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tv   Washington Journal Jack Goldsmith  CSPAN  January 11, 2021 1:11am-1:50am EST

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coming up monday morning, a ethics.on about and then we talk about president trump's days in office with the brookings institute. watch c-span's "washington journal" live at 7:00 eastern friday morning. be sure to join the discussion with your phone calls, facebook comments, text messages, and tweets. ♪ our guest is jack goldsmith professor of law at harvard university law school. he co-authored the book after trump: reconstructing the presidency. thank you for joining us. tell us the story of why you wrote this book, after trump? guest: bob bauer, white house counsel for barack obama and di
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who worked in the george w. bush , who worked in the george w. bush presidency, we've met to talk about that book. we were talking about all the issues trump had raised about the gaps in presidential accountability, norms that weren't working, and it occurred to us that after trump left office, there was going to be a complete re-examination of the accountability structures for the presidency akin to what happened after vietnam, watergate and the church commission. project,f to do that to write a book that wade outlined the areas where we thought reform was necessary -- the areas outline
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where we thought reform was necessary. host: what are the leading areas of reform you want the country to focus on? guest: the top three or four things we think are both go tole and important basically trumps corruption of the office and conflicts of interest. tax disclosure, things like mixing personal business with of thebusiness, some reforms about relationships between the white house and the justice department. there needs to be statutory reforms and executive branch reforms. we need to have a discussion about the pardon power. trump has issued a number of abusive pardons and we will see more before he leaves office so there needs to be a discussion about reforming the pardon power.
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host: the numbers are on the bottom of this screen for jekyll -- for jackr of goldsmith, author of after trump: reconstructing the presidency. we get deeper into the conversation mr. goldsmith, we will show a little of president trump last february addressing supporters at the white house, offering his views on the impeachment process. --we have been going this through this now for over three years. it was people. it was corrupt. it was dirty cops. this should never ever happen to another president ever. i don't know if other presidents would have been able to take it. at a minimum you have to focus on this because it can get away
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quickly the matter who you have with you, it can get in the way -- getaway very quickly. had i not fired james comey, who was a disaster by the way, it is possible i would not even be standing here right now. we caught him in the act. dirty cops, bad people. if this happened to president obama, a lot of people would be in jail for a long time already. host: president trump from last february about impeachment. as we stand here, the house of representatives may be taking up a second impeachment proceeding against the president. your reaction? guest: to what he said last year? typical trump obfuscation, half-truths, blaming others. the impeachment proceeding last
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year, he was impeached for something that was clearly an impeachable offense. he was trying to use the powers of his office to reach an arrangement gain and advantage in the presidential election. i do not think that was the worst of the offenses trump had committed up to that point but i think it was a clearly impeachable offense. the procession of -- the impeachment process is an important process. it is rarely used. it was appropriate there. i would say it is much more appropriate now. there is a timing problem, but in light of what the president has done since the election and especially last wednesday, there is the clearest ever perhaps case of an impeachable offense and an appropriate use of the impeachment power. the only question is one of
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timing and political will in the senate. host: we know there is more on your list of concerns for the president in these four years. what has you most concerned and has the president broken laws in your view? guest: that is a hard question. characteristic abuses -- we use the language of lawbreaking and he has come close to breaking laws many times. muller's report listed 10 instances of possible obstruction of justice. it was clear he was trying to obstruct justice. it gets into complicated legal questions about whether and when the president can be deemed to obstructiond the of. one thing that bob bauer and i suggest is that congress clarify
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that lot to make it clear a president can obstruct justice. it is hard to know to be frank. it is hard to know what crimes he has committed. he has done so many things right at the edge of crime, but one would need to know more information before concluding conclusively that he has. it is possible they would be easy to prosecute trump for obstruction of justice. you write about the presidential pardon power. let's go down that line before we start to getting calls. remind us of what the founders intended when they gave presidents the power of the pardon and what is your assessment of how trump has handled that power so far? guest: this is a very important power. it is one of the broadest powers given to the president.
