After Trump: Reconstructing the Presidency

by Bob Bauer, Jack L. Goldsmith

From two amazing authors -- a former White House Counsel to President Barack Obama and a former Assistant Attorney General in charge of the Office of Legal Counsel for President George W. Bush -- comes a book about the presidency like no other.

After Trump systematically shows how Donald Trump has exposed the inadequacy of the current array of laws and norms governing the presidency for protecting institutions vital to the American constitutional democracy. It also highlights the inability of these laws and norms to constrain the president.

Bauer and Goldsmith don't stop there. They provide a detailed roadmap for reform, including concrete proposals on presidential conflicts of interest, foreign state influence on elections, abuse of the pardon power, systematic assaults on the press, White House-Justice Department relations, the role of the White House Counsel, law enforcement independence, the institution of the Special Counsel, protecting whistleblowers, inspectors general, war powers, control of nuclear weapons, executive branch vacancies, FBI investigations of presidents and presidential campaigns, and more.

After Trump is a definitive account of what the last four years have revealed about the presidency. It will be essential reading for the coming debate on how to reconstruct the institutions surrounding the world's most powerful office--and how to restore the trust and faith of Americans in it.

Genres: Politics, Nonfiction, History, Law

422 pages, Paperback

First published January 1, 2020

Reviews

[Mike · Rating 4 out of 5]

Authored by two former White House Legal Counsel, from a bipartisan perspective, comes this blueprint for reform of the United States Presidency. The analysis considers 5 aspects of the Trump Presidency, from his attack of the free press, self-interest and self-entitlement, to finance transparency, abuse of Pardoning Powers and finally Foreign State Influence. It examines various Presidents from Nixon, Bush and Clinton and places their suggestions in an historical context. They discuss the Ethics in Government Act 1978, FBI investigations, Special Counsel investigations and the role of the White House Counsel. Written PRIOR to the recent American elections, this is a most readable and interesting analysis. With thanks to NetGalley and the authors for a preview copy for review purposes. Highly enjoyable and a balanced, reasoned perspective, deserving a four-star rating.

[Jared Larsen · Rating 5 out of 5]

With the Trump administration likely coming to a close in two and half months, I wanted to read about serious reforms to the presidency that will be discussed as a direct consequence of the Trump Administration. This book is by law professors Bob Bauer and Jack Goldsmith who worked, respectively, for Obama as White House Counsel and for Bush as head of the Department of Justice’s Office of Legal Counsel. Both are academic experts and practitioners in the law surrounding the presidency. Both, for good or ill, served presidents who vigorously exercised the powers of their office, and neither is preternaturally opposed to the executive branch. Rather, both desire an energetic executive that functions with improved guardrails against corruption, abuse and excess.

Bauer and Goldsmith are tremendously practical, avoiding proposals that require amending the Constitution. Their rationale is simple: Constitutional reform requires consensus on a scale that is rarely attained. They opt instead for actionable changes to statute or regulation. The summaries and legislative text of each reform are located in the appendices. In that way this book is really is manual for the next Congress and a new administration.

Their proposals on the pardon power, foreign state contacts, financial conflicts, and tax disclosure are incredibly compelling and directly responsive to Trump. The authors express the hope that Congressional Republicans, now untethered from their party leader who punished any political or personal disloyalty, will be invigorated to check a president of the other party. And Congressional Democrats, fresh from the Trump experience, will prioritize reforming the presidency, the same way the 1974 Watergate Congress did (in an overwhelming bipartisan manner, it should be noted). I share the authors’ hopefulness.

Because I am obsessed with both legislative process and executive personnel, I especially enjoyed their section on vacancies reform. They propose reducing the number of Senate confirmed executive officials (currently 1,200) in exchanged for changes to the Federal Vacancies Reform Act, such as shortening the time acting officials can hold office, limiting who can be an acting official, clarifying the roles of first assistants, and bringing agency-specific succession statutes and the FVRA into sync.

Others will likely find the discussion on nuclear launches and the war powers interesting. It strikes me as an area not even remotely likely to change. Still others who intensely oppose Trump might recoil at their section on investigating former administrations because they urge significant caution. I, too, am congenitally opposed to pulling on that loose thread.

