In this episode, Harold Hongju Koh of Yale Law School, Deborah Pearlstein of Princeton University, and Matthew Waxman of Columbia Law School join Jeffrey Rosen for a conversation to explore Trump v. United States, the history of presidential immunity, and the updated edition of Koh’s landmark book, The National Security Constitution in the Twenty-First Century. This program originally streamed live on July 1, 2024 as part of the NCC’s America’s Town Hall program series.
Please subscribe to We the People and Live at the National Constitution Center on Apple Podcasts, Spotify, or your favorite podcast app.
Today’s episode was produced by Lana Ulrich, Tanaya Tauber, and Bill Pollock. It was engineered by David Stotz and Bill Pollock. Research was provided by Samson Mostashari, Cooper Smith, and Yara Daraiseh.
Participants:
Deborah Pearlstein is the Charles and Marie Robertson Visiting Professor in Law and Public Affairs and director of the program in law and public policy at Princeton University. She has written extensively on national security and the separation of powers and has testified before Congress on numerous accounts on topics ranging from military commissions to presidential power. She also served as the founding director of the law and security program at Human Rights First and was appointed to a 2021 State Department Advisory Committee focused on declassifying government records surrounding major events in U.S. foreign policy.
Matthew Waxman is the Liviu Librescu Professor of Law at Columbia Law School, where he directs the National Security Law program, and an adjunct senior fellow for law and foreign policy at the Council of Foreign Relations. He previously served as principal deputy director of policy planning at the State Department. His prior government appointments included deputy assistant secretary of defense for detainee affairs, director for contingency planning and international justice at the National Security Council, and executive assistant to the national security adviser.
Harold Hongju Koh is the Sterling Professor of International Law and former dean at Yale Law School. He is a leading expert in public and private international law, national security law, and human rights, the author of nine books, and has received 18 honorary degrees. His landmark 1990 book, The National Security Constitution: Sharing Power After the Iran-Contra Affair, traced the evolution of the constitutional struggle and balance of institutional powers in American foreign affairs and national security policy across America’s history. In this updated edition, The National Security Constitution in the Twenty-First Century, Koh brings the story to the present, placing recent events into constitutional perspective.
Jeffrey Rosen is the president and CEO of the National Constitution Center. Rosen is also a professor of law at The George Washington University Law School and a contributing editor of The Atlantic. His most recent book is The Pursuit of Happiness: How Classical Writers on Virtue Inspired the Lives of the Founders and Defined America.
Additional Resources:
- Harold Koh, “The National Security Constitution in the Twenty-First Century”
- Trump v. United States (2024)
- Loper Bright Enterprises v. Raimondo (2024)
- United States v. Curtiss-Wright Export Corp. (1936)
- Youngstown Sheet & Tube Co. v. Sawyer (Steel Seizure Case) (1952)
- The Pacificus-Helvidius Debates of 1793-1794
- Deborah Pearlstein, “Lawyering the Presidency,” The Georgetown Law Journal (2022)
- Deborah Pearlstein, “The Executive Branch Anticanon,” Fordham Law Review (2020)
- Matthew C. Waxman, “War Powers Reform: A Skeptical View”
Excerpt from Interview: Matthew Waxman argues that reforming national security requires electing different leaders to restore checks on presidential power, but current congressional dysfunction and polarization hinder effective reform.
Matthew Waxman: I'd come back to my earlier point, that a lot of the solutions are going to lie in the ballot box, and that means, if we want to correct the current state of affairs, we need to elect different leaders. And I'm talking here not just about the executive branch, but perhaps even more so, Congress, because Congress hasn't been playing its proper checking role. In some ways this should be a very propitious time for reform of the national security state, the national security constitution. It should be a propitious for a number of reasons, you're coming out of a recent Trump presidency which I didn't just reduce with many ayes the faith in Hamiltonian virtues of the executive branch but also I seem to run counter to some of the other virtues often attributed to the executive branch, the expertise, the idea that they are internal checks within the executive branch that can function effectively as breaks on bad dangerous, abusive policy decision or personal decisions, so that's one factor.
