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tv   Don Mc Gahn Kathryn Ruemmler Others Discuss Congress Role in National...  CSPAN  December 16, 2019 8:30pm-11:28pm EST

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>> followed the house impeachment process from the administration's response on c-span. watch live unfiltered coverage in primetime stream anytime on demand at c-span .org -- impeachment or listen from wherever you are with the free c-span radio app. >> next, of national security oversight. new york university law school and sibley austin law firm hosted the event. senator mike lee and congressman [inaudible]. other topics include impeachment, war powers and executive branch leaks. [inaudible conversations] >> good afternoon everyone. not withstanding the change in
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the schedule we are going to start on time. the new time. on behalf of myself and bob bauer who is my supremely wise, talented and collegial codirector of the nyu law schools legislative and regulatory process clinic i wanted to welcome you here today to the fourth o year of the for. we are joined this year by another nyu law entity, the reef center on law and security, a nonpartisan multidisciplinary institute and the director, rachel, who is here has been invaluable in helping pull together the program for this afternoon. this b forum would not be possie
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without the generous support of sibley austin, a renowned international law firm and so it gives me great pleasure to introduce to you, peter who is a partner in the chicago office. he knows a lot about what we are talking about today. he served his district in illinois in the u.s. house of representatives for six terms, from 2007-2019. during that time he held a number of very significant positions. one of those most pertinent to what we're talking about today is that he chairs the house, ways and means subcommittee on oversight which is where he championed efforts that were supported on a bipartisan basis to overhaul the irs simple asset forfeiture program. peter, say hello back. [applause]
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>> sally, it's an honor to be here and on behalf of my partners it's a joy for us to participate and be sponsoring today's event. thank you very much but it's also a joy to have met many of the students who are here and front-row people and interact with you and to get a sense of where you are and what you are experiences have been. tthank you for a team designedo reduce yourself to me. my predecessor in office was henry hyde, who served in the u.s. house of representatives for 32 years and had a great expression that i have appropriated and it is this -- there is one thing worse than gridlock, the worst thing than gridlock is the greased chute of government. today what we are hearing about is the natural tension that our founders contemplated between two branches that are at one another and our founders, as you recall, had a low view of human nature and did not trust human nature and created these
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branches to be in perpetual tension with one another. and now the news today with the impeachment moving forward out of the judiciary committee with no sense of irony then that there's an announcement that the house is cooperating with the administration on the passage of the updated nafta, usmca. therein lies, i think, attention, the billions of the isfounders and this is a system that we are the beneficiaries of. on behalf of my partners we are honored to participate here today. thank you. thank you. [applause]pa >> today's program is called constitutional questions in political struggle. congress' role in oversight and national security. we have a lot of ground to cover and for that reason our introduction is will be at this podium or in chairs and will be
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exceedingly brief. there are full biographical information in your programs should have received when you arrived also, throughout the day we will be taking questions from the audience. you are given cards and if you wanted themhe when you came in d we will have the students from e nyu who will be along the two sides and will collect the cards and if you want new cards, additional cards, raise your hands. please write legibly and that will be exceedingly important and pass them to the aisles where they will be collected and brought down here. as you know we had to rearrange the schedule somewhat and let's go to it. bob yes, you are on. [applause] will you do the honors of introducing our first panel?
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hi you have a program with the appropriate biographical and i will say this briefly. on my left is kathy, head of the global white-collar defense [inaudible] has served into white house counsel offices including the one in which i served and she was my deputy from 2009-2011 and for another three years asth president obams white house counsel and she will tellho you the years when she ws my deputy were the most rewarding of her professional rlife. that's true, is it not? of course. [laughter] she does not answer questions that she does not wish to get the answer to. she has a rich experience with the topics we are going to be discussing today which is an examination from a broad institutional perspective of congress role as oversight and national security and on her left is don mccann, he is a partner at jones today and in
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charge of the government relations and government representation of practice and i've known him for many years and he was the chairman and he was a general counsel for national congressional campaign committee and of course also came to know each other in very family terms and we also as you will know he was a white house counsel to president trump for, i guess an extended period of time until a couple of years -- don will join us in a conversation about the white house counsel views of the issues that we will be discussing today congressional oversight with war powers and the discharge of constitutional role and i want to ask at the very end to give us or leave us with a few questions at the very end that i in turn hope we can ask senator lee and the congressman when they arrive later but let's begin. first cap event dunford
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fundamental question. i was watching a presentation that senator lee who gave it to the national and he stated that congress failures in these areas are the biggest constitutional problems of our time. >> senator lee in his presentation stated that he thought that congressional oversight failures and congressional failure to assert its role it constitutional rolei was the largest constitutional issue of our time. from a white house perspective to begin with what are the challenges for making that relationship between congress and the executive work. >> one of the biggest challenges is managing leaks. one of the things particularly in the national scree context that you have to deal with at the white house when youit are breathing members on all sorts
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of sensitive things and sometimes operational things that have not yet happened ist a concern over leaks and not just because people don't like national secure information but because leaks of certain types of information can have very serious operational and you know, potentially catastrophic consequences. i don't say that to disparage another branch of government but rather its history we learn anything from history is that the more people that you share information with in the more likelyor will find its way into the public and i think the most executive branch officials we say that leaks from the hill are a big problem and that is one of the things of structuring how you keep the congress informed and at what level do you brief
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and entire committee and let satan the senate intel committee or the house until committee do you brief the leadershipdo and debrief the leadership in the committee and those are the types of conversations and deliberations all white house has to be interested to see whether don had when you are trying to evaluate how sensitive the information is with how broadly you can respond -- responsibly distribute it while also making sure that the appropriate congressional committees and overseers are informed. >> before i asked don to give you or give all of us his view and that would address concerns you have about congressional role in national security decision-making but what about domestic oversight? any potential challenge would identify their? >> where do i begin with that. on the domestic side there is
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always i think in any administration a real push and pull between the white house and the congress and between the administration first of all but with the white house in particular. congress and particularly when one chamber of commerce ishe controlled by the opposite party is very interested in getting internal white house documents and the white house is very interested in ensuring that those white house documents remain confidential and within the executive branch and that is a long-standing push and pull that has been going on for decades. from the white house counsel's office perspective when you might say why is it that a white house cares so much about keeping internal white house communications confidential the enen this is both the real world reason in the parts of the world reason is no one to
