point I was trying
to make, too, in the lecture and in the book– that there
is a deliberate connection. He’s trying to expand the
power of the presidency, and he’s using this sort of
new power, the bully pulpit, to do it. Now, with Trump
it’s that times 10. Because think of
the bully pulpit. There is the press– it’s you– are in-between. Right? You have to speak to people
through the press office. Now, Trump doesn’t
have to do that. He has Twitter. He speaks directly to people. And thankfully– We’ve also got these awesome
rose garden videos in which he calls the storm “tremendously
big and tremendously wet.” [LAUGHTER] It’s one of my favorite
coinages ever for a hurricane. And how about his
ability through– I mean, you can tell me–
but there are at least rumors that he’s looking
at other techniques for talking to us
through our cell phones. [LAUGHS] Now, that’s
frightening when you combine it with the possibility
that the speech won’t be used to preserve, protect,
and defend the Constitution but will be used for
very different purposes. [? More like a war on it. ?] Yeah. Exactly. We’re in a dangerous
time, I think. Those constraints– absolutely. I agree that they’re there. They’re part of our tradition. But my worry is that
they can be eroded, too. And that’s what
the book is about. As you said, Kate,
in your remarks that people have
to know about this. The staffers have to know. [? Newstadt ?] tells the story
in his book that at one point a Nixon staffer
came up and said he wrote a book about
presidential power and he said, we
all read your book. It’s your fault, too. And [? Newstadt ?]
thought, what? I assumed this was within the
constraints of the presidency. We’d all read–
we’d taken civics, we had read Corwin on
constitutional constraints. And so that’s what I’m
trying to bring back, are those norms and that
culture for all of us and also for the staff. And if the president won’t
read them to himself, there is a book on tape. Maybe we could send it to him. [LAUGHTER] Well, thank you Kate
and Chris and Corey. Let’s open it now
for your questions. I want to remind everyone that
this event is being recorded and live-streamed, so when
you pose your question, please do keep that in mind. I believe we’re going to take
our first question in the back. And otherwise please line
up at the microphones. Hi good evening. My name’s Christopher
[? Lighty. ?] I’m [? a ?] class of ’90. And I’d like to, on the
behalf of the Brown [? Club ?] [INAUDIBLE],, thank you
[? Brettschneider ?] for both your lecture and your
book or your talk. And welcome back,
Kate and Chris. I suggest you go to
the admissions office and start the process
for your kids now. If you’ll indulge me, just
a little bit of questions set [? up ?] taking
the speaker’s comments about questions short. So political scholars
like yourself, professor [? Schneider ?]
and [? now professor ?] Shaw, as well as cable
pundits like Chris, I’m sure use frequently
the pendulum expression for swinging of politics. And, of course, it’s not just
the United States [? anyway. ?] But I’d like to posit that
there is another thing to consider, which is sort
of an extension on that, is the engineering
concept of resonance. And both the simple
and not-so-good. Simple is, you [? put ?]
your finger on a wine glass and you can make it sing. And it doesn’t
have to be crystal. That’s a myth. The other thing is,
the bridge in Tacoma that fell apart due to
oscillation, and not even in that much wind. And I would like to say that
there is a scary proposition that, for the next Congress–
although I think more specifically the topic
at hand, the president– there is probably multiple
levels of course correction that are going to be required. And my concern is that we
have a situation where, in a system where you
have a closer resonance, all you have to do is push
it one way or the other and it goes into oscillation
and things break. And the problem is that if the
executive is somewhat uniquely positioned to correct
things through things like executive
orders [? here, ?] de facto in a region where
it’s highly controversial. I don’t think you can say
it’s extra-constitutional, but it’s definitely
in that tricky realm. But if that’s the only
way to fix things, how do we avoid the
system blowing up where even a minority can
then react to the correction? Yeah. It’s a great point and question. I mean, one place I think we
see this is with Supreme Court nominee confirmations. Right? I mean, I think we’re
headed towards a place– the natural equilibrium is
that no majority Senate– no Senate will ever
confirm a justice of the other party’s president. Right? Because that’s the way
things are going to– and then you’re going to start
to see that more and more. Like, do you not
confirm the secretary of state of the other
party’s president? Like, why confirm? They’re from the other party. You’ve got the
majority of the Senate. Why do it? And it does feel dangerous. It does feel like that’s going
to oscillate more and more and start to get very
dangerous to the system. Yeah. I think that’s right. I think the other danger is– and if you read Kate Shaw’s
wonderful editorial today in the New York Times,
which I highly recommend, you’ll see this point, too. There’s also a danger, which
is that the Congress doesn’t act and take its co-equal role
seriously and vet a nominee. Now, I’ll say, I had a piece
in Politico about this nominee, and Kate also pointed out
his views seem to oscillate. Well, they oscillate
in a particular way that’s resonant with what all
three of us have been saying. When he is prosecuting
a Democratic president he seems to believe that a
president is not above the law and that US v. Nixon
applies in a very broad way. And then he begins to work
for a Republican president and he starts to say
things about immunity and the narrowness
of US v. Nixon, and even flirts at one
point with the possibility that this court case
was wrongly decided. Now, to me that speaks to
the danger of the possibility that the Supreme Court