The authors produce no silver bullets for fixing the problems with special counsels. The federal government investigating the president or vice president for possible federal crimes is very challenging in the American constitutional system. Their reforms rely significantly on making the public and Congress more aware of factual findings, extremely modest protections of special counsels from firing, and hoping for less political appointees to the office of Attorney General. Lucky us!

This book is written for a general audience and is accessible to the layman, but those who enjoy statutory draftsmanship will still find it thorough and rigorous. The authors’ thoughtful comparisons of their own reforms to several bills on separation-of-powers topics which did not advance during the Trump administration make it one of the most useful tools to understanding the Trump administration in context and how to properly respond once it ends.

[Josh Hedgepeth · Rating 3 out of 5]

Thanks to NetGalley and Publisher for fair and honest review

Check out my reading vlog!


After Trump is a detailed look at how the US presidency can be updated or changed to strengthen it and our democracy after Trump has left office. The basic idea is Trump has abused the system of the office, if not breaking the law, at least breaking norms. Traditionally, presidents have respected norms, but Trump has illustrated that the system in place does not work with president who does not respect the integrity of the office.

This this is written by two former White House advisors from two different administrations of two different political parties. They worked on this together to give a bipartisan look at the ways Trump has abused the office and how it could be addressed. What I really liked about this book was that did not fixate heavily on Trump, as many of the Trump books in this era do. Instead, they used Trump as a reference point to have a bigger conversation for the weak points in the presidency. Think of it like a company hiring a hacker to reveal the flaws in their security system; it’s about the system not the hacker.

Their analysis wasn’t just one of limitations. They also consider the long-term effects changes would have on future presidents; you don’t want to be reactionary to one president and end up incapacitating a future president in an urgent situation. In that sense, I think it is a fascinating and interesting book. However, I don't think it's the perfect book for everyone. It's very technical and very policy intense. As someone who is interested in politics, I found it interesting and engaging. Even still, it was extremely dry, but if you're the kind of person who likes policy, you will likely find this book worth reading.

Check out my reading vlog on my YouTube channel, https://www.youtube.com/watch?v=IjCTm...


3.5/5

[Colleen · Rating 4 out of 5]

The letter of the law versus the spirit of the law.... or above the law? These are some of the issues brought to mind as I read this book. This book definitely shines a light on where the deficiencies are as well as suggestions on how to amend them. There is a lot of material to absorb in this book covering many Presidencies and their abuses or takes on the law. It takes into account the many ways the laws have been used to remain just inside the laws, or blatantly disregarded and broken. It is now apparent the laws are open to interpretation in whose best interest they serve. This presidency, no different than others before him but in a larger scale, have unfortunately exposed many areas of concern. Some of these may be able to be corrected, but until a future President that uses the office for his own personal agenda, time will tell if these were actually a solution or a way to create more loopholes for the dishonest. Many of these proposals for change are sound. I believe it will take a lot of time and discussion on how to implement the necessary changes. The question will be how to get Congress to make these changes. Being so partisan it is doubtful they will come together on anything in the near future under Trump. This lays open that we as a nation have many problems to solve.

[Ryan · Rating 4 out of 5]

The authors of this book have experience with law relevant to the presidency; one of them worked as White House Counsel for Bush 43, and the other headed the DOJ's Office of Legal Counsel for Obama. The book was written in 2020, when the outcome of the election was uncertain and the authors had no idea what would happen in the election's aftermath. It's a set of commendably specific recommendations for improving the legal and normative environment in which the presidency operates, to better serve the national interest and adhere to the rule of law.

I recommend the book, not because I think reading it will fix things, but because we all need a reminder and a one-stop summary of just how abusive Trump was of the rule of law and longstanding norms of presidential behavior.

The premise of the book is that, regardless of the 2020 outcome, the Trump presidency would lead to a robust national discussion of how to shore up the presidency after Trump's many abuses, including his resistance to personal financial disclosure, his use of the office for funneling money into his private businesses, his obstruction of justice including obstruction of the Mueller investigation and the impeachment processes, his welcoming of foreign assistance and electoral interference, his abusive treatment of the press, and other practices.