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have their e-mails were strewn all over the front page of "the washington post" but another real world reason is that if the president's most senior advisors and those who are engaging with the president on a day to day basis about the importance of decisions a president is making have a concern that their communications as affected in internal documents will be providedefef an real-time or vil real-time to the public or to the congress that it will chill the advice that the president gets and thatra is a very practical real concern and i've seen it happen in real life where people start to give advice to the president differently because if their true views were known to be outside world they would get
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pilloried by this particular constituents in this particular media outlet or whatever. regarding those internal white house communications from oversight is, i think, a primary responsibly and frankly a primary imperative of virtually every white house counsel. >> don. >> what was the question? >> as i recall the question i think is the simple answer which is not necessarily the most correct answer is when it comes to oversight particularly with foreign affairs most of it depends the party composition of the white house versus house and the senate and it's all the same parties it's easy and not the same party and it's hard but certainly it's true and much harder if not the same party but
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when it comes to national security and foreign affairs it does not necessarily break down with partisan lines but there's a real constitutional issue buried in there where the executives certainly have the view that he or she has tremendous authority under the constitution of foreign affairs and congress tends to say they have oversight and they ultimately particularly house has the power of the purse so a lot of this back-and-forth antiwar sounds constitutional possibles and that does not necessarily have a party line because each side of the aisle as folks that don't necessarily fit in with their colleagues view of what the mainstream view of the constitution is so you haveve on the revolving inside folks who think the executive branch does have a big say in ofers are suspicious a 'concentrated power and range in between so it's interesting juggling act and you do have the
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decision from time to time to say who knows what and when and the modern convention that developed is the idea of leadership and the chair and ranking of the intel committees that they are on the tree of trust and can be read in an way that is not going to necessarily spread. you also have to keep in mind that house members are elected and senators are elected by the people they represent in districts and so they do have a right to know some things but then you come back to the constitutional authorities which raises maybe it's the next question but what exactly is oversight and this congress have oversight over decisions the president makes that are clearly within the executive authority and what are they overseen at that time if it is a power the
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constitution gives to the press so these are the discussions that one has with various elected officials and staff. some are more willing to have that discussion than others but it is a challenge and it's not as easy as simply saint what's the partisan competition. >> let me pick up on the question you asked about whether oversight is within congress' purview and its congress authority to pursue whether evthere is question of whether e president has exclusive article to authority and kathy at the end of the clinton imitation there was -- congress did conduct oversight and not only conducted oversight but i believe and i don't know whether it was last white house counsel to appear on a certain negotiator basis to give testimony white house counsel did in the party matter can you talk about how the white house addressed the sole question because the essence of the
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matter of the accommodation and aggression of whether or not i they are in some way to the oversight exercise conceivably infringing on the president's constitutional duties. the footnote to that is justice department open investigation as well and not through a special counsel butut the southern district of new york opened a criminal investigation into the president's exercise of pardon authorities and it would be interesting to see her go back and look at the commentary was around that at the time but i digress. that is a very difficult question and i think that certainly most presidents would take the view that that is the of the legitimate exercise of congress oversight authority and those of you who had occasion to read letters
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over again many administrations you will often see reference to this term legitimate that executive branch officials use to sort of pushback on the limits of what congress can appropriately exercise oversight of. the congress would say well, the power of the purse which is clearly withinin article one authorities is quite expansive and frankly we have funded the executive office of the president and that allows us to exercise basically have unfettered review and that's an ongoing debate that as you mentioned generally does end up resulting in an accommodation. i think most presidents have made decisions based on political judgments about whether or not to make available
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for example in that instance the white house counsel to provide testimony not withstanding the fact that the justice department would have been advisingt the white house that the white house counsel was may have been able to assert the doctrine of absolute immunity and declined to go and testify but nevertheless president clinton who is now former president but i think technically best testified after he was no longer in office because they were on the very last day or second last day of his time in office but they make a judgment about what are the opticss of not having a senior white house official testify or former testify and how do those optics affect the president political capital and his ability to get other things that he wants to get done and if
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he still has another election all of these things come into the mix and that is where you get into the zone of accommodating and that is why historically it has not happened a lot but there has then senior white house officials who have testified before congress notwithstanding the fact that the executive branch takes the view that there is a circle of advisers who should be immune from having to provide testimonies. >> if it is what you referred to as a prudential judgment about the flex the legal and constitutional part of the decision and the potential political sensitivities that are allowing islami for the question to you, don. if you are going to be or teach white house counsel and you have white house counsel in front of
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you what is the matter that is the role of white house counsel and the one that kathy described is not just a legal judgment but a large institutional political judgment about what current circumstances the white house should or should not do to respond to the congressional demand connect what is the role of the white house counsel and how does this relate to the participation of those decisions of other component parts of the white house? >> if i were teaching white house counsel school and if that were think -- maybe it should be a thing? who knows. if i were teaching white house counsel school the person you have to note is in any sort of legal ethics class or lori arena 101 who is the client and counsel to the president is the counsel to the president and with that comes sort of
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obligation to think in terms of the legal authority of the presidents authorities and the constitution and statutes and the like and it is not a personal lawyer we all say this and it all sounds pretty easy in the abstract and maybe for some it is toughma to pass in the abstract but for some it's easy to say it's not that hard but an easier way to explain it to lawyers is if you represent corporations you represent the entity, not a particular ceo or member of the border that kind of thing and i'm fine with lawyers that resonates that better when you say oh, they think there was at one time so-and-so in the board really wanted to do some opinion letter that they could go do something for the ceo wanted to do some night and had to say the bylaws would not permit that and you know the ceo and board member will be mad at you for a while but at the date you represent the entity. the first thing at white house
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counsel school would be to discuss who is a client and what that means and what it doesn't mean and the political ramifications lawyers are probably not the one best equipped to make those decisions just as in corporate america business judgments will not often be made by general counsel purveyed by the ceo of the board or whatever mechanism that the bylaws demand. lawyers can certainly wait in on what their judgment is because these questions eventually will become mixed questions of law and politics but when it comes to the more politically insensitive calculations i don't think a lawyer ought to be the one deciding those and that is true and there's not just white house counsel but branches of government and chief justice as a general counsel has general -- no one senate counsel rather when the senate counsel made political decisions for the senators people would think that was way out of bounds.