might abdicate its role. Yes, US v. Nixon was an example
of an eight-zero decision with Rehnquist recusing
himself, of stopping a president who was
engaged in what looked like criminal wrongdoing. Now, what happens next time? Watch this confirmation process. That, to me, is the
real danger, that you might get a more extreme
Supreme Court that goes the opposite of the
direction I’m suggesting about presidential power. That might increase
rather than decrease. And one last thing,
just to the question. I think that whoever comes
after this president is going to have to sort of
course-correct in both a formal way and
a substantive way. Right? Like, there’s going to be
substantive corrections in terms of policy. But there’s also going to
be choices for forbearance, or choices to uphold
institutional norms as a means of reconstituting
what’s been broken. That’s going to be
hard because there’s going to be a temptation
to just break them further in sort of retaliation. So we’ll take another question. I would invite us all to
remember we only have about 10 more minutes. I do have to say that it’s a
pleasure and a thrill for me to be here to say this
to you publicly, Chris. You are not an
enemy of the state. Thank you. You are a lifeline
to our democracy. [APPLAUSE] That is outrageous, the pressure
that that’s put on your family, on Rachel’s family,
on all of you. It is absolutely
outrageous, and I hope you can feel
our love and support. We will not tolerate that. Had to get that in. So glad to say that to
you in a public forum. But my question is just
really about the norms. I think this has been kind of
an educative experience for me. For instance, Merrick Garland– that they could actually
hold it 300 [? days. ?] I think many of us
thought there was a law. What’s up with this? It’s not a 90-day? And that’s just one example. Go on and on with these norms. What an educative process. And one of the– our congressman
here, Cicilline and Whitehouse, they’re great people. We communicate with them. Do a whole bunch
of things now have to be codified that I so
naively thought was norms? Great question. What do you think of that? Yeah. I think– but codification
requires an active Congress that is interested in defending
its institutional prerogatives. Right? And that’s not– that
won’t fix, I don’t think, the Supreme Court
confirmation issue. But insofar as many– I think all the time about the
transition– just the period of a few months from
this administration to the next administration,
whenever that is. There’s actually very
little statutory law that governs how power sort of
cross-fades between an outgoing and an incoming administration. And I think a lot
of codification actually would be
extremely helpful. It’s a really vulnerable
period for the country when there is this figure who
is the President-elect who doesn’t possess or
exercise formal authority, and yet needs to be getting
up to speed on intelligence matters and other things. And all of that just happens
through custom and norm and practice. That’s one small example,
but it does feel to me like actually formalizing a lot
of what has traditionally just been norm-driven. And we’ve done this before. Even with presidents
whose norm-smashing we have, for the most
part, found more favorable. Right? Right? We had only a norm of a
two-term president before FDR, and then we amended the
Constitution to formalize it. So a lot of
norm-smashing has been followed by codification
either through statute or constitutional amendment. And some of that, I think,
it would be appropriate. But it requires Congress and
that is the big question. [? I see the question ?] here. Hi. Thank you so much
for coming here. I’m a sophomore here at
Brown in public policy. I sort of wanted to ask
you about your point about political culture and the
health of political culture. You sort of talked
about regionalism and how that plays
into political culture. And so I was
wondering if you could say if it was
accurate to describe having an overarching
political culture, or if American political
culture was simply an amalgam of regional
cultures and the sort of overarching
political culture is sort of a romanticisation
of America that we try to tell ourselves? Yeah. It’s a great question. I mean, I think
it’s sort of both. So there’s really distinct
regional political cultures. I mean, the political culture
of Mississippi for years was the culture of
apartheid tyranny. There was a government that was
just straight up dictatorial. It was putatively
democratic, but it just imposed complete
apartheid tyranny upon its nonwhite subjects. And that was the– the political culture of
that place was that that. Everything was in
furtherance of those values. We talk about
values– it was like, those were the values
of the political culture in Mississippi. You know, the political culture
a place like Massachusetts was very different. And so I think there’s
sort of an amalgam. But I think that
the thing that does bind us is, there
is kind of a sort of national political culture. And when we talk about national
political questions that embodies, again, at its best– at its best, values about
equality under the law, due process, freedom
of expression, separation of powers,
judicial review, restraint. All those things, I
think, are embodied in the national
political culture. And one thing I would
say that I think is a really important
thing to keep in mind is that there’s a tendency
to look back on the past and be like, well, they
didn’t know any better. But at every point of these
big controversial controversies there are people at
the time saying what the constitutional values are. It’s true in Plessy v. Ferguson. It’s true during
the Trail of Tears when there’s members of Congress
on the floor of the United States House of
Representatives saying it is an absolute abomination
and a moral outrage to send the Cherokee in the way
that Andrew Jackson is ordering them. It is true in Korematsu. It is true time and time
again that, at these moments, there are people with the
