Executive Functions Chat

Bob Bauer and Jack Goldsmith discuss Bob’s recent piece, “Why the Trump Election Interference Strategy Failed.” Bob describes three factors: flawed strategy resting on a “constitutionally doomed” theory of executive power over federal elections and on tenuous noncitizen-voting claims; the courts, which repeatedly ruled against the administration, capped by the Supreme Court’s same-day denial in the California ballot-segregation case; and a decentralized election system whose officials, in red and blue states alike, carried out their work as in any other election. Bauer and Goldsmith also chat about the solicitor general’s final emergency application, and how the president’s po...

Jack interviews Caleb Nelson, the Emerson G. Spies Distinguished Professor of Law at the University of Virginia School of Law, about his working paper, “Against the Dictatorial Presidency.” They discuss the modern history of unitary executive theory, Nelson’s criticisms of the theory in Slaughter, the relevance of the Necessary and Proper Clause, and the dangers of Slaughter, with special focus on the civil service. Goldsmith and Nelson close by discussing the Court’s unexplained Fed carve-out, with Nelson lamenting the Court’s selective willingness to consider consequences in crafting the unitary executive.

Bob Bauer and Jack Goldsmith discuss Jack’s October 19 piece on Senator Elissa Slotkin’s recent viral remarks at the University of Chicago, where she said she wanted accountability for the people who enabled President Trump, at least in part with the goal of sending a “deterrence message” to new graduates who might consider working for the administration. Jack explains why he thinks Senator Slotkin’s remarks were imprudent, and why he finds the prevailing reaction from pro-Trump quarters hypocritical. Bob presses on whether congressional investigation is different from weaponizing law enforcement, and whether worry about retaliation could lead to the mos...

Bob Bauer interviews Francis Fukuyama, the Olivier Nomellini Senior Fellow at Stanford’s Freeman Spogli Institute for International Studies and author of The End of History and the Last Man. They discuss his new memoir, In the Realm of the Last Man, which, among other things, seeks to address misconceptions about the argument for which he is best known and to depict his intellectual arc; how excessive proceduralism fetters American government and drives voters toward populist candidates; whether reform would take a crisis; why Fukuyama posits that the post-Trump years may bring civil service and permitting reforms that were pr...

Jack interviews attorney and historian Catherine Grace Katz about her new book, Shadow Before the Flame: The Hindenburg Disaster and the Prelude to War. They discuss how a 1925 U.S. ban on helium exports required German airships to fly on flammable hydrogen, leading to the famous 1937 explosion over New Jersey. They also cover the Nazi takeover of the struggling Zeppelin company and the subsequent use of its airships as propaganda tools, and the later controversy surrounding whether to sell helium to Germany even after Congress relaxed the export ban. Katz closes by noting parallels to AI and other dual-use...

Bob interviews Nate Persily, the James B. McClatchy Professor of Law at Stanford Law School and co-director of the Stanford Law AI Initiative, about artificial intelligence and democracy, with particular attention to elections. They discuss what’s driving American anxiety about AI, why Republican and Democratic users alike rate AI models as left of center, and why Persily thinks the greater danger from deepfakes is not voters who are fooled but voters who stop believing what’s true—the “liar’s dividend.” They also take up the risks of relying on chatbots for voting information, state laws requiring disclosure of AI in pol...

Bob Bauer interviews Tammy Patrick, Chief Executive Officer for Programs at the Election Center and former Federal Compliance Officer for the Maricopa County Elections Department, about how election officials are preparing for the midterm elections. They discuss differences between an imperfect election and an illegitimate one, the decentralized patchwork of thousands of local offices that administers the vote, the checks set up to constrain partisan officials or rogue insiders, and why federal intervention now tops the list of concerns for many officials. Tammy closes with advice for voters: make a plan, vote early, and don’t mistake a slow co...