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i think for white house counsel school purposes i would emphasize the fact thatsc you ae a lawyer branch of government in a way just as there's other lawyers and other branches of government who have similar institutional interests that they have t to keep in mind when they offer their advice. >> so, to be clear let me ask you this question and kathy, same question to you. if does the lawyer wind up intervening or if you will expressing a judgment on the question of well, i think there are significant constitutional problems with yielding to this congressional demand but we ought to do it anyway because the following potential political committee occasion ramification is that a judgment white house counsel brings forward in the first instance if were not talking to white house counsel schools or is that the white house counsel in the way of opinion only if asked. >> there's no right or wrong answer and advance on white house counsel and what the relationship is and i think if
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it is an issue even political that can raise a second or third degree legal issue it is obligation for the lawyer to raise and if you have the authority to do this today andnd may put pressure on another part of the analysis tomorrow that will put you in a legal box and you see this with the accommodation process. there are times to fold them and time to hold them. you have to think the lawyer's job is to thinkjo not just about what are we doing on monday and what are we doing on tuesday but what happens thursday and friday. not this week but even next week and next term in terms of thereafter and that is the modern view what the white house counsel kind of does is help the institutional with doj still does help legal counsel with her opinions and [inaudible] your real question about how far does
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the lawyer go the lawyer gets into plain political consultants. you see seeking a lawyer so not sure who would listen to you for legal advice but when i got a job there was one predecessor in particular who was the first thing he told me when he was two to meet white house counsel school is i'll give you a hint, which one it was, and -- >> kathy. >> i would agree with what don said. i think it's important if you're not asked and you feel that for whatever reason it's important to offer the view that is a or optic view than a legal view is important to emphasize to other members of the staff that that is what you are doing so thatta you can be appropriately discounted by
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everybody in the room and if that is whataton they want to d. making sure that you maintain your difference and your because there's lots of people in every white house there are a lot of people who believe they have political expertise in that political judgment and can give you the president the best clinical advice and it's important white house counsel be different than the others in that respect and the offering of perspective that is rooted in law and precedent and defending the institution. >> don brought off the relationship between the white house counsel andar the office f legal counsel and it's obviously been the subject of her current comment and controversy bit on the issues we are talking about boundaries of constitutional of 30 whether or not privilege will be appropriately asserted and so forth what weight or well, i'll
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ask the question in two parts. to what extent is white house counsel feel that that is an opinion that the white house counsel asked to have as opposed to, for exhibit, the white house counsel reaching his or her own opinion on the subject and whate rate if that opinion is wired to the office of legal counsel judgment on those issues carry or should they carry? i ask because there's been this view that the white house counsel, a view, not the only view but white house counsel is too close to the purpose of the president and represent him institutionally and in close quarters in a personal sense as well and that if the only way for this constitutional order to be properly places do have an independent body of specialists like in the office of legal counsel went in on these issues. how much of a role do you think white house counsel is obligated to afford the office of legal counsel and the questions were talking about here? >> i will go first. why not?
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there's an executive order that has been around for quite a while that states the office of legal counsel is the authoritative view of the executive branch so that until a president rescinds that executive order the white house counsel asked to file the executive order and if that is the authoritative view of the executive branch but it sounds like that answers the question fully butds it does not because really baked into your question are two different situations but one is interagency executive branch legal issues. olc is part of this executive order in the final legal word so if a general counsel of agency a thing so law is whatever they want to thicket is an agency b's general counsel disagrees and thanks it something else and it's something where the essentially have overlapping or very similar jurisdictions, someone has to referee that when push comes to shove if the office of legal counsel who is the authoritative thing.
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white house counsel tends to be the more informal referee and we try to work things out you end up a lease legal questions to the white house counsel tries to break the tie. cosecond question is core presidential authority that the enesident wants to do so that you're not talking cabinet officials but talking amongsthi themselves. that gets trickier because that is something again baked into the constitution. ... ers. congress has a list of things they can do. executive power is executive power, whatever that means. we've been debating that for 200 years now, so there is a lot of ways that can go depending on who is sitting in the oval office making the decision. various presidents have had views of the constitution. is well-written and well spoken over the years and having been chief justice, very developed view as
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president. other president presidents can a little more political and cerebral that everyone brings to the table their ow own source of strength and worldview, and i think when it comes to executive authority there is no book on the shelf when you getyo the job of the white house counsel you can take it off and say here's the things the president cane d cannot do. hundreds of years of precedent. >> to build on that, there certainly is no obligation to seek an opinion from the office of legal counsel and us whether or not to do that and in what circumstances to do that is always an important question and because if you infect then get the opinion, then that is the opinions of rethink a lot of times whit white house counselsl think about when is it appropriateh' to consult sort of
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any be careful what you wish for type of dynamic. to form an opinion behind it but there are lots of decisions made about presidential authority on a daily basis that they are not consulted on much less and offers a formal opinion. orwhether it is complete we are stacked within the white house in a way that has the overreaching if you live on the crowding the congress
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south were putting pressure on the congress that doesn't square with the notions of what the relationship should be. you have a small piece of real estate which is the west wing. there is a senior aide along with the press secretary and political advisers and one argument is the council therefore becomes co-opted into the political operation.
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>> i think what your answer is may depend on your view of presidential authority. on one extreme if you think the executive authorities are largely legally unconstrained made by the political constraints meaning that whatever the congress can do for its oversight authority for appropriation o of the readies e otherwise, that is one set. for the voters deciding the president isil overreached you t those three checks on the exercise of authority. why in the world shoul shouldn'e white house counsel be there
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just to facilitate. for someone to tell them that he's not. it has the grounding in the constitution and an alternative would be that the white house counsel has to play some role of a governor that they have an independent obligation to exercise some restraint to sort of puts some guard rails around the president. whether or not that is because you believe that that's just a good thing for a lawyer to do, which is sort of separate from the question that you're asking but it's in the president's
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interest to have somebody saying if you do that it's going to be a train wreck versus actually thinking that there is an obligation on behalf of the white house counsel. someone who hasn't gone through the senate confirmation process as an independent obligation other than what they have just by being a government employee to check the exercise of authority.
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why wouldn't the white house counsel be an advocate for the congressional responsibility in some circumstances. why don't we go ahead and answer the question. the idea that there would be some independent check on the president's authority. the doj hasn't been around since the founding and it goes back not that long.
