Powers of the Presidency

HUGH HEWITT: Morning glory, America. Bonjour, hi, Canada. Greetings to the global audience listening online at HughHewitt.com. I am Hugh Hewitt, on this Friday, February 18, 2019. It is my first Hillsdale Dialogue of the new year with Dr. Larry Arnn, president of Hillsdale College.  

All things Hillsdale are found at Hillsdale.edu, including a magnificent new online course about a brand-new book The Second World Wars, which is an incredible read. I took it with me along the trip.  I accompanied Ambassador Bolton to Israel and Turkey and couldn't get my nose out of it.  

Dr. Arnn and I have had these conversations since 2013. They are all collected for binge listening at HughforHillsdale.com. Dr. Arnn, Happy New Year!  

LARRY ARNN: Happy New Year to you!  

HEWITT: I want to begin, if you don't mind, with Article II of the Constitution. We are in the Constitution business here, as is Hillsdale, and a lot of issues about Article II are front and center, this week and every week. And the key paragraphs, I'll read, and then ask you to summarize what they mean.  

Article II, Section 1: “The executive power shall be vested in a President of the United States. He shall hold his Office during the Term of four Years, and, together with the Vice-President chosen for the same Term, be elected…” And then it talks about how he gets elected—what he gets to do.  

And then it comes down to say, “No person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution”—that's the Hamilton clause— “shall be eligible to the Office of the President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty-five Years, and been fourteen Years a resident within the United States”—another Hamilton clause. And it goes on to talk about the State of the Union. And that's it.  

So, it does say he can't receive an emolument from any government, et cetera. What's that mean, Larry Arnn, about the powers of the president?  

ARNN: Well, the distinct position of the three kinds of government powers in separate hands is the heart of the Constitution. I guess the heart is that everybody represents the people. But, after that, this keeping the branches separate is crucial.  

And so, the president is the executive. And, if you think about it for a minute, the executive is a different kind of power than the legislative. The legislative power is not continuous with events, because they pass a law, and then time goes on. And they may have to pass another one.  

But there's a bunch of laws. And so, they're in existence. And so, my own view is: What a great relief if the Congress didn't meet very often.  

But the business of the country has to go on all the time. And when the Congress is in session, by the way, it's not necessarily keeping up with the business of the country. It's got things it's working on.  

So now, then the laws, however, have to be continuously enforced. And so, that means that the president has a different kind of job, a job connected to events, a job dwelling on the things that are happening now that concern the law. And the legislature is deliberating about other stuff. So there you go.  

So, the president has got to be separate. And he gets in each of the branches, by the way—in Article I, the legislature; Article II, the executive; Article III, the judiciary—each of the branches. The power is vested somewhere, and somewhere discrete.  

HEWITT: And, in Section 2, that power is articulated not in full, but at least in great part, when it says, “The president shall be Commander in Chief of the Army and Navy of the United States, and of the militia of several States, when called into the actual service of the United States. He may require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices, and he shall have the power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.  

“He shall have the power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law: but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of department. The President shall have the power to fill up vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session.”  

So that talks a little bit more in detail about the unitary executive, Dr. Arnn. What are they trying to infuse that they could have just left silent, had they just said he's the chief executive?  

ARNN: Well, also, the phrase “take care that the laws be faithfully executed.” You see, that means all the laws. That's sweeping. That's a very important thing. And, because it all belongs to him—we have this Mueller thing going on right now. And special prosecutors, they've gone on in America for a long time. And, oddly enough, although there's a lot of experience with them, their constitutional standing is still ambiguous.  

And, in the great case Morrison v. Olson, badly decided, where the late Antonin Scalia wrote one of his very greatest things of dissent, he makes the point—and it's very powerful—he says, in the old special prosecutor law, the attorney general, an agent of the president, could only dismiss the special prosecutor for good cause, which is a limit, then, on the power of the president to manage the inferior officers.  

And Scalia makes the point—that should just have decided the matter. That's all. Once they admit that there's any qualification on the possession of the executive power by the president, then the Constitution itself is compromised because, remember, the people need this division of powers so that the government does not conspire together against their rights.  