Jack and Bob discuss the legality of the three advertisements praising President Trump that have recently aired with the tag “Paid for by the U.S. Government” and were reportedly paid for with Department of Homeland Security funds. They explain why the advertisements run afoul of the annually enacted appropriations rider barring the use of public money for publicity or propaganda purposes, and examine how the Government Accountability Office’s categories of impermissible propaganda apply to each of the three ads. They also touch on the less-clear relevance of the Hatch Act, why the applicable enforcement mechanisms are unlikely to be...

Jack Goldsmith interviews John Coates, the John F. Cogan, Jr. Professor of Law and Economics at Harvard Law School and former general counsel of the Securities and Exchange Commission, about Trump Media’s sale of early access to the president’s Truth Social posts—up to $100,000 a month for a roughly 50-millisecond head start on market-moving announcements. They discuss how the arrangement differs from the low-latency data feeds Bloomberg and Dow Jones lawfully sell, how the STOCK Act applies the insider trading laws to the president by name, and who may bear legal risk: the subscribers, the president, or both...

Bob Bauer discusses the Supreme Court’s order declining to stay the injunction against the Postal Service’s ballot-mail rule, issued the previous evening over a brief concurrence from Justice Kavanaugh and a longer dissent from Justices Alito and Thomas. He reads the Court’s order as a possible signal that eleventh-hour executive interventions in the electoral process would meet skepticism; notes the measure of bipartisanship in the record, including red-state election officials who told the Court the rule could not be implemented in time; and cautions that the rule’s application to the 2028 (and later) elections remains an open que...

Bob Bauer and Jack Goldsmith cover three sites of Republican pushback against the administration's election interventions: the Missouri dispute over which congressional map governs November, Justice Department election monitors in Wyoming, and a Supreme Court brief from 38 current and former election officials, several from deep-red states, arguing the mail-ballot rule cannot be implemented in time for the midterms.

Jack interviews Elizabeth Sherwood-Randall, the Ashton B. Carter Visiting Professor at the Harvard Kennedy School and formerly Assistant to the President for Homeland Security and Deputy National Security Advisor, about her new Kennedy School report, Deterrence by Resilience: Securing the United States and Promoting Innovation in the Age of Bioconvergence. They discuss how artificial intelligence has changed the biological threat landscape since ChatGPT, the scenarios that worry her most, and the report's recommendations across prevention, detection, attribution, readiness, response, and resilience—among them a nationwide early warning system, rapid attribution, a federally chartered National Institute for Bioresilience, and an Op...

Jack and Bob discuss litigation over the Trump administration’s executive order on the Postal Service and election integrity, and the recent final rule that the Postal Service issued to implement the order. They explain what the Trump administration is seeking to accomplish with these maneuvers and examine the fate of two cases challenging the final rule that are pending in the District of Columbia and Massachusetts. They also analyze the practical difficulties in implementing the rule before the fall election, the role of federal criminal enforcement as a source of pressure on the states, and how the Purcell pr...

Bob speaks with Danielle Friedman, Legal Director of the State Democracy Research Initiative at the University of Wisconsin Law School, about the Initiatives’ recently published analysis of state criminal laws that could apply to potential federal government interference in the 2026 and future elections. They discuss laws, varying from state to state, that address deployment of military or other armed forces at the polls; actions to delay or disrupt the delivery of election mail, such as registration forms and ballots; and the seizure and removal of voting materials from election offices. Their discussion covers the likely federal government defenses against st...

Jack Goldsmith interviews former Homeland Security Secretary and Pentagon General Counsel Jeh Johnson about the article he co-authored in the Journal of National Security Law and Policy, "Presidential War Powers, Executive Expansion, and Congressional Retreat." They discuss how Congress's power over war has eroded, the constitutional and practical obstacles to reasserting it, and the war in Iran as a live example.

Mentioned:

* Jeh Johnson and Ethan Klaris, Presidential War Powers: Executive Expansion and Congressional Retreat (2026)

* Cyrus Vance, Striking the Balance: Congress and the President Under the War Powers Resolution (1984)

As the 2026 midterms approach, Jack and Bob give a big-picture overview of the Trump administration’s efforts to use federal law enforcement and executive power to influence the congressional elections. They discuss the constitutional limits on presidential authority over election rules, the administration’s novel tactics and mounting losses in court thus far, and the potential deployment of the military or ICE to the polls. They also examine the effects of the administration’s agenda on voter turnout, public confidence in the electoral process, and the risk of contested results.