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to effectively erase the consequences of a crime that has been committed or to reduce a sentence. at the framers gave the president this power because they thought it was important somewhere in the system somebody be able to issue an act of grace for something that had gone wrong in the criminal justice system. he believed it was important believed it -- they was important more broadly for community reconciliation have a amnesty and the like for the community. they were aware of the dangers of the abuse of the pardon power but they gave it in unqualified terms. there are two qualifications. one has to do with federal crimes and date can't be used to excuse impeachment. -- and it cannot be used to excuse impeachment. host: your assessment of how the
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president has handled the power so far? areas,like many other trump has engaged in extreme abuse. 94 of hislculated all commutations and pardons into some of these are hard to judge, 85 about 80 were pardons -- -- there isersonal a process in the justice department to assess these things. trump has largely cut this out. presidents to be clear pardons,ged in abusive may be most famously bill clinton's pardons where he skirted the justice department.
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susan mcdougall who was a whitewater figure, his brother and some other figures. clinton did that as an exception, perhaps a large exception, but an exception to the ordinary process. trump has made the exception the rule. theas personalized all other powers of the presidency. host: our first call is from crystal river, florida. caller: thank you for taking my call. hear me out today, gentlemen. hello? host: you are on the air. caller: my question is in three parts -- we are talking about presidential powers and how they need to be curtailed, if you
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will. congress has not declared war since 1941, and i wonder if he addresses any of that in his book? host: do you deal with the president's -- guest: we have a large chapter on war powers that we believe reader says.at the it is primarily allocated in the congress and in the discretionary -- we have seen this in a number of ways. we have seen this in presidents using force whenever the national interest is served. we see this -- and it is not just to trump. trump has been an outlier with one exception. we have seen presidents increasingly expanding military force to expand the global war
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on terrorism. we have a series of proposals to president.he we also have reforms. the most frightening thing trump did was his casual jokes about using nuclear weapons, which raises the question whether the president should have control over nuclear weapons as he has had for decades. areass one of the hardest in the book to fix. it is a perennial problem. it predates trump and away. -- theomething the executive has a strong view about its prerogatives. congresses prior efforts to reform this failed. we have a whole series of suggestions about how to do it, but of all the reforms in the book, this is the set of reforms
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about which i am the least optimistic. host: let's go to james in scottsboro, alabama. caller: good morning. the person who years,d the phone, four five years, i have been voting republican. the reason for that is the democrat leadership. here we are seeing this hollering and screaming, " impeach him!" harris -- o impeach, are we going to impeach kamala harris?
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[indiscernible] get in their face! cnn - right? therewas there anything you wanted to respond to? guest: i'm not sure i understood. host: next caller. caller: he is talking about reform. is reform going to be for the democrats and republicans? i do not see it going for both parties. to me, if you do not reform our government people at the cia, and the doj.nsa if you do not reform these departments from doing cook and
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stuff to theked american people and they even go after the president? the law is not good for the democrats. it should not be for anybody. caller is looking for an equal approach. bauer,first of all, bob and i, this book from different perspectives and one of the rules that we operated by was the idea that these rules are for all presidents. we asked ourselves if we would be happy with that restricted the president if it was a president we liked in the white house and if we would be satisfied about a power given to the president if it were given into a president that we did not care for. that kind of equal principle so to speak did motivate our
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ouroning and motivated proposals, but on the second level to the question, should there be reform to the agency bureaucracy and the like. that is a complicated question, but we do have a chapter on back called the bureaucracy against -- on that called the bureaucracy against the president. over the reports on the fbi. there were many mistakes made and lots of anomalies and problems and to the way that -- and the way those investigations worked. we think it is important for the bureaucracy to operate by the rule of law as much as the president and we do have
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proposals there. host: jekyll smith is professor at harvard and author -- jack goldsmith is professor at harvard and author of after trump reconstructing the parent -- after trump: reconstructing the presidency. when did you learn from your experiences in government and what took place during the george w. bush years that helped inform your opinion? guest: good question. i learned that being in government is harder than it looks from the outside. you are usually making decisions based on limited information. you usually have an array of bad decisions because there will be bad outcomes no matter what and you are looking to make the most prudent decision. i learned in government and this informed quite a lot in our
