TERRY GROSS, HOST:
This is FRESH AIR. I'm Terry Gross. In the new book "After Trump: Reconstructing The Presidency, my guest Jack Goldsmith writes, no matter when Trump leaves office, his successor will face momentous and difficult questions about how to reconstruct the battered and much changed presidency that Trump will have left behind. Goldsmith points out, President Trump has said that Article 2 of the Constitution gives him the right to do whatever he wants. In doing what he's wanted to, Trump has attacked norms comprehensively and frequently and disregarded them openly. The new book spells out the norms Trump has broken and the weaknesses in accountability that have allowed him to do so. The book recommends reforms that will hold future presidents more accountable.
Goldsmith is a Harvard law professor, co-founder of the Lawfare blog, and he headed the Office of Legal Counsel under President George W. Bush. Goldsmith resigned after withdrawing the so-called torture memos, memos written before his arrival that justified the use of torture on foreign combatants, memos Goldsmith said were overly broad and legally flawed.
Goldsmith's new book is bipartisan. His co-author, Bob Bauer, served as White House counsel under President Obama and is now senior adviser on the Biden campaign. I should mention we're recording this interview early this morning.
Jack Goldsmith, welcome back to FRESH AIR.
JACK GOLDSMITH: Thank you very much for having me.
GROSS: Do you think that President Trump may have changed the presidency for the long term?
GOLDSMITH: Well, that's a question that the future will answer. I do believe that he has taught us how the presidency can abused in a way - in ways that people who've studied the presidency for a long time really never imagined. His norm violations across the board, sometimes in ways that didn't obviously serve his interests but nonetheless were destructive to the institutions around him - whether those persist or not depends on what happens next. So there's no doubt that he's changed the presidency in the sense that he has disclosed lots of things about it and lots of weaknesses in the accountability structure of the presidency that we did not sufficiently appreciate before he was president.
GROSS: What are some of his words and actions that you think most reveal the lack of accountability?
GOLDSMITH: So there are a whole array of things. Going back to the 1970s, the last time we had comprehensive reform of the presidency was in the 1970s, after Watergate and Vietnam and the revelations of the Church commission concerning the intelligence agencies. And we had several years of comprehensive reform of the presidency that really worked remarkably well for the next 50 years.
But a lot of those reforms from the '70s depended on norms, and norms, which is a word that's been used a lot during the Trump presidency that wasn't used so much before - norms are rules that aren't legally enforceable but nonetheless apply in the executive branch and that had pretty serious bite prior to the time Trump got there for a whole bunch of reasons. He's just defied these norms across the board.
I'll just give you some examples. Not disclosing his taxes - this is something every president has done going back to the '70s; mixing business and profit with public office and defying the conflict of interest rules, which also go back to the '70s and which every president of both parties had complied with; several things he did vis-a-vis the Justice Department that would have been out of bounds for the last several decades - intervening publicly in cases to seemingly protect himself or his friends, calling on the Justice Department to prosecute political opponents, using his control over diplomacy and law enforcement to try to nudge foreign powers to help him, especially with the election. He used the pardon power in ways that weren't necessarily illegal but that were seriously abusive in ways that past presidents had.
The list goes on and on. Some of them verge on being illegal, but what they really are are abuses of power that we don't expect presidents to commit and that we need now to tighten up the norms and the laws to make sure future presidents don't do that.
GROSS: Yeah. So you want to codify some of the norms in such a way that norm breakers can be held accountable. How do you do that with lying, with stating things that you probably know are not true - 'cause that is something Trump has done consistently through the presidency? What is a way of codifying that so that a president can't do that?
GOLDSMITH: So it's very hard to do. I mean, the American people are allowed to elect presidents who say and do all sorts of things and especially on the speech front. And a lot of Trump's norm-breaking has been just purely verbal and attacking and, as you say, lying, which is hugely disruptive to our system of, you know, regular order, due process, the rule of law. It's very hard to stop a president from lying. You can't regulate his speech directly.
What you can do is to try to ensure that the lies and the attacks don't destroy the institutions around him that we try to depend on. One of the challenges of reform is it's very hard to stop a president from speaking in ways that are misleading, self-serving, mendacious and the like. You can't regulate that directly. Except in a very few cases, you can't regulate that directly.
