MAY 29, 2025 – Today I tuned into a replay of a Westminster Town Hall Forum[1] on the imperial presidency. The segment featured Jack Goldsmith, who teaches at Harvard Law School. Before his academic career he’d served in the Office of Legal Counsel and Special Counsel to the Department of Defense during the Bush W. Administration. His presentation was eminently accessible, sobering, and in its own way, reassuring.
Of course, on the listener’s mind was the current “imperial presidency,” but Goldsmith started by citing the source of the term: a book of that title published in 1973 by Arthur Schlesinger, Jr., historian and assistant to JFK in the capacities of speechwriter and “court historian.” The imperial presidency was a reference to Nixon and LBJ before him (See primarily Watergate and the Vietnam War). Goldsmith reminded us, however, that every president before and since has pushed the envelope when it comes to expanding presidential power. The historical perspective was useful.
Goldsmith then highlighted the current departures from norms and limits. First, he explained that after Vietnam and Watergate and prior to Trump the executive branch had had considerable internal controls in place. These were embodied by an expansive legal network designed and functioning as an effective governor on runaway presidential power. These lawyers served as a first line of defense against unconstitutional and otherwise illegal actions by the executive branch. “Now,” said Goldsmith, “the lawyers are told to get on board or get out of the way.” Absent is the important check on presidential overreach.
Second, he pointed out, Congress has wholly surrendered its constitutional role as a check and balance against the power of the executive branch. This is as dangerous as it is inexcusable.
The judiciary, of course, is the second constitutionally devised counterweight to presidential power. But, Goldsmith emphasized, never have the courts been under such attack; judges threatened and contempt heaped upon this branch of government. Denigration of the judiciary weakens it as a force against an imperial presidency.
What is to be done? Goldsmith was adamant that what the system requires is reform—of both the executive branch and Congress. He stressed, however, that for such reform to occur, “we the people” need to reform. By that he meant we need to find common ground to remedy the flaws in government. To find common ground, we must stop demonizing our political opponents. With respect to reform generally, Goldsmith reminded us that reform movements have occurred throughout American history. Timing and circumstances giving impetus to reform are difficult to predict. Reform movements often arise organically and gain momentum apart from some grand plan.
Goldsmith said that if he wasn’t necessarily optimistic about necessary reforms coming to fruition, he was “hopeful.” If I shared his lack of optimism, I saw no reason not to subscribe to his hopefulness.
In the Q and A that followed his formal remarks, Goldsmith offered additional notable observations. One concerned last year’s presidential immunity decision by the Supreme Court. He said that what bothers him more than the immunity element was Roberts’ lengthy discourse on the inherent and implicit constitutional power of the president. Apparently that part of the decision is now being relied upon heavily by the government (Trump-side) lawyers in almost every one of the 200 cases currently pending against the Trump Administration.
The second concern that Goldsmith mentioned in the Q and A was the currently unlimited power of the presidential pardon. He stressed that in effect, this allows people to commit all manners of crime in a mission to alter fundamentally, life as we have known it in these United States—knowing that if their president has approved (most likely in advance), there will be no penalty, no adverse consequences for the perpetrators. We have already seen this danger materialize with Trump’s pardon of the January 6 insurrectionists. The gates have been flung wide open. Given Trump’s own immunity under the infamous decision coupled with the power of the presidential pardon benefiting anyone who carries out Trump’s wishes or orders, what’s now to stop the Autocrat in Chief from doing absolutely whatever he pleases? Goldsmith’s description of this state of affairs sent shivers down my spine. We’ve entered a brave new world.
But Professor Goldsmith also brought forth the perspective of a student of history. We’ve been through crises in the past. We can weather the current crisis. Again, he’s hopeful that we will. So am I.
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© 2025 by Eric Nilsson
[1]A series featuring world renowned influencers in a host of matters of public interest; established in 1980 and sponsored by the Westminster Presbyterian Church in downtown Minneapolis.
