Executive Functions Chat

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 Trump delivers remarks at the White House AI Summit in Washington, D.C., Wednesday, July 23, 2025. (Official White House Photo by Joyce N. Boghosian)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: Today I’m chatting with Sebastian Mallaby, who’s a senior fellow at the Council on Foreign Relations and an acclaimed biographer and writer. And we’re going to be talking about his newest book, which is called The Infinity Machine. Sebastian, thanks for talking with me.Sebastian Mallaby: Thank you, Jack. Nice to be with you. So tell us what the book is about. Who is Demis Hassabis, and why did you write a book about him?So the book is about artificial intelligence, and it’s centered on this character, Demis Hassabis, who is, in a way, the OG sort of AI lab leader, right? He starts DeepMind, this startup in London, back in 2010, before AI could even recognize the photograph of a cat—like nothing worked. It was full AI winter.So this is five years before Sam Altman and Elon Musk start OpenAI. It’s fully 11 years before Anthropic gets started. So he was extremely early.So if you wanted to tell the story of the making of modern AI through a personality, you know, Demis’s career and intellectual development maps perfectly onto that story.So the thing that’s most interesting to me about him is that, as you emphasize in the book, his real interest in this, I think it’s fair to say, is scientific and not profit-making. And he, at least at the outset, and I think even today, has a rather idealistic—to me anyway, idealistic or optimistic—conception of the technology and how it can be used.But the story I also see is someone who—and I don’t mean this uncharitably—but who has basically engaged in a series of compromises or fudges with regard to those values as he’s gotten deeper and deeper into the AI competition.So is that fair? And can you talk about that arc?Yes. I mean, he started DeepMind in 2010 with an absolute focus on AI safety. In fact, he met his scientific co-founder, Shane Legg, at a safety lecture in which Shane projected that by 2030 or so, AIs would be sophisticated enough—cleverer than humans—have their own sort of objective functions, and would maybe start to threaten humans.And this was the lecture over which they bonded. And then in 2014, Demis Hassabis sells his company DeepMind to Google. And part of the sale condition was that AI would not be used for military purposes, that it would be safeguarded by a sort of ethics oversight committee that would be separate from the corporate leadership of Google.So he took it very seriously. And then this continues for a while. Between 2016 and 2019, he wages a secret battle, a thing called Project Mario, where he’s trying to put pressure on Google’s leadership to have this independent safety oversight board, because Google kind of reneged on the deal at the point of sale in 2014.And then after 2019, it kind of fades away. And, you know, by now you have Google being willing to provide AI to the national security establishment. In the US, there is no safety and ethics oversight board.And Demis is left explaining to me, well, you know, I feel as if, you know, if I lean into Google and I’m part of the team there, and I, you know, understand the different pressures that a corporation is under, then I have a seat at the table. And so when push comes to shove, I can chime in in favor of safety. And so I’m a good person—trust me—is kind of the bottom line, which is a sort of flimsy scaffolding of reassurance for an alarmed world.Especially since—I mean, this was also a time—a lot of this is happening at a time before ChatGPT amazes the world a few years ago with whatever model it was, I can’t remember. And suddenly there’s this massive competition among several frontier models that has been extremely fierce.And now we’re in a massive competition among those labs and with Chinese firms, and the countries are in fierce competition. And he’s now leading—you talk in the book about how they combined, how Google combined its AI efforts—and he’s leading it.So he’s really leading, in some sense, this fiercely competitive charge, which isn’t taking—doesn’t appear to be taking—safety all that seriously. Is that fair?Yeah, it’s fair. And, you know, I think there’s a slight caveat in that his style is to pursue safety ideas secretly. I mean, he doesn’t talk about them.And Dario Amodei, the leader of Anthropic, is extremely public when he picks a fight with the Pentagon, when he releases this new model called Mythos, where he’s publicly said, you know, this is too dangerous to release generally, so I’m going to release it to a sort of restricted list of people. He likes to be very out there in public with it.Demis Hassabis, on the other hand, did two important things, to my knowledge, about safety. One was this secret battle I described before, which he was so unkeen to have sort of move into the public sphere that when I discovered it through leaks from other people, you know, I had to talk to his general counsel, who was trying to tell me I wasn’t allowed to publish that. So he really didn’t want that to be public.And then secondly, he told Rishi Sunak in 2023, after ChatGPT came out, “Mr. Prime Minister, you know, I have an idea for you, which is you could have an international discussion on AI safety—invite the Chinese, invite everybody—start a process that might lead to some kind of understanding internationally on AI safety.”Demis never told me that he told the Prime Minister that. I only know this because other people, like the Prime Minister’s advisers, told me. So he didn’t advertise what he was doing.So I think he’s trying to do things now, but they’re not in the public view. So that’s a slight caveat. But basically, you’re right. I mean, he’s leading one of the major labs, Google DeepMind, in frontier AI, racing as fast as he can, even releasing, by the way, open-weight models, which by his own analysis are dangerous because you can’t control them once they’re out there.And so there is this contradiction—you could call it even hypocrisy—between his stated beliefs about AI safety and what he’s actually doing. And so then the question is, well, how harshly does one judge him? And I’ve just floated the word hypocrisy.But on the other hand, were he to quit his job and go off and become a professor somewhere and pursue research, which I think is the alternative path for him, it wouldn’t make the world safer, right? There’d still be this race dynamic.To be clear, I wasn’t judging him. And he seems—I’m trying to understand—he seems like a thoroughly decent, honorable, brilliant guy. I’m just trying to understand the mindset of someone who, from a very young age, had these extraordinary scientific ambitions, which he’s been as important as anyone in making possible.And—but safety and this kind of benign vision has always been part of it, and it just seems to have been overtaken by reality—mostly competitive, financial, and global competition reality. And I’m just wondering how he processes that. That’s what I’m getting at.Absolutely. I mean, I was exactly trying to do the same thing—to kind of figure out how you process it and sort of portray that. And, you know, at the end of the book, he tells me, you know, I’m in a paradoxical situation.On the one hand, Shane Legg and I projected back in 2009, 2010 that by around 2030, AI would be very powerful. And that’s kind of what’s going to happen. And we’ve been central to building it. So, you know, I’ve delivered on this vision in an amazingly gratifying way.On the other hand, I had this hope that I could control the technology somehow and make it safe, and that hasn’t worked.And, you know, when you want to ask, you know, why did it turn out so contrary to his expectations? You know, it’s the Oppenheimer syndrome. Oppenheimer led the Manhattan Project, built the amazing technology, and was an incredible scientific leader as well as a scientist, and thought he could sort of go and sell Truman not to use the bomb or to give the technology to the UN or whatever.Truman just kicks him out of his office and says, “Don’t bring that guy in here again.” So scientists think that they can control their inventions, but often the inventions have their own will.Okay, you’ve written a lot of interesting essays closer to the topics of this Substack in connection with the publication of the book. And I just want to talk about some of these policy and governance themes that are implicated—that are talked about in the book—but that you’ve talked about, I think, more in connection with the publication of the book.First of all—and you’re, you know, the keenest of observers of these various relationships and where we are in these AI races—so I just want to get your temperature on, first, what is the state of the relations between the U.S. government and the frontier labs?I mean, we know about the DOD confrontation with Anthropic and then with Mythos, the government trying to apparently get its hands on that technology, or at least try to reach some kind of accommodation with Anthropic.How do you see—I want to go through different pieces of the relationships and the competitions at stake here—how do you see the relationship right now between the US government and the frontier labs?Well, I think it’s just worth saying at the beginning that, you know, the background—if one goes back to 2023, 2024, the two years after ChatGPT came out, it made all this feel urgent—the background was that there was a lot of collaboration.And if you talk to people, I think, you know, Ben Buchanan, who was at the National Security Council doing AI policy, is on the record about this. He says, you know, whenever I talked to the labs, there was no resistance to the idea of regulation. It was more the opposite—that they were telling me, “Hey, this is serious. This is powerful. This is scary. This is coming. You need to do something.”And so when he wanted to, you know, set up the AI Safety Institute, which happened in the Biden years or so on, there wasn’t much pushback, contrary to sort of what one might suspect. There wasn’t much pushback from the objects of the regulatory impetus.Now, the regulation at that point was extremely, you know, emergent. It wasn’t really biting very much. But still, it’s worth noting that the baseline here is collaboration.Then you move into 2025. President Trump is in office. He essentially doesn’t want to talk about regulation. He’s more keen on competition, acceleration—just make sure the U.S. has the most powerful AI. And so that kind of goes off the agenda.Now, in 2026, it comes back, both because of this fight over Anthropic’s models and how they are used by the national security establishment, and because of Mythos, the cybersecurity model.And I’d say that right now you have this sort of, you know, weird and sort of unstable contradiction of impetuses, where on the one hand, you know, the administration has deemed Anthropic to be a supply chain risk, which is an extraordinary name to attach to a U.S. company. I think it’s the first time that’s ever happened.And so it’s extremely antagonistic. And you had this Slack message that Dario Amodei, the head of Anthropic, wrote, and which got leaked. It was a Slack message to his own staff. And what he said was something like, you know, “The Trump administration wants dictator-level obeisance from me, and I’m not going to give it.” So that shows you the temperature of the relationship there.But on the other hand, they are talking together about Mythos, and, you know, Amodei went to the White House to speak to people about it a couple of weeks ago.So I think it’s a mixture of suspicion and sort of a distant relationship, but then at the same time, a need created by Mythos that—wow, you know, we have no choice but to talk to each other, and we’re going to have to do that.So two questions following up. One is, I could never really tell how serious—I think some more serious than others, maybe Anthropic—how serious the labs were when they said, “Please regulate us.” Sam Altman testified to that: “Please regulate me.”I don’t believe he really thought that. It’s clearly—but it’s a good thing to say when you’re developing this massively dangerous, consequential technology in the private sector. In case something goes wrong or, you know, it’s always nice to have said we asked to be regulated and you didn’t do it.I’m just wondering how serious that request is, especially given in the last presidential election, a lot of the big money behind—or at least in connection with—the AI labs, the kind of Silicon Valley big money, went all in for Trump. And, you know, David Sacks gets installed in the White House and implements this kind of libertarian policy, hands-off policy.So first question: how serious is that request to be regulated?Well, I think when we talk about Silicon Valley in broad-brush terms, we need to actually break that down a bit. And you’ve got someone like Marc Andreessen, whose commercial interests as a venture capitalist are that he wants to back, you know, upstart challenger AI labs. He’s not going to back, you know, the big hyperscalers because they don’t need his money, right?So he wants to back essentially startups that are probably going to use open-weight models. And so open-weight, by definition—you cannot be in favor of regulation and be in favor of open weight. You know, open weight is the least regulated type of AI distribution mechanism.And so, yes, when you’re talking about Marc Andreessen, he’s extremely pro-Trump and extremely deregulatory and laissez-faire. And so there’s no seriousness whatsoever in any comment to the fact that you need more safety if it’s coming out of his mouth. I think, to be fair, it’s not coming out of his mouth.True, correct.So then you move to other people who are saying that they want to be regulated. And I think in some cases, someone like Sam Altman probably is straightforwardly, you know, insincere.But I’d say that, you know, all of these characters who are running the frontier labs have said things at different times, and they’ve both wanted safety. And when Sam Altman created OpenAI in 2015, the rationale for creating it was safety and for the AI to be used for the public good. And who knows? I think he might even have meant it in 2015.But as time has gone on and the race dynamic has become so white-hot, any instinct he might have had to be sincere about wanting to be slowed down has been overwhelmed by his desire to win the race.But I think there’s both sides of that. Inside one human being, there could be two personalities. And I think, you know, there’s just a different balance in these different people.So, you know, probably Sam Altman is the most prone to going for acceleration rather than regulation kind of when a stress point comes. I’d say Dario Amodei is the most prone to be safe when a stress point comes. Demis is somewhere in between. Elon—I don’t think he’s really been tested.So last question in this vein—it just, how likely is it—let me put it this way—it seems inevitable, given the rapid changes in these technologies and the growing perceived dangers in the technology—Mythos being one example, but there are lots of examples.And given the stakes of these technologies in private hands in the United States, so given the dangers they’re spewing and the stakes vis-à-vis the competition with China and national security more generally, it seems inevitable to me that—set aside legality for a second—it seems inevitable to me that the United States gets its hands on this.And I don’t know what the mechanism looks like or what the institution looks like, but that the U.S. government cannot afford not to, in some sense, own this technology, both for its own purposes and for safety purposes. True or false?Broadly true. I mean, by “own,” you would include, I think, control. I mean, it could be a regulatory model.Yeah, let me be clear: I don’t mean technically own. I mean control. That’s a better word. So then I think true, yes. I think, in fact, we’ve just run that experiment in the last few weeks, because you had a deregulatory, pro-accelerationist administration in power. And all of a sudden, an actual case of an AI that threatens stability emerges in the form of Mythos.And it looks as if it could unravel all kinds of building blocks of the internet and cyberspace. Banks would have their bank accounts emptied, et cetera, et cetera. And they turn on a dime.And all of a sudden, the Treasury Secretary is saying to the Fed chairman, “We need to call the heads of the banks and tell them to take this seriously. And, you know, we need to get our hands on this.” He’s—you know, Scott Bessent, the Treasury Secretary, reportedly has floated the idea of, you know, sort of—I forget what the term is—but you’ll know—essentially requisitioning or having power over the technology.And Bessent just said, okay, this is so important in terms of statecraft that we’ve got to mention it, bring it up in the summit with Xi Jinping in the middle of May.So they’ve flipped. They’ve done a 180, exactly as you predict. So I think you’re correct.And—okay—and one reason they’re doing that is because of the larger China competition. So talk about the U.S.