The Enormous Powers of the President

"Presidential integrity depends on character and norms."

By and
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Co-authors Jack Goldsmith and Bob Bauer join the podcast to discuss their book, After Trump: Reconstructing the Presidency, and the need to reform presidential power. But first, a protest and a dinner party at a Berkeley Law School dean’s house. Did the location qualify as a public forum? Sarah and David evaluate.

The Agenda:
—Dean of Berkeley Law School and a Palestinian Protest: 1A protection?
—How to go about civil disobedience
—Reforming the Insurrection Act
—The need for bipartisan support in reforming presidential powers
—Did Donald Trump abuse the pardon power as president?
—Special counsels and the fear of rigging prosecutions

Show Notes:
—The Logan Act
—The American Law Institute
—David’s Sunday column

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Comments (40)
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  1. Graeme.Edgeler

    I lnow its not the biggest point, but your airport terminals are government owned?!

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  2. Daniel Sanders

    I'd like to say that Congress would take up the task of limiting Executive powers, but the cynic in me thinks it only benefits congress to complain about it; it drives anger and voting. If the legislature were to limit the powers of the Executive, they would be forced to actually make difficult choices, compromise, and take a stand; they might have to legislate - and THAT is bad for job security.

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    NashLives

    This is random, but what's up with all the scammy casino app ads on TD podcasts recently? Y'all probably don't have much control over this but in case you're not aware...

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    1. Adaam James

      Thanks for letting us know. Blocking programmatic ads is a weird art, so it helps to know whenever bad ads creep through our filters.

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  4. Smgordon67

    Hey, SCOTUS ruled on the point from our amicus brief as well in Sheetz!
    https://citizenactiondefense.org/app/uploads/2024/04/240412-Scheetz-Amicus-Press-Release.pdf
    https://citizenactiondefense.org/app/uploads/2024/04/231120-Sheetz-Amicus-Brief-FINAL.pdf

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    George.Skinner

    The discussion on curbing presidential powers was interesting, and I hope people are paying attention. However, I've got a depressing feeling that legislators won't be motivated to do anything about the Insurrection Act until, like the Electoral Count Act, they've only recently survived an experience related to a bad-faith interpretation of the provisions. And the challenge there is that they have to have *survived* it: the sweeping powers of the Insurrection Act raises the risk to everybody substantially.

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    squarooticus

    Can someone help me understand what is meant by the word "implicate" in a legal context? I hear the hosts and guests frequently use constructions like "X implicates Y", and it's not clear to me (never a law student) how I should be interpreting that.

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    1. Neil Alice

      I went to a law school long ago, and I haven't noticed the hosts saying “implicate.” My guess, from the implications of your question, is that you're looking for law or legal context where there isn't any.

      They're likely using “implicates” as a synonym for “implies” or “suggests” or “leads to” where the fact of X means that Y is more likely to occur or to be true. Another word, “infer,” is similar, but works in the other direction: Since Y happened, we can infer that X also happened.

      You might be thinking about how Criminal Suspect X “implicates” an aider and abettor, Suspect Y, like maybe where Suspect X confesses to a crime and tells the police that Suspect Y did it, too. But even in this example, the word “implicates” doesn’t really have a Legalese meaning.

      Sure, Suspect X said that Suspect Y did the crime, and this “implies” or “suggests” or “leads to” a belief that Suspect Y could be guilty. But the police will likely want to know whether Suspect X is trustworthy and if there are other plausible reasons to think that Suspect Y was at the crime scene before they form many opinions about Suspect Y's guilt.

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        squarooticus

        Yeah, it could be as simple as substituting "implies" or "leads to" in my head. I'll try it on the next episode.

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  7. Davidbenjaminlat

    Thanks for the shoutout to my writeup of the Berkeley Law protest at Dean Chemerinsky's home! Here's the link for anyone who might be interested:

    "A Tale Of Two Protests: UVA v. Berkeley Law"

    https://davidlat.substack.com/p/protest-berkeley-law-dean-erwin-chemerinsky-home

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    1. MathewA

      awesome I will check it out

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  8. Viki

    Great episode. I have been concerned about presidential executive powers a the guardrails around them , the discussion with Goldsmith & Bauer was very helpful.

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    Bill Dyer (aka Beldar)

    Kudos to Professors Goldsmith & Bauer for their efforts, which are in the finest traditions of the American Law Institute. I'm not, in general, a fan of law professors who want to rewrite the U.S. Code in broad ways. This is an exception: SOMEONE has to do the initial work of drafting and justifying attractive alternatives, and the ALI has been a long-time and vital instrument through which legal academics have taken a laboring oar for presentation to Congress and/or state legislatures as appropriate.

    I have no expectation that their work will bear fruit until well after the 2024 election. But the work they're doing now, including such things as appearing on this podcast, will hopefully help create a more fertile field for the future. God knows Congress needs the help in wrestling back some of the power it's ceded to the Executive, or that various Executives have seized.

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