NYU Law School professor Bob Bauer has served as White House counsel under Barack Obama and as senior advisor to Joe Biden on his 2020 campaign. He has written extensively on a range of topics including the rule of law, election safeguards, national security, and the power of the presidency.

On the heels of Biden's inauguration, President Hamilton talks to him about how the US should move forward after a period of fracture perhaps unlike any seen since the Civil War.

Full Transcript

Announcer [00:00:00] This is West 8th Street, New York University. From New York University. You're listening to conversations hosted by President Andy Hamilton. In each episode, Andy talks insight, inquiry, and imagination with a leading mind from the NYU community.

President Andy Hamilton [00:00:33] Hello. Today we have as our guest Professor Bob Bauer from NYU's School of Law. Professor Bauer is the professor of practice and distinguished scholar in residence at the law school. He's also co-director of NYU's  Legislative and Regulatory Process Clinic, which is held in Washington, D.C. every academic year. For the purposes of today's conversation, however, it is Professor Bauer's vast experience, many years in Washington, D.C., at the heart of government. He served as the White House counsel under Barack Obama, and he was also the senior adviser to Joe Biden on his 2020 campaign. But of course, it's the consequences of the last months, the election, the challenge to the election and, of course, the assault on the capital that is going to be the focus of our conversation today. Professor Bauer, is widely published. He's written for The New York Times, The Washington Post, The Atlantic and many other publications. And he has also published a number of books, most recently in 2020, a book entitled After Trump Reconstructing the Presidency, and that was coauthored with Jack Goldsmith. Welcome, Bob Bauer.

Bob Bauer [00:02:06] Yes, thank you.

President Andy Hamilton [00:02:08] I would like to begin with a question that I know is in the minds of many people, which, of course, we've seen in these last few days, literally the democracy that we all depend upon, we rely upon.  We've seen it under threat. We've seen a challenge. We've seen it bend, but in fact, it has not broken. And so there is much to think about and to discuss about what dimensions of our democracy have bent but not broken. And in these last weeks, Bob, what do you see as the the parts of our democracy, our institutions that have proved the strongest, but also which ones do you think really need strengthening, needs shoring up, given the experiences of these last week's.

Bob Bauer [00:03:07] Certainly we have seen some very strong performance within institutions, I tend to think of this, however, as spot performance, because I think many of our governing institutions in a very polarized politics in the United States are coming under enormous pressure. And so we can be grateful of that. At the end of Congress, vice president, the United States leaders in a number of the states, secretaries of states, governors, state legislative leaders, all stood behind the democratic process and defended it against an unprecedented assault. But I think we also recognize how hard a road it was, much harder than anybody would have imagined. And so for that reason, I think there's much over the last four years through this most recent experience in January, much to talk about in the way of what is needed to shore up institutions. And when we speak about shoring up institutions in the interests of a robust democracy, we also need to think about what obviously I've written about it have been very concerned with, and that is reconstructing the presidency, looking at the weaknesses that the Donald Trump presidency has exposed and the norms and legal constraints that we used to think would govern the conduct of executives. And we now know there are genuine problems here that need to be addressed and hopefully will not be lost, lost in the admittedly other heavy items on the national agenda that lie ahead.

President Andy Hamilton [00:04:33] Let let's move to that issue that the presidency itself. And you recently were quoted in the New York Times article on January the 11th, 2020, one that you said, we have to reconstruct some norms that have been damaged. But the idea is to strike a balance so that reform is effective without undermining a strong presidency. So what do you see us as needing to change? What types of guardrails do you see as appropriate to put in place to to give constraint, yes, but as you say, to not limit a strong presidency, if that is what the wishes of the American population is.

