Lawfare Daily: Jack Goldsmith on Trump v. United States and Executive Power

[Intro]

Jack Goldsmith: Under what I'll call a pretty broad unitary executive theory, the Court recognized that the president had these new exclusive powers inside the executive branch. And these broad powers, we don't know how broad they are, we don't know what their implications are, but they move the doctrine in directions that seriously favor the presidency.

Alan Rozenshtein: It's the Lawfare Podcast. I'm Alan Rozenshtein, associate professor of law at the University of Minnesota and senior editor at Lawfare, joined by Jack Goldsmith, the Learned Hand Professor at Harvard Law School and co-founder of Lawfare.

Jack Goldsmith: If the clean constitutional impoundment question comes up about whether the president can decline to comply with the Impoundment Control Act of 1974 because he has enforcement discretion, and based on the so called history of this practice, I think that we'll lose.

Alan Rozenshtein: I spoke with Jack about his recent Lawfare article discussing last year's Supreme Court decision in Trump v. United States and its implications for executive power. We talked about how the ruling extends beyond presidential immunity, the broader shift toward a maximalist theory of executive authority, and what this means for the future of American democracy.

[Main podcast]

Alright Jack, let's start with the Trump v. United States opinion. So just briefly describe what that case was about, for those of us who have blissfully forgotten. And then say why you think the most important aspect is not actually the immunity holding but rather what the opinion says more broadly about exclusive presidential power.

Jack Goldsmith: Yes. So as everybody surely remembers, the special counsel prosecuted the president in connection with his efforts to overturn the 2020 election. The president claimed immunity from suit. The lower courts said the president had no immunity in very broad rulings.

The Supreme Court recognized, in a very complicated opinion and in my judgment one of the most extraordinary opinions ever written about the presidency, but not because of the immunity ruling as I get to in a second. It gave the president—there were basically two holdings.

One holding was that the president was absolutely immune for all presidential conduct related to his exclusive Article III powers. What that means is powers that the president has that the other branches can't regulate or touch. Clear example is the pardon power. President can pardon and that pardon, with narrow exceptions at the margins, can't be affected by Congress. Courts have to comply with a pardon and enforce it.

President has an exclusive removal power of an uncertain scope. He can, the Supreme Court has said remove, remove subordinate executive branch officials with a few narrow exceptions. So the Court said that whatever falls within the president's exclusive removal power, he can't be prosecuted for it. And they called that an immunity.

And very importantly, and this is the key part of the case—and I'll go to the other part in a second, the key part of the case for our discussion—in the course of explaining that the president had these broad, exclusive powers vis a vis Congress, the Court said something new. It said that the president's power to take care to faithfully execute the law, under the so called Take Care Clause, which is the clause that binds the president to law, and gives him a duty to enforce law, but also gives the president discretion to enforce law. It's a, it's a strange clause. I wrote an article once called “The Protean Take Care Clause.” The Supreme Court said for the first time that the Take Care Clause had an exclusive element that Congress could not regulate.

And on the basis of that, the Court ruled that the charge against Trump in connection with his efforts to influence the Justice Department to do investigations and send letters to the states to get them to change electors, allegedly to commit a crime to obstruct a congressional proceeding. The Court said that he could not be prosecuted for that because his exclusive enforcement discretion allowed him to use DOJ at whatever way he wanted, even though it would otherwise be a crime. Hugely important decision.

Another component of this decision was that the president's exclusive removal power, power to remove subordinate officials. The Court said, in ways I think haven't been appreciated, that they expanded that removal power along a couple of dimensions. They seem to poo-poo or at least to slightly denigrate the exceptions they had given to those powers in the past, and they expanded it along a number of dimensions.

It's the first time the removal power had been used in the context I just described—to say that the president's removal power, i.e. his threat to the acting attorney general that he was going to fire him if he didn't carry out this crime, that that was something that the president was allowed to do because of this removal power. And in some other ways, they expanded the removal power.

That is the key part of the Constitutional ruling about the president's power. And if I could just say one more thing to answer your question. So most of the commentary after Trump came down focused on the consequences of that constitutional analysis, namely, that the president was immune from prosecution in these broad ways, and that that was going to lead to lawlessness inside the presidency and all that.

And for reasons we can discuss if you want, but you're kind of collateral to this, I don't think that was the important part of the opinion, as I wrote last fall. I think the important part of the opinion was what I just described, that the Court recognized under what I'll call a pretty broad unitary executive theory.

The Court recognized that the president had these new exclusive powers inside the executive branch. And as I talked about in the piece, as I talked about a little bit in the lecture last year, these broad powers, we don't know how broad they are, we don't know what their implications are, but they move the doctrine in directions that seriously favor the presidency. And I think that part of the opinion is what's supercharging these executive orders and other actions.

Alan Rozenshtein: It's a great overview and we're going to basically spend the rest of our discussion kind of unpacking all the different things you said here. So let me just start.

So obviously this is not the first time the Court has talked about exclusive presidential powers. I mean, you can go literally back to Marbury v. Madison, which it was not until I retaught it in my con law classes here that I realized that it's actually, you know, as much about executive power as it is about sort of judicial review. And then of course there's the famous Youngstown opinion, there's discussion of preclusive powers.

And so in, in your view, sort of what in this part of Trump again—putting aside the immunity part and focusing more on the substance of what it means for something to be exclusive—what part of this is kind of recapitulating or just kind of marginally building on what's happened before? And what to you is sort of a truly novel part?