–China competition in AI, please. Where do you see it today? I know that’s a big question.Well, maybe—I mean, I think actually that it’s—maybe I want to push back on your premise. I think that the reason they flipped is less about China and more about domestic chaos, right? They don’t want the internet to be hacked and, you know, the banking system to crash. It’s not—that’s not necessarily about China. That’s about domestic security.Don’t you think it’s about both? I mean, if these technologies are—so fair enough, it’s about domestic security, but it’s also about China being able to defeat government systems, China threatening both to steal and to disrupt things in the cyber realm. I mean, I think technology has an advantage as a national security advantage.Yes, but I think—okay, we’re going to—I think this conversation is going to go in a direction where we need to clarify one thing right now, which is that there are two kinds of worry about powerful AI in terms like—the big worries, I would say.One is that—and essentially this is about bad guys getting it and doing bad stuff with it. And there’s two kinds of bad guy, right? There’s China. And in 2022, when the Biden team—before ChatGPT, by the way—saw this coming, they put the semiconductor export controls in place because they didn’t want China to have cutting-edge AI, because in their view, the bad guy to worry about was China.And there’s a whole second category of bad guys, which is sort of rogue states, terrorists, criminals, et cetera, et cetera. And I think it’s just very important to clarify that there are two kinds of threat.And I think it’s important to distinguish two ways of dealing with these threats, because in the Cold War analogy, the way to control the danger of nuclear war between the Soviet Union and the United States was mutual destruction and the balance of deterrence.The way to control nukes from being loose and falling into the hands of terrorists and rogue states was a totally different mechanism, which was the Non-Proliferation Treaty, which wasn’t perfect, but it worked kind of for a while.So, you know, that’s an important distinction because of, I think, where we’re going to go.And so, going back to Mythos—Mythos is in the category of both, right? It could be that the Chinese government gets it, but more immediately, it could be just the criminals get it.And the criminal threat or the terrorist threat is posed not merely by the prospect that China gets this technology and releases it on an open-weight basis, but also that Meta does, right? Or Mistral in France, or Cohere in Canada. There’s a bunch of other labs that could open-weight this stuff, or even just not open-weight—just release it on a proprietary basis, but much more expansively than Anthropic did.Or have it stolen.Yeah, right. And there was a hack of Anthropic’s Mythos.Okay, fair—perfectly fair distinction. I want to come back to it, but can we talk about—you wrote a piece in The New York Times about U.S. policy toward China, chip restrictions, and why you thought that was a bad idea. And then I wanted to get to the nonproliferation treaty idea that you just mentioned.So can you just tell us why you think that the Biden approach may not have been optimal?Sure. So at the time I supported it because I thought it had a chance of actually preventing China from getting cutting-edge AI. It turns out it didn’t stop China from getting cutting-edge AI.And the proponents of semiconductor export controls will say, well, it’s because the controls were not tight enough. But we’ve run this experiment since 2022, so it’s four years now. And we’ve done it under two different administrations.And in neither case, if you look at the chart of the performance gap between the top model in America and the top model in China, that gap—America’s lead—has shrunk. And it shrunk under Biden, and it shrunk under Trump.So I’m just skeptical of any regime in which we impose semiconductor export controls or some expanded version thereof that actually works in stopping China from getting powerful AI. They may be like two months behind us, six months behind us, something like that, but that’s not very long.But just before we go further, I always understood the goal not to stop them but to slow them. And even with workarounds, the United States maintains its edge.And are you saying that it would be better in maintaining that edge to get rid of the chip controls? That argument, I don’t understand.Fair. Okay, that’s very fair. So yes, I agree that the controls slow them down. My point is simply that it’s not very much—it’s six months. Does six months really make us feel a lot more secure?I’m open to—you know, this is a finely balanced argument, which is why I’m excited to have it with you. You could argue that a six-month lead is a lot, and that, you know, if you get Mythos six months before the Chinese do, that’s enough to harden your systems such that when they have it, they can’t use it to any devastating effect.And also enough to compromise all of their systems.Yeah, true.Sorry, keep going. So I guess my view—my view has been subject to revision—my view has been that a six-month lead over China isn’t enough to feel that’s a big geopolitical win, because, you know, I was thinking, I guess, more of, you know, the conventional integration of the AI into weapon systems, drone swarms, this kind of stuff.And whether you’re six months ahead of the adversary in that case, you know, they just pick a time to invade Taiwan when they do have—they have caught up.Now—and, you know, if you think about the Mythos example again—wouldn’t they wait until a moment of near parity? Because these things sort of—you know, you have a jump that the U.S. does, and then the Chinese are fast followers, and then they jump up so that the gap is reduced or minimized. And then they would have a strategic parity that they could use.So I just observe that it’s not a very big lead. And then you have to ask, what was the cost of the policy? Because if there was zero cost to imposing the semiconductor equipment ban, and there was a marginal gain, then you’d probably take it.But I contend that there is a cost, in the sense that if we go back to my distinction between two kinds of rogue—China is a rogue, but also terrorists and criminals are rogues—we need to keep our eye on that second category of risk.And that involves getting China involved, because if they produce open-weight models, which is what they do at the moment, then we know that terrorists will get it.So the deal is: We give you chips, and you shut down your open-weight models. And what does the form of cooperation look like? Because I’m not so sure that the third-party rogues aren’t going to get the bad stuff, even in the absence of open-weight models. That’s a large assumption.Yeah.And I’m skeptical—and I’ll get to this in a second—I’m skeptical that any agreement between the United States and China, about which I’m skeptical, can have powerful effects on third-party countries and private actors.So what does the cooperation between the United States and China look like? And what is the virtuous story about what the deal is and what cooperation looks like?I think the best analogy is the Cold War and nuclear nonproliferation. And so in that story, you have both the International Atomic Energy Agency, which kind of keeps track of nuclear material and tries to, you know, by accounting for it, prevent it from being used in secret nuclear weapons.And then you have later—in fact, 12 years later—the negotiation of the Non-Proliferation Treaty in 1968, which kind of makes compliance with the IAEA mandatory for countries that want to have access to civilian nuclear power.And I think that’s the sort of model where, in AI, you keep track of big clusters of compute, which can be used to train powerful AI models. And that’s one kind of safety provision, so that you know what’s being trained.And then secondly, you don’t have open-weight models, which, once they are released, anyone can do anything with them. And that’s just too dangerous. You wouldn’t do that with nuclear material. I don’t think you should do that with AI.And the deal is that, you know, countries which are going to want what they call sovereign AI—that’s already a bit of a catchword—if you’re France or you’re Germany or, you know, Kenya or whoever, yes, you want to be able to train your domestic AI models on, you know, the Swahili texts or whatever—the Swahili oral tradition—that, you know, you want to make it kind of culturally friendly to your own culture. And that’s all good.But in return for getting access to models, which you can then post-train in a way that, you know, fits your sovereign AI objectives, you agree to these safety standards: no open weight, you know, we’re going to know where you’re training it, we know what the cluster is, we keep an eye on that so that if you’re trying to make cyber weapons, we’re going to see it.And so I think it’s something like that.So, I’m going to state why I’m skeptical and give you the last word on this, and then I have a final question.So the nuclear Non-Proliferation Treaty—some people think—wasn’t a terribly wonderful success. Not every country joined it. The countries that didn’t join it developed nuclear weapons. It hasn’t prevented some countries from appearing to develop nuclear weapons.But it’s a relatively simple treaty. It basically says no development of nuclear weapons. I mean, it’s a little more complicated than that, but—and we have a sense of what nuclear weapons are. There’s a problem about pre-development and how do you control that—that’s always been a problem with the treaty.But let’s imagine that that treaty is a success, despite the adverse evidence. It just seems massively more complicated here because there are so many things you might regulate—chips, data, data centers, know-how, the models themselves.So you’re going to be regulating all of these things. It’s much, much more difficult to have a verification regime in this context. Dual use is prevalent everywhere. It’s very hard—it seems to me, correct me if I’m wrong—to hide bad uses, bad developments, new models, and the like.Verification regime in this context, which involves not just government-to-government, but deeply into the private sector of both countries, to private companies of both countries, and so on and so forth. Enforcement seems to me—not clear how that’s going to work.Let’s just imagine that it works bilaterally between China—that we somehow work this out where there’s this virtuous regime where we’re both doing safety and none of us—or none of them—are doing bad uses or acceptable bad uses within the competition.But I don’t understand, you talk about all the dangers from these third parties, both private and public actors, how this regime is going to handcuff them and all the verification and enforcement problems there, and then on top of that, there’s a massive need for speed. This stuff is getting very, very dangerous very quickly. And it’s inconceivable that such a treaty or such an international organization would happen in the foreseeable future. So that’s why I’m skeptical, in a nutshell.That’s quite a long list. You don’t have to go through the whole list, but is there a reason not to be skeptical?Well, I think the first reason not to be too skeptical is that it’s kind of massively defeatist in the face of a serious threat, right? You know, the Mythos vision, where you have random criminals who can steal everybody’s money from their bank accounts, is not a good one.And so I think trying to lean into the possibility of some sort of regulation that avoids that is important. And if you’re going to do that, it’s got to be international, because obviously you can commit those crimes from some offshore base on a Chinese model. And so if the Chinese have been excluded from any such deal, it’s pointless.So I think, you know, “don’t give up” is the first message.And then secondly, I think there are more kind of choke points on which the US, in particular, can get a grip. And if it had China with it, it could definitely get a grip.And the choke points essentially are the making of the chips and the operation of the chips in clusters. I mean, at the moment, overwhelmingly, the majority of compute clusters are in the United States, and the ones which are not in the United States are using U.S. chips and U.S. equipment—or the equipment of, you know—even in the case of ASML, the Dutch company that builds the lithography machines to engrave the chips—that’s a Dutch company, but they have operations in the United States. They are fully going to comply with U.S. coercion.So I think essentially the whole of the Western camp—and you and I have talked about this in the past in the context of other things, like the regulation of the internet—all of the Western AI, including—and I would include the Middle East and stuff like that—have touch points in America, which they care about, like the customers they want to serve, the way they’re going to raise money, the chips they’re going to use, other technology around the chips, the cooling material and all that.If you brought the full might of the United States down on them, they don’t have an independent ecosystem, and they couldn’t do anything.So I believe the U.S. has a lot of control. The only place it doesn’t control is China. That’s the only credible technological possibility of a totally separate ecosystem that rises up and, you know, provides an alternative source of AI compute power.So if you had two countries on board—China and the US—I believe that some form of nonproliferation is possible.Of course, I accept that in the past, nonproliferation for nuclear stuff was not perfect, and there would be people who didn’t sign and all that stuff—but better than nothing.Fair. Okay, that’s a fair answer. Let me ask you one last question. And I haven’t heard you speak about this, so I don’t know if you have views on this.At least in the United States, a lot of people are—we’ve been focused on—our earlier conversation was about the danger of these technologies being in private hands and the need, perhaps, since the federal government is the guarantor of the public interest and the supplier of public goods that we can’t rely on the private sector for, there’s a natural assumption that the government should perhaps, at least for dangerous uses—as for negative externalities and the like—have some access to and control over these technologies. That’s the basic argument.But there’s another worry, which is the worry of the government possessing these technologies and the bad things the government could do with these technologies. And there’s an endless list. You know, it supercharges surveillance. One can imagine perfect control.You know, we’re talking a lot in this country about the unitary executive. Well, you can imagine everyone being plugged into the presidential AI and taking immediate directions, and you can also imagine that taking nefarious uses.There’s a real worry about government having these things. And so that’s just another worry in this whole horrible calculus of trade-offs that one has to think about. And I wonder if you have any thoughts about that.Yeah, I mean, probably fewer thoughts than you do. But I would say that, first of all, I agree that AI is a centralizing technology. So the internet was a decentralizing technology in the sense that it became easier for less powerful actors with fewer resources to have as much information as the powerful ones.And so the state, which might have had a good monopoly on some forms of important data, suddenly those data were democratized, and lots of people in the private sector could get them. You know, satellite surveillance of what’s going on on the ground, you know, was—I mean, it’s maybe not just the internet—but you have companies like Planet, which provide excellent images of what’s going on on the ground. That’s a private company, a startup in Northern California, which makes its data available to lots of customers.And so you get the kind of democratization, privatization, diffusion of knowledge.But with AI, you need to have as much data as you can. And then when you train on all that data, you sort of have this ability to centrally control, centrally understand things. And if the AI is held closely and not distributed, that’s an extremely centralizing phenomenon.So, I mean, at the moment, you know, the way AI is being built is sort of in the hands of, you know, 10 or something companies. But they release it fairly openly, and so it’s pretty democratic.But were that to change in the future—as we’ve been discussing—in a more closed way, it’s maybe government basically controlling domestic producers to the point where they could demand that they get one of the most powerful models only for the government or something like that.Yes, that’s very centralizing and very disturbing in terms of civil liberties. And indeed, we’ve seen that argument come up explicitly in the fight between Anthropic and the Pentagon—not the Mythos one, the one before—where Dario Amodei made two objections. One was about autonomous lethal weapons. The other one was about the use of his AI for domestic mass surveillance.And his point specifically was, you know, the law has not caught up to deal with the prospect of this very powerful AI in the hands of the government. And until it catches up, I don’t want my system to be used for this, because democracy lags behind where the tech is.So I do think there’s a sort of whole set of concerns there, which you’re correct to raise. I’m not sure I’m pushing the argument beyond what you said in your question.No, that’s great. I say I share his concern. The law has not caught up to the possible uses. And I think we’re going to be learning that over the next months and years.Sebastian, thank you very much. It’s truly an extraordinary book. It’s not just about one person—it’s really a history of artificial intelligence and an exploration of all sorts of related issues. It’s a touching personal story, and it’s told accessibly and vividly and brilliantly, as usual. Thanks very much.Thank you, Jack. It’s been a great pleasure. Get full access to Executive Functions at www.execfunctions.org/subscribe