HEWITT: Now, what we have in front of us, though, is the essential question. I talked to Jack Goldsmith, a very substantial scholar, a professor of law at Harvard Law, a former assistant attorney general in the Office of Legal Counsel and founder of Lawfare blog. He's very concerned about what we have learned about the FBI.  

And I'm going to come back and talk to you about the Michael Cohen story in BuzzFeed today. But what we learned about the FBI this week is that Bruce Ohr, a former deputy associate attorney general, met with the already dismissed Christopher Steele on July 30, 2016; then with Andrew McCabe, the deputy director of the FBI, and Lisa Page, the lawyer who was subsequently scandalously dismissed because of texts with Peter Strzok, on the 31st; and then with lawyers at the Department of Justice, in August. And then they went for a FISA warrant. And then they investigated the President of the United States on their own motion.  

And Jack Goldsmith, who is a friend of Comey, is deeply disturbed by this because it suggests the police agency—the secret police agency—in this case, is acting on their own against the elected president of the United States, Dr. Arnn. Does it alarm you as well as it alarmed Professor Goldsmith?  

ARNN: Well, Mollie Hemingway also wrote a really great article about this last week. This is another good one yesterday. And she quotes a New York Times article appearing on a Friday night, and a CNN interview appearing the same day, where they interview sources in the FBI who told them that they didn't have evidence that the president had colluded with the Russians but that they decided to investigate him to, quote, “rein him in,” and without evidence. In other words, those are people carrying guns.  

And the question is, To whom are they accountable? Because the president is accountable to us. If we don't like him, we can get rid of him. And his powers are offset by the legislative powers of the Congress.  

So, an administrative agency—and you know, senior people in the FBI, they don't do as much as they did before, because it's been called to their attention what it means—they speak of their independence. And the question is, Independence from what? Because independence from the president means independence from us. And that means—it's not, but it's a step in the direction of a military junta.  

HEWITT: And let's pause there. You are a student, of course, of Churchill—part of the official biography of Churchill. He warned that Socialism would inevitably require a Gestapo. And that got him in deep trouble in the 1945 election.  

But what he was saying is that big governments inevitably police their authority, and they are jealous of it. And I have raised with Goldsmith and others—I wonder if it's inevitable that a central police agency is going to go full Hoover eventually.  

ARNN: Well, we have to stop it, right? There's a reaction against it. But, on this track, it's where they go. Sure. And my own view—I don't know—I know one of the people, but I don't know many of them—but, on my view, I would guess that they're very fine people, and they're high-minded people.  

I mean, Strzok and McCabe—they seem partisan. Their texts have come to light. And they're people with investigatory powers going after people for political reasons. That's pretty plain in Strzok's emails to the lady. But, you know, I think Comey is probably a great guy. I don't know. I don't like him. But they're just wrong-headed, and they're going down a path that leads somewhere difficult.  

HEWITT: We will talk about that path, and we will talk about what do you do—how do you police the police when they feel they have the right to investigate the elected representative? Not Congress. Congress can check the president. We'll talk about that with Dr. Larry Arnn. All things Hillsdale, Hillsdale.edu. Stay tuned.  

Welcome back, America. It's Hugh Hewitt with Dr. Larry Arnn, president of Hillsdale College. All things Hillsdale are found at Hillsdale.edu, including this great new course on the Second World War. All of our Hillsdale Dialogues in the last radio hour of each week are found at HughforHillsdale.com so you can binge-listen.  

We're talking about Article II, the powers of the executive—the president—and what the FBI ought to be doing and is doing within it. Dr. Arnn, do they have movie theaters, you know, the moving pictures, in Hillsdale?  

ARNN: Yeah, and we even have teenagers to gather outside them.  

HEWITT: OK, so you've got movies now. I'm hoping—there are probably only one or two screens—I'm hoping the movie Cold War comes, which was a late 2018 release, about star crossed lovers in postwar Poland who also have to visit East Berlin and Yugoslavia. And what it communicates is that the secret police are everywhere and always listening, and that everyone becomes an informer—and the dangers of the secret police. And that, I think a lot of people have forgotten since the wall fell 30 years ago.  

ARNN: Yeah. Well, if you're watching movies, you should also watch The Lives of Others, which is explicitly about that in East Germany.  