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reform proposals is any reform proposal can be self-defeating. it can be weaponized and used against. the independent counsel statute after watergate set up the independent counsel that late 1970'sm the until the 1990's. instance was the whitewater prosecution of bill clinton. the effort to give independence to the council turned out that it could be weaponized and it as rejected in 1999 on bipartisan basis. it taught me a sensitivity that you have to be very careful and think through when you are making a reform. have to think through carefully what incentives the reform creates for someone to take advantage of the reform to operate the government in a bad way. good governance is a difficult problem and being aware of these
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pitfalls is very important. from markave a call in hackensack, new jersey on the independent line. --ler: three reef points number one, as far -- three brief points, number one as far as crime goes, you can look at your associate george w. bush iraq war orllegal mr. obama's allowing isis to flourish in the middle east before president trump destroyed them, thank god. sir, the -- obama using the irs to target conservatives was not very proper as well as mr. obama threatening to withhold federal funds going around congress,
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threatening to withhold federal funds from public schools unless those schools permitted boys and men to walk into innocent girl'' bathrooms and locker rooms. you, as far as your comments regarding presidents, which he did not --cide -- insight any right, riot, speaking of impeachment you could also harris andala nancy pelosi for their comments, which inspired -- encouraged rioting over the summer. host: we get your point. you alluded to the fact that
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abuses do not begin with the trump presidency. what did you hear in that call that you want to respond to? -- i agree on a couple levels. for every chapter of reforms there is a prehistory. it trump for most of these things was not the first. in most instances he was the most extreme by far -- not in all instances and we try to be candid and straightforward about past presidents and their failings. the book is called after trump but it is not only about trump. it trump revealed problems in that wereency completely unprecedented and norms that have operated to constrain the presidency of long
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manydimensions -- along dimensions failed or did not constrain him. the claim is not that prior presidents were angels. i think mr. trump has been more extreme in many of the dimensions we talk about in the book. we have not seen anything like what happened since the election , his denial of what happened, his efforts to coerce election -- officials to change the election, what happened last wednesday whether you want to call it incitement or not. he has not embraced a norm of transition. there are other things like that. this book is not about why other presidents were virtuous and trump is a bad guy. understand trying to patterns of presidential history that led us to the point of donald trump, what he did and
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what needs to be done going forward. host: does the book address how presidents speak? disinformation? guest: it is a hard area to regulate. talk about the president, his attacks on the press and his use of twitter, which he is now banned from. it is extremely hard in a constitutional way to keep the chief executive from speaking his mind about issues of interest to the country and we do not have robust reforms about how to constrain presidential speech. it is very hard. that depends ultimately on to the people elect and whether the platforms will let this person speak. we do propose reforms for making sure the president does not use the massive tools of the executive branch to retaliate against the press he despises and some other things like that.
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i will concede that presidential in terms of regulating it is hard to do. host: we have bellevue, washington on the line. good morning, dee. talkr: i would like to about nepotism. this last speech at the capital, he was trying to put his daughter ivanka into the vice .resident's position everyone failed him so he is going to clean the board and start over again. the concept of nepotism running rampant in their government. thisoreign governments, gives them the opportunity to and part in this siege
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download spyware or bug the place. there areican party, people who blindly supported trump and his children weakened our country. how much does it cost to destroy america? to keep ause you want hold of your secret? i'm shocked at the republican party that they are willing to throw this country under the bus. host: any response there? say that nepotism is a problem and it has been a problem in the trump administration with his daughter and son-in-law. they started the rules when it comes to clot -- came to classified information.
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nip -- john f. kennedy made his brother the attorney general. it is hard to have anti-nepotism rules against the president because the president has broad authority to seek advice from whomever he wants. we have reforms on this and the main thing -- a couple the speaker mentioned. one is it is very important that sons-in-law, daughters-in-law, people most of the president in the white house with operational roles need to comply with all the publicity, and conflict of interest rules and the like. it was not always clear that was happening. --luding the government is serving the public and not the private. it is a hard problem to solve. it is a very hard problem to
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solve. you can only get out a indirectly if the president wants to hire his son-in-law. jekyll's -- " are those in place to hold those in an ideal worldn wedded to have been useful to have a fourth ranch of government specifically to look into and handle corruption?" guest: this raises a deep question. constitution,ent the reason we have some of the problems we have is that the president under article two is in charge of law enforcement. that creates a problem when there is criminality by the president himself. this is where we get into problems we have had for years now.