Jack speaks with University of Virginia School of Law Professor Saikrishna Prakash about the implications of the Supreme Court’s decisions in Trump v. Slaughter and Trump v. Cook. They discussed the breadth of the holding in Slaughter; its implications for the president’s control over inferior officers, civil servants, and non-Article III courts; and its broader import for the non-delegation doctrine, the major questions doctrine, and other mechanisms that could constrain the now-more-broadly-empowered unitary executive. They also discussed the validity of the carve-out in both cases for the Federal Reserve.

Relevant reading:

- “The Execut...

Jack chats with Robert Wright about his forthcoming book, The God Test: Artificial Intelligence and Our Coming Cosmic Reckoning. They discuss why Wright views AI through an evolutionary lens, the promises and perils of increasingly capable AI systems, and the prospects for international cooperation—particularly between the U.S. and China—in managing AI-related risks. They also examine Wright’s argument that successfully governing AI may require a modest moral upgrade across society, including individual efforts to preserve cognitive sovereignty and mitigate the biases and tribal instincts that can hinder global cooperation.

Mentioned:

- Robert Wright...

Bob and Jack discuss President Trump’s nomination of Deputy Attorney General Todd Blanche, the current acting attorney general, to become Attorney General. They review Blanche’s record at DOJ, including his role in political weaponization, ethics concerns, and the fallout from the proposed Anti-Weaponization Fund. They also examine why Trump is forcing a confirmation fight when Blanche could plausibly lead the Justice Department for the rest of Trump’s term without Senate confirmation. What’s at stake, they discuss, is whether the Senate will endorse, and thus take responsibility for, Trump’s DOJ weaponization campaign.

Mentioned:

* “Th...

Following President Trump’s appointment of Bill Pulte to serve as acting director of national intelligence, Bob Bauer asks Avril Haines, who held the position during the Biden administration, to explain the history behind the establishment of the Office of Director of National Intelligence (ODNI) and the role of the director as leader of the intelligence community. They also discuss why the law requires nominees for the director to have “extensive national security experience” when there is no such requirement for the director of the CIA; the significance of ODNI appointments for U.S. cooperation with allies on intelligence intell...

Bob and Jack discuss the Justice Department and IRS “settlement” with President Trump and his family, which created a $1.776 billion “Anti-Weaponization Fund” for Trump allies and immunized Trump and others from IRS scrutiny and penalties for past conduct. They discuss how the episode combines two hallmarks of the Trump presidency: abuse of government power and self-enrichment. They also consider possible judicial remedies and the causes and possible consequences of the sharp congressional reaction, including from many Republicans.

Jack chats with Sebastian Mallaby, senior fellow at the Council on Foreign Relations, about his new book The Infinity Machine: Demis Hassabis, DeepMind, and the Quest for Superintelligence. They discuss current challenges in AI safety, the U.S.-China race and prospects for cooperation, and the emerging risks posed by powerful new models like Anthropic’s Mythos. They also talk about tensions between frontier labs and the U.S. government, and the trajectory toward greater government control.

Mentioned:

* Sebastian Mallaby, The Infinity Machine: Demis Hassabis, DeepMind, and the Quest for Superintelligence (2026)

Thumbnail: President Tr...

Jack chats with Marty Lederman, professor at Georgetown University Law Center and former deputy assistant attorney general in the Office of Legal Counsel, about a recent OLC opinion declaring the Presidential Records Act unconstitutional. They examine what is at stake, the statute’s history, and the constitutional arguments behind the claim. They also discuss a lawsuit challenging the opinion and the hurdles it faces in getting to the merits.

Jack chats with Sarah Isgur about her new book, Last Branch Standing: A Potentially Surprising, Occasionally Witty Journey Inside Today’s Supreme Court. They unpack her theory of the Court’s decisional dynamics and explore the Court’s approach to executive power in the Trump era, which can be seen as both empowering and constraining the presidency on different dimensions.