Because as you, as you pointed out, and I'm, you know, to you, and I'm curious why you think this, this is, I think the way you described this just now was that one of the most amazing or surprising, I think, opinions you've ever read.

Jack Goldsmith: Well, yes. And I think it's one of the most consequential, maybe the most consequential decision that describes the president's powers. And it describes the president's powers in robust terms like I've never seen any other opinion do. And it did that largely—and I'll come back and answer your question—but the Court did that largely because it basically brought together every pro-president executive opinion and kind of strung them together and expanded them in a few ways along several margins.

So let me just say some of the things that weren't controversial, then I'll say some of the things that work. So the president has an exclusive pardon power. That is no big deal. The way the Court described that pardon power arguably may have expanded it a little bit, but that gets way in the weeds of the pardon power. But let's just say that that was a pretty standard recitation of that exclusive power.

The Court said, citing Zivotofsky v. Kerry, that the president had an exclusive recognition power. I think the Court described Zivotofsky a little broader than Zivotofsky did, but that seems to be basically normal science. The Court was just basically saying what they said in Zivotofsky.

Alan Rozenshtein: And just for those who are not familiar, the recognition power really talking about diplomatic relations. The president has diplomatic chief–

Jack Goldsmith: Yeah, good. Recognizing foreign governments and foreign states.

Moving to a different issue, the removal power. The Court—I'm covering the same ground a little bit, but I'll do some different detail. The Court in the past, as you know, as our readers probably know, has recognized, I'll say two things about this. The court has recognized that the president, by virtue of the executive power being vested in him and the Take Care Clause—those are the two bases for the removal power—they've recognized that the president has broad authorities to remove subordinate executive branch officials.

And the Court under Roberts has been expanding the president's removal powers and narrowing the exceptions to removal power. So before Trump v. United States in cases like Free Enterprise Fund and Seila Law, the Supreme Court had been broadening the president's removal power and narrowing the exception to his removal.

This is all part of—this is like a core issue in the so called unitary executive, which is in a nutshell, the idea that the president gets to control and direct his subordinates. And the reason the removal power is so important is because if they don't listen to him, he can fire them.

The court cited the old case Seila Law, but the vibe of the opinion was that it wasn't really on board for those exceptions necessarily. But more importantly–I don't know more importantly, but the Court took another step on their removal power.

It basically said that, so what was left of Morrison v. Olson, the independent counsel case—the idea that Congress can restrict the president's control over the enforcement of federal law and over the enforcement of and his subordinates' enforcement of federal law, that part of Morrison is, is impossible to square with Trump v. United States. So they pushed out that precedent and, and expanded the removal power there.

And as I said earlier, they expanded the removal power also—this is a little complicated—by, typically the removal power is something that president has when he's trying to fire a subordinate in the face of a congressional for cause restriction. And that is not the context in which the Court applied it here.

Here, the Court applied the removal power to say that the president could, could direct the acting attorney general to engage in an investigation that would otherwise allegedly violate a crime. And that he could threaten him with removal if he didn't carry out that act. And that the removal power meant that Congress could not criminalize that act. That is a completely different context for the removal power. Who knows what the implications of that are? It might be a one off. It might go in all sorts of different directions.

Alan Rozenshtein: So let me, let me, let me just understand, because I think this is a subtle but important point. So it's one thing to say, if Congress provides a for-cause removal protection, the president can't violate that, and then the person can sue for back pay or whatever the remedy usually is in these cases.

Jack Goldsmith: And that the removal power —the debate about the removal power has been in that context. How many of those for cause restrictions can bind the president? How many can the president blow through? That has been the exclusive, almost exclusive focus of the removal power until Trump v. the United States.

Alan Rozenshtein: And, and now it's, you know, even if the president, you know, fire someone and Congress in principle allows that person to be fired, but the president does so for some corrupt reason,

Jack Goldsmith: Otherwise allegedly corrupt reason.

Alan Rozenshtein: Yes.

Jack Goldsmith: Yes. Otherwise allegedly corrupt, corrupt reasons. Because basically just to cut through it, what the president was alleged to have done was to be trying to get it—this was the allegation, which will just take as true for purposes of this argument—the president was alleged to have used his Justice Department in a corrupt way to try to change the electors in the states.

He was trying to get the Justice Department to pressure the states to change electors in his favor under the guise of enforcing election law. And part of him doing that was he told the acting attorney general threatened him. If you don't do what I'm saying, I'm going to remove you. And the fact that he threatened removal gave him extra power to engage in that otherwise criminal action. That's basically what the Court said.

Alan Rozenshtein: So, this makes—you nicely tee up to the next question I wanted to ask, which was, to what extent does this go beyond what is generally viewed as sort of the ultimate theory of executive power, which is the so called unitary executive theory.

Because you, you actually to you and you should say something a little bit, just remind us what the unitary executive theory is. Unitary executive is just a waste away station on on a much longer continuum of robust executive power, a maximalist executive power theories.

Jack Goldsmith: Yep, so I'll just say this, but the unitary executive, there's no canonical definition. It's the idea that, as Trump v. the United States itself said, I think, this is the one sentence version of the unitary executive. The president of the United States is a branch of government. All of the executive power is vested in the president by Article II, and the president is therefore the branch.