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. Get full access to Executive Functions at www.execfunctions.org/subscribe

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) Get full access to Executive Functions at www.execfunctions.org/subscribe

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) Get full access to Executive Functions at www.execfunctions.org/subscribe

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. Get full access to Executive Functions at www.execfunctions.org/subscribe

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. Get full access to Executive Functions at www.execfunctions.org/subscribe

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 key agencies.Thumbnail: FBI Joint Terrorism Task Force photo. (U.S. Government Work.) Get full access to Executive Functions at www.execfunctions.org/subscribe

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. Get full access to Executive Functions at www.execfunctions.org/subscribe

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 of criminal statutes.Mentioned:“The Bad News in the D.C. Grand Jury’s Refusal to Indict Six Members of Congress” by Bob Bauer (Executive Functions, Feb. 12, 2026) Get full access to Executive Functions at www.execfunctions.org/subscribe

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 and security risks of the proposed transfer, including constraints on the use of force, nuclear nonproliferation obligations, and the question of why the United States might consent to the agreement.Since this chat was recorded, President Trump today signaled support for the Chagos sovereignty transfer, or at least a rollback of his criticism.  He also said: “If the lease deal, sometime in the future, ever falls apart, or anyone threatens or endangers US operations and forces at our Base, I retain the right to Militarily secure and reinforce the American presence in Diego Garcia.”Mentioned:“Britain’s Chagos Deal Can’t Go Forward Without U.S. Consent” by Richard Ekin (National Review, Jan. 30, 2026.) Get full access to Executive Functions at www.execfunctions.org/subscribe

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.Mentioned:“Is the Administration Prepared to Deploy ICE to Police This Fall’s Elections?” by Bob Bauer (Executive Functions, Jan. 27, 2026) Get full access to Executive Functions at www.execfunctions.org/subscribe

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 Gluck (Lawfare, Dec. 29, 2020) Get full access to Executive Functions at www.execfunctions.org/subscribe

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)“Trolling About Habeas Corpus” by Jack Goldsmith (Executive Functions, May 12, 2025) Get full access to Executive Functions at www.execfunctions.org/subscribe

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. Get full access to Executive Functions at www.execfunctions.org/subscribe

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) Get full access to Executive Functions at www.execfunctions.org/subscribe

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 Mirasola, Sovereignty, Article II, and the Military During Domestic Unrest, 15 Harv. Nat’l Sec. J. 199 (2023)Jack Goldsmith, Thoughts on the Interim Order in Trump v. Illinois, Executive Functions (December 24, 2025)Chris Mirasola, Unpacking the Protective Power, Lawfare (June 12, 2025)Consider becoming a free or paid subscriber. Get full access to Executive Functions at www.execfunctions.org/subscribe

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. Get full access to Executive Functions at www.execfunctions.org/subscribe

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) Get full access to Executive Functions at www.execfunctions.org/subscribe

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) Get full access to Executive Functions at www.execfunctions.org/subscribe

Jack talks with Columbia Law professor David Pozen about Pozen's recent Boston Review essay with Jedediah Britton-Purdy, “What Are We Living Through?” They discuss three competing ways of understanding the Trump administration—authoritarian rupture, continuity with long-running dysfunction, and a transition to a new constitutional regime. The conversation explores whether all three can be true, what kind of damage may be irreversible, and what rebuilding might look like after Trump.Mentioned:“What Are We Living Through?” by David Pozen & Jedediah Britton-Purdy (Boston Review, Oct. 15, 2025)“Hardball and/as Anti-Hardball” by David Pozen (Lawfare, Oct. 11, 2018) Get full access to Executive Functions at www.execfunctions.org/subscribe

Bob and Jack discuss recent reports of internal rifts at the Department of Justice, the loyalty pressures shaping the Trump administration, and whether constitutional reform is needed to curb the spiral of politicized prosecutions. Mentioned:The Imperial Presidency by Arthur M. Schlesinger Jr“Part Enabler, Part Bluffer: The Bind of the Justice Department’s No. 2” by Glenn Thrush and Alan Feuer (NYT)“How Should a DOJ Political Appointee Think About a Trump-Weaponized DOJ?” by Jack Goldsmith (Executive Functions) Get full access to Executive Functions at www.execfunctions.org/subscribe

Bob and Jack discuss (and disagree about) the Oregon National Guard ruling, the deference owed to the president, the relevance of the president’s Truth Social comments, and the ultimate limits on the president’s power to use the military in the domestic sphere. Get full access to Executive Functions at www.execfunctions.org/subscribe

Bob and Jack discuss the Trump administration’s indictment of former FBI Director James Comey, the lawfulness of the Lindsey Halligan appointment as interim U.S. Attorney, the implications of Trump’s full takeover and weaponization of DOJ, and how to think about reform in this context. Get full access to Executive Functions at www.execfunctions.org/subscribe

Keith Whittington, David Boies Professor of Law at Yale Law School and author of The Political Foundations of Judicial Supremacy, joins Jack Goldsmith for a conversation about reconstructive presidents (Jefferson, Jackson, Lincoln, and FDR), and whether Donald Trump fits that mold. They discuss Trump’s constitutional ambitions, judicial supremacy versus departmentalism, and whether Trump will defy the Court. Get full access to Executive Functions at www.execfunctions.org/subscribe