HEWITT: Oh, that's the Stasi. They were the worst.  

ARNN: That's really important. That's a beautiful movie. And it's a touching movie, and a thriller. And the plot, roughly, is this super-effective Stasi officer listens to this couple, and they're actors. And the couple falls into trouble because one of the higher-ups wants to sleep with the woman, who's a lovely woman. And, listening to them, he sees the beauty of their relationship. And he helps them escape. It's just lovely.  

HEWITT: It is a lovely thing. But the threat it describes—the same threat is in Cold War, which I really—it's 88 minutes long, it's black and white, it's magnificent—is that a secret police has no boundary. And the Bureau is not supposed to be a secret police. It is supposed to be bounded by the attorney general, who is in turn bounded by the president. And the president is bound, as you said, by us and by Congress, correct?  

ARNN: That's right. Well, by Congress in the ways and with the powers that Congress has. First of all, he must take care that the laws be faithfully executed, and there can't be laws without Congress and the president. And then, second, they can inquire into the business of the executive branch, and they have oversight. And that's, you know—we're about to see that's a very brutal power.  

And Trump's a fighter. He's fighting back with them. It's going to be really interesting in politics for a while. So, yeah, they've got that.  

And then, remember, the judges also check the president, because the president, when he enforces a law, he imposes penalties on people sometimes. But he never does it on his own. All he can do is arrest them, and then you got to take them to a judge. And he can't fire the judge.  

Each one of these branches has to be sovereign in its domain, or authoritative—it's not sovereign—authoritative is a better word—in its domain so that they can offset each other.  

HEWITT: And, in fact, when we come back from break, we're going to talk about the BuzzFeed story of the day, and what it means for Donald Trump. But, if the Congress wants to go after him, there's a way to lay out going after him. And they may go after the president. But that's not the Bureau going after him. And I just can't stress enough to people why this is so disturbing, because we did not set it up to have a private agency, or an independent agency, be a watchdog on the president. It undermines everything.  

ARNN: It does. And that's just a direct—it's a kind of rebellion against the Constitution. And I think it's—oddly enough, you read these conversations that get published with these people—I think it's naive. I think that they've just grown up in a world where these agencies have a kind of sovereignty of their own, and their independence and dignity have to be defended, including against an elected official they don't like.  

HEWITT: You see, there you're indulging mercy. You're being kind, which maybe is inherent in having to be a college president dealing with young people. But you're attributing to them a lack of malice—that they didn't know any better, that they don't have a constitutional spine built into them when they take the oath of office. They don't know what it means. I think that's awfully generous, Dr. Arnn.  

ARNN: Well, as I say, I accepted Strzok and McCabe. We've read some of their stuff—private stuff. And they look like partisans to me. But I bet a lot of them are not like that.  

HEWITT: When we come back, I do believe that this, within the Bureau, is limited to a dozen people or less. But they had access to the Foreign Intelligence Surveillance Court, and that is a dangerous thing. Stay tuned, America.  

Welcome back, America. We gather in urgent times here in the ReliefFactor.com studio inside Los Angeles. I'm on the West Coast. Dr. Larry Arnn, president of Hillsdale College is my guest. He's in Naples, Florida, where he mesmerized an audience of hundreds last night. It's a zombie-inducing state that you kind of shake it off three or four hours later like Chinese food and say, What happened to me?  

Dr. Arnn, what did you talk about last night, by the way, to the people in Naples?  

ARNN: Yeah. It was yesterday at lunch. And I talked about—I used something that happened in the Bush administration as a specific example of—the second—the George W. Bush administration—as a specific example of the way we're changing the way we live. And the thing was the intrusion of the Department of Education into higher education as it had already done in K-12 education.  

And I explained how they did that and why they said they did that. And then I said that they are, in fact, exactly in the position of Thrasymachus in Plato's Republic. We've become a nation of sophists who seek power and not truth.  

HEWITT: How did they react to that? Because you don't hear about—I can't even say his name. I've had that trouble since Harvey Mansfield tried to get me to say that name in 1975—Thrasymachus. How did they respond to that?  