And by the way, even on the other side of the aisle, there's deep distrust of President Biden as holding the appropriate presidential values. So distrust in the presidency. This also comes at a time when, on both the political right and the political left, you have a lot of calls for a foreign policy of greater restraint, especially when it comes to the use of military force. And a lot of that, I think, stems from the terrible mistake of the Second Iraq War. So in many respects, this should be a propitious time for reform, much like the post-Vietnam, post-Watergate period was a propitious time for reforms. Many of those reforms failed, for reasons Harold details in the book. But it was a moment where there was the will and capacity to pass a number of statutes to better check presidential action, the War Powers Resolution, the Hughes Ryan Amendment, to put some checks on covert action, restrictions on arms sales, and so on. But here's why this is not a propitious moment at all for reform, which is that Congress is terrible. We sometimes, when focused on the problems of a Trumpian president, we sometimes adopt a sort of romanticized view of a Madisonian Congress and its deliberative virtues.
And, yeah, it's slow and cumbersome, but that's great because it takes into account a wide variety of interests and is slow in its careful deliberations. That's not the Congress we have at all. We have a Congress that can barely keep the lights on in the federal government. It's distracting. It's inexpert. It's deeply, deeply polarized. It's chaotic, it's often paralyzed. And so we're now in a situation pretty rare in American history, where I think both political branches are in some state of crisis. And so both, I think, are in need of some serious repair. Again, I would put a lot of emphasis on the ballot box as the source. As the key source of some of that repair. I take Harold's point that law and constitutional law in particular, have an important role to play here. But I do think ultimately, we need to correct our politics if we're going to solve the problem I just described. I would have appreciated it. One of the great aspects of Harold's book is the way in which he draws on his own personal history inside the government to inform both his descriptions, but also his prescriptive set of recommendations.
And I look back on my own time in the George W. Bush administration. As there, again is one that was deeply, deeply ideologically committed to an unconstrained presidency. I would say, to a great fault, not just because that deep commitment to removing constraints led to some abuses. I think it was wrong on the constitutional law, but it also just led to bad policy. So I saw up close some of the pathologies of an unconstrained president, but I also saw, in the second term, sort of the national security constitution striking back. You had both the courts and Congress pushing back on certain policies, I'm thinking torture in particular, as well as warrantless surveillance on certain policies, like detention without trial. All three branches got involved. I think a lot of critics of Guantanamo don't like the result, but you did have all three branches kind of getting in the game. So it's not that long ago that we had a much better system of checks and balances. I think one of the big things that's changed in the last 20 years is, sadly, American politics.
Excerpt from Interview: Harold Hongju Koh argues that power has been centralized in the executive for decades and Trump's presidency exposed the dangers of this imbalance, necessitating reforms to distribute power and accountability more effectively.
Harold Hongju Koh: I think this is what brought me back to this topic 38 years after I wrote the first book. I went into the Biden administration on Inauguration Day 2021, and I felt as if I was in a government in which one muscle had been shot with steroids for the last 30 years. In other words, the national security counterterrorism muscle power had been centralized in the executive, it had been centralized in the national intelligence entities. The assumption was that Congress would do nothing, that the courts would defer. And this was just accepted as the way in which things were to go. And in this story, the president emerges as a victim, as a villain, because the president is not only obliged to respond, everybody thinks that he's the only one who will respond. Congress can sit it out. And then the courts rarely get brought in, and when they do, they reject the external challenge. So, there's no accountability in this system. Now, this, I thought, let's trace this back to the beginning of the republic and through the various periods that Matt mentioned America's infancy, its rise to a dominant regional power.
It's becoming a global hegemon, the creation of a national security system in 1947 with the National Security Act. And then that was quickly followed by the ratification of that constitutionally, by the Steel seizure case. But then the parts that I lived through, the Cold War, post-Cold War period, the age of terrorism, and now the age of globalization with Trump and Biden. And I just come back to the Trump opinion today, the Supreme Court is living in a different world. They're thinking, as Deborah said, about the poor future presidents who might be pursued by their successors, and they're ignoring the president that we just had. Donald Trump, who showed how a president can use a Curtiss Wright theory to nullify the rule of law for his own administration under his view of Article II, which he says is absolute. And he said this even more bluntly with regard to the future. Any challenge to him, coming from inside the government, violates the principle of the unitary executive. Any principle coming from outside violates the principle of separation of powers, and any effort to hold him accountable. Subpoenas? He litigates.