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 talking about? The risk that the courts will overturn it? The risk that it will provoke congressional opposition or complaint, particularly from your own side of the aisle? It wasn’t clear how he was, as a professional, defining the way he would approach his job in this very challenging administration where the president has displayed so little regard for the rule of law.I want to press you on a bunch of those points. My reaction to the story was that it was kind of anodyne, actually. I thought a profile of Warrington would show him in the tank for the president, and it wasn’t quite that. Can you briefly explain, to the extent that there is a traditional explanation, the traditional role of the White House counsel as opposed to the traditional role of the attorney general?The White House counsel is a member of the president’s senior staff—end of story. No authority to bind agencies with legal interpretations; a counselor picked by the president, not subject to Senate confirmation. The attorney general of the United States is the second most-senior (to the president) law enforcement officer in the constitutional system, nominated to the Congress, to the Senate, confirmed or rejected by the Senate. And there's been a view, particularly after the Nixon debacle in the Watergate era, that an attorney general has to stand for a department that is like any other department. It's not independent of the president in a formal sense, certainly needs to be attentive to the president's policy priorities. But at the same time, in law enforcement activities in particular, has to avoid any suggestion of political favoritism or impartiality and therefore establishes independence in that sense.There are no criteria like that for the White House counsel. There's no criteria at all prescribed anywhere for the White House counsel. It's really a position that's governed by expectations and by norms—that as influential as a White House counsel can be with such close proximity to the president, the White House counsel will be guided by a concern for representing the presidency as an institution and not merely operating, which he or she shouldn't, as a personal or political lawyer to the president. But isn't it also true (I think we wrote in our book together) that the White House counsel is at the heart of political decision-making inside the White House? Is it fair to say that in a normal administration, the White House counsel is more of a political/legal counselor as opposed to providing the account of the law that should guide the executive branch? Is that—can you just get at that a little bit? Because that'll lead me to my questions about how Warrington was presented. There is always the possibility that that's how the White House counsel sees his or her job as a lawyer—member, loyal member—of the senior legal team. In my time, and I know there are other White House counsels who have shared this view, I thought it was I thought it was very important for the office to distinguish itself from other senior staff members and retain its credibility as legal advisers by not seeming to be full-throated members of the president's political or communications team. The risk of the White House counsel being both a political adviser and a legal adviser is that other members of the senior staff—or the president himself—might wonder, when getting a piece of advice: Is this advice shaped by the law, or is it shaped by the political or communications judgment of the White House counsel? And for a White House counsel, in my view, to have credibility, there has to be no question that their advice is shaped by the law. Now, if they have some view about the political consequences of taking a particular legal position—Congress will object, the press will rise up in fury, allied ideological groups will be unhappy… Then the White House counsel could bring that into the conversation if somebody else doesn't, but can say—and should say, by the way—separately and apart from the legal advice just given, that these other political consequences could follow. But I think it's very important for the White House counsel's office to be a legal operation and not an adjunct of the political and policy operation of the president.Right. Now, I didn’t mean to suggest that it should be an adjunct, and he didn’t even present himself as one. He presented himself as providing legal advice about legal risk. One of the interesting things about the story is that it described a White House counsel’s office that was more law-heavy, doing more DOJ-type legal analysis. I think that’s what I read between the lines of the story.And that he, in some sense, had a more enhanced—arguably more enhanced—legal role than the average White House counsel, because they have not wanted to go to OLC and other elements of DOJ.Can I just mention one think quickly, Jack? He referred to it as more of a litigation shop than any of his predecessors. Right. And so what about that? I mean, you asked the question—he said he was assessing risk. My understanding of the White House counsel's office has been that the law is vetted and presented, including various possible interpretations of the law. Then the president faces legal risk and political risk. And I think it’s important to mention that the president of the United States under Article II is the legal decider for the executive branch.So ultimately, the president—whether a lawyer or not—gets to decide. Part of what I understood the White House counsel to be doing was assessing and advising the president about all of these risks. Is that right or wrong?No, that’s right. It goes to the point I made earlier about distinguishing legal risk from other kinds of risks like political risk, and being very clear. The White House counsel should be explicit when there is a political risk in addition to a clearly presented legal risk. A legal risk is: you’re breaking the law. You are breaking the law. You are doing something that, as the president takes care that the law is faithfully executed in accordance with constitutional responsibilities, you shouldn’t do. Then there’s also legal risk in the sense that a president could be sued. The administration could be sued over an action and could find that action successfully challenged in court. There’s also legal risk of a constitutional dimension if they take an action that could lead to the institution of impeachment proceedings. Those are all legal risks.Other risks are political uproar, bad reaction among allied ideological groups, or loss of support among independents as measured by constant White House polling. Those kinds of risks exist as well. But first and foremost, the question has to be: Are you taking the risk of violating the law, of exceeding legal and constitutional boundaries in the decision you’ve taken?And it just wasn’t clear to me—and granted, Warrington in the article doesn’t go on at great length about it—what it meant when he said, “We want to reduce the risk.” Because if you look at precedent—take the executive orders that involve law firms, for example—those are clearly unlawful. Was the judgment there: “Yes, you’re taking the risk of breaking the law, the risk of being reversed by a court… But those are acceptable risks because nothing else is going to happen to you, and it’s going to have an interim effect on the legal community. So your desire to spook the legal community will be successful.” To me, that wouldn’t be responsible lawyering.Why? And let me give you another example to flesh it out—and I tend to agree with you, I just want to flesh out the point. They gave the example of the deportations before Judge Boasberg. Very early in the administration, it looked like DOJ was defying Judge Boasberg and deporting certain Venezuelans outside the United States. There was a question whether Boasberg ordered the planes to turn around at some point, and whether they had to comply with that.And Warrington and the deputy attorney general came up with the theory that they had a good legal argument: if the deportees were outside the United States, then they were outside the scope of the judge’s order, and the planes didn’t have to turn around.I thought that argument was a stretch at the time, but it ultimately prevailed—not necessarily because it was the right call on the law, but because when Judge Boasberg held a contempt proceeding, the D.C. Circuit, by a 2–1 vote, held that contempt was not appropriate for that ostensible disobedience of the order. So the administration prevailed on that, based on what sounds like the Warrington legal theory. How do you assess that? Is that an okay role for the White House counsel to be playing?There’ll be a debate about that. I’m sure. I’m very troubled by what I infer from the article’s reference to a “defensible position.” Again, this was the reporter’s characterization of their conclusion. To be fair, I wasn’t in the room and didn’t hear how strong or weak they thought that legal argument was.But when I was in the White House, I would hear various lawyers speak about different standards for determining legal risk that ranged from whether a legal argument was “plausible” to even “available”—meaning really, really weak, but technically could be made. What troubles me about the word “defensible” is that it could mean, “We can put it on paper and maybe avoid sanctions,” but in truth, it’s a terrible legal argument with serious implications for the presidency.That’s the point I want to stress. The White House counsel—though appointed by and serving a particular president—represents the institution of the presidency, not President Trump in his personal or political capacity. Therefore, it is extremely important in these conversations that the White House counsel is very clear about what constitutes a legitimate, strong, good-faith legal argument, and what is one the president can simply get away with making.So ultimately, for me, this is a very tricky question because it’s the president’s call. My baseline assumption was that Warrington would take the stance of, “Whatever you want to do, sir, we can do.” But that’s not how the story presented him. The story showed him offering legal views, with the president interested in various perspectives, and then the president deciding. In some sense, that’s a normal process—although we know here that President Trump holds a maximal view of executive power and that this administration is in many contexts indifferent to law.So what do you do as White House counsel, other than not take the job, when there is a president exercising his authority to interpret the law for the executive branch with such an expansive view of executive power as to not be constrained at all? How does one even think about that as White House counsel?Granted, it’s a very difficult question when someone decides to become the White House counsel to a President whose views on executive authority and on the law are as well known as Donald Trump’s were when David Warrington took the job. But I think there has to be some suggestion—and again, the story was not complete about this, though it may be taking place—that the White House counsel is digging in and making an issue of legal compliance within the administration.Defensible positions, and also the suggestion that he gives the answer he gives but doesn’t express “personal views,” alarms me. It suggests a tilt toward: “Well, whatever you say—listen, this is completely inconsistent with the law, but I’ll come up with the best argument I can to protect it or cover for it.” That’s not the way you want the best White House counsels to perform.And again, Warrington gave an interview, but he didn’t say much. The people in the background who provided additional reporting for Charlie Savage in the New York Times didn’t provide much detail either. But given the kind of administration this is, you would have liked to see a little more robust defense of the professional and ethical responsibilities of the White House counsel.OK, let’s move on to the speedboat—the legal force against the speedboat. I’ll quickly run through the relevant background, because I think it’s important. This was a boat allegedly containing members of Tren de Aragua, which the Trump administration designated as a terrorist organization, and whose alleged members it is also trying to deport under the Alien Enemies Act in the United States.There’s a longstanding conflict between the United States and the Maduro regime in Venezuela. In Trump’s first term, President Nicolás Maduro of Venezuela was indicted on drug trafficking charges as a cartel head, back in 2020. As I said, Tren de Aragua was deemed a terrorist organization, and the president determined that they were undertaking hostile actions and conducting irregular warfare against the U.S. through unlawful immigration and narcotics trafficking.In July, according to the New York Times, the president signed a directive to the Pentagon authorizing military force against Latin American drug cartels deemed terrorist organizations. That would include this one, and presumably that was the directive relied on here.There’s been a big U.S. military buildup in the Southern Caribbean. And then finally, the strike took place on September 3.The president sent a War Powers Resolution letter to Congress and essentially said, “I can do this under my Article II powers.” He did not rely on any statutory authorization from Congress. Instead, he cited his responsibilities to protect Americans and U.S. interests abroad, and to further U.S. national security and foreign policy interests.He also hinted in the letter that other nations were “unwilling and unable” to stop this threat—an allusion to a standard in international law. So that’s the basic legal architecture we know here.Domestically, the question is whether the president is authorized under Article II; internationally, whether the strike is consistent with international law or stretches it. I would say the international-law argument is a large stretch.From one perspective, this represents a new assertion of presidential power: And the key thing is using force against terrorist-designated organizations that are part of a nation or group not otherwise in armed conflict with the United States, though the president claimed they were engaged in irregular warfare. It’s extending it. We extended presidential power to use force against terrorists beginning after 9/11, and that expanded in various ways. But this is another expansion—under Article II power.Now, I will say that while it’s an expansion, it’s not necessarily out of line with the evolution of the president’s Article II power. This is how presidential power expands: they build on precedents, point to those precedents, pick up on language in them, and extend it to a new factual situation. That’s essentially what’s happened here.The OLC opinions on Article II power are so open-ended and permissive that it’s not a crazy interpretation to say the president has this authority under Article II. It is, however, a fateful step for a president to use Article II power to go after drug criminals deemed terrorist organizations. That’s the situation as I see it. On the international-law side, I don’t think any serious lawyer would say this constitutes self-defense under customary international law or the U.N. Charter, because we’re not in an armed conflict. There’s just not the adequate level of violence between either this group or Venezuela and the United States.The last thing I’ll say, however, is that it’s clear the United States is building up a military presence vis-à-vis Venezuela. It’s clear they are trying to raise the military stakes and bring this into the level of warfare under international and domestic law. That strike was the first exemplar of that.On that argument, the president has extraordinary unilateral power to do it. It’s one of those facts of life: the president controls the military and can invite or initiate hostilities with other nations. He gets to determine and characterize the conflict.And the point I wanted to make is, as others have, this has relevance to the Alien Enemies Act argument in the United States about whether the president has properly invoked the Alien Enemies Act. The more this conflict with Tren de Aragua looks like real war—looks like lawful warfare—the stronger the president’s arguments are under the Alien Enemies Act to deport.So that’s my take on it. Do you have any reactions?I have a couple of questions. First, I want to bring up one legal question. In the president’s War Powers letter, he says that he assessed that Tren de Aragua was a foreign terrorist organization. He acknowledged that it was because it is, and that it was engaged in drug trafficking.What is the legal significance, for purposes of the boat attack, of their having been designated a foreign terrorist organization?The designation as a foreign terrorist organization by itself does not automatically trigger the president’s Article II powers. It has to be tied to a national interest. And again, we’re moving in a direction that DOJ opinions have never quite gone to. But the national interests identified in OLC opinions are so expansive that it’s not hard to frame this as a national interest sufficient to warrant the use of force under domestic law.But the designation as a terrorist organization by itself does not trigger Article II powers to use force. It takes extra steps, though I’m not sure how hard it would be to meet those steps here.That brings me to another question, and then one about consequences or the broader framework in which presidential power is repeatedly expanded in this fashion, step by step. If the president can say, for example, that there are dangerous forces at work—conceivably fed by foreign enemies, making payments for it, encouraging them, whatever—but they’re active in our major cities, and he may be required to deploy forces to those cities, what is it in this claim of Article II authority that would prevent him from authorizing an attack on the headquarters of a domestic organization he believes may be encouraged by foreign sources, but is engaging in the kind of activity that, most recently in a meme he posted, justifies intervention by the Department of War in the city of Chicago, for example? What is the limiting principle in this claim of Article II authority to protect the national interest in this way?Yeah. So you’re asking whether he could use this justification to use force inside the United States.That’s correct.So—wow. OK, that’s too hard a question for me to answer. I’ll just say a few things. This came up during the Bush administration with José Padilla, when he was captured inside the United States and deemed to fall under the post-9/11 Authorization for Use of Military Force. The question arose whether the president could have used military forces as Padilla was coming off the plane, rather than simply capturing him.Frankly, there was a lot of debate about that. And it’s actually a much harder question than you would think. I mean, I think the answer has to almost certainly be no—that the president would need to use police forces and other domestic authorities, and that his essentially self-defined Article II powers to go after these groups couldn’t be used inside the United States.But it was always a hard argument to explain why, if you really accept the premise that we’re in a conflict with this group and that group happens to be inside the U.S. The parallel, of course, is the Civil War—and obviously that’s not a close parallel in terms of scale or what was going on. But if the president’s war powers are triggered, why can’t he use it? Again, I would—and could—write the memo saying it was unlawful, but you could also write the memo the other way, as horrible as that sounds, arguing that the president could be empowered to use military force domestically. That’s my shorthand answer. It’s more complicated than that, and some people will disagree with me, but that’s the way I see it.But domestically, to be clear—and I just have one wrap-up question here—what I’m focusing on is his determination that the terrorist activity is in no way authorized under any of the authorizations to use military force dating back to the Iraq invasion. This would be a current threat to U.S. national security by a domestic group, perhaps supported by foreign funding or encouragement, but conducting what he called, in the case of Tren de Aragua, “irregular warfare” within the United States.And you’re suggesting there may be administration lawyers who would be open to that argument. I mean, I can imagine them making the argument, yes. This is one of those issues—like so many raised by the Trump administration—where theoretical arguments take you in a certain direction, and people say, “Well, no one would ever do that, so we don’t need to worry about that issue”And, you know, there are very powerful arguments that the president couldn’t do that. But it’s not as though there’s a Supreme Court decision forbidding it. And it’s not as though you couldn’t cobble together an argument to justify it. So it’s a very scary prospect: the president using the same rationale, against the same so-called terrorists, inside the United States. Why not?Again, the law probably requires the president to use law-enforcement authorities domestically, and not use his Article II military powers. But you could make the argument the other way.What I want to emphasize is that we are taking an extreme argument used in territorial waters outside the United States and asking how that extreme argument would play out in the domestic realm. And it’s already on weak ground outside the United States. But here’s the issue: who is going to stop him from doing it? The courts are not going to get involved in the use of force outside the United States. Congress never has—and Congress is the institution that is supposed to police and control this, but it’s out of commission.The courts would definitely get involved if military force were used inside the United States, whether they wanted to or not, and whether or not they treated it as a political question. There would be efforts at judicial accountability in that scenario.But the idea that courts are going to save us from this—as I’ve been emphasizing recently—is just not the right focus. It’s really a question of what the politics will hold, and how extreme they want to be in using these authorities. And I guess my concern is that they’ve been using these military authorities in a whole variety of contexts, kind of at a relatively low level inside the United States so far, with the National Guard deployments in various ways. But slowly and surely, these are building up into what are going to be more powerful arguments. They have more powerful authorities under the Insurrection Act that they haven't yet used. I'm not talking about your hypothetical now, but for quelling domestic violence and the like. And I think that the administration thinks that these arguments are good for it. I think that they think that the American people are on board—or at least their supporters are on board, for really going hard after criminals, for really going hard after drug dealers, for really going hard after illegal immigrants, for really going hard after terrorists. The Vice President’s comment about the use of force against the boat, when it was claimed that it was murder and possibly a war crime, was that he “didn’t give a [bleep].” This was basically the vice president of the United States expressing utter indifference to the law and, again, kind of glorifying the use of military force in this controversial context. So the worry is that they're building up confidence in the use of these military authorities domestically. And I don't know. I don't know how far it will go. I don't know where the politics will stop it.Yes, and so let me just very quickly respond to that in a kind of wrapping-up point. One is that I don’t have the Vance comment in front of me, but there’s nothing in what he said about the ‘highest and best use of the military’ that suggests it would be confined to the same threats he sees operating inside the United States—number one.Number two, what you described goes back to the Warrington article. The White House counsel, making an argument for my hypothetical, for the administration’s actions in my hypothetical, could characterize it as a “defensible position.” If “defensible” is stretched that far—if an argument can simply be made—then the administration can claim a legal justification for itNumber two, what you described is something that, going back to the Warrington article, the White House counsel, an argument for my hypothetical, for the administration's actions in my hypothetical, what was described in the Warrington article as a defensible position. If defensible is stretched that far, an argument could be made, then the administration can claim a legal justification for it. And that brings me to my wrap-up question. When we use the term stretch, we suggest that it’s still within the realm of reasonable argument, because something’s been done before that could be pulled a little bit in that direction—so it’s “kind of a stretch.”But at the end of the day, where do the stretches end? If every step leads to the next—step A leads to step B, which is characterized as a stretch, but step B is taken, then step C is taken, which is characterized as a stretch on step B—where does it end?It ends—and I don’t mean this to be glib—it ends only when the American people say it ends. And by that, I mean Congress through political pressure, or the people through elections or through other means. Because the president will, it seems, do what he thinks he can get away with politically and/or legally. o I don’t know where it ends, but to the extent that the administration perceives it gains an advantage, I think it will continue moving slowly along these lines, testing how far it can go.I don’t disagree, but I want to return to the responsibility of lawyers within the government. At the end of the day, no, they don’t have the final say—and you can always pick the lawyer you think will give you the advice you need.There are lawyers out there prepared to sell—whether for free or for a dear price—the advice that their clients want. But you would hope, and expect, that the legal profession inside the government would put up a fight in these circumstances.But I don’t disagree with you. At the end of the day—and here’s my final expression of naïveté—I don’t disagree that the ultimate answer lies in the public standing up, in the Congress standing up, and in the electorate standing up for a vision of the rule of law in this country that does not permit the hypothetical to become a reality.I’ll make a wrap-up point. The American people are, for better or worse—though I think worse—kind of indifferent to the use of military force abroad. When the casualties are non-U.S. citizens and Americans are disengaged, we’ve seen over the last 20 years that as war has grown quieter in terms of American casualties, the public cares less and less.But I do believe that at some point the tolerance for the militarization of the domestic sphere will break down. I think it won’t be tolerated in some quarters of the Republican Party, as weak and deferential as it is to the president. So I do think there are special political dangers here. We’ve talked about this: the importance of reforming the Insurrection Act, and why that reform might have more bite than the analogous War Powers Resolution—precisely because of the political dangers of militarizing the domestic sphere. I don’t want to be naïve about that, but I think it is politically more challenging for a president.The last thing I’ll say is about the role of lawyers. This is an administration where everybody knows what President Trump’s view of his legal authority is, and how he wants to be listened to. There are executive orders and memoranda to that effect. There are interim threats throughout the administration that if you don’t follow the president, you’re out.So to the extent that people are asked to give candid legal views, it’s only with the understanding that “we’re going to make the decision,” as is their prerogative in the White House. I just don’t think there’s a culture in this administration—or a context, or even permissiveness—for the kind of candid lawyerly pushback you’re contemplating. There’s always been a tension on this, but here I think they’ve successfully organized themselves to prevent that kind of legal advice.I don't disagree.It's a good place to stop. Thanks, Bob.Thank you. Get full access to Executive Functions at www.execfunctions.org/subscribe