And the pure unitary executive theory is that means that things that his subordinates are empowered to do by Congress, he gets to control. And that he gets to direct executive branch action through his subordinates. And that if his subordinates don't comply with his direction, he can fire them. That's in a nutshell the unitary executive theory.

Now, this other use of the removal power to allow the president to skirt otherwise criminal laws is entirely novel. It's, it's, it's just completely new as far as I can tell.

Alan Rozenshtein: And because, because the point is, and I know we're repeating here, but I think this actually is a subtle point. It's–

Jack Goldsmith: It’s a subtle point, but it's hard to think–

Alan Rozenshtein: It’s that unitary executive says whatever power the executive branch has is within the presidency. But that's a separate question than the scope of that executive power. And so Trump v. United States is doing both of those things, right?

It's both endorsing the kind of internal structure argument about the executive branch, but it's also then saying—if I understand your argument right—that those executive powers themselves are extremely broad and because of some broader separation of powers theory, right, that at least to my view is somewhat under theorized in the opinion, Congress can't take any of that for itself.

Jack Goldsmith: Yes, let me just try to say it in a slightly different way. The unitary executive principles are about the president's control over subordinates, and that's what it's been about—mostly about removal and direction and the like.

What this removal theory does, and also the Take Care Clause theory in a way, is it amplifies that power over, that vertical power over subordinates by saying that the president can leverage that vertical power over subordinates to violate laws that he couldn't otherwise violate. That is the novelty of the opinion in a nutshell.

Alan Rozenshtein: Can you pack a little bit of how you get that from the Take Care Clause? I mean, the Take Care Clause, at least it's, it's textually stated as a duty, the president shall take care that the laws be faithfully executed. It seems like—it takes some work to go from that to the president can violate congressional laws.

Jack Goldsmith: It does. And so we haven't, we've been talking about removal, but I'll move to Take Care if you want me to. It does, but it's, it’s an incremental, but, but important change, but it's—there's not nothing there.

So a tutorial on the Take Care Clause. The Take Care Clause says that the president has a duty to take care that the laws are faithfully executed. That sounds like that the president has to enforce the law and it sounds like the president has to comply with the law.

But, from the very beginning, in addition to doing those two things, and I mean the beginning, George Washington, the Take Care Clause has been interpreted to give the president two additional powers. In order to enforce the law and comply with the law, the president has to know what the law says, so he has to have an interpreted power of the law.

So this is where we get the idea the power exercised by the Office of Legal Counsel is ultimately the president's power to interpret the law for the executive branch that comes in the Take Care Clause. Also, again, I wrote an article called “The Protean Take Care Clause” that says the clause does all of these different things and they're not all consistent and the Court has never theorized how they're consistent.

But the other thing that the Take Care Clause has been invoked for is the idea that the president has enforcement discretion, prosecutorial discretion in criminal cases. Because if he has the duty to enforce, the idea is he also has the discretion to decide what to enforce. And that's been true of civil and criminal cases, that the Take Care Clause has been invoked as a basis for presidential discretion. So that's fine, I mean.

And there are all sorts of reasons why the president needs prosecutorial discretion. As you pointed out to me when we were talking about my piece, sometimes there are resource constraints in the president—the president does not have the resources to fully enforce all the federal law, so the president has to make choices. Sometimes there are interpretive questions about how different statutes fit together. And the Court has given presidents decently broad leeway via the Take Care Clause in deciding how to enforce federal law.

But it's never said this was a quote unquote exclusive power vis-a-vis Congress. It's never said that Congress could not—there was dictum in U.S. v. Nixon, which the Court cited that said something like this. But the Court has never held and never theorized the idea that the Take Care Clause, this discretionary power about which laws to enforce, was something that Congress couldn't regulate.

And that is what Trump almost certainly held. So they invoked that Take Care Clause to say that this process of telling the attorney, deputy attorney, the acting attorney general, and other DOJ officials how to enforce federal law in order to commit an otherwise crime that because it involved the president's communications with DOJ, and it was communications with DOJ in the context of deciding how to enforce federal election law, that therefore Congress could not regulate that through criminal law—the criminal obstruction statute—because that would violate the Take Care Clause.

That was the most radical decision in the opinion. It's a, it's a tough, it's a tough opinion and we're down in the weeds of it.

Alan Rozenshtein: I, I guess I'm, I'm, I'm trying to figure out sort of the subtle boundary of that point. Because is, is the Court saying, look, the only person who can make these decisions for the executive branch is the president and you can't punish the president in the context of making those decisions for the executive branch?

Or is the Court saying the president has some preclusive ability to interpret the law itself, which would go quite a bit beyond that and start getting into foundational questions of judicial review and that, that other part of Marbury v. Madison?

Jack Goldsmith: So first of all, let me make crystal clear that what the Court did in saying that the president could do this via the Take Care Clause and defiance of otherwise governing criminal law—that part of the opinion was clear. The logic of how it got there and the implications are extremely unclear.

So if you're asking me—and I kind of hesitated in the piece about what the implications were, because I can tell you that there are narrow implications, and I can go very broad, and there could be very broad implications, which I don't believe the Court meant. The truth is, it's not clear what the implications of it were. I've never seen an argument like this. It was not briefed in any of the briefs. It was not mentioned in oral argument, and I've never seen this argument made anywhere.