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it's very much a 20th century creature. i also think in response to your question which is a non- response prior to everything watergate it's safe to say that they are viewed as the president's lawyer. this explains why they have further into there were people that have grimaced apparently at the end of the day but still proper because it is expected to be working for the president. they wouldn't come to the point to the doj independentde of the
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president. if itof is a question. if it's going to be with villages that a branch of close call i think your job as the white house counsel. it's to rain in the power under the article to i two in the sitn where article one as its disposal. it's very small fights over how we have a particular rule or
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policy. that would avert a protest to be consistent with the smallest and largest issue is at least kind of involved strikes so you have to be consistent. what i always found this tricky i think the lawyers fall into one of three categories. i thought there would be much more on the legislative side representing the elected legislators. the outside counsel for the committee for a while did some oversight and low and behold on article two,a so i sort of playd the lawyer role on both sides so i came at it with probably a little bit different view than some, not all of my predecessors and was very much able to think how the oversight is going to
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think about the sam this sort oe the analysis that direction as opposed to the nice academic debate of what the role is checking with this and all that. but at the end of the day the branches of government when they crash into each other and fight for their various powers, i see that as a feature, not a bug in the system of government. >> in the white house counsel, you hope the president fight for his chair. each branch takes care of others must do to defend its own boundaries. let's take something small that isn't really current events. it makes it easier everyone is going to see things through the lensis of today not ten years ao or ten years today but doing a sort of high thing. i've represented a lot of people
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in the u.s. senate. they'd really loveve the fact of who is on the federal courts. the constitution the president thinks the nominee with the advice consent in the senate. as the job as white house counsel to see the senate's view is i think we should take this seriously. just white house counsel. they are going to hate when i say this place to get in trouble with somebody here today. is something that sounds to the constitution and that is a
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shared power where the constitution makes it clear who the ultimate decision-maker is but then they have to seek the advice and consent. to check on abuse or say the senate thinks it has, a larger role than you think. that isn't your job at all. you are a lawyer for the president. >> i think that example and what he is hinting at is the difference between what are the authorities granted in the constitution and what are the authorities that have developed over time through the norms and expectations so congress has decided that it's going to assert more authority than a presidential lawyer might think they are entitled to do in the
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context of judicial nominations doing things they can do like something called the blue slip system that gives the senators a much more practical say over the judicial nominations i and the constitution probably frankly provides that is a practice that has developed over many years about whether or not it is a good thing or a bad thing and likewise with respect to the notions of the department of justice independence and how much the attorney general should be independent from the president is another thing that faults the category of the norm and what are the expectations of people and how much of this is basically a product of the
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dynamic government that we have in the dynamic constitution that evolves through learning and events like watergate and througthrewevery time we have ae court vacancy in nomination process with the spin to identify that the president seeks to the authority he or she wishes to assert or how far they wish to go. the presidents come to office under pressure to get
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stuff done and they have huge expectations about what is going to happen with a duly elected president so all of the pressure is on the president to get stuff done so this is of course after arthur's licensurlicensure point about pe presidency to presidents come in to try to sweep them off of their path. does the white house counsel have any obligation to say you took the oath to uphold the constitution. let's talk a little bit about limits. what constitutional legacy do you wantt' to leave in the development of a relationship that is both functional for you but within the constitutional bounds within the congress is conversation to have? may be totally unproductive but i am asking that question, and
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then kathy. >> a weird conversation to have out of the blue. i think it is much more organic than that where it comes that issue by issue and the lawyer does raise the legal points at the end stick to institutional longer-term but it may not be you personally but i'm not sure these sort of jobs lend themselves to the academic nicety discussions i think it depends on the person. in have had clients that want o sit for hours and debate their views and others don't. they are much more into the legislative votes and wanting to move a piece ofor legislation. there is a great pressure on presidents to get things done d
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and what's going to happen in the first hundred days and the arbitrary measures of success. that is just the construct you have to deal with in the modern age, but let's go back again constitutionally the executive power is a very broad power and coupled with that, congress has passed a lot of statutes and moved a lot of the power to the executive and they have given of power.t let's take a hypothetical. the taxing power belongs to congress. it's an article one. if gets into the terrorists and that sort of thing and it is a form of tax. that is what it looks like there's a number of statutes that allow the president to impose these tariffs for a variety of reasons, so when people in congress howl by the
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president may be doing this, that or the other. it's right there. is it the lawyer's job to say personally i remember in law school i wrote this paper where i thought mayb' the statute, okay, i may run for the senate in terms of the statute that is your personal view that as a lawyer the congress gave the above, so when the congress has you're going to far from the it's your own statute and it's not just like using that as a hypothetical h current events. there is a member of statutes throughout that have been passed over decades that have shifted a lot of what would otherwise be power and the congress tha in tt thinks it has over two what the president do it for the purpose of efficiency or decision-making a whole host of good government reasons in the situation and political reasons of debate, you name it it happened. this is one of these questions about the various authorities
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are really tricky to answer in the abstract because the branches in a lot of way debatet assaulwork this out witha moder things. and again that this kind of where we are in a modern age. >> when you enter to become ask the question i don't want to get into any specifics of the decisions made i will think about this, it was widely reported in the national security decision president obama could have made him certainly sustained meaning would have made that decision and certainly would not have been seriously challenged, congress wouldn't have caught on funding, he beat somebody with articles of impeachment buten there wouldn't be much momentum behind the process and you advised he shouldn't and he didn't. what is up with that text
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>> i think there are certain circumstances that you may conclude and advice that he has the authority to dohe something but s that maybe he shouldn't ad this was one example that we are not getting into specifics but where i thought that the decision was there was enough question and i would say there was a substantial question about whether or not it was actually the presidents authority to do a particular thing that it would be if he would be better served by getting the congress to agree with that decision and seek congressional authorization. that wasn't an obligation on his part but in my view of the prudential thing for him to do to put what was inevitably going to be a controversial thing on a
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sound footing. ultimately it was his decision if he chose to go ahead and exercise the authority of course i would have to did vigorously and believed he had the authority to do it but yo that u know, that again would be viewed as more legitimate if the congress also concurred in it. what's interesting i think just getting back to your question about whether there is a time to sit down and say let's say in the first six months of the first term in office do you have a constitutional vision, i think that for most that becomes more of a historical analysis, people sort of look at a presidents tenure in office and to say is there a theory, is there kind of anna article two coherent vision that is more you can piece it
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through in retrospect through looking at individual actions that may reveal the preferences and perspectives on this which very likely evolve over time. a president may come into office and have a very robust view of article one versus article to enand once they are in the seat they start to feel a little bit differently about it and so i think president obama for example, not to get into specifics but he actually did take time and different moments of reflection to say okay, you know, what have we done in terms of the exercise of constitutional authorities and what is there left to do and how do i think about that in ant coherent way.