Jack Goldsmith is joined by Professor Aditya Bamzai of the University of Virginia Law School. They discuss the president’s constitutional removal power, whether the president satisfied the statutory “for cause” standard in firing Cook, why that issue is hard, whether Cook’s pre-Fed actions are relevant, whether Cook gets notice and a hearing before firing, and whether a reinstatement remedy is available. 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. This morning, I’m going to talk to Professor Aditya Bamzai at the University of Virginia Law School about the President’s firing of Lisa Cook, a member of the Federal Reserve Board of Governors. Aditya is an expert on the removal powers of the President, and he’s also an expert on removal in the context of the Federal Reserve, so he’s the perfect person to talk to us about these issues. So I’m just going to briefly go over what happened, but thanks for doing this, Aditya.Aditya Bamzai: Thanks so much, Jack, for having me. Good morning to you. And you did leave out my most important credential, which is: I was once a civil procedure student in the class of Professor Goldsmith back in the spring of 2002.I take full credit for all of your success. OK, so Monday the president fired Lisa Cook, a member of the Federal Reserve Board of Governors. The relevant statute, which is 12 U.S. Code § 242, prescribes the term for the governors and says they shall—I’m quoting—“hold office for a term of 14 years unless sooner removed for cause by the President.” And those words, “for cause by the President,” are going to be very important. One big question here is going to be: What counts as a for-cause removal?Unlike many other removal provisions that are strewn about the U.S. Code and at issue in Supreme Court decisions, this one—I’m going to call it a naked for-cause provision—does not specify any criteria for removal. The standard criteria (and there are many variations) for removal are things like inefficiency, neglect of duty, or malfeasance in office. Those things, by the way, tend to focus on what happens in office that may be relevant.But those criteria are not present in this removal statute, which is going to be very important. This is a simple, undefined for-cause removal provision.So Trump claimed to fire Cook for cause. I’m reading the cause was allegedly false statements that she made on two mortgage agreements from 2021, before she became a member of the board. President Trump said that those alleged false statements deprived him of confidence in her integrity and honesty, and that is the cause for removal.The last thing I’ll say is that even though the president invoked the statute and gave that as his reason—the for-cause provision as his reason for the removal—he also cited Article II of the Constitution. He said he was exercising the powers vested in Article II: both the executive power vested in him and his duty to take care to faithfully execute the law. So that’s the situation. I want to get into the legal issues here, but can you just start off with a brief primer on presidential removal power—what it’s about, where it comes from?Absolutely. The first thing I want to say on that is that there’s a lot that could be said, and we could easily have an hour of conversation over that topic alone. This is certainly a disputed issue in which people have differences of opinion. So in giving this very short summary, I’m no doubt dropping things on the floor and not covering the whole—Sure, of course not. I mean—Yeah. So look, the question of who’s the head of the executive branch comes up at the Constitutional Convention, and there are proposals to have a multi-headed executive, not just a single head. And then, famously, we come out of the convention with a Constitution that has unity in the executive—one head of the executive branch. What that means exactly—that’s just the form. What it means in substance is the question addressed by these removal debates, as well as the cases.And the debates start almost immediately. The very first debate about the Constitution that occurs when Congress convenes is over who gets to control the various departments Congress is creating: Foreign Affairs, Treasury, the Department of War. These are the predecessors of the State Department and the Defense Department.There’s a debate about it, and James Madison famously takes the view that the president has removal authority by virtue of this provision in Article II that vests the executive power in a president, and that Congress could not take that away from the president.This is removal of executive officers.Removal of executive officers, exactly. Now, various other members of Congress had different views, and exactly how they line up is certainly still disputed today among people writing on this topic. But that happens in 1789, and then there’s a little bit of a practice that develops, which always comes to the fore when there are big disputes over who controls the executive branch. That typically happens when parties switch power.When the Democratic-Republicans, with the election of Thomas Jefferson, took over from the Federalists, the question was heavily debated once again in the early 1800s. It was heavily debated when Andrew Jackson took over and fired a whole bunch of people appointed in the prior two or three administrations. It was then heavily debated when Andrew Johnson tried to remove members of the prior Lincoln administration.At that point, in fact, Congress enacted a statute called the Tenure of Office Act in 1867 that limited Johnson’s ability to control the executive branch. We literally had a moment when Johnson tried to fire the secretary of war, and the secretary said, “You can’t fire me. I’m just sitting here in my office.” And there was real tension between the president and the secretary of war.All of those debates tend to arise against the backdrop of whether the rule ought to be: The president can remove, or the president has to go to the Senate and get the Senate’s approval before removing an officer.And that’s because the Senate confirmed the officer.Exactly. Usually the appointments of these principal officers occurred with the advice and consent of the Senate, and so there was the question of whether you had to go back to the Senate for its consent before engaging in removal. And the Tenure of Office Act essentially said that.That was in 1867, when the Tenure of Office Act was enacted. Johnson was impeached and almost convicted, partly for claims that he violated the Tenure of Office Act in all these proceedings. The act stayed on the books until 1887, when it was repealed at the urging of various presidents who said it hindered management of the executive branch. They argued they could not get officers to perform their duties effectively with the statute in place.At the same time, in 1887, Congress created what is now conventionally thought of as the first independent agency, the Interstate Commerce Commission. They include in that statute included language saying the president could remove commissioners for “inefficiency, neglect of duty, or malfeasance in office.” That language is now considered the genesis of what we refer to as for-cause provisions.The ICC statute said inefficiency, neglect of duty, malfeasance in office. The ICC was followed shortly thereafter by another agency, called the Board of General Appraisers in 1890, with similar statutory language.The Federal Reserve is thought to be the second major independent agency. It was not created until 1913, and it had different language from the earlier boards. As mentioned at the start of our conversation, the Federal Reserve’s statute used “for cause” language instead of what you could call the INM standard—the inefficiency, neglect, malfeasance standard.So the question is: What does this language mean?Most of the litigation in the Supreme Court in recent years, and frankly most presidential removal litigation, has involved the constitutional standard. The question has been whether the president must abide by the various for-cause standards Congress imposes, or whether under Article II—under the vesting clause and the take care clause—the president can disregard those statutory standards.Is it fair to say that has been the thrust of the litigation in the Supreme Court—the constitutional standard?I think that’s right. Yes.So if we think about why that might be, one possible explanation is that up until recently, presidents did not tend to fire individuals subject to these standards. In fact, until modern times, there had only been one firing by President Taft—actually two firings, but one episode in 1913—and then another episode with President Nixon in 1969.So presidents tended not to fire individuals subject to these protections. Most of the litigation instead involved regulated parties, who argued that executive officers subject to that type of removal provision were not being properly supervised by the president. The Court entertained that type of litigation.That raises a separate question about whether that procedure is appropriate. But assuming it is appropriate, the argument was that the existence of a removal provision limiting the president’s ability to oversee officials is itself unlawful. That tended to tee up the constitutional question, and it did not require the Court to get into the weeds of what the standards meant, since they weren’t being applied to concrete circumstances.The Court did say things about the standards occasionally, but it didn’t get deep into the weeds.OK. So if I understand what you just said, basically the constitutional challenges did not arise because presidents were firing people protected by for-cause provisions. They arose because regulated parties brought the challenges.Before we get to the Federal Reserve issue—why did presidents tend not to invoke these standards? Why did presidents shy away from even using them? I’ve always thought these for-cause standards don’t seem very hard to satisfy, especially since the president gets some deference on judgment. Is there a reason why presidents weren’t aggressive in pushing the limits on these statutory standards?Well, your guess is as good as mine, Jack. That’s more a question of constitutional politics than of law. Why didn’t presidents claim that someone had failed in their duty enough to provide cause for removal? I can only speculate.One possibility is that many agencies until modern times—until the CFPB, the FHFA, and the Office of Special Counsel—were multi-member agencies subject to for-cause provisions. Typically members cycled off those boards every one or two years, and usually within a year or two the president gained control of that board regardless of who was on it.So if a Republican president took office, the board might still start off with a Democratic majority. The president might calculate: either I could fire a member of the opposing party immediately, or I could wait it out, and in a year or two I’ll have control of the board. Then I’ll control the board for four or five years, and who knows if I’ll still be in office then.So it may have been a cost-benefit calculus based on those considerations.OK. Let’s get to the Trump firing. President Trump has fired many members of independent agencies since Jan. 20. All of those—I believe, correct me if I’m wrong—starting with Hampton Dellinger at the Office of Special Counsel, and including the NLRB, the Merit Systems Protection Board, and many other for-cause protected agencies.In those cases, the president asserted his constitutional power to disregard the for-cause provisions and just say: I have Article II power to do this. He fired on that basis. Thus far, he has done very well in the Supreme Court making those constitutional arguments, at least at the interim orders level.But this time was different. This involved the Federal Reserve. This time the president did not rely solely on his constitutional power, but purported to apply the for-cause standard. He argued that alleged past bad acts called into question Governor Cook’s integrity to continue serving in office.Why the difference here? Why has the president relied on the statutory standard? Why didn’t he go guns blazing for the constitutional standard?Right. So a couple of points on that. First, members of the audience may already know this, but there have been a sequence of cases at the Supreme Court—Free Enterprise Fund, Seila Law, Collins v. Yellen—where the Court has embraced a more robust version of the president’s removal authority and said that provisions limiting that authority are unconstitutional.Now, coming into the Trump administration, there were still some interpretive questions about what those cases meant for various boards. The Trump administration interpreted Seila Law and Collins robustly to justify these firings. So that’s part one—they read those cases to invalidate removal restrictions on these other boards.Your question is: How about the Federal Reserve Board of Governors? Why treat it differently?There are two possible answers. One relates back to our earlier exchange: political calculus. They may be concerned about how the markets will react to claims of authority over the Federal Reserve. That’s possible. And it is interesting that there was no discernible market reaction the day after the firing occurred.The second is this case (I think you previously referred to) that was litigated to the Supreme Court, Wilcox versus Trump. And that’s a case in which (if I’m glossing this correctly) it’s happening on the interim orders docket, and so there’s not full explanation of the Court’s perspective. But the Court gives a pretty clear hint that the Trump administration’s interpretation of Seila Law and Collins is probably going to prevail. And I’m just going to hedge a little—probably going to prevail such that members of these other multi-member agencies who are subject to for-cause limits, they’re going to be treated the same way Seila Law treated the CFPB director.They were talking in particular about the NLRB and the Merit Systems Protection Board there.Correct. Yeah. But then there’s some language in the opinion. And the language, if I just read it out, is the Court says, well, our treatment of the NLRB and the MSPB does not necessarily implicate the constitutionality of for-cause removal protections for members of the Federal Reserve’s Board of Governors or other members of the Federal Open Market Committee because—and then this is a quote—“the Federal Reserve is a uniquely structured quasi-private entity that follows in the distinct historical tradition of the First and Second Banks of the United States,” period.And Justice Kagan, who’s writing a dissent from this opinion, disagrees with this reasoning and says, well, this exception comes out of the blue. And really, the Federal Reserve’s independence rests on the same doctrinal, the same analytical basis as all these other multi-member agencies. But that’s the state of play. So perhaps, again, there could be like a market-driven perspective on how the administration is approaching this, but there also could be a reading of the Wilcox v. Trump order in the case and them thinking, well, maybe the Federal Reserve will be treated differently.So I don’t find the first one as persuasive as the second one because it’s not clear to me why the market would react differently to what is seemingly at least slightly aggressive invocation of the for-cause standard—we’ll get to that in a second and see if I’m right—versus a constitutional standard. And I don’t know if the market is as sensitive to that distinction. Maybe the constitutional standard has broader implications for the president’s control over the Fed. Maybe that’s the idea. The second one seems right to me, or at least more clearly right to me. The Supreme Court was clearly sending a signal, whether it was justified or not, whether it was principled, not at all clear.I mean, haven’t you written that the Fed as currently constituted really isn’t—and we can’t get too deep into this—but that the Fed as currently constituted really isn’t different from the perspective, in terms of the constitutional removal issues, from other independent agencies. Is that a fair summary of your long article on that?Well, so if I could answer the question, but actually I’ll zoom out and say what’s intriguing about this paragraph in the Supreme Court’s opinion in Wilcox is that they couldn’t possibly mean that an entity known as the Fed would be subject to some other rule irrespective of what authorities it actually exercised. And so, for example, what if Congress tomorrow says, you know, Federal Reserve Board of Governors, you have oversight over the CIA and the Department of Defense, and they’re now going to be slotted underneath you. Well, presumably, when we’re talking about treating the Fed in a tradition that dates back to the First and Second Banks, that hypothetical with the Department of Defense being overseen by the Fed is not in that tradition. So presumably the analysis turns on what the Fed’s functions actually are. That’s what I would assume is the proper way to look at this. And then what those functions are and whether they are in the historical tradition of the First and Second Banks today—well, that’s going to be a disputed question, and it’s going to be a question about drawing the appropriate analogies with the First and Second Banks. And so I think that’s probably, at a high level, the way I would articulate just the issue that’s arising.Yep. So, I mean, is it fair to say then that it’s a) not clear that the Federal Reserve is like the First and Second Banks of the United States in every relevant particular, and b) even if it was, it’s not completely settled and clear why or how that would matter to the president’s removal authority? Are those two propositions correct?So I think both propositions are correct.It seems to me that wouldn’t the right way—assuming you want to look at this historical tradition—wouldn’t the right way to do that be function-by-function, as opposed to just saying, well, this is about the Federal Reserve and it sounds a little bit like the First and Second Banks. So I think that’s correct on your first point. On the second point, well, it all depends what the Court means by this. Maybe we’ll see further elaboration in some future opinions. But conceivably, the way the Court is looking at this is that the First and Second Banks were in fact private entities. They were corporations created by—or at least I should say their status was a little bit disputed. It’s a little bit unclear. Probably the best way to look at them is that they were private entities—I’ll hedge a little bit there. And so the Court has this language about how the Federal Reserve is quasi-private.And there are other corporations incorporated by the federal government. People may know about corporations like FINRA or the Horse Inspection Safety Administration. And there’s litigation about those entities and whether they are appropriately private or are exercising government authority. Another famous example would be Amtrak. That was an issue litigated all the way to the Supreme Court.So this question of when the government can devolve certain functions to a private entity that’s outside political supervision is a broader one than what’s arising here. If that’s the way the Court is looking at this—it’s not entirely clear that’s the way the Court is looking at this—maybe we’ll see some further development on that.But I’ll just say, and then we need to move on, I’ll just say that obviously the Court felt compelled in upholding the president’s removal authority and extending or making more robust Seila Law and Free Enterprise Fund and Collins, in basically giving the nod to the president’s removal authority for multi-member independent agencies. It felt compelled to put down a marker saying the Fed either is different or might be different. And that clearly sends a signal. And it’s quite possible that’s what the Trump administration was responding to.Can I just say one thing about that? One thing. It’s such an interesting political-economic story. The Court thinks of, hey, your rule about removal would govern the Fed, the Board of Governors and the Open Market Committee, as being what might be described as the reductio—the reductio ad absurdum. Could it really be that the president controls these officers?And the point I wanted to make is: When the Supreme Court is deciding Humphrey’s Executor, which is the case at stake in this set of litigation about removal protections—it’s the case that says there can be removal protections for quasi-judicial, quasi-legislative entities—the Court doesn’t mention the Fed at all. They don’t say, oh, if we uphold the FDR administration’s removal of FTC commissioners, the reductio would be that the FDR administration could control the Federal Reserve.Instead, they have a line about how if they were to uphold the FDR removal here, then what that would lead to is quasi-judicial entities like the Interstate Commerce Commission and the Court of Claims being subject to presidential removal. And what’s so interesting: The Interstate Commerce Commission no longer exists. Nobody seems to care about the Federal Trade Commission in particular. And the Court of Claims goes completely unmentioned in any of this litigation as a potential reductio.So just an illustration of how our perception of the importance of these various entities shifts over time.It shifts over time for sure. OK. So this is all background basically, because the president did not claim—at least not directly—a constitutional power to remove Cook. He claimed a statutory power to remove Cook. He claimed to be complying with the for-cause provision. And again, I want to emphasize—Can I stop you right there? Arguably, he claims both, right? Arguably.Well, fair. I mean, as I mentioned at the outset, he invokes Article II, and he says that he’s exercising his Article II power and the take care power. That’s relevant because some of these old cases say that in interpreting these statutes, those constitutional powers are relevant. So I’m not suggesting that Article II is not in the picture here. I’m just saying this removal was unlike the prior removals that said, we don’t care about the statutory for-cause provision. We have the constitutional power to do it. We can disregard it. He’s not disregarding the statutory provision here, right?Correct. He’s applying the statutory provision in light of his constitutional powers. That’s probably the best way to put it.But this raises the question: What does for-cause mean? And how do we tell? Because what the president has done is not the typical standard for inefficiency, neglect of duty, or malfeasance in office. Those connote things that happen in office. He has invoked a cause that concerns behavior before she entered office—alleged illegality in connection with mortgages. And he’s claimed that because of those actions before, he lacks confidence in her now.And so the question is: Does that count as for-cause in an undefined for-cause provision? That is the central question in the case. Is that right?I think that’s fair to say the way it’s been teed up at the moment. Absolutely. That’s the way it’s been teed up at the moment. They are not, I’m sure, giving up their pure Article II arguments, but they are basically applying, purporting to apply, the for-cause standard in light of the president’s Article II powers.Which brings me to what I think is the hardest question here: How the heck do we figure out what for-cause means? And what do we look to? What are the precedents? How clear is the law on this? Is the president allowed to look to activity before office to fire someone in office? How do you think about this issue?Yeah. So I think this is a tricky issue, and before maybe we get into the weeds, I’ll just flag a few overarching conceptual thoughts because I think one point is that there are a bunch of these for-cause style removal restrictions in the U.S. Code, and they’re phrased differently. They’re not all phrased the same way.So what we’ve already talked about up to this point is the language in the Federal Reserve statute, which just uses the language “for cause.” And we’ve talked about the language in the ICC statute, which used the terms inefficiency, neglect of duty, or malfeasance in office. But there are other types of statutes.For example, the special counsel statute inserts the word “only,” and it says “only inefficiency, neglect of duty, or malfeasance in office,” which makes you wonder, does the “only” have some sort of additional meaning? Or the tax court statute says you can be removed after notice and an opportunity for public hearing for INM—but no other cause.And then if you look at the statute involving the PCAOB, which was at stake in the Free Enterprise Fund case, that says the PCAOB members can be removed if they willfully violated provisions of the act, the rules of the board or securities laws, willfully abused authority, or failed to enforce compliance with any such rule, etc., etc.But the point is: They’re just different ways in which these statutes are phrased. And the question arises: Did Congress really mean for the statutes to work differently in each case, or is there some sort of global perspective on for-cause removal? And are these just different glosses on that—they should all be interpreted the same way?So one might call that the textualist perspective, and one might call the other the purposivist perspective—they’re getting at purpose here.So let me just question that, because even a purposivist might think there are different purposes to different language across statutes. It just seems like Congress uses very different terms in very different contexts. We have to at least presume they were getting at something different—that the 18 different formulations didn’t all mean the same thing.Now, is Congress paying attention? Are they looking carefully at this? Probably