ARNN: Yeah, it went pretty well. You know, it is true. If you just read the quotes, the purpose of higher ed is so that we can be a strong nation and compete with China. And I told them at the time—because I was around back in 2005—I told them at the time—I said, you know, I think maybe China has become formidable because they've become more like us. And so, your idea is to become more like them. And they didn't understand that. They were actually even kind of hostile to me.  

But the main thing is, if you forget—for example, Winston Churchill said 40 beautiful things about education—40 things total about education, or 50. And one of them is inane. It's about community colleges, or the British equivalent. And the rest of them are all—they all, every one of them, make the point that education should be about the permanent things so we can direct our lives well and be free. And he just had that in his bones.  

And another person who never got that wrong was Ronald Reagan. Two guys not distinguished for their educations, and Republicans and Democrats, goodness’ sake—both. And it's almost purely bipartisan, although the Republicans are a bit better. They think that education is a grand engineering project. And you know, you can't do that. You shouldn't want to do that to the young. And, if you try to direct what they learn in that way—to see the learning is in them— 

HEWITT: Yeah, I have a question for you. I want to make sure people understand. You're not saying that education credentials are bad. It's just that they're not a replacement for a real education. Three individuals with the credentials—Tom Cotton, Mike Pompeo, and John Bolton—two Harvard lawyers and one Yale lawyer—the latter, Bolton—are all known to you and me pretty well. And they all use their educational opportunities to great advantage to understand how the world works. They also all came from modest circumstances. Do you think there's a correlation there?  

ARNN: Yeah, there might be. They're strivers. Tom, I know. Senator Cotton, I know well. And he's a striver. He wants to get things right. And I'm making a simple distinction.  

In the Declaration of Independence, just think how that's written. It was an impossible thing they were about to undertake. There was no reason to believe they could do it. But they started out by placing themselves—by arguing that they were in the right according to a standard above both them and the king. And, in higher education especially, but in all education, you should learn to think like that.  

HEWITT: There is a prevalent opinion right now. Jake Sherman was on the show earlier today, who believes we are in a crisis. I've been reading about Lincoln in 1864. That was a crisis.  

That was when we were about to lose the war. And Grant had blown up the Petersburg crater. And Washington was actually being threatened by Jubal Early coming out of the Shenandoah Valley. That was a real crisis.  

Do you think we're in a crisis, Larry Arnn? Leo Strauss said in The City and Man, we're not in a crisis unless we lose sight of our first principles. I'm paraphrasing. Do you think we're in a crisis?  

ARNN: Well, Strauss says in the beginning of Natural Right and History that we have defeated the historicist powers in Europe. But it wouldn't be the first time that a defeated power imposed upon the victors the yoke of its own thought. And so, I think that's what's happening. And I don't know where we are.  

But crisis just means “turning point.” And we're at a point now where, if we don't interrupt this, it's going to move beyond the power of the people by regular means to disrupt it and change it.  

HEWITT: Now, you're married to an Englishwoman. And the wonderful Penny, of course, is an American now. But she knows Great Britain, and you know it, and you've spent so much time there. You know in your bones the parliamentary system. They're in a crisis there. They're at a turning point because the people voted to leave the European Union, and they can't figure out how to do it.  

But I am taking some solace. And it appears that the prime minister, incompetent in so many ways, is at least resolute that she will not reverse the vote of the people. What do you think about that? Is she for turning? Has she got round heels, or is she going to stick?  

ARNN: Well, you're right. She hasn't been very good. And, you know, if she does that, she could destroy her party for a long time, because what else is there? In the end, there was a vote, and one side won. And her side—her voters—voted for it more heavily than the other guys, not unanimously.  

And I'm told by a really great guy, Rupert Darwall, from England, who writes on this stuff—and I check with him once in a while—and he says most of the Tory MPs are Remainers. But most of them understand that this would be just a very big step too.  

And, you know, she took the job. She was a Remainer. She didn't vote for Brexit or support it. But she took the job with the understanding that she was going to get this thing done. And she's been trying to get it done in a soft way, and the Europeans won't let her.  

And the reason they won't is that there are other people who might want to leave, and Britain is a big fish. And so they want to set an example. They want to punish the British. And she mustn't bow to that.  