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that is pretty atypical and even then that didn't happen very often. it was much more a product of these individualized decisions and facts and circumstances based on what was happening in that day and that we ended the month. >> i want to clarify an issue that is raised by the answer you which says is that the situatiosituation where there wa question of authority that could have probably been within his authority he would have been sbetter served by having congressional engagement and it would have been viewed as moree legitimate, and i want on to commenthe oneto comment on thiss bright then it's something the policy dictated would be the best action for him to take why is he better served by not taking it if he knows that for all practical purposes he can
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get away with it, whose legitimate view are you concerned about and i want gone to comment on a. don't worry about it. maybe there's a question here. congress may complain publicly that it's not going to do anything about it. it sounded to me like enough response you gave, there was a concern that as a legacy matter however you want to categorize it it would be better if he restrained himself and i want you to clarify that. >> i think when i say better, i don't mean in the abstract. i think that there would be it would have more public legitimacy meaning the public would be more supportive of the decision if the people's representatives were locked up witoffwith the president on the decisions of that's what i mean by that.
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when there are questions about this and they come up frequently whether or not the president particularly in the national security space can take unilateral action, unilateral action to do something that would be considered sort of an active or should the president to go ahead and do that unilaterally there's always the question about whether they have the authority to do it. is he better served by getting the congress to agree? so if you look at let's just take the authorization for the use of military force that was passed right in the wake of 9/11 in the days and weeks after 9/ 9/11.
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i would argue the actions taken to target terrorists were more legitimate in the eyes of the public because of she had congressional authority to do so. i'm sure he would have taken the position that he didn't need it, but he had an hadn't and that ie really what i am talking about. everyone said yes, you have the authority anthisauthority and y. >> it's maybe go past more bipartisan history. it's one of these things unless you really pay attention or everybody in the room pays attention to everybody probably knows this, but whenever there is something that happens that the war powersrs resolution acct could sit its paper to congress that also does the same thing consistent in the war powers resolution. though executives ca executivese legitimacy of the war powers resolution, but they've also
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added paperwork consistent with it. so, this is not something that just happens today or yesterday or last week or the last asadministration. it's something that's been with us for a long time particularly when it comes to foreign affairs. to the extent you get the congress on your side, that is just smart. it doesn't take a lawyer to know that. sometimes you have to go it alone and sometimes you have to get the support where you can get it and i think every lawyer runs into the situation where you may be able to do that, but then it would help if you maybe did this, that or the other. this is not only in big issues, but small things. you know it would really help if you have a couple of extra pieces of backup before you put that in the white paper because, you know, yes that is an opinion but maybe a bit more in the
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political lawyer roll a lot of things politicians can do but it's going to look back and raisbad and raisequestions, siny maybe that is a fundraiser but it's not really enough people and going to have trouble defending that. maybe you should have more people in the room. i can't point to a wall that says that it would be a lot easier to make the case that this is fine if you did with the wagive it theway that i am sugg. lawyers do this all the time. sometimes though it is when things really matter for the use of force and things that are very, very tricky because of the consequences. but again, my point is as a lawyer, you have to try to have some consistency in how we do au recommend and advise on small decisions and revise on the big decisions and they can't be you can't all of a sudden be somebody you're not just because the stakes are higher.
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>> now let's go to the high constitutional deliberation to the practical difficulties dealing with politicians in the congress. it's become the standard response for the former white house counsel that are a feel for the president engaged productive with the congress is and i wouldn't say all white house counsel when i speak for everybody here but just be a just impossible to deal with. they don't want to take responsibility for their actions. they would prefer to complain publicly leaving these to the executives so they delegate the responsibility and they don't resend that obligation or believe that obligation or alternatively, they don't delegate but they also don't act to protect their constitutional equities because they want it both ways. they want to put on the executive but at the same time either allow the executives in the party to claim credit for success and certainly they want
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to distance themselves from hard decisions. >> that is a fair critique. >> the t senate is designed to avoid voting on the unanimous consent if you want to talk about putting something off. everyou branch has its moves and opinions. i think we will move from white house counsel school to just representing politicians go. [laughter] i've never run for office. i never will. i always been it takes a lot of courage, certain kind of person that looks in the mirror and says i'm going to stand before voters and get more votes than the other person. and there's a certain -- brings a certain kind of personality and confidence that most of the rest of us black. so, it is a certain skill set that represents the kind of individual. for me, you know, we have this e
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same, anthisin common with repre elected officials seem longer than either for many years -- >> you don't have to bring age into it. [laughter] >> and there's certain ways of doing it. so, to me it wasn't -- i hate to say i wasn't really that big a deal because i've represented so many other i grew up in a political household and had an uncle was a state senatowhowas a state senar that did advance for bobby kennedy in california. june of 68, so i grew up in a game. for me, this is all normal. i used to sort of being around political decisions and that sort off thing. warriors who come out of a more refined world where they are sort of giving the knows all the time and that sort of thing is a bigger culture shock to come in
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and speak a language that is accepted by the folks that have actually run for office. i've always tried to with clients try to maintain candor and i think that continues to the present day where if anything i'm know done for the l tender with clients. other people are a little more polished perhaps and gun shy, but there is a certain fact i think you develop as a lawyer and i think at the end of the day, you always have to remember that this person has won an election. woit's not them. they represent people. people voted for this person and deserves a certain level of analysis and understanding and a certain way to present your point of view on the wall it always has to be read through the lens. this is a just advising