not. But even if we were going to be maximal purposivists, I’d still think there’s a distinction between two situations. One: a situation where Congress specifies the criteria for cause—whether exclusive or not, they say inefficiency, malfeasance, neglect of duty, etc. And two: when they just say “for cause” without specification. That seems like a difference worth noting.Is that fair?So I think that’s right. First of all, I tend to agree with you on your overarching point, and I was just flagging that people could have different perspectives on why this language is used differently. But I tend to agree with you that the modern—What is the argument, just so I understand it, what is the argument that Congress is using this very different language across different statutes but they mean the same thing?They’re not paying attention. They just use different language, slot it into different statutes. And really what they’re getting at is the same concept, which is some form of for-cause removal. Which then does, of course, raise the question: What do they mean by for-cause removal? Which is the point you’re getting at.So I tend to agree with you that the language ought to be interpreted. And then your point, I think, is: Well, what about this use of for-cause as opposed to inefficiency, neglect of duty, malfeasance in office? Does that make a difference?And there, one thing we could turn to is what the Court has said. And the Court had this opinion in 2021, Collins v. Yellen, which involved the removal restriction that governed the director of the FHFA, the Federal Housing Finance Authority. This issue came up because there was a challenge again by a regulated party to the FHFA’s authority to regulate them subject to this removal restriction.The restriction in that case was a for-cause provision. The Court had previously said in Seila Law this would be a problem if there were an inefficiency, neglect of duty, or malfeasance in office provision. And one of the amici, Professor Aaron Nielson, who was defending the statute in Collins v. Yellen, said, well, for-cause is different from inefficiency, neglect of duty, malfeasance in office, because it allows for additional causes for removal.And the Court bought that part of the argument. What it said in Collins was, this language appears to give the president more removal authority than other removal provisions reviewed by this Court.Can I just stop you? I just want to underscore that. Collins v. Yellen, one of the more recent decisions on the merits of removal—maybe the most recent, I can’t remember—says that there’s a difference between what we’re calling a naked for-cause removal provision, and a specified criteria removal provision: inefficiency, neglect of duty, malfeasance, etc.And it says—and I’m going to reread what you just said—that we acknowledge that a for-cause restriction, a naked for-cause restriction, gives the president more removal authority than other removal provisions we’ve reviewed, these more specific ones. That seems to suggest unambiguously that this Court thinks a naked for-cause removal provision gives the president more discretion than he would otherwise have, as a statutory matter, to remove these officials.That’s certainly what it says. I think you’re right. That’s what it says. It also says later though, one paragraph later, it says for-cause does not mean the same thing as at-will. So that means the Court in Collins also thinks that for-cause gives the president broader discretion, but not absolute discretion, to fire. Fair?I think that that is fair. As a matter of statutory interpretation, the Court is saying “for-cause” has some different meaning from the inefficiency, neglect of duty, and malfeasance standard, but it doesn’t mean at-will.Yeah. And at-will means you can fire for any reason, anytime.So, OK. That’s, I think, very helpful in narrowing the question here. But it still raises the question: How do we tell what for-cause means? It means the president has more discretion than under these more specific standards, but not absolute discretion. That’s the statutory matter. We’re not talking about the constitutional issue yet.And so how do we tell? The specific question is: How do we tell what for-cause means, and does it allow the president to invoke this reason that predated Cook’s becoming a governor?So I think I agree entirely with the way you’ve set up the issue. We can glean from Collins that there’s more discretion to fire somebody, but exactly what the bounds are is unspecified.And maybe if I can connect that to the point earlier in our conversation—that’s because it’s all getting teed up in earlier litigation when a regulated party is challenging this provision on constitutional grounds. So there just isn’t a fact pattern where the Court is saying, well, these facts amount to for-cause and these facts don’t amount to for-cause. We don’t see that in these cases about presidential removal.In fact, at that time everybody was interested in the question of whether disobeying an order would be cause or not. And Collins says it’s true that disobeying an order is generally regarded as cause for removal. So it makes you kind of wonder, well, what does agency independence mean if disobeying an order would count as cause? And what kind of independence the Fed really has in light of the statute?Let me just say that looking at this more carefully than ever before, it reminds me of Adrian Vermeule’s paper on constitutional conventions, where he said: For those of you who think the Federal Reserve is the most sacrosanct independent agency in the government—not true, at least if you look at what the statutes say.And that’s my takeaway here. This removal provision for the Fed is a weaker one than some of the other agencies. Isn’t that right? It’s a statutory matter.That seems plausible. And maybe where you’re going with this is that that raises the question: Why? And I don’t fully know the answer to that. I think we’d have to speculate if we looked back at the timing of the adoption of these provisions.Yeah, let me just clarify what you said. It raises the question why. I.e., it raises the question why the Federal Reserve, which we view today as this sacrosanct, most independent of agencies, which the Supreme Court went out of its way to try to protect from Article II removal, why would it be protected by a weaker standard giving the president more discretion for removal? That’s the question why, right?That’s exactly right. Yeah, that was the question I was thinking of. Why is the language different? And so, I mean, again, I’m speculating here. If people know the answer, I’d be very interested.I would, too. Look, we’re speculating because—and this is something else I just want to interject—anyone, in my judgment, who says this is clear and easy one way or the other either has not read all of these cases or is not being completely candid. Because the truth is we haven’t had a lot of cases interpreting what for-cause means. And this is a highly unusual case in a highly unusual context. And so I just want to emphasize what you just said, that we’re trying to figure this out ourselves.Absolutely. I’m always trying to learn more. In this instance, we talked earlier about how these agencies were created. And we have the ICC that first introduces the inefficiency, neglect of duty, malfeasance in office standard in 1887, which is then used in another board, the Board of General Appraisers, I think, in 1890.And so there are these two boards that have the INM standard when the Federal Reserve was created in 1913. And so it kind of raises the question: Why didn’t they just put the INM standard in the Federal Reserve statute?Speculation could be that they thought of these two boards, the Board of General Appraisers and the ICC, as performing some sort of judicial-style functions. They looked like little mini courts sitting within the executive branch. The Federal Reserve seemed different, and so they just kind of thought of these boards as a little bit different. (Now, that’s pure speculation on my part.)Another data point is that in the year before the Federal Reserve was created, 1913 or thereabouts, Congress first codified a standard for the civil service. And that was a cause standard at that time. So maybe just the term “cause” was floating around in the minds of members of Congress and was introduced into the statute.Be that as it may, we now have that in the Federal Reserve statute. And I don’t know if those nuggets about how the ICC statute would have been thought differently or the—well, actually, let me take that back. The civil service statute, arguably, if we are looking for how to interpret this term “for cause,” could we look to how the civil service provisions have been interpreted? How the language “cause” has been interpreted in that context?Because that is a statute where the removals are not occurring in these high-profile ways by the president and not resulting in Supreme Court opinions. But there may just be case law down in the weeds on what the meaning of “cause” is that may come to the front in the litigation sure to emerge from the removal here under the Federal Reserve standard.OK. Let me move to a different issue, and that is … so, we don’t know what the for-cause removal provision permits. I mean, I think it’s fair to say that we can’t really say with a lot of confidence, except to say that it gives the president more discretion than these more specific ones.Can I just actually add one other thing on the substance here? The substance being the meaning of the term “cause.” So, it seems to me like one body of law the Court could turn to in order to interpret the term “cause” would be Supreme Court opinions like Collins v. Yellen to tell you this is what we think cause means. Another body would be lower court cases interpreting “cause” in different contexts, like the civil service rules.Third would be potentially practice. And as I mentioned, there actually just is very little practice here. And the very little practice includes, remarkably, President Taft removing two members of the Board of General Appraisers on his very last day in office for cause, after having conducted some sort of hearing on the question of whether there was cause.And the reason I mentioned it is because this is one episode where there are, in fact, on the record, statements about what the president thought “cause” would mean. And that includes, in the case of one of these members of the Board of General Appraisers, that they abused their office. But it includes, in the case of the other, well, this is a person who brought disrepute to the board by having some personal failings.And so, that conceivably—it would just depend on how the Court wants to treat those types of internal executive branch precedents. Are they going to have any authority whatsoever in determining what “cause” means? I mean, they’ll be relevant because there’s just not a lot of legal materials to work with here, right? Potentially, for that reason. But it raises a broader question of, like, do we care at all?Yeah, I agree. OK, let’s turn to procedure. There’s an argument here, and I’m sure that Cook will make it—Cook’s attorneys will make it—that before she can be fired, she must receive notice and an opportunity to be heard. Can you tell us about this argument, where it comes from, how it might work?Yeah. So, there’s a series of cases that predate the Supreme Court’s kind of 20th century major cases on the constitutional law of removal that you might describe generally as cases that are seeking to duck the constitutional question. At least, that’s the impression I have when I read them. They’re really trying to dance around the constitutional question until Chief Justice Taft in Myers v. United States in 1926 says, no, I got to answer this—and then he doesn’t.And he answers it with a canon. Yeah, with like hundreds of pages. So, there’s a series of cases, including one from 1903 called Shurtleff v. United States. And this is the case in which, again, we’re dealing with this entity, the Board of General Appraisers, and the president has sought to fire one of the members of this board. And the statute says, well, the members of the Board of General Appraisers can be removed for inefficiency, neglect of duty, or malfeasance in office.It doesn’t say in so many words that they can only be removed for those three causes. And the way the Court interprets this language is it says, well, they can be removed for those causes or any others—or any others, really. And then that makes you wonder, and the Court seems to be confronting this, well, if in fact they could be removed for any others, then why do we have the statute that specifies three causes?And the Court says, well, we have the statute that specifies three causes because what Congress really wanted to convey is that if in fact one of these three causes is at issue, then the only way in which the president can remove the individual is after conducting—giving some notice and opportunity to challenge to the individual who’s being removed. So there’s a case, Shurtleff, that’s on the books that’s arising in this strange posture, or like before the Court is really confronting a big constitutional issue. And query whether the statutory analysis is correct. But it’s reading into a silent statute the requirement that you provide some sort of notice.But I want to ask you two questions about that, because it seems to me it could arguably cut the other way. Shurtleff said that you get notice when Congress provides reasons for the termination. And there were reasons—it was a specified list of causes. And it seemed to suggest that that wouldn’t be the case for things that weren’t listed as specified causes. So I can imagine Shurtleff by itself cutting the other way in this case and being argued for there being no notice required in the Fed context.That’s the first point. Second point, I think that Humphrey’s Executor distinguished Shurtleff on the ground that the Court in Humphrey’s Executor is itself not a precedent—it’s in great repute among the majority of the Supreme Court right now—but it distinguished Shurtleff on the ground that the entity there had unlimited tenure as opposed to a limited tenure here in the Federal Reserve, and that the president’s powers had to be more robust there. And that whole analysis in Shurtleff might have been limited to, and distinguished by, the fact that it was an unlimited-tenure agency.Seems to me those two points make Shurtleff—if that’s the right way to pronounce it—have uncertain impact here.What do you think?I think that’s right. I mean, I agree with you. I think that this is going to be part of the debate. So, first of all, we might just want to say that we actually don’t know the full facts of whether some sort of notice and opportunity was provided—or at least I don’t, just in this instance.You mean here?Here, in this fact pattern. We don’t know.You mean in the current fact pattern?Correct. It doesn’t seem like there’s notice and opportunity.You may be right, although the reason I’m hedging is that I just truly do not know.Yeah, I don’t know either, obviously. And that does raise the question of what notice and opportunity means—whether it just means, hey, we sent you these documents and we didn’t hear back from you in a week. I don’t—I just truly do not know.So that goes to the point of we don’t—you know, Shurtleff said there had to be notice and opportunity, but we don’t know what that means. It might mean you get to come talk to the president and make your case, and then he gets to rule. We just don’t know, right?I think that’s right. So I didn’t mean to kind of make that the big focus, because I think your two points about how Shurtleff could conceivably be different, just in its reasoning, are completely valid ones. And the first one was that Shurtleff is, again, in this pre-Myers posture, looking at a statute that says that the individual can be removed for inefficiency, neglect of duty, malfeasance. And the Court says, well, there must be other reasons as well—that Congress couldn’t have meant that these are the only three reasons. So there must be other reasons.But then what’s the meaning of the statute? It requires some sort of notice. Well, in a statute that’s restricting removal to for-cause, you kind of don’t have to engage in that interpretive dance. So then it makes you wonder, do we read in the notice when the statute is silent on this point?And going back to our earlier discussion, there are statutes that, on their face, require notice. So this gets to the textual-purpose point, which is: Do we make something of the fact that there’s no notice on the face of the statute?Well, the second point that you make, which also seems right to me, is that Humphrey’s distinguishes Shurtleff on the ground that Shurtleff did not have a term-of-years provision in that statute at the time. And the Board of Governors provision has a term of years. So we’ll see what happens. There are going to be all these arguments in the air, I think.OK, let me move to a final issue. And this is, or just maybe a penultimate issue. This is the question of remedy. Cook is going to sue. And the question is, what remedy can she get? Can she get an injunction enjoining the president from firing her? Or is she limited to seeking back pay?Justice Gorsuch—I think it was a concurrence, maybe it was a dissent, I can’t remember—in the first interim order in the Trump 2.0, in the Bessent case involving Hampton Dellinger’s removal from the Office of Special Counsel, pointed out that an injunction might not be available in this context to enjoin the president to reinstate someone. And that back pay may be the only remedy, which would not be very helpful to her here in terms of staying on the board.And he also mentioned the remedy of quo warranto, if that’s the right way to pronounce it, which is a writ that allows, I think, the Court to decide which of two claimants get to hold a particular office. That might be an available writ here.Do you have any thoughts on whether there’s an effective remedy here for Cook to get her office back and how the Court might think about that issue?So, I think what I would say is that this is another huge can of worms that the Court has not fully grappled with. And so there’s a lot that could be said. Let me start with just the cases that the Court has decided so far.It just so happens that in cases like Myers and Humphrey’s Executor, both Myers and Humphrey—obviously, because it’s Humphrey’s Executor—are no longer there. So the only remedy possible would be some sort of back pay to the estate. There’s no reinstatement that’s really at stake.They didn’t even seek reinstatement.Well, I think Humphrey might have been alive at the time the litigation started and so sought reinstatement, but he died by the time it reached the Supreme Court. So the only possible remedy at that point is some sort of money damages, back pay–style remedy.Another removal case that arises in the 1950s involves an entity, the War Claims Commission, that just doesn’t exist. This is the Wiener case. It doesn’t exist by the time the case is being litigated. So the question of reinstatement, again, doesn’t arise.And all the modern cases are cases by regulated parties where nobody’s seeking a remedy of reinstatement. They’re challenging the agency and saying it’s improperly constituted because it can’t be overseen.So the case law on this is very sparse. And that itself is—we can say more than just that itself, because we have to step back and think about what are the broader principles at stake. And it turns out, and you’re probably more expert on this than I am, there is this deep question of constitutional law, federal courts, about whether courts can enjoin the president.Mississippi v. Johnson.And Franklin v. Massachusetts.Franklin v. Massachusetts, yep. And in the modern era.And these are, in my mind, under-theorized cases, to put it mildly.Completely, completely.And so, not at the Supreme Court, but when this particular issue was teed up at the lower court level in the D.D.C. and the D.C. Circuit in the early 1990s, those courts said, all right, well, you know what? We actually can remedy this with a reinstatement-style order. We won’t enjoin the president. We’ll just enjoin everybody else in the executive branch and tell them to treat these individuals as though they still hold the office.I didn’t know about these cases. That’s really interesting.So it’s a very interesting injunction. And then the lower courts in our cases that have been arising in the second Trump administration have been relying on those cases and similar logic. So when they have been providing some sort of remedy of reinstatement, they’ve technically not been enjoining the president but enjoining everybody else in the executive branch, which actually does lead to this kind of strange question of how to enforce those injunctions.I mean, what if they cut off the removed officer’s computer services or email? What if they change the locks to the door? Does the injunction mean, well, you’ve got to change the locks back? Or you’ve got to provide them email? You’ve got to provide them appropriate staff to conduct their duties?So I think these injunctions are really quite challenging to implement, and we’ll see what happens. I think the Court will do everything in its power to avoid answering the question whether the president can be enjoined.Yeah. Well, and I wanted to say a second thing on the question of remedy, because that is, this question that we’ve just been discussing is a question of constitutional law. Can you enjoin the president? Can you replace this injunction of the president with an injunction of the entirety of the executive branch? That’s a very deep question.There’s a second question that’s at stake here, and I think it’s a really interesting one. And that is that these statutes that we’re dealing with, like the for-cause removal provision for the Federal Reserve, they are enacted at a time—say 1913—when the backdrop law of remedies arguably would not have allowed an individual who’s been removed to sue in equity in order to retain their office.In some of the cases that Justice Gorsuch is citing in his opinion, there are cases about this topic, about how you can’t use equity in order to regain a lost office. Equity only protects property rights, and this is part of equity law circa 1900. Circa—it changes over time.The point is, that’s the backdrop against which the Federal Reserve statute is enacted. And one wonders, are those remedies baked into the statute? Or, as the law of equity perhaps changes—and I’m thinking now of the “new property” cases or other cases involving whether you can seek reinstatement, there are late 20th century cases—does the law of remedies with respect to the Federal Reserve statute enacted in 1913 change at the same time?And the question essentially is that it’s entirely possible that the people who enacted the Federal Reserve statute in 1913 never thought you could get a remedy of reinstatement because they thought just the law of equity wouldn’t require it, and the statute itself just doesn’t say anything, to my knowledge, about this remedy. And so then it’s a question of, like, what does the background law permit?Yeah, what did the background law permit? What, if anything, can we tell about what Congress was thinking about whether it wanted to incorporate equitable principles at the time or whether it was just going to assume that the Court’s equitable principles as they’ve been developing would continue to develop?I mean, we just—you need to do a lot of legal work to figure that out, I think, and the related questions. And I think it’s just fair to say that it seems to me, based on as much as I’ve learned, that it’s not at all obvious how the Court’s going to come down on this. Although I suspect they’re going to hesitate before ordering the president to reinstate someone, even if the firing was illegal. But I might be wrong about that.Do you have any thoughts about that—just like end-of-the-day thoughts about how hard that would be for the Court to do?Well, so I agree with you that it’s certainly an issue with which the Court would have to grapple. It’s not like something that’s totally obvious. We haven’t even touched upon mandamus and quo warranto issues, which are also wrapped up in this question of constitutional and what does the statute mean—is it incorporating those remedies? So I think it’s challenging.What would the Court do? Well, look, I’ll just leave you with this thought, which is that outside of this deep set of questions of Article II, president, who controls the executive branch, we have a body of employment law, and people are routinely, regrettably, let go from their jobs. And questions arise about what kind of remedy you can seek, whether that be damages or some sort of reinstatement remedy. And it’s just typically thought in the context of employment law that reinstatement would be a disfavored remedy, because it would be tough for—at least on some occasions—for the employer and the employee to work together.So it’s a disfavored remedy. And I just leave you with the thought that, how does that body of employment law factor into this context where, boy, would it be tough for the president and somebody who’s reinstated to be at loggerheads for the next two, three, four years?Yeah, I’m sure that that will factor into the Court’s assessment of that.OK, I think that’s a great place to stop. I just want to point out that you are dressed in a suit because you are about to teach. And I’m grateful that you took the time this morning to talk to me about this. I am not in a suit because I’m on my last few days of vacation because my classes don’t start until next week. But thank you very much. That was very elucidating, very grateful.Always an honor. Thanks so much, Jack. Take care. Get full access to Executive Functions at www.execfunctions.org/subscribe