And that means there may have to be a hard Brexit. And that means this—you know, in what, a month or six weeks, or whatever it is—to eight weeks, maybe—then they may just have to—there's a day where they fall under the laws that apply to all of the nations that are not in the European Union.  

HEWITT: The WTO rules. And it will be disruptive. But it would honor the people's vote. And I worry that if they go to a—she's set a red line. There's no customs union. And many members of her party want a customs union. And she said, “No revote.” And many members of the Labor Party and her party want a revote.  

She's got to stand strong on this. I understand it will be difficult. But this is a fundamental thing. You always are fond of saying, Larry Arnn, fundamental things are afoot. This is the most fundamental thing in Great Britain in my memory.  

ARNN: Yeah. And just think about—expand the issue, abstract from the details of it a little bit, and what do you see? You see this thing that was founded as a free trade organization, partly on the impetus of Winston Churchill, always with the opinion that Britain should not join it; it should support it.  

But it's fallen into the clutch of this vast administrative state that has grown around the European Union. And it's now a regulatory and lawmaking body in ways that Churchill resisted, because it was imagined by some in the beginning—and Churchill is on the record—read Andrew Roberts' book, it's got a really beautiful quote about it—on the record that this is not a government.  

And the reason it isn't a government is it doesn't have the means to gather public opinion and the support of the governed behind it. And one of the reasons for that is the people in those different countries can't talk to each other. They'd speak different languages.  

It's like—I was reading this morning to get ready for this—the way the president gets elected in the Electoral College. And the way they wanted that to happen was prominent people of good repute in each state would be chosen within that state so that people could know each other. And then they would all meet in the state capital separately, but on the same day, and choose the president. And that means that the people, all of them, would have a chance to be talking with the people who would select.  

Now, great national politics—one of the reasons the media behaves the way it does is that it has become the forum, the only forum, through which we can talk to each other. But we're not talking to each other. We're just hearing from them. And that's the way the European Union works too.  

Just remember, there's supposed to be an ongoing—like this show, right? People listen to this show. They get together. Hillsdale College events—there was a big one, and there were several in Florida this week. And they were all pretty big. One of them's really big.  

And it's a bunch of people who get together, and they spend as much time talking to each other as they did hearing me. And that's the point—an informed free people in control of the government. And the Brexit thing is about that. Can they disentangle themselves from this?  

HEWITT: And urgently. So, the other thing—you just said “an informed people.” I don't know if you have been following some of the tweets from some of the freshmen members of the House. I am the opposite of edified by the level of ignorance. They want to get rid of the Senate. And my law students don't know, but I expect a member of the Congress to know, the only thing you can't amend in the Constitution—the only thing—is that each state gets two senators. It's the one thing you're not allowed to touch, Larry Arnn. And they apparently don't know that.  

ARNN: Yeah, that's right. And you know it well. And if they do, it doesn't matter to them, because another thing is we lose our sense. We have so many laws now, and we lose our sense of the law. And what does the rule of law require? It requires that everybody involved—and that means the citizens too—must be able to understand the law and carry it around with them in their minds.  

And that means that, when the legislature passes a law, they can expect that the president will understand it as they have, and the people will understand it as they have, and the judges will understand it as they have. And then the law is predictable. And then a crime is then really a willful act, because it's an act against the thing that is understood.  

HEWITT: When we come back, we're going to talk about the rule of law, because Bill Barr, the attorney general designate—the once and future attorney general—was asked specifically about the rule of law and what it meant. And he said, it means that A, when subjected to the law, will be treated the same as B, who will be treated the same as C, who will be treated the same as D.  

It's a wonderful answer, and we'll expand on that when we return. Dr. Larry Arnn, my guest. The Hillsdale Dialogue. All things Hillsdale at Hillsdale.edu. After this.  

Welcome back, America. It's Hugh Hewitt reminding you always to visit TownHallReview.com for a great collection of the best in talk radio each week, made available to you, in fact, every day. And, often, it includes the Hillsdale Dialogue, which we are completing for this week with Dr. Larry Arnn. All things Hillsdale are available at Hillsdale.edu. But sometimes we excerpt this and put it into the TownHallReview.com, so you ought to go there and listen to it during the week.  