From the vantage point of 2020, one might have expected such a national discussion to occur, especially since Trump ended up leaving office in disgrace (and after an attempted "soft" coup). But, the greatest disappointment to readers will be that no such discussion is happening. The Biden administration has prioritized longtime Democratic fiscal priorities over spending political capital on protecting the presidency from the next Trump (which might be Trump himself). So, I suppose the book will end up being a "what should have happened" for the Biden administration, which looks unlikely to make any progress on any of these critical issues.

The authors go through most of the major issues raised by the Trump presidency, provide some historical background behind the current institutional status quo, then describe the ways in which Trump abused the system. Of course, a challenge with Trump was always that his actions were often not categorically unprecedented---all presidents misbehave in a number of ways---but that those actions were often unprecedented in their magnitude, recklessness, or severity. The authors illustrate the differences between past misbehavior and Trump's excessive disregard for laws and norms.

The authors offer lots of good ideas for specific reforms, but they provide little detail on actual enforcement. This is not the fault of the authors; it's just a constraint of reality. For example, if the president accepts emoluments through a private business and Congress doesn't consent, who forces the president to divest the business? Trump could just say "I'm doing it" then not do it, or he could tie it up in court as he did with his tax returns. And on the subject of tax returns, the authors have ideas on requiring tax return disclosure; but what if he just refuses to do it? Who will stop him?

Like other legal commentators, these ones highlight that ultimately it must be politics, not legal processes, that hold presidents accountable. But a major flaw of our constitution is that it's extremely difficult---compared to other systems---to remove a president, and if partisanship is robust then perhaps it's actually impossible. Trump was never popular among Americans, he openly broke the law with frequency, and Democrats (with a few Republicans) tried three ways to remove him but failed, even after he instigated a violent electoral disruption. One imagines than in a parliamentary system he would've been jettisoned within 6 months of taking office and the whole nightmare would've been avoided.

More concretely, this book was written before the events that led up to January 6, during which Trump pressured state election officials to fabricate votes, strategized with advisers and Republican lawmakers on how to get Pence to reject electoral college votes, and ultimately invited a mob to DC and encouraged them to sack the capital (then protected them while they did it). Since then, he and his allies have worked steadily to prevent fact finding about those events while gradually replacing state election officials with ones who will be more willing to do his bidding next time around. I mention all of this to say: can we really expect the democratic process to prevent him from gaining power again and remove him for bad behavior after he does? I don't think so. And I conclude from this book that legal reforms won't do it either.

It sort of leaves me hopeless. We have a constitution that gives the president enormous power under the flawed assumption that members of Congress are a material check on that power instead of enablers of abuse of that power. The ideas in this book seem good, but I wonder if they'd even matter if a Trump-like figure is elected again.

Still, at least some of these ideas are worth a try. It's worth raising the cost of taking emoluments and hiding tax returns, and it's worth having more legal clarity around whether a president can in fact be liable for obstructing justice. Some of the ideas seem less promising. For example, the authors' proposed reforms to special counsel guidelines give more power to the Attorney General; if future AGs are like Bill Barr, that's not going to improve things.

But we should try, and Biden should be prioritizing these reforms above nearly every other priority. He's declining to do that, which will make his presidency a failure.

[John · Rating 4 out of 5]

This is an exceptional read. It's dense and often dry, as any discussion of policy should be, but even if one doesn't live in the weeds, "After Trump" is expertly constructed to break down the history leading up to every recommended reform. To put it mildly, the waters are treacherous. But this is a great start to figuring out how we navigate them.