In this episode we review the Epstein scandal and discuss Deputy Attorney General Todd Blanche’s conflict-of-interest problems, the White House challenge, and the looming role of Congress. 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.So, this morning, we're going to talk about the Epstein scandal and how the White House is managing it, how the Department of Justice (DOJ) is managing it, and how Congress should be thinking about it. You've been writing about this the last few weeks, so why don't you just start off by—everybody knows about the scandal, but just briefly summarize where we are.In the last week or so, I don't know how many days ago it was, the Department of Justice became very much involved with the deputy attorney general flying to Florida for a nine-hour interview under a limited grant of immunity with Ghislaine Maxwell, former paramour and longtime associate of Epstein who has been convicted of participating in and facilitating sex trafficking, and she's now appealing those convictions.The administration apparently thought at the time it had come to show that it was taking an active interest in disclosures after the uproar in his own base and among his own MAGA community over the surprising announcement that after a review of the files, DOJ had concluded that Epstein had in fact committed suicide, he had not been murdered, and there was no additional information to suggest that other people had committed crimes.And as you know, from this point forward, the administration has been scrambling to address the frustrations of that community over the absence of the disclosures that they believe they were promised—the further disclosures about Epstein and those on the so-called list, those who were involved with him.Okay, before we turn to White House management of this and other scandals, you mentioned that the deputy attorney general had gone to interview Maxwell. Talk about how unusual that is and the problems you see with that.In my view, exceptionally unusual. There may be some cases that are comparable. I can't think of what they are. His role under the general organization of the Department of Justice is to manage day-to-day operations of the Department of Justice and to engage in overall supervision of the department's operations, not to, for example, assume specific investigative functions.In this case, he has done just that. He is a source of information under his own name from the administration about the status of the investigation. In the case of Maxwell, who is a central figure right now, he personally interviewed her. He flew to Florida and spent a couple of days, nine hours total, interviewing her and finding out what it is that she would say if she were to testify publicly under some immunity.We'll talk about potential clemency in a few minutes. For the deputy attorney general to do that is extraordinary. Plus, let's take something else well known: He’s a former personal lawyer to Donald Trump. Under departmental regulations, ethics regulations, his activities here implicate what is called the rule of impartiality. His involvement, having been so close to Trump, would trigger in a reasonable person a genuine concern about whether he could act impartially in this matter—whether he's actually serving the American public or serving the political and personal interests of Donald Trump.And do we have any reason to think that he or the department are taking these ethical and conflict of interest rules seriously?No. On the information we have, they're dismissing them. Normally, the employee who would have a legitimate concern about these issues or who would be faced with the rules’ indication that he should be concerned with these issues would seek the counsel of ethics officials in the department and then make a decision about whether he was disqualified from engaging in these activities.When the department was asked, however, about his role—particularly in light of his telling the Senate he would ask the appropriate officials about any potential conflicts during his service—the department refused to answer. It didn't indicate that he'd asked for that advice, much less that having asked for that advice, he was cleared for the assignment.Okay. So, I mean, that by itself would be big news in a normal administration, but this is clearly not a normal administration on these dimensions. Let's talk about White House scandal management generally. I mean, you've been inside the White House. You've had to deal with political controversies. How would a normal White House be thinking about managing this? And I just want to underscore something you said earlier. This is largely a self-inflicted wound as far as I can tell by the administration. I mean, the main constituency that has raised this in the public profile are the president's own supporters. And as you said, it was his administration's kind of not being candid or talking out of both sides of its mouth about what was in the Epstein files, what they were going to do with it that led to this. So I guess one point is you want to avoid the scandal from happening, but how do you manage it after it gets going? How does one manage it?First order of business is discipline. You may have a strategy that you have to revise according to events. It's not that you can have a fixed strategy in response to a scandal which is moving quickly and just stick with that strategy all the way through. There may be adjustments that have to be made, but everything you do in setting the original strategy and adopting adjustments has to be done in a disciplined fashion.And looking to establish credibility on the part of the administration in the response to the public over the scandal, that discipline is wholly lacking. That's hardly a surprise. The president talks almost compulsively on this topic. He seems frustrated with the questions that are being asked, but he ultimately not only answers them, but he keeps going—most recently in explaining how it was that he broke with Jeffrey Epstein over Epstein allegedly poaching employees from Mar-a-Lago for potentially his own nefarious purposes.And so the last thing you want a president to do, or the administration as a whole to do, but in this case the president personally, is to feed the scandal and to do so in an undisciplined way that rather than settling questions, raises more of them. So that's the first order of business. His true social compulsions here, his speaking compulsions, are antithetical to any kind of disciplined scandal management strategy.How would you normally manage, if this problem has a dimension in the White House, but it also has a dimension in the Justice Department, which in many ways has brought the scandal onto the administration, how would that relationship normally be managed in this context?With some care, because first of all—and that's gone by the boards in this administration—to the extent that there are significant residual criminal legal issues here, you would want the Department of Justice to be able to claim or to show that it's operating with professional independence from political pressures from the White House.And it can't do that in this case. That's not the way that the president has set up the Department of Justice. We've already discussed the problematic role of the deputy attorney general in this case. So you certainly would not want the department to be in the position this one is, which is it's not credible in helping the president answer these public questions.I should mention also, I just want to tag on to what I said about Truth Social, there are other ways in which Trump has sort of very impulsively resorted to the standard playbook, underscoring again the lack of discipline.An example being immediately suing the Wall Street Journal for defamation for publishing an article he didn't like about this scandal. And it's very clear the Wall Street Journal has no intention of backing down. That's problematic for reasons that I've written about.And then also engaging in activities of one kind or another that are meant to be a distraction from the main charge. And all they do is focus attention on how little he's succeeding in distracting attention.So the release of the Martin Luther King assassination files, the suggestion again that criminal behavior was not only involved but headed up by President Obama in the last administration in connection with the Russia collusion matter. These kinds of distractions—even that matter, I should add this is important—that anything damaging in the Epstein files was actually fabricated by senior Democrats, Hillary Clinton, James Comey, Barack Obama.So he's lurching around looking for these distractions. All of this has helped him in the past, but it's not helping him here.As you point out, one of the problems is this is really important to his constituency. Let me just play devil's advocate on that. Are you sure it's not helping for that constituency? I just don't know how to ascertain that. I mean, these are issues that are playing to the base clearly. And are you sure that if it doesn't seem, it might not seem very persuasive to us, but it might seem persuasive to the constituency he cares about?The constituency he cares about is willing to hear for the moment that he's not trying to protect himself, that he's not involved in the Epstein files, but they want to see the files. They want to see the files because they're convinced that there are powerful people, particularly Democrats, whose involvement with Epstein has yet to be revealed.So they're willing to split him off from that for the moment. They're angry at him for not releasing the files, but not necessarily convinced that he's trying to keep some revelation about himself out of the public eye.But as far as I can tell—and today there was an interesting piece about this, an opinion piece by a Republican pollster and commentator, Kristen Soltis Anderson, in The New York Times. This is squarely within the concerns of his constituency: that this is a world, the world that they see, in which elites help themselves, protect themselves, and in this case, in a particularly salacious, shocking, and disgusting fashion.And they want answers, even if they don't want to believe, and don't currently believe, that Donald Trump himself is involved.Okay, talk about Congress and what it is doing and should be doing.Congress, both Democrats and Republicans, have called for the release of the files—of course, on the Republican side, and particularly in the House. The speaker is playing a little bit of defense for the president. But the House has subpoenaed the files, and the Senate has made a move among Democrats to utilize a quite obscure provision. I wasn't aware that it existed, but on its face it would appear to allow a certain number of the Government Affairs Committee, and then the House Oversight Committee (if I have the committees correctly named here), to demand from any agency the release of information that they want about the agency's operations.So, on the face of it, it would seem like the votes would be there for the Senate, the relevant Senate committee, to ask for this information.Here's the play, as far as I can tell: The administration will not agree to this. They will not agree that the statute authorizes this congressional demand. But now they have to refuse it. They have to refuse it.And so it's another instance in which they've been called upon to release the files, and they won't. On the House side, most of the action there centers on Ghislaine Maxwell's testimony, and the question of whether or not she will be granted immunity, which the committee says it will not give her. And that's, again, a Republican-led committee.And the lawyer for Maxwell is saying, well, okay, here's the fastest path to testimony: the president should give her clemency, and then she'll testify freely.So here is the moment of truth in many respects. Here's a leading figure—not somebody with a huge amount of credibility, to be sure (and I'm understating the case)—but people's access to the information that she claims to have is going to be, to some degree, controlled by a presidential decision on a grant of a pardon.And so how do you think this President is thinking about that? I mean, he has not been shy about exercising the pardon power. He can easily do it. So how do you see it playing if he does pardon her? Because I can imagine that raising problems and maybe providing solutions, and I can imagine not pardoning raising problems and providing solutions.Yeah, so it seems to me it's very complicated in a variety of ways. First of all, the one person who knows what she would say is the deputy attorney general, who's presumably briefed President Trump on the contents of her potential testimony—at least her testimony to him over that nine-hour period.So the question is, does he want that testimony out? Now, if it's out and it's helpful to him—she says, for example, that he's right, he never really had a close relationship with Epstein—that's been his claim. The problem is going to be that she's not a credible witness. So I don't know what he gains with that, although it would be a sensational moment.Or he refuses to pardon her, and the House continues to refuse to give her immunity, in which case he's blocking the testimony and will only fuel suspicions that he's doing it for a reason: to protect himself or to protect others whose identities would be disclosed by release of the files.And to back up and ask you about that, you referred to those nine hours as testimony. What exactly was the legal context for that discussion between her and the Deputy Attorney General? Do you know what was the context for that? What did the Deputy Attorney General purport to be doing there with someone who's been convicted by the Justice Department? The case, I think, is technically closed, although it's on appeal. What was that conversation ostensibly supposed to be about?It was a show on the part of the administration that it was going to double-check the conclusion that so enraged its base—that there was nothing more to see, there were no more crimes to be revealed.By the way, I should add, the base isn't only looking for crimes. That's the problem here. It's looking for full disclosure, whether the behavior in question was criminal or not. But they're taking the position that they're going to take another look to make sure that there are no other crimes.And so, with a limited grant of immunity for the purpose of that particular interview, he presumably asked her, with names included, to go through everything that she knew about those who were close to Epstein—but again, presumably with a focus on whether any crimes were committed that have not so far been prosecuted.That's the legal context. It's not enough, in my view, based on everything I'm seeing in the MAGA community, to address the demand they have for full release.And also, doesn't he have to now disclose to the community? First of all, I don't even understand the context. I don't understand how it would be recorded inside the Justice Department that the Deputy Attorney General was going to talk to someone the department convicted over what. But isn't there some expectation now that he'll have to disclose the contents of that conversation, or isn't that yet another element of cover-up?No, absolutely. It's not at all necessary that he disclose it. They could conclude in summary terms that he heard nothing different than the massive review of the files that took place earlier this year. Hundreds of department employees under his supervision apparently went pouring through the files, looking for names including Donald Trump's.And it was on that basis that they concluded—or at least publicly announced, took the position—that there was nothing more to see there. He could affirm that. He could say, I interviewed her for nine hours.Why is that any more credible than the Attorney General saying there's nothing there?It's not any more credible.I think it's making it worse for them.That's correct. And by the way, here's something you and I have written about: there's a regulation at the department that would have permitted the requisite distance—at least in theory, depending on who was appointed—to be established, and those were the special counsel regulations.The likelihood that the President would appoint a special counsel in these circumstances, or that the Attorney General would recommend it, is below zero. But to have his former personal attorney, with the complex issues that his involvement presented, announcing that he took another look at it and nothing was to be found is not going to be convincing to the people who are currently clamoring for the release.Last question. What other tools does the administration have? There have been discussions. Some people have proposed that the Attorney General be fired. Does the administration need to take some dramatic step like that? How do you see this? How could they possibly resolve it successfully at this point?It's difficult to say right now, and things could change, so my answer to the question would vary with the circumstances. But first of all, there's always the heads-rolling sort of answer to a controversy like this—some combination of a meaty disclosure coupled with firing the people who prevented it in the first place.As you know, there are some on the right who have been calling for the firing of Attorney General Bondi. That's one thing, and it's connected to some kind of disclosure. It's connected to something that allows him to say, “Oh, big misunderstanding. Staff served me poorly. Here's the answer to your question, and the people who prevented you from hearing it have been dismissed.”It's not clear at the moment that he has any incentive at all to fire the Attorney General. As a matter of fact, she's a loyal soldier on his behalf. I don't know that he would want to make an enemy of her, but even if that's not an issue, I don't think he wants to get rid of her.And then, of course, if you fire her, you're then presented as an administration with the question of who you nominate in her place and get confirmed. So that can't be an attractive strategy.And then the disclosure question brings up the last issue. It is the overriding issue—certainly for Democrats, less so for the base that wants to carve Trump out of the controversy. What disclosure would satisfy people that he's not directing attention in one place, away from whatever is in the files about him?The Department of Justice has briefed him, according to press reports, and advised him that there are multiple references to him in the files. We don't know what those references are. The author Michael Wolff, who has written a couple of books about the administration, has recently been interviewed. He has said he spoke to Epstein, and he believes that there are embarrassing or damaging photos in those files.So, if there is in fact something he is desperately trying to keep out of the public record, then what kind of disclosure he can offer that will answer those basic questions is very, very unclear.All right. That's a good place to stop. Thanks so much, Bob.Thank you. Get full access to Executive Functions at www.execfunctions.org/subscribe