So it's a new argument and its scope is very unclear. But among your choices, if I understood them, I think it's closer to the first, which is that, that when the president is deciding what to enforce and how to enforce federal law, that gives him an immunity he can use, he can leverage that power to make law enforcement discretion decisions to order the Justice Department to do things that would otherwise violate criminal law. That's what the Court said, which is an amazing holding.

Alan Rozenshtein: Let's get into the law enforcement part. So, your reading of the Trump case suggests that the president has essentially total control over the Department of Justice in its law enforcement functions. I, perhaps cynically, always thought that was essentially the case, in that whatever norms of DOJ White House independence were always that— norms.

Jack Goldsmith: I agree with that.

Alan Rozenshtein:  And while it's a big deal that this administration and this DOJ, this attorney general, this interim U.S. attorney for D.C. appears to explicitly now view themselves as the president's lawyers. That was always a choice, right that could have, Obama could have done that or Biden or Bush or whatever the case was. Do you agree or do you think the Trump opinion actually made new law in this respect?

Jack Goldsmith: On that point? I don't think it made new law. It's surprising to a lot of people because people, there are a lot of people who assumed that there were, that the wall between, the supposed wall between the White House and the Justice Department and the supposed constraint on the president's ability to direct cases in the Justice Department and the president's ability to decide who to prosecute and the like, they assumed that that wasn't allowed.

But as you're saying, that was purely a matter of norms, right? And I think even before Trump, my best reading of the cases was that the president could, did have complete control over the Justice Department and could direct prosecutions and the like.

That part of Trump is, Trump vividly reaffirms that principle more robustly than it's ever been reaffirmed. But it adds to it. It says not only can the president does the president have control, discretionary control about how to enforce federal law through the Justice Department. Not only can the president order his Justice Department who to prosecute, who not to prosecute, how to prosecute, which cases to bring, but this is, that, that's, you're right, was probably entailed by former law and only constrained by norms.

What Trump adds is that somehow or another, that power gives the president additional exclusive power to exercise that discretionary law enforcement in a way that otherwise violates criminal law. That's what the case says.

Alan Rozenshtein: So, so I, I, I get that at least kind of ex ante, whatever attempts to cabin that discretion that let's say Congress wants to impose are probably unconstitutional for the reasons you just described.

Jack Goldsmith: Under Trump. But we don't know under Trump. But we don't know the scope of it. We do not know the scope of it. It's really unclear.

Alan Rozenshtein: Fair enough. And, and, you know, for this whole conversation, and we'll get to this explicitly at the end, right, we should keep in mind that you never really know what a Supreme Court opinion says, especially one of these separation of powers cases, until multiple Supreme Court opinions have told you in the future how to interpret it.

Jack Goldsmith: And on top of that, this one is unusually elusive.

Alan Rozenshtein: Sure. But I wanted to ask on the, on, on this, this point, presumably sort of ex post safeguards are still available, right? So I'm assuming, or I’ll just ask you do you view Trump as the Trump opinion saying anything about the viability of a, let's say, selective prosecution claim?

I know those have always been hard to bring, right? And so if you're a defendant, you do not want to be in a position where that's your main argument. But presumably the president is still obligated by both substantive criminal law and at the very least, you know, constitutional due process rights. Or, or am I just now grasping at straws?

Jack Goldsmith: I think you're right, but let me just say, it's an open question, but we now know for the first time that this power of discretion about how to, which cases ring and how is now an exclusive power that can resist criminal law.

Can it resist the Due Process Clause? I doubt it. I doubt it, but I can guarantee you that it, Trump, will be invoked in selective prosecution cases. So that's one of the open issues that remains, remains to be seen.

Alan Rozenshtein: Let's talk about the TikTok non enforcement opinion because you bring it up and it’s something I've been obsessed about.

Jack Goldsmith: You're the world's expert.

Alan Rozenshtein: It's something I've been, I've been, despite maybe never using TikTok in my life, I'm out, I'm totally obsessed about.

So first, before we get into sort of what its legal status is, can you just describe how this example of non-enforcement fits into the broader pattern of, of non enforcement? There's lots of examples we can use. I mean, I think the canonical, when you're trying to both sides this, right, one points to President Obama's deferred action for certain children of undocumented immigrants.

Jack Goldsmith: Yep.

Alan Rozenshtein: In terms of that, I mean, how does, how does that compare? I mean, there, there was maybe you can make a resource constraint argument here; you can't at the same time, maybe this is all sort of coterminous. How—I found the executive order to be a remarkable document. And I'm curious whether you shared in that view.

Jack Goldsmith: I do think it's a remarkable document that goes beyond the Obama program you just described. The Obama program you just described did something that other presidents have done. And there was a big debate about that under Obama and the conservatives were on the other side of this issue then. The unitarians arguing–

Alan Rozenshtein: Funny how that works.

Jack Goldsmith: I know. What President Obama did, there was an OLC opinion that they acted on. I'm not—I can't remember the apps, the deep details of the immigration law.

But the bottom line is, here's the basic move that presidents make. They say we've got resource constraints. We have a lot of statutes that we have to enforce, a combination of A) resource constraints, B) a mass of statutes we have to enforce, and C) what the Court has recognized is some, some discretion in enforcement, not exclusive, but there's some discretion in enforcement.

Those three powers combined to give presidents discretion to selectively enforce laws in ways that seem like they're not really complying with the aim or maybe the letter of a law.  That was the claim about Obama and those immigration opinions.