GROSS: Trump owns properties or at least has branded properties in several countries around the world. Some of them are allies. Some of them are not allies, like Russia. And he has been often accused of using his office in the White House for personal gain even though he ostensibly put his businesses in blind trusts. It's his sons who control those business interests. And what's the likelihood that they haven't talked about it? And then, of course, you know, at Trump hotels, there have been Republican gatherings there. Secret Service have stayed at Trump properties. So how would you suggest preventing future presidents from using their office for personal gain, financial gain?
GOLDSMITH: Yeah. This has been one of the most serious problems of the Trump presidency. And it's - as you suggested, he established a blind trust, but there's no reason to think that it's really been blind. There's lots of evidence that he has been, you know, informed about what's going on and suggesting what should happen. There's also - it's also clear that he has profited off of his businesses in the performance of his public office. There's lots of reason to think that people with stakes before the administration have sought favors by using Trump properties and the like - sought favors from Trump.
So this is deep corruption that the country shouldn't allow and that prior to Trump, it really wasn't allowed. But it was, again, done by norms and not by law. So, again, you can't eliminate the problem, but you can take serious steps to try to deal with its worst aspects. The main thing that we would do that Bob Bauer and I propose is to absolutely bar the president on pain of criminal penalty from any involvement or oversight or role in any business. We would have the president certify that every year, and it would be a criminally enforceable prohibition and something that certainly a president would take seriously, even Trump.
The idea - what you want to try to ensure is that the president's public policies aren't in some sense serving his - obviously his private profits. Some people think a blind trust is the way to go because the president won't know how his public actions affect his businesses. But as we explain in the book, blind trusts are fairly easy to circumvent. They're hard to enforce for sure. And we think that a better approach is to require absolute transparency about all of the president's wealth and business interests everywhere and have full disclosure about that. We would also - and we would require the president to account regularly and transparently for all of his wealth and all of his dimensions. We would also make sure that Congress can have a much more robust role in policing gifts given by foreign governments to the president.
Right now, this is a murky area of law. There are lots of ways that foreign governments can benefit a president. There's this suggestion with regard - recently, The New York Times had a story about Trump having large properties in Turkey and trying to get favors for the Turkish government from prosecution so that his businesses could flourish. These things all need to be disclosed and made public. So we think that radical transparency and an absolute prohibition on the president being involved in these businesses are the best way to solve this problem. There are more aggressive solutions. You could require a president to divest all of his wealth, but we think that's too extreme even after Trump.
GROSS: So if we followed the guidelines you've laid out, people wouldn't be relying on the Emoluments Clause to show that there was an inappropriate gift taken from a foreign power.
GOLDSMITH: Yes. We don't think that - the Emoluments Clause is a provision of the Constitution that prohibits foreign governments from giving gifts to the president, put simply. And that's just - first of all, we've seen in the litigation for the last four years, it's very hard to enforce that provision by itself. We would have Congress sort of exercise powers under the Emoluments Clause to more closely scrutinize foreign gifts. But that's something that requires legislation.
The Emoluments Clause by itself doesn't get you there. But that's not nearly enough to give the country confidence that the president is acting in a way, in his public actions, when he decides to make a tax proposal or when he decides to have a conference at a certain place, or when he decides to entertain someone or when he decides to suggest a course of action on law enforcement, you want to - you want the American people to be able to see with complete clarity how, if at all, those actions might personally benefit him.
And so we basically go for a model of radical transparency about a president's wealth. We also suggest, by the way, that presidents be required to disclose their tax returns, something Trump - another norm that was pretty well-established that Trump defied because it reveals so much about hidden wealth sprawling around the world. Basically, the reforms are designed to give a complete picture of the president's wealth and to completely separate the president from the operation of his businesses.
GROSS: You make a very interesting recommendation regarding taxes, which is instead of relying on the president to release their taxes, make it the responsibility of the IRS to release the president's taxes.
GOLDSMITH: Well, we put the duty, first of all, on the president. And if the president doesn't release or the presidential candidate doesn't release them in time, then we authorize the Treasury Department to do so. And also we suggest there's a regular - this is an old rule. The IRS regularly audits the president's taxes. And this has gone back for many decades. And we propose that those audits be made public.