[Conrade Yap · Rating 4 out of 5]

The office of the US Presidency needs to be reconstructed. Whether it is due to the events with Trump over the past four years or not, reforms still have to be made. In fact, one should not simply blame Trump. Whether he was President or not does not eliminate the need to reform. Trump didn't create the problems. He merely exposed the weaknesses. The authors write: "Some of Trump’s excesses, and some flaws in presidential regulation, had been emerging in prior presidencies. But Trump’s particular brand of executive action has added significantly to past problems in ways that now demand comprehensive treatment." Key to this reformation is an adequate and appropriate accountability for the most powerful seat in the country. Such a seat needs to withstand whimsical personal misuses and blatant abuses. They propose four principles to guide any reforms:

1) Strong Presidency checked by constitution
2) Review Norms and Laws of the Presidency
3) Implementing the Golden Rule to Minimize Hypocrisy
4) Learn from History

Every President in history has his flaws, which was also made visible through the weakness of the office to check such flaws. From Watergate to a Post-Nixon; Clinton; Bush; Obama; and now Trump, the authors argue for urgency in such reconstruction so as to bring back the dignity of the office and the confidence of the people. The fourteen chapters contain over 50 proposed "concrete changes to the laws, regulations, and norms" about the presidency. Part One is about Presidential power for personal and political gains. It needs to be independent from foreign state influences that tempt the President with personal gains. It needs to watch against conflicts of interest, especially in financial and business matters. It needs to require presidents to file their tax returns not as a norm but as law. Then there is the tense relationship between the President and the Press which needs a balanced approach between accountability and appropriate new releases on the basis of responsible understanding of national security. The Presidential Pardon Power needs also to be reformed to prevent abuses.

Part Two looks at the relationship between the White House and the Department of Justice. Meant to be separate for accountability reasons, there is a danger of how the two become one force that threatens judicial independence; invites unethical practices; tempts criminal acts; etc. The authors highlight the predicament of the Special Counsel, Robert Mueller's whose investigation into the Russian influence in the Trump campaign met a number of difficult obstacles that obstruct truth finding. Even the FBI needs to be reformed, especially post-2016.

Part Three deals with the uneasy shifting of power between the executive and legislative branches of government. One of the four issues is with regard to the war powers and nuclear weapons. Due to the expansion of Presidential discretion since the Civil War, the global climate has also changed. Such discretionary powers would need to be reformed simply because modern weaponry has a devastating impact. Any mistakes would be tragic.

My Thoughts
==============
The title of the book is revealing. It could mean in terms of time. Both Bauer and Goldsmith believe that any reforms that happen would have to be done "after" Trump leaves office, whether in 2021 or 2024. This however presumes that the next incoming President would make it easier to do such reforms. No guarantee exists. In fact, any reforms might even need the signature of the sitting President, and no President would willingly cede powers unconditionally. Plus, any reform would need the support of a large spectrum of political powers. "After" could also mean anytime in the future. Knowing the long-drawn process of anything that is political or any reforms that curtail the powers of any position, it might need a higher power to reform the highest power of the land.

Trying to reform the most powerful office in the country would require not only the political will of the leaders and influential people, it needs the combined public opinion to sustain any such initiative. Bauer and Goldsmith admit that the biggest challenge of all is the public romancing of the "heroic presidency." Once this takes root in the minds of the common citizen, any reforms would be curtailed. In an Internet and Social Media age, public opinion would have an even bigger influence than before. Perhaps, even when the reforms might not be made in the near future, at least this book creates an awareness as well as a path forward to any would-be reformer. I would even say that every institution needs reforms on a regular basis. This is simply because times change and people change. Political structures too need to adapt accordingly. While vague on the specifics, Bauer and Goldsmith help us appreciate the need for change. Not only that, they have clearly outlined the various organs of ministry. If tackling any one of them is already challenging, imagine trying to work on all of them at the same time! As again, resolve is key. At all levels.

Bob Bauer served as White House Counsel to President Obama. In 2013, the President named Bob to be Co-Chair of the Presidential Commission on Election Administration. He is a Professor of Practice and Distinguished Scholar in Residence at New York University School of Law (on leave), as well as the co-director of the university's Legislative and Regulatory Process Clinic.

Jack Goldsmith is the Learned Hand Professor at Harvard Law School, co-founder of Lawfare, and a Senior Fellow at the Hoover Institution. Before coming to Harvard, Professor Goldsmith served as Assistant Attorney General, Office of Legal Counsel from 2003-2004, and Special Counsel to the Department of Defense from 2002-2003.

Rating: 4.25 stars of 5.

conrade
This book has been provided courtesy of Lawfare Press and NetGalley without requiring a positive review. All opinions offered above are mine unless otherwise stated or implied.