Mentioned:

- Sarah Isgur, Last Branch Standing: A Potentially Surprising, Occasionally Witty Journey Inside Today’s Supreme Court (2026)

In light of President Trump’s recent threats to withdraw the United States from the North Atlantic Treaty, Jack chats with Professor Curtis Bradley of the University of Chicago Law School about whether Trump has the authority to do so. They discuss the constitutional foundations of treaty termination and the validity of Congress’s 2023 statute that restricts withdrawal absent congressional or senatorial consent. They also examine whether a suit to challenge presidential withdrawal from the treaty could be brought in federal court.

Mentioned:

Curtis A. Bradley, Historical Gloss and Foreign Affairs: Constitutional Authority in Practice (2024)

Bob and Jack chat about the war with Iran and Congress’s response. They discuss Congress’s failed efforts to halt the conflict, an emerging proposal for a constrained authorization of force, and the Trump administration’s limited engagement with lawmakers. They examine the politics of the conflict, the role of funding and appropriations, the status of the War Powers Resolution, and contemporary legal debates over military operations without congressional authorization, including the scope of Office of Legal Counsel opinions and the broader shift toward a one-man-decides model of war powers.

Jack speaks with Cass Sunstein, the Robert Walmsley University Professor at Harvard Law School, about his new book, Separation of Powers: How to Preserve Liberty in Troubled Times. They discuss why the executive is the most dangerous branch of government, the importance of responsible executive branch lawyers, and contemporary debates over the administrative state, including unitary executive theory in light of the Trump v. Slaughter oral argument and the major questions doctrine after the tariffs case, Learning Resources, Inc. v. Trump.

In light of the U.S. attacks on Iran over the weekend, Jack speaks with Elizabeth Sherwood-Randall, former White House Homeland Security Advisor, about how the U.S. government would normally prepare for domestic threats during periods of heightened risk. They discuss how the federal homeland security enterprise activates in response to elevated threat levels, including coordination across the Department of Homeland Security, the FBI, the intelligence community, and state and local law enforcement. They also explore concerns about federal capacity, including a DHS funding lapse, resource diversion away from counterterrorism and toward immigration enforcement, and leadership turnover across...

Jack speaks with Matthew Seligman, a fellow at the Stanford Constitutional Law Center, about the remedial consequences of the Supreme Court’s decision invalidating tariffs imposed under the International Emergency Economic Powers Act. They walk through how tariff collection works, why repayment is not automatic, and the procedural hurdles importers face in trying to recover what they paid, including major barriers to class-wide or aggregate relief. They also examine the practical and political constraints shaping the process, including institutional capacity, litigation costs, and why many smaller importers may never recover their losses.

Bob and Jack chat about a federal court’s preliminary injunction blocking the Defense Department’s attempt to reduce Senator Mark Kelly’s military retirement benefits, along with a grand jury’s refusal to indict six Democratic members of Congress, including Kelly, who in a video reminded service members of their duty to refuse unlawful orders. They discuss how Trump administration weaponization can be effective even with court losses, and debate possible reforms to limit politically motivated prosecutions of members of Congress, including Bob’s proposal for a court-appointed special counsel and an alternative that focuses on revising the substance...

Jack speaks with Richard Ekins, professor of law and constitutional government at Oxford University, about the United Kingdom’s plan to transfer sovereignty over the Chagos Islands to Mauritius while leasing back the Diego Garcia naval base for continued U.S.–U.K. military use—an issue that has drawn renewed attention in recent weeks after President Trump publicly criticized the proposed agreement. They discuss the historical background of the Chagos Islands dispute, the role of international courts, treaty obligations between the United States and the United Kingdom, and the strategic importance of Diego Garcia. They also examine the legal...

Bob and Jack talk about grievances from President Trump’s first term that continue to shape his second-term conduct. They examine the federal search warrant recently executed at a Fulton County election facility seeking 2020 ballots, including the structure and purpose of the investigation and the president’s asserted authority to use federal law enforcement in election matters. They also discuss Trump’s $10 billion lawsuit against the IRS and the Treasury Department over the disclosure of his tax information, unpacking the basis of the claims and the institutional questions raised by a sitting president suing the executive branch he oversees.