There's no reason that the public - the usual argument against making taxes public is there's lots of private information in the tax returns. And that's true. But our view is that - especially in light of the abuses of the last four years and the practice before that where presidents regularly disclose taxes, our view is that the audit should be disclosed so the American people can have a full picture of the president's wealth, what he does with this wealth and the like.
GROSS: Let me reintroduce you here. If you're just joining us, my guest is Jack Goldsmith, co-author of the new book "After Trump: Reconstructing The Presidency." We'll be right back. This is FRESH AIR.
(SOUNDBITE OF PAQUITO D'RIVERA'S "CONTRADANZA")
GROSS: This is FRESH AIR. Let's get back to the interview I recorded this morning with Jack Goldsmith, co-author of the new book "After Trump: Reconstructing The Presidency," about what reforms need to be put in place to hold future presidents accountable and prevent them from violating norms in the way that President Trump has. Goldsmith is a Harvard law professor, and he headed the Office of Legal Counsel under George W. Bush. His co-author, Bob Bauer, was White House counsel under President Obama and is now a senior adviser to the Biden campaign. So the book is actually very bipartisan.
This gets back to a speech question. The president has attacked his enemies verbally, on Twitter. And this includes journalists. This includes people who were in his administration who he fired. This includes Anthony Fauci. And the problem is he not only tries to discredit them, but when he does that, these people get death threats, really serious death threats. They have to protect themselves and their family after Trump goes after them. Now, what - do you have any suggestions of how to prevent future presidents from endangering the lives of people who the president doesn't like or who the president considers his opponents?
GOLDSMITH: Again, presidential speech is very hard to regulate directly. We don't have proposals to deal with that problem. I mean, Trump has been completely unprecedented in this regard in terms of attacking people. And of course, we live in a new era in which mobs can coordinate and descend on people online and elsewhere once they've been identified as a target. We don't have any direct proposals about that. It's something we thought about. And it's a very hard problem to fix.
Some people have suggested that laws against incitement could be crafted in a way that prohibited a president from basically rousing up a mob to go after someone. That would be a very difficult law to draw since the president has speech rights. And so we did not propose that in the book. One proposal - and we made several like this. One proposal that we make that - we do worry about this. We worried especially about the attacks on the press. Presidents have attacked the press going back to the beginning of the country. That's not new. The viciousness of Trump's attacks have - are new. Maybe Nixon came close, but wasn't quite as bad as Trump. We do propose some mechanisms to ensure that the president can't use the arm of the government - the law enforcement or the IRS or any other element of the government to retaliate against a member of a press that he despises.
But, again, Terry, you've put your finger on one of the hardest things to really deal with, which is that - and has been characteristic of this president, which is he's - attacks institutions, and he damages those institutions, and he causes harm. When the president attacks you and says something vicious to you on Twitter, it can have a devastating impact on your life, just personally, before the crowds come against you. And that - I'm afraid not every problem can be solved by law, and that I'm afraid is a problem in general that has to be solved by the electorate, if at all.
GROSS: Let's talk about criminal charges. We've been talking about breaking norms. Do you think the president has actually broken laws?
GOLDSMITH: He's clearly broken some laws. His - the delayed release of the money for Ukraine in an effort to get them to help him in the presidential election, independent of whether that effort to try to get Ukraine to investigate the Bidens - independent of whether that was a crime, and I'm not sure that was, the delay in the money was clearly illegal. That was - and the General Accounting Office issued an opinion to that effect.
And he's come close to violating many other laws, if not absolutely violating them. But law violation, despite - it has not been Trump's central motif. I mean, he's certainly declared, as you said at the top of the program, that he has absolute power under Article 2. But in that regard, his bark has been somewhat worse than his bite. And a lot of the problem - and, again, we proposed reforms through this. A lot of the problem is that the law is just unclear, and I'll give you some examples.
One example is the president, we know from volume two of the Mueller report, engaged in lots of efforts to try to shut down Mueller, to try to get Mueller fired, to try to shape the investigation. He's publicly engaged on that, and he did so behind the scenes - largely unsuccessfully, by the way. That's an example of norms working pretty well, the fact that Mueller was able to finish that report.