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corporations on how they can do a public offering of stock. it's a different thing. it sounds like something very big to me which is our self-government. >> a very diplomatic response, is it fair to say that it's at least a challenge to manage this or affect the relationship relaf there are strong disincentives for congress to assert its role? >> sure. to manifest itself in particular cases. but a is a whole argument of itself but that is part of the fun. >> i will be less diplomatic. i didn't come from the world. i came much more from speaking about if you are in article one or article to person. i am an article to person and came from the justice department
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o background and so very much ud to dealing with things like facts. [laughter] it's like dealing with the hill allhi the time. i remember having this early on in my tenure we have a judicial nominee who we thought was a wonderful judicial nominee of was nominated by the president as the white house counsel and going up and talking to senators and having a conversation with one senator in particular who was on the judiciary committee she's atspectacular, totally qualifie. if that's what her. met with her. i think she's amazing. that is the kind of thing that
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you have to deal with is figuring out how do you, okay i've put this person forward. you don't have any issue a issul with the candidate.yo none. in fact you think the candidate is fantastic that you are going to vote against her nomination. and that is what you deal with in congress. >> that is a lot different. i would have said that's what you think today. i mean i had many senators -- >> you didn't need 60 votes, thank you very much.. >> well, you're welcome. harry reid, thank you senator reid for about one. >> we could debate tha that oner a good 20 minutes. >> it'll be exciting, i can tell. where is the debate tax >> mitch mcconnell would change the rules of -- [inaudible] >> i don't think mitch mcconnell needs permission let alone from
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harry reid. should we goss back [inaudible] >> now that we are getting to the street-level -- >> let me give you another example. i think that frustration that the executive branch people feel often in dealing with the hill. another time we got someone to the hill and the two democratic senators and i would say it was kind of a why is it me and another senior official, why is it the president hasn't been doing the following things. it's just outrageous. the president should be doing this, etc., etc.. and at which point i say the reason why is because you both voted for a bill, you actually voted for the law that
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restricted th the president's ability to do the very thing that you are now mad at him for not doing and it was like blank stares. thinking was it not in your staff memo? >> i would say the answer is probably no two dot. >> probably was not. but i think those are too obviously very small examples, but i think indicative of sometimes by people who've worked exclusively in the executive branch of issues dealing with folks on the hill. >> it happens to all of us. in the same meetings they probably handled them a little differently because everyone has their own way of dealing with this, butpend you do run into ts sometimes you've realized he passed a law that allowed a presidenthepresident to do thisd or acknowledge the president has authority in this area and then
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a bunch o of multi-factors tryig to limit its what did you expect the president to do with it. so that is tricky but that illustrates something that i've come back to s which is when you have these discussions everyone wants to think about what's happening today or some big picture things where everything is and some monumental decision that saves or tells democracy. it is a bunch of granular meetings of the sort you say you are just beating your head against the wall. but my point is you are there to represent the president and have to say is this what the president is going to do. sometimes it was awkward for me because it would be people that were former clients and would have to say i know what you're saying. i'm representing the other side of pennsylvania avenue. so, you know, i was representing
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you and just as i represent the people down the street. i was fortunate having been around and representing folks into that kind of thing and never really got to. the point where it was particularly hostile. i don't think i ever had a senator blindsided me on anything on either side of the aisle. i was very fortunate in that i was never summoned. they may have thought they were summoning me, but i stopped by. [laughter] i never felt like anyone was summoning me at least in the legislative branch [laughter] -- to come see them at least when i was white house counsel, you know what i mean. but that's the tough part of the job because you do get into these things and as a lawyer particularly in the executive branch department of justice
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source you come in and get your legal analysis and then members of the legislature come at it from a whole different planet which is why i said by next time would be that's what you think atday but my mind would be thinking when yo when you've red four years ago and your vote total wa was the scum of this ad this and i know if i get this, i know how to get your vote. i came at it from much more that point of view than dealing with senators on the confirmation issues because that's just not coming you know, that is a polite tea with the queen. that tends to be wrong whoever has the most votes wins kind of thing to think that way which was always a challenge for me because i'm much more of an article one died in article two based upon my career in dc although i spent by government time mostly in the executive branch. >> i want to commend the two of
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you. i was summoned but never for the purpose of praise. we have a few questions as we conclude here. one question the executive branch is the office of legal counsel from theun audience that is, the legal counsel that renders opinions on the legality and constitutional congressional access to information. congress doesn't have an office that is that other than in the context of legal action or a lawsuit. do you think that congress would benefit if you want to express an opinion on having an office that functions like the office of the white house counsel or however in the legislative sphere. >> with the oversight in particular? i think practically both chambers do have that function and i certainly had conversations with either the house legal counsel or the senate legal counsel around
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issues of dispute of congressional oversight and what is appropriate for congress to request. that's part of the accommodation process. talking of the senat about the l counsel and advising senators yesterday your request is legitimate or, you know, as the onset of the senate legal counsel takes the same view about the senate's authority that we do about the president's authority which is a very expensive perspective entitled to every document that exists within the executive branch if it is pertinent to something they are looking at, but i do think that that does exis exists not formalized in the way that the overall c. exists. >> no, here's why.