[Allison Kindred · Rating 4 out of 5]

This book will show you exactly how much you don't know.

It is interesting to read in the era after Trump's first term but before his second. Sadly, some of the best reform proposals are essentially moot after Trump v. United States. However, that doesn't mean this book isn't an honest and noble attempt at correcting the ever evolving American experiment lest the whole thing explode. The text requires and deserves focus, so don't bother if you think it will be fun read full of digs at the now president-elect.

The authors conclude their impressive case for restoring normalcy with a quote from Gene Healy, "The main hurdle to reform, he maintains, is American's 'romance' with 'the Heroic Presidency.' If the public continues to envision the president's role in grandiose terms, 'even the most well-crafted five-point plan for restoring the constitutional balance of power is likely to fail.'"

[Paulina · Rating 3 out of 5]

Extremely well organized & well researched, and I did learn a lot. At times I felt like it dragged a bit and I was a bit bored, but maybe I’m just not the intended audience. Craziest thing about this book is it goes through SO MANY ways Trump broke presidential norms/laws and it was written BEFORE January 6th… wow.

[T.R. Cross · Rating 4 out of 5]

Quite a good and deep dive into proposed reforms to the Presidency and presidential powers in the post-Trump world. I don't agree with all the reforms suggested, some I think go to far others not far enough. However, the arguments are well laid out and provoke discussion and further thought, which is the books goal. Each chapter more or less follows the same formula; history of the topic, the topic during the Trump era, and suggested reforms. This works well, but the suggested reforms can get pretty wonky and for someone who is a relative layman, it was sometimes a little difficult to follow. I especially liked the chapter on prosecution of former administrations, the two writers could not quite agree on the approach so presenting opposing viewpoints which were both well thought out and compelling. Def recommend.

[Patrick · Rating 3 out of 5]

A comprehensive and detailed survey of policy options facing a new administration on the subject of constraining presidential power. President Biden’s White House Counsel should have this on her desk. But, for the rest of us, doesn’t offer much that couldn’t be gleaned by reading Lawfare. I confess that I skimmed a few chapters. Would be helpful to practitioners and law students.

[Jean Manning · Rating 4 out of 5]

Co-written by Jack Goldstein, a Harvard Law School professor and former counsel to President Geo. W. Bush, and Bob Bauer, an NYU Law School professor and counsel to President Obama. Both authors are very knowledgeable about the presidency and the Constitution. They explain how the U.S. has historically relied on each President to follow norms of acceptable conduct in a wide range of areas. The authors argue that it's time to codify those norms so that future Presidents do not have the option of following or not following acceptable norms but rather can be held accountable if they do not. The book is well written, clear and concise. The authors posit that Congress should work to codify Presidential norms, such as disclosure of tax statement, filling Executive and Judicial branch vacancies, conflict of interest, and complying with congressional oversight per the Constitutional authority of Congress. The authors provide a blueprint, including drafts of legislation for Congress to use, to achieve the suggested reforms.

[Mary Carrillo · Rating 5 out of 5]

Amazing book. It is laid out summarizing each issue, detailing its historical relevance, describing the Trump era ramifications and laying out the legal precedents. Loving political history, I loved the book. I would have been very happy to have been in a course taking each Chapter in turn and discussing the content for a class period with other enthusiasts. It is a heady book to read in its entirety and then discuss, as in a book club, but we all found it quite worth the read and a superlative adjunct to what we (an intelligent, but not professionally political group) knew. I would recommend it highly to all who are concerned about the growing power of the presidency and the abdication of Congressional oversight. Note the authors are 1 Republican counsel under George W. Bush and 1 Democratic counsel under Obama. It is well founded and not driven by partisan politics.

[Thomas · Rating 3 out of 5]

It was quite obvious that this book was written by people that do not like Mr. Trump. I will not go as far as saying they are democrats. Although that was obvious. They relished the chance to pick apart everything the man did. I'm not saying that he was a saint. He was far from it, but they could have at least been objective. It was painful to read. The presidency needed to be overhauled from before I, or they were even born. Every president took liberties and overstepped, but they focused on Mr. Trump, like he was the sole reason behind the problems that have transpired. I'm glad I didn't have to pay for this book. It would not have been worth the price, yet the cost of my subscription didn't do it justice either.