But it raised a very hard legal question about whether the president of the United States can obstruct justice. And on this, there is a range of opinions. The problem is, is that the president of the United States is in charge of law enforcement under the Constitution and has very wide discretion about how to run and supervise law enforcement actions.
So we propose in the book to clarify this. Congress has not, in its obstruction of justice laws, specifically picked out the president and said he cannot obstruct justice in these circumstances. And we propose clarifying that because the country shouldn't be - it shouldn't - that shouldn't be unclear. It should be clear that certain actions taken by the president, especially to save himself or help himself or to impact an election, should be criminalized. So that's an area where he might or might not have violated the law. And obstruction of justice is an area where - he's pervasively obstructed justice. John Bolton said in his memoir that Trump appeared to engage in obstruction of justice as a way of life.
GROSS: You headed the Office of Legal Counsel under President George W. Bush. And there's an Office of Legal Counsel memo that dates back before your time in the Bush administration that says a sitting president can't be indicted, or at least it's been interpreted as saying that. Where does that date back to? And what was the logic behind it?
GOLDSMITH: There were two opinions, actually. One opinion came right after Watergate in the '70s, and then a second opinion right at the end of the Clinton administration looked at the issue again, I guess, in the context of, you know, questions whether Clinton himself could be indicted while in office. And they reached the same conclusion - that the president could not be indicted while in office. So this is not something that the Constitution addresses expressly on its face. So it's an interpretation, one way or the other, that has to be kind of inferred from other powers and the structure of the Constitution.
The main argument, to put it simply, is - a couple. One, the president himself is in charge of law enforcement. He has absolute discretion with regard to law enforcement, and therefore subjecting him to law enforcement - since the president could fire any prosecutor that would go after him and keep firing them - is something that the Constitution doesn't allow. The second idea is that a criminal indictment and prosecution would - the whole process would so infect and adversely affect the presidency that the Constitution shouldn't allow it. And arguments like that - not that exact argument, but arguments like that have sometimes been accepted by courts.
So those are the two main arguments. It's a very debatable proposition. I'm sympathetic to the arguments, but I don't think it's a slam dunk. But the bottom line to the argument is, is that a president cannot be indicted or prosecuted while he's in office. That has to wait until after he leaves office.
GROSS: Just curious - did that come up at all when you were in the Bush administration and you headed the Office of Legal Counsel?
GOLDSMITH: No, it didn't.
GROSS: If you're just joining us, my guest is Jack Goldsmith. He's the co-author of the new book "After Trump: Reconstructing The Presidency." It's about what reforms need to be put in place to hold future presidents accountable and prevent them from violating norms in the way that President Trump has. Goldsmith is a Harvard law professor and served as the head of the Office of Legal Counsel under George W. Bush. His co-author, Bob Bauer, is a senior adviser to the Biden campaign and was White House counsel under President Obama.
We'll be right back and talk more after we take a short break. I'm Terry Gross, and this is FRESH AIR.
(SOUNDBITE OF MUSIC)
GROSS: This is FRESH AIR. Let's get back to the interview I recorded early this morning with Jack Goldsmith, co-author of the new book "After Trump: Reconstructing The Presidency." It's about what reforms need to be put in place to hold future presidents accountable and to prevent them from violating norms in the way that President Trump has. Goldsmith is a Harvard Law professor. He headed the Office of Legal Counsel under George W. Bush. This book is bipartisan. Goldsmith's co-author, Bob Bauer, was White House counsel under President Obama and is a senior adviser to the Biden campaign.
We've been talking about whether President Trump could face criminal charges after he leaves office because there are legal advisories from the Office of Legal Counsel saying that a sitting president cannot be indicted, but that doesn't say what would happen after the president leaves. So let's briefly talk about President Obama and what he faced when he took office. There was pressure on him to investigate members of the George W. Bush administration for war crimes for having tortured foreign combatants. And - refresh our memory - how did Obama respond to that?