Bob Bauer [00:05:20] Yes, that is the challenge. The challenge is to curb the overreach in the presidency, some of the dangerous excesses that we've seen in recent years. And I want to come back to sort of how they've come to develop up to the point that Donald Trump became president, but to do so in a way that did not enfeeble the presidency and that does not remove the executive from the critical role that he or she has in providing energetic, nimble executive action. We're going to need that. We've always needed it. And that's how the presidency has developed and the direction that it has. But, of course, over time we have seen that presidencies have developed that go far, far beyond what the founders envisioned or what we would consider to be safe in a system of checks and balances. We've had other traumas in the past, constitutional traumas like Watergate under the presidency of Richard Nixon and now, most recently, the crisis generated by Donald Trump's conduct to the presidency. And we can fix those problems without undermining the strong executive. So, for example, and I just give a couple of examples, we can restore integrity to independent law enforcement. On the one hand, of course, the Department of Justice is a cabinet agency that does respond to the president and the attorney general appointed by the president, confirmed by the Senate, answers to the president on policy, as other cabinet officials do. But we also understand the danger of politicized law enforcement in this country. And we have recently had yet another example of what it means if a president doesn't respect those boundaries, the dangers that it presents for our Republican form of government. So we can do that through a combination of legislative action and through shoring up the norms, through internal regulation in the Department of Justice. But that's one of among a number of objectives we can look to vacancy reform so that presidents don't circumvent the Senate confirmation process. Pardon reform so the president does not politicize and abuse beyond constitutional limits. The pardon power. I mean, there's a whole host that Jack Goldsmith and I review in our book. It's a huge task. It won't take place in two years. But we think the work needs to begin.

President Andy Hamilton [00:07:41] When one of the dimensions of American elections that has become very visible and its vulnerability very visible, particularly to this this NYU president who came from a country where at three o'clock in the morning after an election, the moving vans pull up outside 10 Downing Street and the transition of power is incredibly rapid. Now, of course, there's a permanent civil service in the U.K. It's a rather different situation here. But isn't it the case that that the two and a half month transition period after the election and before Inauguration Day has has really shown its vulnerability? It was it was necessary when it took a month to travel by horse and buggy from Illinois to Washington, D.C. In those days, it took nine months to send a fleet across the world and start an international incident. All of those things can happen in a heartbeat in the in the modern day. Do you see some potential for a concentering and a shrinking of that two and a half month period where there is clearly, as we have seen, the potential for some mischief if if that's what a defeated president is?

Bob Bauer [00:09:05] We certainly need to look at reform of the transition process. And if that period of time is in shrunken has been shrunk once before, then we need reform of the statutory framework for transition and ways of shoring up norms. This is a classic example of an arrangement, transitions of power in the United States at the level of the presidency that have relied on a combination of legislative funding and guidance through the Transition Act, but also norms, presidents who are prepared to concede defeat and recognize that they lost at the polls and then to cooperate, collaborate actively with the incoming regime. And we have seen that there are weaknesses in the law and there is a potential complete collapse of the norms that normally would govern the conduct of the outgoing incumbent president not winning a second term. An example, of course, is it took several weeks for the General Services Administration, head to do what the statute calls for and to initiate the transition process by finding that Joe Biden and Kamala Harris were the apparent winners, apparent only the apparent winners of the presidential election. And she balked, presumably under tremendous pressure from within the administration. So she declines to say and has denied that it was applied directly, but the president at that time was issuing various directives to agencies not to cooperate in the transition. So we clearly need to find a way that through amendment of that authority, the authority to actually initiate the transition through the determination of the apparent winner. And in other ways, to protect the country from a disruptive transition its very dangerous to have that. And you're right, we've seen that we simply can't we can't have that happen again.

President Andy Hamilton [00:10:51] Just to to extend that that issue of checks and balances and particularly on the anticipated norms of behavior. Let's let's even go beyond the presidency and think about the way in which some of the dissolution of those norms has occurred. And I'd like to ask you what ideas, what legislative options do we have for protecting some of those norms? And let me give an example. The Supreme Court justice nominations and they the very different handling of the Merrick Garland and the Amy Coney Barrett nominations obviously represented a a surprising change to the norm of  Senate behavior. And I just would be interested, what, since that is politics in the raw, politics, that certainly did not go in any way beyond the permissable and the legal, yet they it was a change in nomen expectation. And so how would you see the option of of providing some guardrails, as you said earlier, to to those kinds of expectations?

Bob Bauer [00:12:14] So it depends, in my view, whether you can achieve this strengthening of norms on the norm and question of the institution in which the norm is practiced. There is certainly going to be a very polarized politics. There's going to be huge pressure on norms like the ones that you cited, that govern Supreme Court nominations. And that is a very difficult road to travel back to a place that is, I think, better than the one we're in right now. But let's take, for example, the norms that govern the conduct of members of the officials within the Department of Justice. There are ways to invigorate the norms within the department through internal regulation to depoliticize and to create standards that are binding on DOJ employees to act without regard to partizan political preferences or objectives and carrying out their independent law enforcement duties. And that isn't to say that it won't be resisted and under some regimes devalued. But in every way that you can through legislation and through internal regulation, it is important to lay down a marker so that there is something that those who want to do the right thing can repair to. It's something that can be taught to the people who come behind them. And the constant reaffirmation of these norms, the refreshed restatement of these norms plays an extremely important part, both through legislation and internal rules.