contemporaneous values that they’re
equipped with saying that the thing that now
looks obviously wrong is in fact wrong. Those values are actually
pretty enduring and accessible throughout the
life of the nation. Yeah. Thank you for that. I mean, in the
Woodrow Wilson case I don’t think we let him
off the hook on the grounds that he was a
product of his time. He was a constitutional
law professor. He read one of the
most important dissents in constitutional law by Justice
Harlan and Plessy v. Ferguson, saying separate is not equal
and denying the compatibility of the culture of segregation
and the equal protection clause. He knew better. And so the idea that he was
just a product of his time or of a region, I
think, is wrong. And so we should, I
think, be critical. It’s certainly true that we
have a pluralistic society. We have a society
that had slavery in it and that had segregation,
and these values have by no means always been
instantiated in our policy. But when the court and
when a president thinks about the history
and the meaning of the tradition over time,
they have to rise above that. And that’s when they look to
the Constitution, which tells us in its ban on cruel
and unusual punishment in it’s Cruel and
Unusual Clause, and in its defense
of the rule of law in the Due Process Clause,
that these values rise above any of these
historical injustices and violations of it. So you both, I thought,
captured that beautifully. I thank you both for such
a deep reading of the book. Please. Hello. My name is Sonny. I’m a second-year student here. Thank you all for coming. Congratulations on your new
book, professor Brettschneider. And my question– it seems
like through this office– this executive
office has moved us farther from what you would call
value democracy, one in which in the public sphere
the state espouses its values through
democratic expression and citizens habitually
practice reflective revision. So my question has to do with– as a young person, what
can young people do? And what can the
next president do to ensure that we move closer
to a value democracy rather than the militant one
that we have currently? I mean, one of the nice
things about this panel and why I really am grateful
to you both for coming is that we’ve all three of us– I feel like it’s a team effort–
we should get co-authorship maybe on the next
version of the book. We’ve been pushing this
point that this isn’t going to come from nowhere. It’s going to come from
a culture in which this is out there. And that’s part of
why I wrote the book, is because it’s
an attempt to try to get people to talk about– a modest attempt, but maybe
with both of your help this will succeed– to get people to talk
about the Constitution, to see this as your document,
that it isn’t something that’s left to
Supreme Court justices who all went to several elite
schools, that it is about– Just two, actually. [LAUGHTER] Right. Two. That it’s about the
population’s ability to claim the document and
these values for themselves in the way they
talk about politics, in their demands of
public officials. And without that
we’ve got nothing. So we are at 6:30, but let’s
take two more questions– one on this side and
one on that side. So do you think that
the 2020 election will be a sort of litmus test on
how our political culture, which Chris talked
extensively about– how much Americans actually
care about the Constitution and restraint? You know, do you think there’s
a chance that maybe you’ve gotten this wrong and that
Trump’s America is really the long-term future
of this country? Yes. [LAUGHTER] There totally is a chance. I mean, there have been
changes to political culture that have been
enduring, and changes to the size and
shape of the office and how the office
conducted itself. There’s things that
people found outrageous that actually proved
to be enduring features of the office. There’s lots of things
Andrew Jackson– Andrew Jackson, who, to my mind
was an absolute scoundrel– totally permanently
changed the office of the presidency in many ways. And so, yes. It is possible that– first of all, I do think
the 2020 election will be in many ways a referendum
on exactly this– the nation’s constitutional values, it’s
belief in the rule of law. There’s going to be
substantive battles on things like trade
and immigration and things like that. But at some level I
think it’s actually going to be very
front and center, this sort of
Democratic question, this constitutional question. As to the possibility that
those values don’t endure, I think that’s a
real possibility. I mean, I remember back in
2016 people coming up to me and being like, can Trump win? And I would say, yes,
of course he can win. In fact, any major party
nominee in America– anyone in this room who was nominated
to be a major party nominee would have within a
coin’s flip chance of being the next person
of the United States. It’s just the way it works. That’s how polarization works. So, yeah. Nothing [? is fore-ordained. ?] I mean, there is a
vision of history that says we’re always going
to inevitably progress, that things will get better. I don’t hold that view. I think to the contrary. If you’re not
vigilant things might go in exactly the
opposite direction. And so when I say this is
a book for the country, it’s because this little
constitutional law professor with his hypotheticals– people might just
say, who cares? I want that guy who’s up there,
who’s the reality TV star who’s saying these things
that are hysterically funny when he comes up with
names for political opponents. And, you know, it might well be
that that’s what gets ratings, and that the Constitution
is not the thing that gets the ratings. The Constitution doesn’t rate. So it’s not inevitable. And that’s why I’m going to– right now, the three of us–
and I think all three of us will continue to do our best
to try to send that message out there. Because it’s not clear who’s
going to win out in this. And it is a battle. And [? between ?]