GOLDSMITH: A couple of things happened. First of all, Obama came into office and his basic position was, we fixed that problem, the law no longer allows that, whatever ambiguities there were in the law have been clarified, and I want to move forward, not backwards because I have a lot of things to do. But his attorney general, Eric Holder, opened up a very narrow investigation. And it was - he did not open up an investigation for any of the lawyers who wrote these opinions or any of the senior Justice Department or White House officials, nor did he open up the investigation for anyone who relied on these aggressive OLC opinions - Office of Legal Counsel opinions. He opened up a narrow investigation, run by John Durham by the way - who's also - has a role in the Trump administration - the investigation to look into a narrow set of cases for CIA agents who went beyond the permissive opinions and engaged in really extreme actions of brutality. And so there was this narrow and fairly quick investigation that ended in no prosecutions. So they kind of split the baby, but they kind of made the problem go away. And the problem is that sounds terrible - to make the problem go away - but the costs of going forward and the likelihood - are high and the likelihood of success is dim, so I think the Obama administration basically made the right decision.
GROSS: As we record this in the morning, we don't know what the outcome of the election is. But if Biden becomes president, I guess he'll have to face a similar decision about whether to use his Justice Department to investigate crimes that President Trump might have committed while in office.
GOLDSMITH: He will, and I think it's going to be one of the most difficult issues he faces early in his presidency should he win. There's enormous pressure, even more so than was under Obama, to investigate and hold Trump criminally accountable for crimes committed in office. On the other hand, the costs of doing that are enormous, both to national healing and to his administration and to his Justice Department.
I think it's a very, very difficult decision. I argue in the book - my co-author argues that it's a decision that should go forward because the rule of law demands it - that if a president commits crimes in office, he can't be both immune while in office and immune after office. My view is basically to adopt a version of the Obama view, which is that it probably wouldn't work. It's not clear what crimes Trump has committed, at least until the criminal laws related to the presidency are reformed in a way we propose. There would be enormous disruption to everything the new Biden administration wanted to accomplish. And I think it would end in failure, which would be the worst of all worlds. You go through this investigation that sets a terrible precedent about one administration investigating the other for criminal violations and not achieve some result that vindicates the rule of law.
So it's going to be a very difficult call, and I don't know what he'll do. I know he would be under a lot of pressure to go after Trump. And it would also not just be Trump. It would be Trump and his family, people in the White House, people in the Justice Department. It would be very hard to cabin (ph).
GROSS: Let's get to another norm that President Trump has broken. Many people have said that President Trump has used the attorney general, William Barr, who Trump appointed, as his own personal lawyer and that the attorney general, William Barr, has treated Trump as if Trump was his client. Give us some examples that have led many people to make that accusation.
GOLDSMITH: Sure. The real problem is, in my judgment, is in - the president's sidebar has made some big mistakes, and I'll get to those. But the real problem is that the president has, since the beginning of his administration, and this is - everything I'm about to describe is in defiance of the established norms that govern the presidency before Trump. Since the beginning of his time in office, he has publicly called for the prosecution of his enemies. He's prejudged criminal cases against them, even in the absence of any evidence of wrongdoing. He has urged the Justice Department to go easy on himself and on his friends. He tried to intervene many, many times and failed - notably failed because the norms worked better than they were given credit for - to stop the Mueller investigation and to have Mueller fired. And he's just continued this right up until the end of the campaign, calling for prosecutions, and being very disappointed that Barr didn't follow through.
Now, I think the record on the Barr side is a mixed one. The fact is that Barr didn't prosecute the president's enemies, that he didn't do a lot of the things the president wanted. He did do some things that the president asked for. He sought to lift the Michael Flynn conviction. He sought to reduce the sentence of the president's friend, Stone, who was convicted. And those actions looked like...
GROSS: Wait. Wait. Can I intervene and say he released his interpretation of the Mueller report before allowing the Mueller report to be released.
GOLDSMITH: That's true. He did that. I think that that was less of an inappropriate thing to do than the conventional wisdom was. There was enormous pressure on him to say something about what the Mueller report said. I mean, in retrospect, Barr probably shouldn't have done that, but I think that was a - Barr has, under the regulations, complete control on when and how to release the report. And I thought that that reaction was an overreaction, but I'm certainly in the minority on that. He certainly - he portrayed the report in a way that many people thought was misleading, but of course, the entire report came out with very few redactions within a week or 10 days.