President Andy Hamilton [00:13:38] And as you then extend and your 2013 report on elections, on election administration, obviously with the principal goal of making elections more fair, more secure, what would you see as the primary recommendations that you would like to see enacted from that report? But also obviously with politics in the role, which is clearly something we are all seeing in this divided nation, that what would you see as the principal obstacles to enacting those recommendations for greater fairness, greater security in our election process?

Bob Bauer [00:14:23] Yes. Well, once again, polarization is the challenge, which is that each party sees in the elections just more, if you will, material to be molded to their preferences. They want to see the playing field shifted in their direction. I won't get into the way in which they justify it because I don't want to get into the respective, the respectability of the competing positions on that issue. I have my own views as a Democrat who wins that argument. But having said that, the commission that I co-chaired with Ben Ginsberg, who was Romney's former campaign counsel from 2012, did find on a bipartisan basis that there are pathways that we can travel in this very, very fraught area toward a reformed election administrative system that can command broad public support. And in particular, there are some principles on which I do think we can agree, one of which is that election administration ought to be a professionalized public administrative task. It's not to be turned over to partizans. It requires very complex administrative skills to update technologies, to update systems, to understand and to manage the enormous flow of voters and the different options that voters currently have to participate in the electoral process from early voting through mail voting, no excuse, absentee voting to Election Day voting to voting on Election Day provisionally and then carrying those ballots or bringing them to life after Election Day. And so this is a complex task and it needs to be entrusted to people who are viewed as professionals. And that was something on which we reached bipartisan agreement once we agreed on that, that that is the standard professionalized and not partizan administration, there are places that you can go where you do not have huge partizan fights that will enable you to modernize and improve our electoral administrative process. And if I could just stay mounted on this soapbox for a second longer, I have a very, very strong view, and I think it's shared by the members of the commission, former members of the commission, and by my former a good co-chair, Ben Ginsberg, that we don't in this country provide the resources that you would expect in this great democracy to support the day to day work of preparing for and holding elections in this last election when the pandemic struck and had administrators back on their heels and you'll recall how badly some of the early primaries went, loss of polling places, absence of poll workers who resigned for health reasons and couldn't show up for work. There are a whole host of problems that plagued the March primaries and really put us in danger of a general election that might not have been sustainable, might not have been viable. A huge amount of the support to help administrators with resources and expertize came from the private sector wasn't provided by the government, not the federal government, not state and local governments, by the philanthropists and nonprofit organizations committed to voting rights. And that's admirable. And they stepped up in those circumstances, very importantly and impressively. But the question is, where was the government and all this where is the expression of a national commitment to a functional electoral system?

President Andy Hamilton [00:17:44] Bob, I'd like to move beyond the election process and really now start talking about issues from your perspective as a scholar, but also as a Washington insider. And one of the purposes of these podcasts is to give our listeners a little bit of an insight into the kind of discussions that go on in your classes, your clinic, legislative and regulatory process clinic. And and so we have a new administration in Washington, D.C., a very, very young, but one with many issues on its plate. What would you see as the the early priorities and the necessary early priorities for the new Biden Harris administration in terms of regulatory reform? We've we've seen in these last days a blizzard of executive orders. But as we learned in the last months and years of of the Trump administration, executive orders are easy to sign, but they are also easy to overturn as well. So in terms of core legislative process, what would you see as the highest priority for the new administration?

Bob Bauer [00:19:05] The president has identified and I don't think anybody can disagree with this reasonably as a high priority, there may be disagreements about means, but I can't imagine there'd be a disagreement about the end. And that is taking decisive action now to address this public health emergency and the social and economic stresses that have resulted from it. And he has proposed to the Congress a very expansive legislative agenda that you would think on an issue like this could command bipartisan support. There will be negotiations over dollar amounts. I'm confident there'll be a squabble here and there. And I don't want to be sanguine about how quickly bipartisan agreement might be reached or how far bipartisan agreement will extend, but I think rightly so in this time of emergency. That's what the President Biden is focused on. I would also say one thing about executive orders. A number of these executive orders are decisions of executive orders that the Biden administration deems the president deemed to have been harmful and unnecessary or both harmful and unnecessary. And that is quite different than attempting, in the first instance, to govern substantively by executive order, certainly where it's appropriate, and he's described himself as a constitutionalist and an institutionalist, the president will exercise the authorities available to him. I'm quite confident of that. But he's also clearly at the outset said he would like to work closely with the Congress. He's done it before. He was a member of that body for many decades toward the achievement of a bipartisan legislative program in these areas of urgent public need.