That style of argument, there was a question about where the limit of that is. And the Court has been pretty—I don't know what they were going to do in that case. It got to the Court and they never resolved it. That was a close case because the president does need to make these discretionary decisions for those reasons. But that was a pretty extreme example. I would say that was normal science for presidents pushing the envelope, if you know what I mean, that other presidents have done that.

I view the TikTok order, which I'm confident relied on Trump v. U.S. as going a step beyond that. It says—and you know, you know the law better than I do—but it basically says there was this ban on TikTok. It came into force the day before Trump became president. There's a law to enforce and the president has a duty to enforce it. And he just decided in his EO order that he just wasn't going to enforce it.

And his reasons were—I'm paraphrasing, you can correct me—his reasons were something vague about he has to figure out the national security implications and also B), he wants time to negotiate a deal and it's really not fair that they didn't wait and let him sort this out when he became president. Another way of putting that is I don't like the policy in this law and therefore I'm not going to enforce it. That's the bottom line for 75 days. That's the bottom line of that executive order.

That goes beyond anything that I've seen any president do. And I think it has to rely on some form of the Trump enforcement discretion argument. And it flies in the face of some cases where the, where the Supreme Court had said prior to Trump that the president, and they use the word arguably, would exceed his authority if he just decided to stop enforcing a statute, just because he disagreed with the policy. Well, that's what they did here.

So that case that, that, that, that non-enforcement to my mind is a significant step beyond what had gone on before. And it can only rely on Trump v. U.S., as I said in the piece, I doubt that the Supreme Court of the United States, if they ever get this case, is going to go for that extension of Trump v. U.S. But I also have no doubt, zero, that if there is a memo inside the executive branch, one wonders, if there is a memo inside the executive branch underlying that EO, that it's got Trump v. U.S. all over it.

Alan Rozenshtein: So the EO contains two parts. One is the 75 day non enforcement provision, which when I read, I at least understood, you know—legal, illegal, Take Care Clause, whatever. I understand what that is.

There's another provision that I, I still do not understand. And I would like you to explain it to me, or at least speculate wildly and irresponsibly with me, which is that in addition to non enforcement provision, the EO tells the attorney general to tell all of the tech partners of TikTok—the Oracles and Apples, the ones that actually provide the services that would be criminalized under the law—that providing those services would not violate the law and would incur no liability upon them.

And I for the life of me cannot figure out what that means. Now, I think literally, I understand the president is chief legal interpreter, right, in addition to law enforcement officer of the United States, and you don't need a JD for that. So if the president says the law doesn't apply, that is the official executive branch position.

But I'm still, I I'm struggling to understand what, what, what it means for the president for, for the, to just declare things that are patently not true on sort of basic statutory reading comprehension grounds.

Jack Goldsmith: Did the EO say—I just don't remember—did it say that they wouldn't be acting unlawfully if they continued to operate TikTok? That was it?

Alan Rozenshtein: Yes. Yeah. Yeah. And they would incur no liability, which presumably is a statement about the statute, not about what the president wants to do.

Jack Goldsmith: Look, as you've written about, there's this doctrine called entrapment by estoppel. This is a doctrine inside the government that if a government, and it, it takes place in other contexts as well, but the, the argument is, and the special counsel invoked this in Trump v. United States in a different context. So the, the, the, the Biden DOJ is on board for a version of this argument.

It's the idea that—this is what happened with OLC and the torture memos. That when a member of the government goes to the Justice Department and gets legal advice about whether a course of action is lawful and they say yes, then it would be a due process violation to for them to be prosecuted later because they had relied to their detriment on representation.

This is leveraging that idea to the private sector. You know, it's not clear to me why the Justice Department is in a position to give legal advice to private firms. It's not clear to me the entrapment by estoppel extends this far. It's not clear to me that they have the authority to do this. I don't recall ever seeing anything like this.

Obviously, they were trying to give the firms maximum comfort that they wouldn't suffer legal costs if they continued providing TikTok, something. A lot of the firms—you tell me, you're up on this—a lot of the firms still didn't do it. I mean, TikTok isn't on Apple, is it? You can't get it. That's right.

Alan Rozenshtein: Yeah. The, the app stores have not accepted this.

Jack Goldsmith: But who has accepted the argument?

Alan Rozenshtein: Oracle, Oracle and Akamai. These are the cloud service providers. These are the ones that actually have maximum liability, which is interesting.

Jack Goldsmith: Yeah. You know, it's, it's, it's risky because this is a very novel move by the attorney general. They would have some legal arguments because of what they did, but where the attorney general gets the authority to do this is a mystery to me.

And, and I don't, I really don't see how that can plausibly even on an expansive interpretation of Trump v. United States—I should have mentioned this in my piece. I don't see how—I was only focused on the first part—I don't see how, I just don't even see how even Trump v. U.S. viewed maximally gets you that power.

Alan Rozenshtein: Let's talk about impoundment for a second, because that's a kind of non-enforcement.

Jack Goldsmith: Yep.

Alan Rozenshtein: So impoundment refers to the president refusing to spend funds that are appropriated by Congress. You know, there have been versions of this all the way back to the beginning of the country.

Jack Goldsmith: Yep.

Alan Rozenshtein: But the kind of modern version of this is in particular Richard Nixon, who used this power quite extensively, not unlike Trump and DOGE are, seem to be trying to do it now.