The other thing that I think Barr has stumbled on - I think is a greater offense against DOJ norms, Justice Department norms - is during the Durham investigation - this was the investigation that Barr started to look into the investigation of the Trump campaign and the early Trump presidency to see if there was anything untoward or any malfeasance committed. And this investigation was going along. Durham, the man he put in charge of it, was a credible figure. But the problem was that Barr incessantly, publicly prejudged the case, suggested that there were criminal violations or bad acts that were taken, suggested that people had done wrongdoing.
This was - this is a terrible thing to do when there's an ongoing investigation, when the people under investigation can't defend themselves, clear violation of department norms. So the combination of the president weighing in like this and the attorney general occasionally acting in ways and saying things that made it seem like he was under the thumb of the president, it's just been terrible.
GROSS: What Barr was investigating was whether the Obama administration spied on the Trump campaign.
GOLDSMITH: It was - yeah, it was whether the Obama administration spied on the Trump campaign. But more than that, he was looking into - Durham appears to be looking into the origins of the investigation to see if it was somehow inappropriate and into the conduct of the investigation, not just...
GROSS: The origins of the Mueller report investigation.
GOLDSMITH: Actually, the origins going back to 2016 of the original FBI investigation of the Trump campaign that, a year later, turned into the Mueller investigation.
GROSS: OK, let's take another break here. If you're just joining us, my guest is Jack Goldsmith. He's a Harvard law professor and co-author of the new book "After Trump: Reconstructing The Presidency." We'll be right back after a break. This is FRESH AIR.
(SOUNDBITE OF MUSIC)
GROSS: This is FRESH AIR. And if you're just joining us, my guest is Jack Goldsmith, co-author of the new book "After Trump: Reconstructing The Presidency." It's about what reforms need to be put in place to hold future presidents accountable and prevent them from violating norms in the way that President Trump has. Goldsmith is a Harvard law professor. He headed the Office of Legal Counsel under George W. Bush. His co-author, Bob Bauer, was White House counsel under President Obama and is a senior adviser to the Biden campaign. So the book is very bipartisan in its approach.
So what kinds of rules or laws are in effect that should prevent a president from using his attorney general as a private lawyer, as an ally?
GOLDSMITH: So there are very few rules in effect that prevent it. They're almost all norms, and they're norms that have been abided by for 50 years and that Trump just blatantly violated. And once again, you can't stop the president from speaking and doing these things. The main reason being is that the - Article 2 of the Constitution, as it is currently understood and has been for a long time, puts the president in charge of these investigations.
But one major reform that we propose and that is absolutely vital, in our view, to stopping the impact of these actions by Trump - and I mentioned this earlier - is to make it crystal clear that the president can violate the obstruction of justice statute if he intervenes in a criminal investigation to help himself or family or to impact an election. And this is important for a couple of reasons. You might think, well, Trump doesn't care about the law, and therefore it's not going to stop him from doing these things. And a future Trump that may be true of. But the reason it's important is it really, really strengthens the people under him who have to carry out these actions - it strengthens the prohibition against them doing these things.
This is very important and subtle, so I just want to explain it because it worked even under Trump. If you recall, the Mueller investigation in volume two was replete with examples of Trump trying to intervene in to stop Mueller, to fire Mueller, to stop the report, to stop the investigation. And in case after case, Mueller showed that Trump's senior advisers just wouldn't listen to him. They wouldn't carry out his orders time and time again. And the reason is because the norm still had bite and because they were worried about obstruction of justice.
So we think that those norms and those laws should be significantly ramped up, should apply to the president, so that it's crystal clear that this behavior is off the table. That's one of the most important reforms that we think can be done in this area.
GROSS: Every time somebody resigned because they didn't want to obstruct justice or carry out an order that they thought was inappropriate from President Trump - you know, they would resign or get fired and be replaced by somebody who was more amenable to carrying out Trump's orders.
GOLDSMITH: I don't think that's always true. Jim Comey was fired, and his successor, Chris Wray, has not caved to the president. He's stood up to the president at appropriate points. The president's very angry and disappointed with him. Even Bill Barr has stood up to the president. This is not appreciated enough. He told the president once he needs to stop - publicly - he needs to stop interfering in the prosecutions, that the tweets have to stop. And he has not carried out a lot of the president's wishes to the point where Trump has been threatening to fire Barr, and many people think that he will after the election is over.