If criminal investigations occur to his subordinates and they're prosecuted, he pardons them. Even after he leaves office, he holds classified materials in his home. And now he has very broad claims of immunity, even for acts which have absolutely nothing to do with foreign policy and national security. That's the most striking thing about this opinion, is they cite these principles of core presidential authority when the president is making a speech calling for people to attack the Capitol. And this, to me, is an amazing diversion away from the notion that the president is protecting us from national security threats and ignoring the way he becomes a national security threat if, as in his two impeachments, he works to try to coerce a foreign power to steal an election, or secondly, he encourages his own supporters to try to undo an election.
An attack on an election is as severe a national security threat as an attack on New York by terrorists, and it ought to be treated as a national security threat. So, in other words, the system has to be adjusted to address this kind of concern. And this is exactly what these reforms are. We have to take some pressure off the president. We have to put more of a burden on Congress to organize itself and respond.
We have to turn to the courts to reduce their ability to not do their job and to not use various kinds of canons of construction to expand presidential power well beyond its scope. What we saw today from John Roberts is someone who thinks he's applying textual principles historically, and in fact, is doing the exact opposite. And he's doing it in such a way that is distorting the Constitution that we inherited and weakening the checks and balances that are supposed to apply in these circumstances.
Excerpt from Interview: Deborah Pearlstein argues that the Supreme Court's decision expands presidential immunity broadly, allowing challenges only for private acts, which could have significant implications beyond Trump's case, reshaping constitutional understanding of presidential power.
Deborah Pearlstein: Well, I entirely agree with Harold. This is just an extraordinary decision in almost every way, and one that dramatically expands the sort of constitutional understanding of the scope of the president's power in a way that we have not understood for the last 200 plus years. For these purposes, let me distinguish between what the decision says and does with respect to the particular case of the former president, Donald Trump, and why it is that it seems to sweep much, much more broadly than that. In Trump's case, and in general, it says, look, there's sometimes immunity for what the president does while in office and sometimes not. It establishes three categories: Certain core executive functions, there is absolute immunity. So, for example, if the president issues a pardon, he can never be held criminally liable to the extent that that is a core, constitutionally exclusive power reserved to the president. So, absolute immunity for that category of things. There is, as the court says, presumptive immunity for official acts. So, it defines broadly, but also vaguely, what might count as an official act within the scope of the president's authority. And there it says, the president has presumptive immunity unless the prosecution can overcome that presumption, and we can talk about how and why that might be possible.
And then the court says, look for private acts while in office, the president is not immune. And it carves open, to some extent, the possibility that some of what is alleged in the case of Donald Trump counted as a private act. So, Amy Coney Barrett writes separately in concurrence to say, to the extent that Trump is accused of interfering with or promoting fraud in false electors in the 2020 election, that seems like a private act to her, which would not be immune. So, in the case of Trump, the effect of this is to send it back all to the lower court. And I think there's going to be a huge amount of litigation and a long time before we get to anything that looks like an actual trial, but plenty of discussion at the lower courts. The reason why this, I think to Harold and to me, seems, and to most constitutional law professors seems so much more consequential, is because the court spends a long time characterizing extraordinarily broadly what is included in the scope of the president's core powers for which he is absolutely immune, and what is included within the scope of the president's official acts.
So, for example, any conversation with the Department of Justice about anything, even if the conversation is the president, calls up the attorney general and says, "Hey, I don't like MSNBC or I don't like The New York Times. I think we ought to prosecute them because we got to get rid of them." That conversation, because it's with the Department of Justice, even, no matter what the president's motives are, even if they are overtly political, absolute immunity. And in Justice Sotomayor's dissent, she goes through some of the hypotheticals that were raised in oral arguments and says, if the president orders Navy SEAL Team Six to assassinate a political rival, immune. If the president organizes a military coup to hold on to power, immune. And it's a remarkable moment in the dissent, but I think the opinion bears that out. It has the most sweeping language about the scope of executive power in any decision of the Supreme Court of the United States I've ever encountered.
Full Transcript
View Transcript (PDF)
This transcript may not be in its final form, accuracy may vary, and it may be updated or revised in the future.
Stay Connected and Learn More:
- Questions or comments about the show? Email us at [email protected]
- Continue the conversation by following us on social media @ConstitutionCtr.
- Sign up to receive Constitution Weekly, our email roundup of constitutional news and debate.
- Subscribe, rate, and review wherever you listen.
- Join us for an upcoming live program or watch recordings on YouTube.
- Support our important work.