Jack Goldsmith: And Nixon—if I could just interject, please. Earlier presidents had done this. They'd sometimes made some quasi constitutional arguments, mostly with statutory interpretation and practice. Nixon asserted a broad constitutional power to not spend funds.

Alan Rozenshtein: Yeah. Congress did not like that. They passed the Impoundment Control Act. Which in some ways, it's a little bit like the War Powers resolution, right, War Powers Act in, in, in that, in, in trying to block a claim of executive power, it concedes a little bit. That, because it gives the president the power to do that a little bit if you ask Congress for permission, obviously we're seeing that potentially play out right now in a, I think scale, I don't think we've ever actually seen,

Jack Goldsmith: But to be clear, Alan, I don't think they're purporting to the scale in which they're doing it. They're not purporting to comply with the Impoundment Control Act.

Alan Rozenshtein: Oh, certainly not. Certainly not. And I think at some point they will officially say they will officially argue that it is unconstitutional. So I'm curious what your read of Trump, the Trump opinion is on this impoundment issue specifically.

Jack Goldsmith: So, it's something like, it's, it's, it's a similar argument and it depends on what the scope of how they read Trump v. United States. They're basically arguing implicitly that Trump v. United States gives them the constitutional power that Nixon thought he had.

As I said in the piece today, I don't see how, I just don't see how the opinion goes that far. It said that the president had a core of exclusive enforcement power. There are prior precedents in the 18th, 19th century case called Kendall that's still a very good precedent that said the president does not have a dispensation power, i.e. that the Take Care Clause just doesn't let him stop enforcing federal law because he feels like it.

Unless Trump v. U.S. implicitly overruled that precedent, which I don't think it did, and I don’t think it can plausibly write to do so, I don't see how the impoundment argument gets there all the way from that aspect of Trump.

But let me make a broader point, and this is an important point. So we've been talking about discrete parts of the opinion. There's the removal power. There's this exclusive enforcement power. The court repeated the moniker that all the executive powers vested in the president. They said the president of the branch of government, they talked about the president's managerial power and his power to direct lower executive branch officials.

The way the Trump administration is thinking about this is all of those things together give the president this kind of superpower to do all the things that they're doing. And we don't have to speculate about this because I, I quoted, I can't remember the guy's names now, but the general counsel of the OMB–

Alan Rozenshtein: Is it Paoletta?

Jack Goldsmith: Yeah, I think, yeah. So this is an important position. He's the general counsel of OMB. OMB is A) where the impoundment will be done, and B) where executive orders go through. So it's one of the most consequential places in the government, especially for this. And he wrote a piece in September in which he basically sort of promiscuously cited all of the broad–

Alan Rozenshtein: It has a real penumbras and emanations vibe to it.

Jack Goldsmith: He cited basically all of the broad statements of executive power in Trump v. U.S. from all around the opinion. Put them in a, in a paragraph and said, therefore we can impound.

Alan Rozenshtein: It’s Article II Mad Libs.

Jack Goldsmith: It's really—that argument as he presented it was, you know, wouldn't have done well on a law school exam. But it's clear, it's clear that they're thinking about it. He said our constitutional impoundment power flows from the principles of Trump v. United States.

And then he'd made this, not these discrete arguments, but this aggregate argument—it's a combination of enforcement, removal, the executive power, the directive power, the idea that the president is a branch of government. So I think this is a really important point, that's, that they clearly think that these principles together are kind of a supercharged unitary executive.

I mentioned in the piece today that my colleague Adrian Vermeule, soon after the decision came out, wrote a piece about Trump v. U.S. and, and the decisions that preceded it. And he said, and he laid out what he called a maximalist vision and the maximalist vision that he laid out went beyond even the so called unitary executives.

And as Vermeule said, this maximalist vision was not what the cases say, but they're the full logical implications if you take them way past the cases to what, if you don't think about any other counterarguments, the full implications of it. That's what they're operating on.

They're taking Trump v. U.S. in light of the prior removal case law, especially, and directive power case law, and at least in Paoletta’s mind, and he's in an important position, this just, Trump v. U.S., all these different elements create a kind of super unitary executive.

And it's interesting. It's, it's a unitary executive that doesn't, most unitary executive principles govern the relationship between the president and his subordinates. This unitary executive principle extends to shutting out Congress as well. That's, and it's, much, much more so than prior opinions.

Alan Rozenshtein: So, a bunch of times in this conversation we've talked about, well, the opinion could be read this way, maybe not read this way, we'll have to see. So let's, let's think about what that will look like.

So right now, Trump is being challenged in court across a number of dimensions—impoundment, immigration, I mean, you name it, someone is suing, removal. Do you have a intuition or sort of priors as to what the most likely vehicles are for the Supreme Court to deal with, you know, Trump part two and three and four?

Jack Goldsmith: Yeah, so let's let's set aside maybe forever today, or at least till the end, the question of whether we think the Supreme Court will even get these cases or will, or that the Trump administration will comply. Let's just bracket that set of issues, okay.

Alan Rozenshtein: I'll, I'll—for, for now.

Jack Goldsmith: Yeah. We'll come back to that thing. Bracketing that for now, you're just asking me, how would this work?