[Karin O'Connell · Rating 4 out of 5]

These guys need to be part of a new Watergate Commission

A little dry but very thorough and informative. I'd love to read their takes on Trump's most recent atrocities - sending an insurrectionist mob to attack the Capital, hang the Vice President, execute the legislative branch, and become dictator!

[Alexander · Rating 4 out of 5]

Very interesting bipartisan book on how to strengthen and reform the Presidency to allow for more transparency, oversight, and ethical behavior in spite of the office holder’s background. Strongly recommend.

[Cheryl · Rating 4 out of 5]

Dry but important...
Perfect for the political wonks in your life.

[Marsha · Rating 2 out of 5]

Too detailed. Skipped over some sections. Good to read the "Summaries of the Reform Proposals"starting page 357.

[Lia Busby · Rating 5 out of 5]

fantastic and fantastical but very interesting

[Kathy · Rating 5 out of 5]

I do not think anyone could have gone through the Trump presidency without thinking about the laws and norms that exist for the presidency. The authors discuss each of them in detail, while making suggestions/recommendations about how they can be fixed/tightened, so that we never again wonder about how each individual who fills it looks at the job/position follows the laws/norms related to it. I think a lot of people just took it all for granted, and the Trump presidency has changed that in many ways for many of us. This book looks at the presidency in light of Donald Trump and how he has sought out and used the many loopholes and inconsistencies and vague notions/laws/norms to his advantage. The authors have also drawn on history to point out other times other presidents did likewise to some extent—but never before to the extent the current president has. Both authors have a wealth of experience and knowledge they draw upon. I have heard Mr. Bauer on TV many times and can only say that he knows what he is talking about. In today’s world, we need someone to look at the current presidency and all things related, so we can build a new path forward. It may seem to like both authors ae a bit prejudiced discussing what has gone on, but the truth can and does hurt.

This may not be a book for the average reader. It could easily be used as a text for a college level course on the presidency: what it currently is and how we can make it better. Reading it in one sitting may be difficult because it reads like a textbook, but, in bit and pieces, as I did, it provides a good basis to understand what has gone on throughout history, what the last few years brought out and what can be done, as I said, to make it better. I received this from NetGalley to read and review.

[Peter · Rating 4 out of 5]

An outstanding survey of some of the governance problems highlighted or exacerbated by President Trump, as well as very specific solutions to those problems. Many of these vulnerabilities, (such as the abuse of *acting* department heads in order to sidestep Senate confirmation requirements), pre-dated President Trump, but were taken to a new level of dysfunction by the Trump administration. Others, such as blatant financial conflicts of interest, only became problematic with President Trump.

The authors are incisive in their analysis and expression, making the book a real joy for students of policy. I suspect that this book will not enjoy popular appeal, but I hope that it is well-read by congressional staffers and those in the Biden administration.

[Nils · Rating 2 out of 5]

As an empirical account of the many forms of normative and legal wrongdoing by the Trump administration this book is definitive. It’s proposals for reform however are often wrongheaded, seeking to defend or create norms that are themselves either toothless or wrong, and above all motivated (as we would expect from a former GOP head of the OLC) by a desire to maintain the power of the executive presidency while limiting the scope of potential wrongdoing. This desire to maintain the imperial quality of the presidency while mitigating the risk of a “Bad Emperor” leads to all sorts of silly punch-pulling.

[Lisa Konet · Rating 2 out of 5]

There will be life after Trump but will it be in 2020 or 2024. The author sure has a lot of opinions and biases, and I am not a Trump supporter but this book was off putting, I have read other books on Trump and the what-ifs that are better than this. Obviously, this author is passionate about getting the US back to how it was pre-Trump. Recommended if you are anti-Trump and pro Democracy.

Thanks to Netgalley, Bob Bauer and Jack Goldsmith and Lawfare Institute Press for an ARC in exchange for an honest review.

Available" 9/15/20

[Sandy · Rating 3 out of 5]

This book should be required reading for every person in Congress.