Show Notes
Bob and Jack discuss the performance of White House Counsel David Warrington and examine last week’s lethal strike on alleged Venezuelan terrorists—including its possible implications for domestic presidential military strikes. Consider becoming a free or paid subscriber to Executive Functions.
This is an edited transcript of an episode of “Executive Functions Chat.” You can listen to the full conversation by following or subscribing to the show on Substack, Apple, Spotify, or wherever you get your podcasts. Jack Goldsmith: Good morning, Bob. Bob Bauer: Good morning, Jack. There’s been so much in the news since we last chatted, which was quite a while ago, actually. Today, we’re going to focus on some topics that we know a little bit about. We’re going to discuss two stories from last week about Trump administration lawyering: the long New York Times profile on your successor in the White House Counsel’s Office, David Warrington, and the administration’s lethal strike on a speedboat in the southern Caribbean that allegedly contained members of the designated Venezuela terrorist organization Tren de Aragua, allegedly transporting drugs to the United States. These connect insofar as they involve executive-branch legal decision-making. Why don’t you begin by summarizing and commenting on the New York Times story about Warrington? A number of things struck me about the story about Warrington. Of course, it was published against the background of a lot of debate about the role of the White House counsel—the extent to which the White House counsel has supplanted the Department of Justice (DOJ) as the principal channel for legal advice to the president. What that means if presidents pick White House counsels who are particularly friendly to them, have personal or political backgrounds with them, and can be expected to be, if you will, loyal and pliant. Some of that debate has been, in this administration, overtaken by events, because once there was a thought that presidents would nominate somebody relatively uncontroversial—down the middle, if you will—as attorney general, and then have a White House counsel who is much more in that world of friendliness and political background. Now, of course, this particular president has chosen from his own personal legal team the senior officials in the DOJ. So that particular concern about the White House counsel may have been overtaken by events. But it’s still a very powerful legal office right there in the West Wing, one floor above the Oval Office, and probably the last word on any critical legal question that the president has to address. What I found striking, in that article, was that David Warrington gave the interview to the New York Times, understanding perfectly well that that’s a locus of criticism of the president’s legal stances. He said two things that were somewhat in tension. One was that he didn’t feel he should be giving his personal views: He gave the advice he gave, and unless asked, he didn’t say more. But later on, he said he gave the advice that he gave and there was some inclination or some suggestion that he spoke his mind… it wasn’t entirely clear. I have to say, in an administration like this, I’m skeptical about a White House counsel who says, “I’ll keep my thoughts to myself; I’ll just give him my reading of the law. And if I have any concerns about the direction we’re going, I’m just not going to express them.” I have real concerns about that, in any presidency, but particularly in this one. Second, he said his role was to advise with a view toward finding “defensible” positions for the administration to take—e.g., strategies courts have criticized for deporting and trying to avoid court jurisdiction. He was looking for defensible positions and to reduce risk. That raises two questions: What is a defensible position? What’s the standard for determining what a defensible position is? And secondly, what does it mean to reduce risk—what kind of risk are you talkin
More from Executive Functions Chat
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 most lawless conduct going unanswered. They also discuss Jack’s prediction that Trump will issue thousands of pardons, his case for prioritizing transparency, and why it is, and will continue to be, incredibly challenging for either side to de-escalate.
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 previously out of reach; and the necessity of educating young people on liberal values. Bauer and Fukuyama close by discussing changing one’s mind: the psychological barriers to it (particularly in an insular group setting), the liberation that expressing it can bring, and the interpersonal costs it involved in the case of Fukuyama’s departure from the neoconservative movement.
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 technologies, the necessity of balancing civilian risk against potential benefits, and the hubris that often accompanies large-scale innovation.
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 political ads, and why Persily, though not “an unrepentant doomer,” thinks the time to regulate AI may be running out rapidly.
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 count for a rigged one.