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the house 435 members in the senate is 100 members. they all have a vote. they all bring to the table their own desire to represent their constituents and uphold their own oath of office to uphold and defend the constitution, the executive branch is the executive so it makes sense to have more of this decision because the executive power flows from the president for what is nature i the wood ih more dispersed so the idea of having the office of legal counsel for the house or senate i think would run into 435 bos falls on a daily basis and it would be unworkable. plus there's plenty of lawyers in the house and the senate majority leader has counsel, minority leaders have counsel and the committee systems have had councils that when you deal with congress on the executive branch point of view the first distinction is more going to be with counsel to the particular committee that thinks there is jurisdiction over the issue
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coming back to the counsel of the house that usually tends to be somebody that gets involved much later in the process unless you know that person's views you may want to get involved sooner and there's ways to sort of navigate that where you pick who you think it's ain better answe. i think that the idea for the te house or the senate just doesn't work. they've developed their own system over a couple hundred years where they've had their committee system and that's just the way it's done. we are starting over and we are 200 years ago maybe but today i just don't think it would be workable at all. >> very good. i have two additional questions i want to asto ask before time . i want to ask you this last question you want me to ask. when he completed a presentation at firspresentationthe first ofk they should be subject to senate
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confirmation? >> absolutely not. >> no. >> having gone through the senate confirmation being confirmed in having that, no. it's a different role. lathink that puts yet another layer between the president and the president's ability to get candid advice from the advisers that he picks. i don't think that they have, i don't think that the clerks were the chief justice need the confirmation either. the counsel to the speaker of the house needs to be interviewed by the personnel department and the executive branch it is a separation of power. the president is entitled to the group of advisers and not advisers that are picked by another branch of government. >> last question i want to ask here from the audience, what is the role of the white house council in the executive branch
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cracks you up and up to the national security by talking about the problem presidents facing sharing information with congress, building a partnership around national security issues because of the risk of the week's. but obviously we have a significant issue in the executive branch. some of these were for purposes of course of kites understood in some cases it's for the purpose of raising in trouble ranch battles in which one-sided truce to win an argument with another site on the executive branch sometimes for the purpose of pushing information to the press for a variety of reasons but clearly not all of it creates tension between the two branches are full oft the legislative branch. and yet the investigations are extremely controversial. any thoughts on that? >> a little bit on the question i think this is roughly the id
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idea. >> i think every white house would like to prevent leaks from the white house or the administration and the reason is that they tend to affect the presidential decision-making in a way that can undermine the integrity of the decision-making. in otherin words, let's say a contemplating a particular decision, not even anything that is not a national security decision but just even a personnel appointment. the president is deciding who to point tappoint to be the chair e federal reserve. and there are people within the white house that have different views of that appointment should be. and somebody decided they are actually going to put their thumb on the scale and say they are a candidate so they leak to a group that is also opposed to
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the rival candidate and therefore creates a big brouhaha before the president has even had the opportunity to make a decision and therefore affecting the president's decision-making as to who he thinks the right candidate is and to control the rollout of that decision, how it is announced and kind of message if youd, will to the public. i think every whit white house counsel is concerned about the leaks in the white house for the. at least as a main reason. and so, therefore, has probably on the occasion done some kind of an internal review or investigation in the way we think about criminal investigations to figure out who leaked it and why did they do anthat and what was their motivation because it was not
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helpful to the president. so, that i n think is typically that falls in the lap of the white house counsel. the white house counsel tends to be what the right word, kind of a person who has to deal with that. by default. no one else wants to do it. it doesn't make you a popular prison for surperson for sure wy the way we are going to start looking through everybody's e-mails to see who talked to this particular associated press reporter, whatever. but you know, sometimes it has to have been and i think that does happen. with respect to the leaks across the executive branch it is a part of governing that i think there is not much that they white house counsel can do other than through his or her channels of communication to talk about the importance of giving the
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senior decision-makers that decision space and it's not fair frankly consistent with the fiduciary obligation to a particular administration to be acting on their own and leaking things out as a kind of moral legislation making the white house counsel often has to take on that role and try to convince people not to. but it is just a fact of life. >> it's a fact of life. the blue slipsdo sink ships. one thing you said really ring as true in the way i thought of it as white house counsel's office is not an investigatory office. we don't really have the resources or the sort of authority to go around and investigate things. we review things and i think with the counsel's office does is issue, spot and help c determine whether a particular week requires additional legal
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action or thorough or not. but when it comes to them it is a team effort on the national security side of these folks have to really work together to figure it out. and when you end up in eituations of this sort, w you mention some of them are because there is a policy staff and people want to try to use the papers to help decide the issue. thatou gets tricky because then who knows who is actually leaking at a certainin level of senior staff strata. it becomes kind of this on the thing. you only know what you know because that's where you come from and on capitol hill it's not even really considered a week anymore. it just sort of happens and it's in the paper before the meeting is even over.
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so, it's unfortunate because when you get in that situation it's have to be candid and everything is scripted. you have to have a meeting in a preview for the meeting so when you actually have staff meetings not have the staff level they are not real meetings. >> and you end up having the real meeting and then the fake meeting. >> everybody sort of knows their lines and comes in and assess it and everybody is going to put it in the paper so you better useful sentences. >> with that, with regards to senator leavitt is about to start. you can hand i it in anonymously on one ofhe the notecards. i've ask a question about all these various internal senate procedures that sort of enhanced
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the senate's power at the expense of the house where executives. the blue slip in particular, canada still has this where one member can shut down the operation. if it was discussed and rejected. but this is the thing when you get into the separation of powers you can usually find. what hit them in the senate wprerogative sort of thing and that probably warms them up. >> thank you very much. [applause] >> please remain in your seats. it is my great pleasure and
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honor to introduce the next speaker from utah. again, his bio is included in your program, butut i want to specifically acknowledge for the present purposes he has served and is now serving on the senate judiciary committee and is a recognized leader in the congress on a bipartisan war powers reform. senator leah lee. [applause] >> thank you. i almost missednk my cue. i was backstage having a conversation with someone. it is a pleasure to be here. i am so grateful to you for putting this event together.
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at the time when congress is hit deep and disinterested, politically uncharged and otherwise uninteresting house impeachment process you have to leave it to put something together with such sensationalism and appeal as a daylong symposium constitutional separation of powers particularly in the context of the war power. very well played. but honestly, you have heard from scholars and practitioners throughout the day dealing with american security policy, and i wish i could have joined you for all of it but i am honored and grateful to be here and for the
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opportunity to speak on such an important topic, and a topic that for far too long has gone unaddressed. currently, severely under t dressed. a serious conversation about the principled use of war powers under the constitution is of cof course not only timely, butut is insomething that really should have happened a long time ago to a greater degree than it has a, and i think much more important than most men is of either house of congress or of either political party seemed to appreciate. i will be the first to acknowledge my own political party has not been very vigilant in making sure we use war powers appropriately, and that is one of the things i would like to change. today i want to talk about why the founders designed the war powers processed the way they did emphasizing the fact this wasn't done randomly or for lack