Alan Rozenshtein: Yes

Jack Goldsmith: Here's the way I see it. I mean, under the current precedent, the removal power, especially the removal of the NLRB person who is a member of an independent agency. Before the Trump administration, I would have said that that—before the Trump administration started doing all these crazy things, and I mean crazy in the aggregate—I would have said that a removal of someone on an independent, multi-member independent agency, that this Supreme Court would say was okay. Even though the precedents kind of suggest not, but it's Humphrey's Executors in main precedent, it's been in jeopardy.

Alan Rozenshtein: And you thought that would be even true with respect to the Federal Reserve? That is what I always assumed, that the sort of conservative GOP corporate wing, right, to the extent you want to think in that way, that they would at least preserve Fed independence.

Jack Goldsmith: I'm not an expert on the Fed. I know that the, the chairman of the Fed can, has for cause removal, but he can be taken off of being chairman and put in a different spot. I know that. I don't know the details of the Fed and the for cause removal there.

But I just, but I'm just telling you based on the precedents prior to Trump, we were on a trajectory, in my opinion—and it could have been the Biden administration, frankly. We were on a trajectory where the Supreme Court, the current Supreme Court was going to allow the president to remove members of a multi member independent agency that had for cause protections, that they were on a trajectory. They hadn't gotten there yet. They were on a trajectory to saying that they were going to allow that.

So I think that that slice of the argument when it reaches the Supreme Court has the best chance of Trump prevailing. I also think he has a very good chance of prevailing. I wrote about this in Lawfare under current precedents for removal of his removal of the inspectors general. They too had a weird kind of weak for cause protection.

But for reasons I explained down in the weeds in that post, I think that that case, if it reaches the Supreme Court, the president, again, assuming that the Court doesn't have an allergic reaction to Trump and go slower that Trump will win that as well

Alan Rozenshtein: In the sense of the Court would use it as the vehicle to finally overrule Morrison.

Jack Goldsmith: Yes, basically, exactly. Or distinguish it away and make it into a nothing. Yeah.

So those two cases in the removal context, the Court has been moving towards expanding the president's removal power and getting rid of restrictions. So those are the cases where I think Trump is, you know, in a kind of legal realist way on the strongest ground. And again, this is assuming a normal Supreme Court reviewing a normal executive, who knows what it's going to look like when it actually gets there.

The TikTok ban, it's not clear anyone's going to sue, right? Or can sue. And so, if they can't sue, you can't challenge it. So it's not clear how the non enforcement there would be challenged. You need to test that proposition to find a case where non enforcement results in someone being injured.

If they engage in what I'm calling blanket policy based non enforcement of a statute, and they cite Trump v. United States, I do not think they will prevail in the Supreme Court. I'm spitballing here. I want to be clear. I mean, it really depends on, it depends on, hugely on the factual and legal context. I'm speaking 40,000 foot based on-

Alan Rozenshtein: It's what we do in the last 10 minutes of a Lawfare podcast.

Jack Goldsmith: Right. Okay. So I think that one is—that form of executive power is in an extreme form and will not probably survive if there's a case on it.

The really interesting question for me is, and we haven't seen a clean case of this yet, I don't think, but I haven't been able to keep up with everything, if the president invokes Article 2 to start firing career civil service officials who have protections, statutory protections. So how far down into the executive branch will-.

Again there are statutory arguments for this that they're using but to the extent is being backed up with an Article 2 argument and might have to depend on it that's gonna be an interesting hard question. Because even Myers v. United States—the chestnut that the conservatives love said that was okay.

But it's clear that the Trump administration they're operating on pure theory. And the pure theory of the executive, of unitary executive is—the pure theory which goes beyond the cases—is that every single official in the executive branch, career, civil service, independent agencies, all of them are, you know, basically the president and the president can do what he wants.  So that case is going to be interesting and hard. I'm not sure the Court will go all the way for that. Again, I'm speculating here.

So for the spending step, impoundment, if the clean and again, if the clean empowerment question comes to the Court—-and it usually doesn't come up clean, there's usually some statutory argument or something like that. If the clean constitutional empowerment question comes up about whether the president can decline to comply with the Impoundment Control Act of 1974 because he has enforcement discretion and based on the so called history of this practice, I think that will lose.

I think that the history does not support Nixon's view. And by the way, Bill Rehnquist wrote an opinion to that effect when no, no executive power slouch Bill Rehnquist and he was head of OLC said the president didn't have that power. William Rehnquist later chief justice. I think that case will lose because the president has to take care of duty to comply with the Impoundment Control Act. And I just don't see any great constitutional argument.

Alan Rozenshtein: So I'm going to finish by taking all, all my desires for you to speculate wildly and I'm going to wrap them up just into one question so you only, only have to do it once.

Ideally, we would just have this kind of cold blooded legal debate about all of this because that's where we're most comfortable. But we're in a, as I think you've, you've used the word a few times, vibes based world. And there are two, two vibes questions that I just think are hanging over this whole discussion.

The first is if this is all just too much for John Roberts, right? The, the quote unquote institutionalist on the Supreme Court, but also the author of this extremely muscular Article II Trump argument. Is this just all too much for the chief justice? We assume the three liberal justice will vote against Trump. And so you need to pick up. I don't know, Justice Barrett, I would have guessed Justice Kavanaugh, but I suspect Justice Barrett might be the easier pickup.

Jack Goldsmith: I think Justice Roberts is the easiest, Chief Justice Roberts is the easiest fifth vote, easier than Kavanaugh, but who knows?