President Trump yesterday evening withdrew the nomination of Alina Habba for U.S. attorney for the District of New Jersey so that Attorney General Pam Bondi could appoint Habba as the “first assistant” in the U.S. attorney’s office—with the aim of positioning Habba to serve as U.S. attorney in an acting capacity. This came after DOJ, purportedly pursuant to the president’s authority, fired the official who was appointed by a panel of district judges to serve as interim U.S. attorney.We’re pleased to welcome Anne Joseph O’Connell, the Adelbert H. Sweet Professor of Law at Stanford Law School, as our first guest on Executive Functions Chat to break down the relevant legal issues in this saga and discuss the broader legal landscape. Get full access to Executive Functions at www.execfunctions.org/subscribe

We discuss the response of TikTok providers to the administration’s non-enforcement pledges—including the companies’ legal liability and whether their responsibility to comply with the law runs past potential liability.Read Bob’s piece from yesterday about the providers’ conduct here.And check out Jack’s assessments of the legal basis for the non-enforcement of the statute here and here. Get full access to Executive Functions at www.execfunctions.org/subscribe

We discuss the Supreme Court’s Tuesday stay of the district court order blocking implementation of the reductions-in-force executive order. Jack thinks the Court got it right. Bob is skeptical.Consider becoming a free or paid subscriber to Executive Functions. Get full access to Executive Functions at www.execfunctions.org/subscribe

We break down the opinions in Trump v. Casa—including the majority opinion’s statements on Solicitor General John Sauer’s concession to the bindingness of the Court’s judgments and opinions on the executive branch, the narrow scope of the majority, the opposing conceptions of the Court’s role in the majority and in Justice Jackson’s dissent, and how challenges to birthright citizenship are likely to proceed from here. Read Jack’s post from Sunday arguing that the Supreme Court was the clear winner in this ruling.Consider becoming a free or paid subscriber to Executive Functions. Get full access to Executive Functions at www.execfunctions.org/subscribe

Jack argued early this week that it’s impossible to know whether the U.S. attack against Iran was constitutional “because the constitutional law of war powers is inscrutable.” Bob responded to Jack’s post, contending that although executive branch legal opinions provide support for the attack, that doesn’t resolve the constitutional problem.On this episode, we disagree about the constitutionality of this particular attack, but we agree that our war powers law has reached an unfortunate state of presidential dominance. Get full access to Executive Functions at www.execfunctions.org/subscribe

We discuss the law relevant to U.S. engagement in the conflict between Israel and Iran, fledgling congressional resistance to unilateral action in the region, and how public opinion might affect the administration’s decisionmaking. Get full access to Executive Functions at www.execfunctions.org/subscribe

We discuss Judge Breyer’s ruling yesterday evening on California’s challenge to Trump’s federalizing of the National Guard, how the decision might have set forth helpful parameters defining the president’s constitutional authority in this context, and how much the administration’s out-of-court statements influence the opinions flowing from the courts. Get full access to Executive Functions at www.execfunctions.org/subscribe

We discuss California’s complaint challenging the Trump administration’s actions in Los Angeles, take a closer look at the president’s authorities and legal strategy, and conclude by considering the politics underlying it all. Timestamps:0:00-11:30: The substance of California’s complaint11:31-18:28: The aims of the complaint18:29-30:35: The president’s relevant statutory and constitutional authority30:36-34:34: The administration’s broad legal approach34:35-47:38: The politics of the momentFind California’s complaint here.And find Chris Mirasola’s article in the Harvard National Security Journal here.Consider becoming a free or paid subscriber to Executive Functions. Get full access to Executive Functions at www.execfunctions.org/subscribe

We discuss the president’s memorandum mobilizing National Guard troops in response to protests against federal immigration enforcement in Los Angeles. We break down the authorities Trump is relying on, how much it matters that Trump has not yet invoked the Insurrection Act, and more. After we recorded, California Governor Gavin Newsom said that the state will sue the Trump administration over Trump’s decision to “federalize the National Guard.”Read Chris Mirasola’s article that Jack mentioned during the chat here. Consider becoming a free or paid subscriber to Executive Functions. Get full access to Executive Functions at www.execfunctions.org/subscribe

President Trump lashed out at the Federalist Society and Leonard Leo last week. We discuss what is behind the attack, how the administration may try to reshape the judiciary, and how Congress could get involved. Get full access to Executive Functions at www.execfunctions.org/subscribe

The Supreme Court issued a consequential decision yesterday staying two district court rulings that had blocked President Trump from firing board members of executive agencies. We discuss the decision, what it means for Humphrey’s Executor, and other potential short- and long-term consequences. Get full access to Executive Functions at www.execfunctions.org/subscribe

We discuss the oral argument in the birthright citizenship case and dive into Jack’s post analyzing Solicitor General Sauer’s concessions that the Supreme Court has the authority to issue “binding precedent nationwide.”Consider becoming a free or paid subscriber to Executive Functions. Get full access to Executive Functions at www.execfunctions.org/subscribe

We discuss Jack’s post on the administration’s habeas trial balloons, the legal issues and possible strategic aims underlying the comments, and how it all fits into the administration’s larger program of attack on the courts. Consider becoming a free or paid subscriber to Executive Functions. Get full access to Executive Functions at www.execfunctions.org/subscribe

We discuss reports of extensive corrupt conduct in the administration, the innovations that facilitated the corruption, the reasons for the muted public reaction, what might generate a stronger reaction, reform possibilities, and more.Consider becoming a free or paid subscriber to Executive Functions. Get full access to Executive Functions at www.execfunctions.org/subscribe

We discuss an op-ed Jack published in the New York Times this morning in which he argued that much of the aggressive action Trump 2.0 is taking stems from similar, but less extreme, actions in prior presidencies. He contended that the Supreme Court and Congress have some capacity to limit the dangers of “presidencies run amok,” but that a constitutional amendment might be necessary to impose sufficient constraints. Get full access to Executive Functions at www.execfunctions.org/subscribe

We discuss the ongoing conflict between the Trump administration and Harvard in light of the Trump Organization’s firing today of ethics adviser William Burck. Consider becoming a free or paid subscriber to Executive Functions. Get full access to Executive Functions at www.execfunctions.org/subscribe

We discuss the Supreme Court’s Saturday Alien Enemies Act ruling, a district court ruling in a Consumer Financial Protection Bureau case, and whether the administration is starting to experience negative consequences from its attacks on courts.* See Jack’s piece from yesterday assessing, among other things, what the Supreme Court’s order reveals about the Solicitor General’s Office in Trump 2.0. Consider becoming a free or paid subscriber to Executive Functions. Get full access to Executive Functions at www.execfunctions.org/subscribe

We discuss Judge Wilkinson’s opinion denying the government’s stay motion in the Abrego Garcia case, Judge Boasberg’s opinion finding probable cause that government defendants’ conduct in the Alien Enemies Act case constituted contempt of the court, and where the administration might go from here. Consider becoming a free or paid subscriber to Executive Functions. Get full access to Executive Functions at www.execfunctions.org/subscribe

We discuss the Supreme Court’s emergency rulings, and one of us (Jack) argues that the Court is not capitulating to the Trump administration (see Jack’s piece making this argument posted this morning). We also discuss the administration’s still-escalating attack against law firms.Consider becoming a free or paid subscriber to Executive Functions. Get full access to Executive Functions at www.execfunctions.org/subscribe

We discuss the Supreme Court’s ruling last night in the Alien Enemies Act deportation case, the Abrego Garcia case, and the difficulty of lawyering on behalf of the government with incomplete information. Get full access to Executive Functions at www.execfunctions.org/subscribe

It’s been a busy last couple of days in the Trump administration’s ongoing attack against law firms. We discuss the complaints filed by Jenner & Block and WilmerHale against the Trump administration contesting the executive orders targeting the firms, Skadden’s deal with the administration, and what it all means for the broader big law landscape. Get full access to Executive Functions at www.execfunctions.org/subscribe

Following the Jenner & Block order, we discuss what President Trump’s directives targeting law firms collectively reveal about the nature of this effort and the extent to which law firms have a responsibility to resist it. Get full access to Executive Functions at www.execfunctions.org/subscribe

We discuss Paul Weiss’s agreement with President Trump and the condemnation of universal injunctions from the administration and its allies. Get full access to Executive Functions at www.execfunctions.org/subscribe