So the point is well taken that Trump got better over the course of his term or at least more savvy about trying to replace people he fired with people who are more amenable. But the reality is that - and, again, I'm not defending Bill Barr completely because I think, as we documented in the book, he made a lot of mistakes. But it's also true that he did not carry out a lot of Trump's orders and even though he's viewed widely to be a lackey for Trump, so much so that the president is really furious with him.
GROSS: You point out in the book that the president's war powers have expanded over the years. And many people have been concerned about President Trump's authority over, you know, nuclear weapons. He threatened to totally destroy North Korea. And, you know, many people consider President Trump to be very impulsive, to not be very informed, to not have the attention span required to really understand policy and the history behind that policy. What are your concerns about the president's authority to launch nuclear weapons and how you'd like to see that authority change?
GOLDSMITH: So this is obviously perhaps the most consequential power that the president possesses because nuclear weapons can destroy the world or a large chunk of it. And the president, under the current arrangement - at least formally - has basically complete power about when to - when and whether to decide to launch nuclear weapons. And the reason that the president has this massive authority is that it's been seen to be central to our deterrence posture, that we have to be able to credibly claim to be able to use nuclear weapons very quickly, especially in the face of an incoming attack or of a very, very extreme threat to a vital national interest.
And this is one of these powers that have kind of been known about but not too worried about because presidents prior to Trump - and people have worried about them over time but never to the degree that they started worrying about them under Trump because, one, he was kind of, through his tweets, threatening to use them in all sorts of ways that didn't seem to raise, at least in some circumstances, the most extreme national security threats. Two, he has a reputation of being mercurial and, you know, challenged on the facts and vindictive. And three, he loves to exercise powers where he has absolute control. So this is - and this is the biggest one of all.
So there's been enormous concern under the Trump presidency about this absolute power. And we don't think that, going forward, it can continue to be an absolute power. But it's very hard to reform because nuclear weapons are central to our deterrence capability, and you want to be able to maintain that deterrence. I mean, one might argue that we should get rid of nuclear weapons or change our deterrence policy. We don't go in those directions. We accept the current deterrence policy. But we would put restrictions on the president's ability to use nuclear weapons outside of two cases - one, an incoming attack, which is when you want to be able to use them most and, two, in the most extreme circumstances to defend the vital national interests of the United States. And that sec (ph) - that phrase I just mentioned is a term of art that comes from the U.S. deterrence policy that's been agreed to in that respect by the last two and indeed several administrations.
What you want to - and also, we have much more consultation needed in non-emergency situations with Congress. The situation we're trying to avoid is a situation where a president of the United States just decides in a non-serious emergency situation that he wants to use nuclear weapons and he issues an order, and then the people in the Defense Department throughout the chain of command are in the horrible position of carrying out an order that the president has absolute authority to issue or acting in an insubordinate way. If there are legal restrictions there and the legal restrictions are pretty clear, that, we think, would go a long way towards taking away the most extreme worrying case about an out-of-control presidency using nuclear weapons.
GROSS: Let me reintroduce you here. If you're just joining us, my guest is Jack Goldsmith, co-author of the new book "After Trump: Reconstructing The Presidency." We'll be right back. This is FRESH AIR.
(SOUNDBITE OF MUSIC)
GROSS: This is FRESH AIR. Let's get back to the interview I recorded this morning with Jack Goldsmith, co-author of the new book "After Trump: Reconstructing The Presidency," about what reforms need to be put in place to hold future presidents accountable and prevent them from violating norms in the way that President Trump has. Goldsmith is a Harvard law professor, and he headed the Office of Legal Counsel under George W. Bush. His co-author, Bob Bauer, was White House counsel under President Obama and is now a senior adviser to the Biden campaign. So the book is actually very bipartisan.
There are so many other examples we can talk about about how President Trump has violated norms of the presidency. I want to ask you a little bit about yourself. You decided to leave the Republican Party after - I think it was right after Trump won the nomination. And you became an independent. You didn't become a Democrat. You became an independent. Many Republicans left the party. The Lincoln Project, which advocated for Joe Biden during the election, they're all Republicans who left the party because of Trump. I'm wondering, what do you think is left of the Republican Party now, the party that you knew when you were part of it?