Alan Rozenshtein: Yeah, so, so, so one, one question is, is, is this the sheer chaos of all of this? The fact they're doing all of this immediately, that they're trying to be as provocative as possible. Is this the possible way that you get Chief Justice and Justice Barrett to say, nope, we're drawing the line here; you know, whatever, whatever you all thought Trump meant, it cannot mean these things. Is that sort of one way that you see this end?

Or—and this is not necessarily mutually exclusive—if an opinion like that comes out, how much faith do we have that this administration would follow it? Now, I will just say, right, we're recording this on Monday the 10.

Yesterday, Vice President Vance wrote on, wrote on the site used to be known as Twitter, that if a judge tried to tell a general how to conduct a military operation, that would be illegal. If a judge tried to command the attorney general on how to use her discretion as a prosecutor, that's also illegal. Judges aren't allowed to control the executive's legitimate power.

Of course, the word legitimate here is doing a lot of work, but I would read that as a way of sort of rhetorically setting the groundwork for defying a court order. So speculate wildly in the last few minutes.

Jack Goldsmith: So I'll answer that. There are two questions there and I'm going to turn them into three and then we can call it a day.

The first question was, is the Trump chaos—the sort of chaotic and maximalist deployment of unitary executive theory on a scale like we've never seen and with chaos and disruption, like we've never seen—is it likely to lead the Court, the middle of the Court to be less inclined than they might have otherwise have been given precedents to go along with what's going on?

I think the dominant answer has to be yes. So I mean, I just think, you know, as I've written a couple of times, the justices implicitly think about the consequences of their decisions. They think about the nature of the presidency that's going to be exercising these decisions. And this has not been a wonderful advertisement for the unitary executive.

Alan Rozenshtein: You don't think it cows them into submission, right? That's the counter–

Jack Goldsmith: Well, that's the, that's the counter argument. The counter argument is, and this gets to your second point, but I'm not quite there yet.

The counter argument is Russ Vought—is that how you pronounce his name? The OMB director, you know, as I spoke about in a piece the other day, he's got this idea. He said this explicitly. What we need to do is to scare the Supreme Court just the way that Thomas Jefferson scared John Marshall into not ordering James Madison to give Marbury his commission.

And what we need to do is, and I'm paraphrasing, threaten a little noncompliance just to kind of stand up to them, either signal that we're not going to comply or to get them to think we're not going to comply and get them to back down. That's the opposite dynamic that might be going. I don't know how to adjudicate that one.

And then there's the final question, whether they're planning to simply not comply with court orders. And I don't know the answer to that. If you remember, it was about Feb. 10 of 2017 that everybody's head was on, hair was on fire because, is Trump going to defy all of these national injunction immigration orders around the country, and there were suggestions that he would and all this stuff, and it didn't come to pass.

This is a very different administration with different people who are more committed. I don't know the answer. I don't think we're there yet. To date, there was an order just this afternoon where the judge said that, that, that the Justice Department wasn't complying with the TRO, but that's kind of normal science, I mean, that happens.

Alan Rozenshtein: And it allows, and it gives the executive branch an opportunity to say, we apologize. We apologize. We'll have to see by the time this airs, we'll have to see what's, what's happening,

Jack Goldsmith: I agree, but also there have been several DOJ responses I've seen today to these orders that argue that the court is wrong, but they're arguing within the four corners of the law that the court need to address.

So, so, though, so at the high level, we've got this rhetoric and kind of, I don't want to quite call it hysteria, but this anxiety slash catastrophizing that we may be on the verge of a constitutional crisis. But so far on the ground—and I know this is February 10 at 4 p.m., and so this may be taken over by events tomorrow—so far on the ground, they have not been disobeying at least in any kind of aggressive way beyond a debate about whether they were complying with the TRO.

It's a big question. And I don't know. I, I, I, I'm, I'm, you know, I'm going to write about this. I don't really see at the end of the day. I don't purport to understand the Trump administration, but I don't really see—even if they had a, you know, extreme authoritarian, let's take over the country, have one party rule, get rid of the other branches of government—I don't really see why doing this now at this stage is in their interest for a whole bunch of reasons, but they're operating on a set of principles that I don't fully grasp and they're clearly in the mode and mood to blow things up.

Right now, it seems to be the executive branch that they're trying to blow up the most. And they might extend that to the courts. I just think it's, I understand why people are concerned because there are lots of signals that they might be thinking about this, but there were also lots of signals in 2017. And it's a very fateful step. And the answer is, I don't know. Sorry.

Alan Rozenshtein: Well, on, on that learned, but anxiety inducing note, I think we'll leave it here. Thank you, Jack.

Jack Goldsmith: Thank you very much, Alan.

Alan Rozenshtein: The Lawfare Podcast is produced in cooperation with the Brookings Institution. You can get ad free versions of this and other Lawfare podcasts by becoming a Lawfare materials supporter through our website, lawfaremedia.org/support. You'll also get access to special events and other content available only to our supporters.

Please rate and review us wherever you get your podcasts. Look out for our other podcasts, including Rational Security, Chatter, Allies, and The Aftermath, our latest Lawfare Presents podcast series on the government's response to January 6th. Check out our written work at lawfaremedia.org.

The podcast is edited by Jen Patja, and your audio engineer this episode was Cara Shillenn of Goat Rodeo. Our theme song is from Alibi Music. As always, thank you for listening.