Dr. Arnn, I said to you earlier that Jake Sherman said we're in a crisis. And he was talking about—not the story about Michael Cohen being told by the president to lie to Congress. That will play itself out, we'll find out. He was talking about Article I and Article II being at loggerheads.  

And my view is Article I is going to Article I and Article II is going to Article II, and that this isn't a crisis. This is actually the way it's supposed to work. And, if Nancy Pelosi wants to shut down the State of the Union, and the president wants to shut down her airplane, that this is not a crisis. It's the Constitution, doggone it.  

ARNN: Yeah, yeah. Yeah, those things are signs of health. Actually—I mean, they're actually good.  

HEWITT: Yes.  

ARNN: Because that's how it's set up. Now, the crisis is—the biggest single fact that's different about the American government from when it was more constitutional is that the Congress does not make the laws anymore. They're actually made in something that's now understood as the executive branch, but it isn't. It's all these regulatory agencies—150 in round numbers of them.  

And, in their subject matters, they are the executive, the legislature, and the judiciary all rolled into one. And they are responsive to Congress when the Congress—I mean, this thing in the FBI, by the way, is a little bit indicative of this, right? Because they're responsive to Congress when the Congress enhances their strength. And they have massive strength.  

They're also one of the biggest factors in election because lots of money that goes into elections comes from a mixture of public employee unions and what we're pleased to refer to as the regulated community. That's to say, if you're regulated by the federal government, by one of these agencies, you know they're watching what you do in politics.  

So that is a huge change, and it means that the president is not in control of most of the executive branch—its lawmaking. And the Congress is not really in control of it either, very much. And the judges made their peace with it, although maybe Mr. Gorsuch, and Mr. Kavanaugh, and others are going to interrupt that by getting rid of this doctrine that the courts will defer to these agencies on their facts and rulings.  

So anyway, the point is that. The branches have—Charles Kesler wrote this years ago—have fought themselves into each other's clothes, and it's all mixed up. And the truth is this squabble that's going on about the State of the Union and Nancy Pelosi going on a junket to wherever she's going in military airplanes—this squabble—that's the old politics, right? That's what they used to be like.  

HEWITT: And, by the way, at a much lower level of antagonism. I mean, it's rhetorically quite funny. Occasionally, it's harsh. But no one is caning someone on the floor of the Senate, and John Brown isn't crossing over into Harper’s Ferry to murder people. And Missouri—Kansas—bloody Kansas—isn't happening.  

I just think there's a tendency in the media to overstate what this is. It's very hard on the 800,000 federal employees who aren't getting checks. I don't mean to diminish that. But it is not a crisis.  

ARNN: No. But, you know, you just referred to the worst period in American history.  

HEWITT: Yes.  

ARNN: And another one like it here and there during the American Revolution. But both Charles Kesler and Victor Hanson have written that this is kind of like a cold civil war we're in now. And that's what it was like leading up to the Civil War. And I pray that we will get resolution on these things, and that we will get accountable government, and we can go back to the chaos that we refer to as peace when it's not like this.  

HEWITT: And, while this is going on, as you mentioned earlier in the show, there is, rising in the East, a power that is actually potentially far more significant as an adversary than Russia ever was, even though you can't get more significant than nuclear weapons and first strikes in the Cuban Missile Crisis. It is a fact that the People's Republic of China has five times the people we do. Five times.  

ARNN: Yeah, that's right. And that's a blessing and a curse for them. And that hasn't always been a good thing. And remember what they're trying to do. And this is a drama that's going to play out.  

They're trying to make stable a despotic and comprehensive regime. And they have got where they've got because the Chinese people are remarkable people, and they've got intelligence, and loyalty, and family. And that makes them formidable.  

And the Communism basically took them apart—huge percentage of the population was killed. And so now they've liberalized. But they're tightening back up again. And it won't be easy to maintain that.  

HEWITT: It will not. And we will see who breaks first, or whether we restore our vitality to its full vigor first, or if they get ahead. Dr. Larry Arnn, always a pleasure. All of the Hillsdale Dialogues are collected at HughForHillsdale.com.