As presidential power expands and democratic norms deteriorate, two of the nation’s leading legal scholar-practitioners told a Dartmouth audience that the courts appear to be the only institutions constraining abuses of executive authority.
Former White House Counsel Bob Bauer and former Office of Legal Counsel head Jack Goldsmith spoke May 20 as part of the Rockefeller Center’s Law and Democracy: The United States at 250 series, offering a sweeping discussion on presidential immunity, pardon powers, attacks on higher education and the press, and the limits of Congress in checking executive actions.
Some 120 people attended the talk at the Rockefeller Center while another 480 watched the livestream.
Moderated by Benjamin Valentino, a professor of government and associate dean for the social sciences, and veteran journalist Dafna Linzer, the conversation examined how presidents increasingly test legal boundaries through executive actions that may ultimately fail in court but still achieve political goals.
Both scholars pointed to executive orders targeting law firms, universities, and media organizations as examples of strategies designed to pressure institutions even when the legal footing is weak.
That largely does not matter, they said. President Donald Trump’s administration views intimidation that hinders challengers as wins.
“The Trump administration has figured out that the government can engage in illegal action that’s going to be stopped by the courts, but the fact that the court rules that it’s illegal almost doesn’t matter because it still has a massive terrorizing effect on the various civil society institutions, and it’s a really new thing,” said Goldsmith, the Learned Hand Professor at Harvard Law School and former assistant attorney general under President George W. Bush.
He added that the courts right now “are basically the only institution in the government standing up to the president.”
“Congress is basically out of commission. The internal checks on the presidency have all been eliminated, and there are lots of those that operate in normal times. The courts are all there is, but the courts cannot solve every problem.”
Bauer, a professor at NYU School of Law who served as White House counsel under President Barack Obama and personal attorney to President Joe Biden, said longstanding norms that once restrained presidents are rapidly eroding.
The scholars warned that presidential pardons, especially potential self-pardons, pose one of the greatest threats to democratic accountability.
“The significant role that norms played, where presidents exercise self-restraint, the norms are crashing to the ground,” Bauer said while discussing the expanding use of presidential pardons. “I don’t think they’re going to snap back precisely into place.”
“The pardon power, as currently being conceived in exercise, is an extraordinarily dangerous instrument of presidential power,” Bauer said.
Goldsmith said presidential pardon power may be the Constitution’s “Achilles heel.”
He predicted Trump would issue sweeping pardons at the end of a second term. “I fully expect that President Trump is going to issue many hundreds, if not thousands, of pardons.”
They said the role of White House lawyers is to help a president achieve their goals within the law. The role requires that such attorneys are confident enough to say no to a president.
“It’s just not the case that (White House) lawyers … are yes men or yes women, at least not until this administration as far as I can tell,” Goldsmith said.
Valentino said many view the administration’s attacks on higher education as the greatest threat to academic freedom since the McCarthy era. He cited federal funding freezes, visa threats, and executive pressure campaigns directed at universities.
Goldsmith criticized what he described as unlawful pressure tactics by the federal government while also arguing universities have become increasingly politicized over the past several decades.
“I don’t like what he’s doing,” Goldsmith said of Trump’s approach toward universities. “It’s not all horrible, but it’s a huge threat to universities.”
At the same time, he argued universities’ dependence on public funding makes them vulnerable to political retaliation from either party.
“When universities take money from the public, and the public being left, right, and center, and then they adopt postures that are not left, right, and center, but are left, and that sometimes seem not in accord with the university mission, this is inevitably going to happen.”
The conversation also explored the War Powers Resolution and presidential immunity.
Goldsmith said the 53-year-old resolution “was a terribly drafted statute” and “full of loopholes.”
However, he said the resolution did play a part in the recent ceasefire with Iran, citing its requirement that any conflict exceeding 60 days must be brought to Congress.
“I really believe it’s not an accident that the ceasefire happened right before the 60-day clock ran. They were worried about, ‘What are we going to say and do?’ at the end of the 60-day clock,” Goldsmith said.
Both Bauer and Goldsmith also discussed the Supreme Court decision granting presidential immunity while a president is in office.
“I do think that there’s a significant misunderstanding of the potential implications of this case and how it’s going to apply in the future,” Bauer said.
“We don’t know what that decision means,” Goldsmith added. “Everyone is treating it as if the president has absolute immunity for acts in office. Not true. We don’t even really know what counts as a public act.”
Valentino reflected on how the nation’s legal system has become newly visible to Americans who once took its stability and norms for granted.
Now, he said, Americans are confronting a period when many fear the system itself may be “coming off the rails.”
“It’s time for us all to learn up on the Constitution and our legal system, and how our government works, and that’s especially true for the students in the room,” Valentino said. “We’re asking you to go out and be future leaders and be informed citizens in this democracy.”
This program is cosponsored by the Nelson A. Rockefeller Center for Public Policy at Dartmouth, Ethics Institute, the Department of Government, Dartmouth Dialogues, the Office of the Dean of the Faculty of Arts and Sciences, and the Associate Dean for the Social Sciences.
The next speaker in the Law and Democracy series is former White House Chief of Staff Rahm Emanuel on May 26.