battles of defenders of the values of
the Constitution, the equal protection
clause, the idea of free speech, the idea
of not discriminating based on religion. Those are– there are
opponents of those values, and they are out
there in the culture, and they are getting attention. And in some cases
they’re marching. Think of Charlottesville. So, no. It’s not inevitable. And that’s why we all have to
be vigilant and try our best. And not just try our best. We have we have to win. And our last
question for tonight. I was just wondering about
the recent New York Times piece about Rosenstein and kind
of the implications of that with relation to the
[? power’s ?] ability to fire people, but also his discussions
of the 25th Amendment and kind of where that plays
into controlling the president. Great question. I was juggling kids,
so I actually even haven’t read the piece. So, one of you who’s
read it carefully. I mean, I can talk of
the 25th Amendment, but I’m not actually sure
[? what was spoken. ?] [INTERPOSING VOICES]
each have versions of a story about
the fact that there are leaked memos that were
made by Andrew McCabe and maybe others, Lisa Page, about
Rosenstein’s conversations with them in the
early days after Comey was fired in which
Rosenstein suggests the possibility of the
25th Amendment to others and possibly recruiting other
cabinet members, including Jeff Sessions and John Kelly,
who is now the head of DHS, into the 25th Amendment pact. There’s some question about
whether he suggests wearing a wire on the president,
although it’s– Rosenstein– although it
seems quite clear to me from the reading of that part
of the memo, that it was a joke. But how about this? Like, can he fire Rosenstein? And what’s the deal
with the 25th Amendment? He probably can, although
maybe not directly. Right? I’m sorry, Mueller
[? can’t fire– ?] Rosenstein, [? no. ?] He can
definitely fire Rosenstein. Definitely, definitely. [INAUDIBLE] The 25th Amendment is, I
think, something people have reached for, but it’s
really difficult to use. It’s harder than impeachment. So if the president
objects– now, if the majority of the
cabinet and the vice president agree that a president
can no longer discharge the powers and the
duties of the office, the president sort of
says, OK, then it’s done. But in section 4 of
the 25th Amendment there is a mechanism
that’s laid out that says if the
president objects, he says, no no, I’m fine,
I’m not going anywhere, then the Congress
has to remove him. And they have to– both houses do by super
majority, I think, have to remove him. I haven’t looked at the
language for a while. I’m pretty sure that’s right. And that’s harder than– well, you know, a
majority vote will get him impeached in the house. You still need a super
majority in the Senate if we’re talking impeachment. You need super majorities
in both under section 4. So I just don’t know. Now, what it would do
is send a real message. It’s the cabinet
that triggers it. So it would send a real message
that the cabinet believes the president is unfit, maybe
that emboldens Congress– Can you imagine? –to move in a way that
just– that the kind of self-starting
nature of impeachment is an obstacle, where as
you’re responding to something the cabinet asks you to do. It’s different. But you need a Congress
that’s willing to act in order to actually remove a president
under the 25th Amendment. And so it’s just a lot
easier said than done. I’ve been trying to
do the vote count. So Betsy DeVos– I don’t know that that’s– [LAUGHTER] Because you have to
count– it’s a majority of the cabinet and
the vice president. So maybe the vice president. But when you start to count
these cabinet officials, is Betsy DeVos going
to vote to remove– and I think it goes to a
point that Kate was making pretty early on in the
discussion, which is it’s one thing when you have a
cabinet and a staff that have internalized the
values of the Constitution. Then maybe they would act if
all of a sudden the President of the United States
turned on a dime and started violating
the Constitution. But when you have a
cabinet and a president and a culture of
the White House that seems not only to
understand the values but to disregard the rule of
law and to be hostile to them really, I think it’s much
more than not respecting them. How you get that– exactly as you said–
that tough vote count– I think that’s hard to do. Well, let’s continue
our conversation out in the foyer afterwards. Please join me in thanking Kate
Shaw, Chris Hayes, and Corey Brettschneider. Thank you both. Thanks for joining us. Thanks for coming
back, and welcome home. [APPLAUSE]

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