M...

Jack speaks with University of Virginia School of Law Professor Saikrishna Prakash about his new book, The Presidential Pardon: The Short Clause with a Long, Troubled History. They discuss the origins of the pardon power, the framers’ anxieties about its breadth, controversies about its early use, how modern presidents have increasingly used clemency to advance ideological, political, and personal goals, and the challenges of reform.

Mentioned:

Saikrishna Bangalore Prakash, The Presidential Pardon: The Short Clause with a Long, Troubled History (2026)

“Trump’s Circumvention of the Justice Department Clemency Process” by Jack Goldsmith and Matt Glu...

Jack and Bob examine President Trump’s threat to invoke the Insurrection Act in response to ICE-related unrest in Minneapolis. They discuss the Act’s broad language, the uncertain scope of presidential discretion, the many unresolved constitutional questions that the Supreme Court might consider, and the political and legal risks of deploying troops domestically—particularly against the backdrop of upcoming elections.

Further reading:

“Trump Threatens to Invoke the Insurrection Act” by Bob Bauer and Jack Goldsmith (Executive Functions, Jan. 15, 2026)

“Thoughts on the Interim Order in Trump v. Illinois” by Jack Goldsmith (Executive Functions, Dec. 24, 2025...

Jack and Bob discuss the subpoena targeting Federal Reserve Chair Jerome Powell, the legal limits on presidential control of the Fed, Senate resistance, and the potential consequences for markets and the administration heading into the midterms.

Bob and Jack discuss the legality of the U.S. invasion of Venezuela leading to the capture President Nicolás Maduro, how law matters to presidential uses of force, and what legal issues to expect at Maduro’s trial.

Mentioned:

“On the Legality of the Venezuela Invasion” by Jack Goldsmith (Executive Functions, Jan. 3, 2026)

Curtis A. Bradley, Historical Gloss and Foreign Affairs: Constitutional Authority in Practice (2024)

Jack spoke with Chris Mirasola of the University of Houston Law Center about the President’s “protective power” to use the regular armed forces or the National Guard (if properly federalized) in the domestic sphere for the protection of federal property and functions. They discussed the origins and scope of the protective power, its relationship to the Posse Comitatus Act, why it was relevant in Trump v. Illinois, and the president’s prominent options for domestic deployment of the military (including using regular armed forces for a protective function) after Trump v. Illinois.

Further reading:

Chris Mi...

Bob and Jack discuss the latest developments across three ongoing issues in Trump’s second term: use of the pardon power, unresolved transparency disputes, and the administration’s campaign against major law firms. They examine the political dynamics at play behind a recent series of pardons, promised disclosures related to the Epstein files and the Sept. 2 boat strikes, and how executive orders targeting major law firms, though repeatedly struck down, continue to create uncertainty and pressure within the legal profession.

Jack talks with University of Minnesota Law School professor Alan Z. Rozenshtein about how artificial intelligence could reshape the modern presidency by easing bureaucratic limits that have traditionally constrained presidential control. Building on Rozenshtein’s lecture, The Unitary Artificial Executive, they discuss how automated decision systems might function as a presidential “oracle” across the administrative state. The conversation examines how, and to what extent, AI could centralize power throughout agencies, reduce the role of human deliberation, and alter traditional principal–agent relationships inside government.

Mentioned:

“The Unitary Artificial Executive” by Alan Z. Rozenshtein (Lawfare, Oct. 30, 2025)

Bob talks with historian Walter Stahr about William Howard Taft’s model of the presidency. The conversation covers Taft’s remarkably varied career across the executive and judicial branches, his differences with Theodore Roosevelt over the scope of executive power, his stance on war powers, and the significance of his post-presidential writing on executive authority and responsibility.

Mentioned:

Walter Stahr, Stanton: Lincoln’s War Secretary (2017)

William Howard Taft, Our Chief Magistrate and Its Powers (1916)

Theodore Roosevelt, An Autobiography (1913)