President Andy Hamilton [00:20:43] Yeah, obviously, when I ask the question, I was of course, the immediate Covid response will be his number one priority. But beyond that, he has a number of obviously huge areas, health care reform, climate change issues within the education system across the country. Do you see all of them moving forward as we had in the early years of the Obama administration, all cylinders at all times, or do you see priorities being set among them?

Bob Bauer [00:21:17] Well, as a practical matter, within the legislative process, just because of the way legislation has developed and moved, I mean, there's going to be some sequencing and those sequencing will reflect priorities for sure. But I think that his goal, the President Biden's stated goal is to move energetically on all fronts, and particularly given that some of what you cite, say climate change, is itself an emergency. It may be an emergency that sadly too many people have come to live with. They've decided that it's emergency we can sustain living with for the long term. He doesn't believe that. The science doesn't tell us that that's plausible or prudent. And so I think at the earliest possible opportunity, you know, this administration plans to continue to push the public's business forward in the areas where action is most urgently needed.

President Andy Hamilton [00:22:07] I'd love to to explore a little bit one of the things I'm sure as a focus in your classes at the law school. And that's, of course, the education of the next generation of leaders and of decision makers and in particular, the process of decision making when faced with complex issues, complex regulatory processes. And let me, if I may, ask a personal question about your own decision making, as you've worked as you've worked closely with several recent presidents, you are certainly President elect Biden. President Obama and I didn't mention in your CV, you also work closely with President Clinton as well and your own route to decision making. How do you tackle a complex decision? And as a council, who do you turn to for council as you as you have a difficult and not always an easy decision to make.

Bob Bauer [00:23:17] So just very quickly, one point of clarification. I did not work in the Clinton administration, but I was counsel to the Senate during the impeachment trial. So I just want to clarify that. But second, it's an excellent question. I think about this a lot as I reflect back on my years in the White House counsel. I was blessed when I was in the White House with both a senior management team, not to mention a president who understood the role of lawyers and had an office that was stock from top to bottom with excellent lawyers working for me as deputies and as associate White House counsel. And so I was on both ends very, very fortunate. I could write a memorandum, the office could produce a memorandum for President Obama on a constitutional issue, and we didn't have to worry that we have to explain what we meant by a standard of review and what a different type of standard review would be, I mean, he could immediately pick up on the issues that we were addressing. And we also had and this is also a credit, I think, to his leadership in the building, a senior staff that did understand the role of lawyers and turn to them appropriately as necessary for them to do the job that they needed to do. I have always thought when you run an organization—the White House counsel's office isn't enormous, but it was if you add the full time employees to the detailees from other agencies, you're talking about a small law firm, somewhere around 30 lawyers. And in some administrations, particularly during intense periods of congressional oversight, an investigation has been considerably larger than that—that to lead an organization, first of all, you have to have a clear understanding of mission and destination and you have to be able to communicate that, number one. Number two, I think you have to listen as opposed to expect people to listen to you all the time. You have to listen. And thirdly, you have to empower and credit. In my view, you have to be in a position of telling people, I want to help you not only do your job, but I want to help you progress to a point where you are taking on even greater responsibilities. And I will be sure that people will know those are your responsibilities. And whatever credit accrues to you for what you've done will be your credit, not mine. And I think those three to me are not the only requirements of strong leadership, but they are three that I think are really important. And I have never seen an organization... Of course, you're the president, very large one so you can speak more authoritatively to this issue than I can. But I've never seen a really strong organization operate on any other basis. So what I would say about the next generation of students is this, which I'm going to situate, particularly in the context of our conversation about government and politics, and that is respect for process and respect for institutions. We all have goals. Some of them are morally urgent goals. Some of them are politically urgent goals. Some are both. And an organization that is dedicated, for example, to particular results in politics and government is going to be zealous about pursuing those goals. But respect for process, respect for institution associated with which is arespect for law, some of which may delay the achievement of an objective or reshape the means by which you achieve the objective are just essentially important. And I recall my deputy chief deputy, Kathy Ruemmler, who later was my successor and for three years was Barack Obama's White House counsel, would tell young lawyers all the time, some of them listening to her disbelief process is your friend and institutions are important. And I think those those are points of particular importance to me in counseling younger lawyers in particular, who are interested in government and politics.