GOLDSMITH: Well, the reason I left the Republican Party was because I just found a lot of Trump's positions on things not to be conservative or what I think of as traditional Republican positions and especially on issues about character and rule of law and the like. And so - and I just thought that it's very hard to be in a party that's led by a man of that character with that disposition. I'm not a political expert. I mean, the party that it became under Trump is completely and totally alien to me. And - but, you know, there's a question about, you know, what it will become after Trump, and that's completely up for grabs. And there's a debate going on that started the day after the election about the directions the Republican Party may be moving in, into a more - that's more focused on the working class, that's less elitist and the like. So I don't know where the party is going. But the party under Trump that became beholden to Trump and Trump's way of doing business, it's just not something that I am remotely interested in being associated with.
GROSS: We're recording this in the morning, early in the morning. So there will be more votes counted by the time our listeners hear this. And we might know who won the election, but the winner might also be challenged in court. One way or another, President Trump will remain in office at least through the Inauguration Day. What can Trump still do to violate norms in the remaining time of his presidency if he loses?
GOLDSMITH: Unfortunately, the list is long, and I expect him to do many of these things. At the top of the list is we can expect him to pardon everybody that's conceivably in criminal legal jeopardy related to anything that happened while he was in office - probably pardon everyone under investigation in federal court with regard to his businesses in the Southern District of New York, with regard to the people that work for his businesses. We can expect him almost certainly to pardon himself, something that's never been done and never been tested, and it remains to be seen whether it would be lawful. So that's one thing.
And the pardons only extend to federal crimes. So he can't stop the state investigation against him. But he could, through pardons, answer the question we were talking about earlier and make it very hard for the subsequent administration to engage in criminal investigations for a lot of these issues. So I expect him to use those very broadly and aggressively, probably on an unprecedented scale - not the first president to do so in a self-serving way, but he's already done it in self-serving ways that are unprecedented. So it'll surely get worse during the transition if he loses.
Second set of areas - who knows what he will do with his other hard powers, like war powers and emergency powers, where he can be very disruptive, much more so towards the international system. There's a worry about, you know, how he might exercise the war power now that he's got six weeks left to do it.
A third set of concerns that have recently been talked about in the press are - and this is completely unprecedented, but very worrisome. Trump possesses, you know, in theory, all of the very highly classified secrets of the government. Now, he hasn't been paying attention, people say, to his intelligence briefings. But he clearly knows a lot of very sensitive national security secrets. He's already had a tendency to blurt them out. There's a serious concern that he could sell those, use them to his advantage in terms of getting consulting contracts after he leaves office, maybe during - while he's in office.
Those are three bad things he could do. He could also not - do his very best to not cooperate in a transition with the Biden administration, should Biden win the presidency, making it hard for a Biden administration to get up and running on January 20. And there are surely many things that I can't imagine that he would also do.
GROSS: Jack Goldsmith, thank you so much for talking with us. I really appreciate it.
GOLDSMITH: I appreciate it very much. Thank you for your time.
GROSS: Jack Goldsmith is co-author with Bob Bauer of the new book "After Trump: Reconstructing The Presidency."
If you'd like to catch up on FRESH AIR interviews you missed - like our interview with Jerald Walker, the author of "Street Shadows: A Memoir Of Race, Rebellion, And Redemption" and a new collection of personal essays called "How To Make A Slave," or our interview with Atlantic staff writer Bart Gellman about how this election has been a stress test of our electoral system - check out our podcast. You'll find lots of FRESH AIR interviews.
(SOUNDBITE OF MUSIC)
GROSS: FRESH AIR's executive producer is Danny Miller. Our technical director and engineer is Audrey Bentham with assistance from Charlie Kaier. Our interviews and reviews are produced and edited by Amy Salit, Phyllis Myers, Roberta Shorrock, Sam Briger, Lauren Krenzel, Heidi Saman, Ann Marie Baldonado, Thea Chaloner, Seth Kelley and Kayla Lattimore. Our associate producer of digital media is Molly Seavy-Nesper. Therese Madden directed today's show. I'm Terry Gross.
(SOUNDBITE OF MUSIC) Transcript provided by NPR, Copyright NPR.