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the problem with the fourth branch looking at a third branch is who holds that branch accountable? is that person going to be elected? we have seen it did not work well. we had the independent counsel statute and they are the problem counsel the independent had inadequate accountability and he was engaged in excess of power that was corrosive to the government. right afterng -- watergate there was an effort to do something along the lines of what the person who tweeted talked about and that was to have the justice department made an independent agency, to give them a 10 year term not appointed by the president. some states have independent attorneys general. it was rejected across the board
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because it would have required a constitutional amendment, it would -- the law enforcement power of the president is hugely important for the president to achieve his goals, to be able to push civil rights enforcement if he wants to our antitrust -- orement if he wants to antitrust enforcement if he wants to. i do not believe a fourth branch of government is the right solution. host: rockaway, new york, republican. caller: good morning, sir. blaming trump for this incident that happened wednesday i do noto not -- and trump, i see it from
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the democratic party who rigged the election. it was not a fair election. host: what do you see as unfair and ranked? can you give us -- unfair and rigged? guest: -- caller: people come out to show their solidarity with trump. he just told them to go march. host: let's move on to marry. in fort onto mary myers. go ahead please. we are talking about presidential power and reconstructing presidency is the name of our guest's book. against executive privilege. this unfettered control -- this is nothing more than an
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authoritarian dictatorship position. we are no different. we need to stop being so arrogant. i am tired of listening to what the founding authors said. there was a british empire and do not misunderstand me -- i have nothing against any civilian regarding their ethnicity -- but this is not anything new. it is the same thing with religion. i am tired of listening to religion. you guys expect god to take sides? give me a break. it's ridiculous. americans don't-- even recognize propaganda when it kicks them in the face. the biggest propaganda we deal with 24/7's advertising. think about it. people don't even recognize that.
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tiredally i am sick and of this swaying back and forth. no president should have that much power unfettered. last but not least, they are all employees. the president and everybody in government from the lowest to the highest, even the supreme court, they are employees. i wish somebody would talk about that. host: thank you for calling. anything you want to respond to? guest: i will talk about the first point, which is executive privilege. the president has executive privilege. the supreme court has recognized a core in the executive branch needed to foster deliberation. every branch has this, if you think about it. we don't not have access to supreme court deliberations,
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congress as deliberative privileges, they can do things has thet -- congress liberty of privileges, they can do things in secret. to have a full flushing out of issues -- do not think getting rid of executive privilege would -- i do not think getting rid of executive privilege would be a good idea. the courts are there to review that. the supreme court did review some of trump's privilege claims. we have a separation of power system where the courts review these claims. they rejected his claims. we may not have the balance exactly right but we have a system of review for it and we need some form of executive privilege. one thing bob bauer and i
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propose in the bug is we have a fast-track process for defining these -- the is we have a fast-track process. book isident -- in the we have a fast-track process. withby a seven-to vote justices appointed by democrats voteepublicans -- 7-2 with justices appointed by democrats and republicans recognized some executive privilege. host: you get the last call, ava. i am lad the supreme court -- glad the supreme court more -- it will be a
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worse problem and i think we have to control the pardon and maybe we will be in a better situation today. c-span.u, you allow me to see humanity, other people talking. i am sorry to say we lack common sense. all laws come from common sense. more, we wouldit be in a better situation. jack goldsmith, final comment from you either to what of said or in pursuit reforming the presidency in the future? joe biden will have a lot of issues on his plate, january 20. there is interest in applying
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some reforms. some should have bipartisan support because they did before trump. it is important these reforms get on the agenda. it is time to fix these problems trumpecame apparent under . the biden administration is not against of these reforms. it is important to act in the first two years. that is the window. if we cannot get it done in this unique opportunity where biden is open to these reforms, i am afraid we will not get them. when the next trump comes, we have better rules to keep that president in check. goldsmith is co-author of the book after trump: reconstructing the presidency. th
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>> c-span's "washington journal." everyday, we're taking your calls live on the air on news of the day and discussing policy issues that impact you. morning, aonday discussion of president trump's legacy and the future of the republican party with a senior fellow and washington post columnist, henry olson. then we'll talk about president trump's final days in office. watch c-span's "washington journal" live at 7:00 eastern friday morning. your phonejoin with calls --be sure to join the discussion with your phone calls, facebook comments, text messages, and tweets. >> when the house comes in, they plan to introduce an article of impeachment against president trump. that's live on c-span. later in the day, house democrats hold a conference call
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on how to proceed with impeachment. next four hours, we'll show you some of what unfolded on the house and senate joinedas congress session to count electoral votes of the presidential election. the process began in the house of representatives with both being counted state-by-state in alphabetical order. we'll see the first couple of states votes reported until the results from arizona were protested. while this was happening, president trump was finishing up remarks with reporters outside the white house, encouraging them to march to the capital. march to the capitol.

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