Yes, We Can Rein In a Rogue President
For Americans to regain trust in the presidency, Democrats and Republicans can and must unite around some common-sense reforms.
This column is a part of Republic of Distrust, a series about the loss of trust in American institutions and what can be done to restore it.
Bob Bauer has seen the presidency up close, both from working in the Obama administration as general counsel and serving as President Joe Biden’s personal lawyer. He now thinks the office is broken, a reality made plain by four years of Donald Trump, who proved that the presidency is susceptible to the whims of whoever has the title.
In After Trump: Reconstructing the Presidency, Bauer and his co-writer Jack Goldsmith, who served in President George W. Bush’s administration, outline more than 50 proposals for fixing the presidency. The duo also heads the Presidential Reform Project, a bipartisan group dedicated to shoring up the norms and laws governing the presidency. I reached out to Bauer for his views on what a second Trump presidency might mean for the already fraying constraints on the presidency, what Biden could do while still in power and what path to reforming the office will remain open no matter who holds it.
Nia-Malika Henderson: You wrote a book called “After Trump” when, in fact, there might be another Trump presidency?
Bob Bauer: We may see another Trump administration, but I certainly hope not. He’s made it very clear that he has a particular vision and understanding about what presidential authority is. Whether he says he is going to be a dictator just on day one, whatever day one may mean. Or laying out all sorts of claims for what he can do on his expressed belief that Article II permits him to do whatever he wants to do. So his rhetoric and the outlook it reflects have taken us in pretty extreme directions.
NH: But as you point out in your book, the excesses of the executive branch have been bipartisan.
BB: The path to the point we have reached was developed before he got to office. The left and the right, Democrats and Republicans, have an opportunistic view of presidential power. We’re terrified of it when it’s in the hands of the other side. We’re more than happy to exercise it creatively and aggressively when the power is in our own hands. For institutional reform to be successful, the Democrats and Republicans, left and right, must come together around some responsible understanding about executive power. The presidency as an institution badly needs reform, and that is partly because of expectations of the presidency that are always inflated and to which presidential candidates tend to cater. We need to build new guardrails and shore up those that are failing. Donald Trump is a case apart, but there is a whole background of disregarding guardrails around the institutions’ exercise of that authority that has brought us a little bit closer to the day when Trump can make these claims plausible, at least to a portion of the electorate.
NH: You and your co-author lay out 50 reforms in your book. Do you see any progress on what you propose?
BB: Our background assumption is that reform is hard. And institutional reform is very, very hard. Particularly in the polarized political atmosphere, we have to expect that progress is going to come in bits and pieces as you build coalitions around very specific reform initiatives. What we’ve tried to do is pick up a piece that we think is manageable and can attract bipartisan support and move us in the direction of more general institutional reform. But there are 50 reforms in the book and I will not live to see most.
NH: You did see progress on the Electoral Count Act, which was signed into law in January 2023.
BB: Yes, that’s a model that we are attempting to follow for Insurrection Act reform. I don’t know of anybody who doesn’t agree that the Insurrection Act, which authorizes virtually unconstrained presidential deployment of troops in the homeland, is a bad piece of legislation. It has inscrutable terms, apparently open-ended grant of authority, no place whatsoever for Congress. In superintending how a president acts under that statute, it’s hard to imagine anybody seriously defending the way that statute has been put together and left sitting on the books. So, at the invitation of the American Law Institute, we brought Ds and ₹together, left and right together, and we tried to lay out principles that people out to be able to agree on: restrictions on the grounds for which the president could claim authority and a process for congressional involvement, which would include, among other things, the ability to set time limits on any domestic military deployment. We had a unanimous outcome. There was no dissent within the group about whether this was the right map for reform.
NH: What other reforms are important to make?
BB: There are conversations that are taking place about the National Emergencies Act, the ability of the president under a whole array of statutes to proclaim emergencies, some of which stay on the books for decades after they’ve been proclaimed. This effort does have bipartisan support on the Hill. How fast it moves to congressional consideration is another question. But there again, the question is, what level of accountability do we introduce into the exercise of presidential authority? How long can an emergency last without Congress having to approve its continuation? There are emergencies, by the way, that were declared in the 1970s that are still on the books.
NH: Is there something that Biden can do right now to safeguard the presidency from abuse?
BB: I’m a firm believer in adding internal executive branch reforms to the agenda. It’s true that a president who comes into office and who’s hellbent on overturning them can do that. But whether it’s protecting against the politicization of the civil service and the Department of Justice, which is on the Trump agenda, we have to be laying down markers. And the advantage of laying down markers is that if they’re there and if somebody wants to walk away from them, it’ll be clear they walked away from them. And they’re going to have to provide a public defense. So, you have at least boxed them into the requirement of providing an explanation. Yes, they could be overturned by someone committed to overturning them, but they should have to overturn them. They should be forced into that posture. Another example are the opinions that the Department of Justice’s Office of Legal Counsel issued during the Bush administration in support of its counter-terrorism policies that take a completely unnecessarily expansive view of presidential war power. These opinions are lying on the desk waiting for someone to use them. Repeal them — have them reconsidered by the OLC and repeal.
NH: Biden could do that by himself tomorrow, right?
BB: Correct. Biden could, the president, any president could direct the attorney general to order the Office of Legal Counsel to reconsider those opinions. They rest on such tenuous authority that any such serious reconsideration would result in their rescission. Something else the attorney general could do is shore up the ethical requirements within the department that govern how attorneys in the Department of Justice respond to political pressure. Now, somebody could say, why would they supplement the ethics code? Why would a tightening of those requirements make a difference? Well, once again, you’re trying to shore up norms. You’re trying to create an environment in which people can point to something and say, I’m not able to accept that argument. I’m not able to comply with that directive because it puts me in violation of the codes that bind me as a member of the Department of Justice legal staff. You want to create those, if you will, rocks on which people could stand. Jack and I have written letters to the Department of Justice and invited action to be taken. And it hasn’t been.
NH: Why do you think it hasn’t been taken? Is it just easier to leave it at the status quo?
BB: Sometimes an administration becomes very concerned, particularly under genuine policy pressures, about taking actions that might curb its authority. So someone might say, I don’t think we should take these OLC opinions off the table. We’ll never use them. But why would we do that? Why would we handicap ourselves?
NH: But still, you sound very hopeful.
BB: There is progress here and there in fits and starts. I think there is a recognition of the issue. If a Trump-like president occupies the office, whether it’s Donald Trump or someone else and the Congress is in the hands of a party that is subservient to that kind of president, this whole reform process is going to become much more difficult. We aren’t worried that Joe Biden will not sign laws around this. And there are enough members of Congress in both the House and the Senate on both sides of the aisle that we can work with. But yes, it could take a dark turn depending on who occupies the Oval Office and what the majorities in the House and Senate look like.
With assistance from Elaine He and Carolyn Silverman.
This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
Nia-Malika Henderson is a politics and policy columnist for Bloomberg Opinion. A former senior political reporter for CNN and the Washington Post, she has covered politics and campaigns for almost two decades.
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