President Andy Hamilton [00:27:11] Both apply to a country, they also apply to a university as well. Due process really does matter. I often talk about the moments in university leadership where you encounter two very distinguished members of staff and they will be 180 degrees diametrically opposed on a particular issue. And both of them are right. And that then becomes the challenge. And one has to listen. One has to allow due process, just as you describe. Coming back to to to that next generation of leaders and you describe the way in which you advised President Obama. You describe the way in which you anticipate President Biden working in the White House and coming to to both legislative change and decision making. But, of course, one of the challenges that President Biden now has is a very, very divided country. And even the use of evidence, of logic, of scientific understanding are challenged in different parts of this divided country. And so, again, thinking about advice to the next generation of of leaders, hopefully coming out of your clinic in D.C. or NYU clinic in D.C., what would you say to them about that, that dimension of how they navigate this very divided country, how they, as effectively as possible, bring people together around often contentious decisions that nonetheless have to be made?

Bob Bauer [00:28:59] It's a question it's at the forefront of some of the very first I say rules of the road that we counsel our students on at the clinic, and that is we tell them that every point of view can be advanced. It may have to be confronted very aggressively, discussed very intensively. But we do need to engage people who do not think the way that we do. And we need to try to do our best both to sure the way we think and to understand the way they think. Now, that doesn't always lead to a happy ending. There's no point in denying that you may wind up as much at loggerheads at the end as you were at the beginning. But having said that, there is no possible way to work out of complex problems unless you at least begin to open up the door to a candid dialogue among people on issues that may have major moral valence on issues that people feel very differently about, they disagree about very strongly. And so I will tell you, NYU, we've had people coming into that program who are predominantly Democratic and, as we say, progressive in their views. But we've also had students in the class who are more to the center or even more to the right of center than that. And we want to make sure that they're heard and we want to make sure that they engage and we want the engagement to be equal on both sides. Without that, there's really absolutely no hope. Now, granted, I want to say this so that nobody accuses me of being astonishingly naive. You know, there are some people with whom you propose to engage who don't want to engage with you and who just are going to resist, as you say, fact. And they don't want to hear sort of the logical steps in an argument because it leads them to an uncomfortable place. So you tried and you have to continue to try. But I do think that there is the basis for that dialogue. I have found even, and I'm trying to see how to describe it, I wouldn't call it the modern Republican Party or the Trump Republican Party, I'm not quite sure what to say about it. But over the years that I've been in politics and as a Democrat, I have found that there is a basis for discussion on at least some issues that you can actually, if you work hard enough, brush back some of the references to some of the differences that are maybe even inflamed beyond recognition by rhetoric and find some basis for a conversation. President Biden has said repeatedly he believe sand it is something I very much admire in him.

President Andy Hamilton [00:31:31] As a last question, Bob, just to take that very point that that you've made. Let's let's take a step even further back. And so we've been talking about your students, your NYU students in your class and clinic. What about those contemplating your class, those contemplating a life in politics, a life in public service, public administration. Are you concerned? Should we all be concerned that one of the consequences of the anger of the divisiveness of the last months and years is that it will discourage people that you mentioned hard work in and bringing people together and getting things moving forward. You know, we certainly saw some some appalling examples of threats and and and angry rhetoric thrown at legislators and even even interns, junior staff in in the Capitol building. What do you say to the 17 year old or the 23 year old contemplating law school, contemplating a life in public service to encourage them to not be discouraged by what they see and the opportunities that actually all the.

Bob Bauer [00:32:58] I would say to this generation of students, and I do say to this generation of students, the problems are so large that there really is a call to action here that they should heed if we don't have the younger generation engaged in what are really survival issues for the democracy, for the country, for the globe, then we really have no hope and we really need to enlist their energies. And yes, it is true. Government service, politics involves both elation and victory, but also desperation and defeat. There's no doubt about that, particularly when the stakes are very high. That's certainly true and it isn't fabulously remunerative. But having said all of that, it is so vitally important. And I would probably say also that there is an enormous opportunity here for creativity and problem solving that I think if successfully engaged in would be very satisfying, satisfying beyond anything they could imagine they would ever do in the private sector and effective for the better of the lives of many, many people.

President Andy Hamilton [00:34:06] That's a wonderfully inspirational point to end this conversation. Professor Bob Bauer of NYU School of Law, thank you very much. This has been fascinating.