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of creativity or absence of a better idea. i also want to talk about how we got into thehe current situation that often involves executive unilateralism and why the congress as reclamation of its duly assigned powers under the constitution is so important and why it's essential towards the goal of restoring the public trust and legitimacy in an area of public policy that's so important and especially in the area of public policy where public trust is so essential to the legitimacy any government must enjoy. in 1848, there was a young congressman from illinois who wrote to his law partner back in his home state explaining his opposition and reluctance but ultimately it was his opposition
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to president james k. polk. trigger finger when it came to mexico. he wrote in this letter the provision of the constitution could the warmaking power to congress was dictated as i understand it for the following reasons. he had always been involved in impoverishing people in more generally do not always that thetogo to the people of the ob. this the constitutional convention others understood to be the most impressive of all of the oppressions. and they resolved to frame the constitutionio that no one man should hold the power of bringing this oppression upon us. what then he understood was the case for congressional control over the warmaking authority is roughly the same as the case for
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congressional control over federal policymaking with large. that is to say it is the same case as separation of powers generally. it's a case for dispersing and diffusing otherwise centralized political power placing it in the most diverse and the most representative and the most accountable branch of the three branches of the federall .overnment .. james mattis federal 51 talk about human nature. they comprised of men were angels they would not need native government and we had access to angels we would not need rules. we would not need external and internal constraints on the
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exercise of power. we are not angels and we don't have access to angels to run our government so we have to have rules. we have just put a power, we have to start with the abstract contract of a king for desperate for monarch or severn. and we slice and dice caesar's power vertically and horizontally until we get to a place where caesar is less of aa threat. after the tyranny of the british caesar you might say, the tyranny in particular of king george the third who is overly aggressive power gave rise to the american revolutionary cause they thought this was necessary in the tierney of king george was the founding generation suffered and members of the foundingff termination sufferedf subjects and soldiers in the framers working on taking steps to preclude similar abuses within the framework of the
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republic that they hope to establish. they understood if the purpose of government were to ensure the success in the peacefulness in the thriving ofin the people thn governmental success depended on the concept of confusing power so no one person and group of individuals could misused too much of it and the logic was no less valid and foreign policy than domestic and nowhere more applicable than the power toin declare war and if anything it was more powerful and more potent and subject to abuse and therefore more essential to control in the context of the war power. it's important to remember under british rule it is not how it worked and it's why they chose the model that they did, the king of england wielded the power to send his country and hours for that matter because we
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were part of his country prior to the revolution into war. regardless of whether it was in anyone'ser interest other than e kings, indeed one of the chief grievances against king george the third in the indictment section oft e the lipper declarf independence he render the militaryen independent of superr to the civil power. at the constitutional convention, the delegates wanted to make deliberate and dramatic break from that monarchy centered model. article one section eight of tht ec constitution could not of been clear on this point. making clear that congress shall have the power to declare war. as james mattis wrote to thomas jefferson in 1798, discussing the very issue, the constitution supposes what the history of all governments demonstrate that the
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executive is a branch of power most interested in war and most prone to it. it does accordingly study to care and that's a question war in the legislator. so it was not a coin toss and not close nor was the system that they devised of an oversight, it was very, very deliberate. the constitutional convention the question did in fact come up south carolina delegate proposed to grant the power to declare war and the president, it did not go over well for really good reason. half of the delegates being of the revolutionary war served under the inefficient continental congress during the war including the convention steam president general george
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washington who everyone knew was obvious choice to become the republic first president. butler's was not even second period it was dismissed out of hand. unusual in any parliamentary body like the constitutional convention for a motion to be made that does not receive a second and yet it happened there in his telling that it did not. in massachusetts, one of the great unsung heroes of the constitutional convention said, he never expected to hear on the republic the motion to empower the executive to declare war. the delegates instead placed the power in congress. because it knew that the members of the delegates to the convention understood that this was the branch open and public debate ensuring that this would be a decision of the people by the people and for the people.
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not because members of congress would not make mistakes, they would, not because they would be infallible, they always would be, but because they could be recalled, they can be held accountable for bad decisions on this topic and could be hel held accountable on regular intervals of every two years of representatives. busily need delegate james wilson ratifying convention of the merit of the very decision, this system will not carry us into war, if calculated the guard against it. it will not be in the power of a singlein man, or in a single boy of men to involve us int distres for the important power of declaring war vested in legislator at large. the declaration must be made with the concurrence of housese representativesrc from the circumstance we made raw. a certain conclusion that nothing but her interest can trust into war.
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kootenay, the role they givee that to the president was as commander-in-chiefjo, his job would be command and direct the military operation that the first congress would authorize and all subsequent consequence thereafter. alexander hamilton described 69 which i turned back to time and time again during my nearly nine year service in the united states senate when were part issues. the president's role would be nominally the same as the king of britain but in a substance much inferior to it. so a dangerous concentration of power. congress status has the quote unquote senior partner and were making policy, it was not something that went untested, it was tested almost immediately after the new document tookdo effect. when the miami and washington
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indians launched attack americans north of the ohio river between 1791 - in 1794, president washington can find his operation to exclusively defensive measures in response to those attacks. the constitution washington wrote at the time, and thus the power of declaring war in congress, therefore no offensive expedition of important can be undertaken until after they deliberated upon the subject and authorized a measure. a few years later during the war with france congress authorized the navy toan see ships bound or sailing to french court, john adams stretched the authorization order the navy to see ships sailing to or from a french port. after the u.s. boston seized the vessel flying fish which was
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sailing out of a french port, the boston's captain was held personally liable for what was rendered an illegal seizure by the deficit. chief justice marshall upheld the lower court ruling the adams order had indeed overstepped the clue limits of congressional authorization in that matter. president jefferson faces on security challenge, in the form of the pirates. who are reading american commercial vessels at the time in the mediterranean sea. jefferson did no more than order some ships and personal to the region to protect american vessels fromom attack. even after they declared war against us in 1801 jefferson reported to congress and the state of the union that year, a letter mercifully as was typical in the era and not typical today
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on a battle between the cruiser and the uss enterprise. on authorized by the constitution without the sanction of congress to go beyond the line of defense, the vessel being disabled from committing further hostilities was liberated from its crew. in the very next paragraph, jefferson put the decision of whether to escalate hostilities with tripoli or other states squarely back on congress. they answered his request was statutory authorization to go on offense against tripoli. the standard under our constitution wasas clear. across party lines and branches of government, the power to direct war resided with theth c commander-in-chief. but the power to declare war, to start it, to get us into it rested solely with congress.
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president madison, mckinley, wilson and franklin d roosevelt all eventually sought and received declaration of war under the arrangement following the well-worn carefully prescribed formula and the constitution. i submit this was no mere technicality, this was not some nicety where they were following through the motions of something they had inherited by an era, this was something meaningful, this authorization process really forced deliberate debate and force concentrated mind that could operate as a counterbalance to concentration of power. you clarified mission objectives and insured public accountability and therefore crucial bipartisann consensus.
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whether the u.s. military is downing incense on match record of success in the complex was a function of this process or merely a coincidence, i will leave others to judge. i can tell you my view, which is that it wasn't a incident, when you force the matter to be discussed in to be debated and liberated, you really elevate our country and theei foreign quality in the multi-strategy, it becomes a force multiplier and we all benefit as a result of the careful deliberation that ensues. when the u.s. broadened treasure on the line and when the lives of innocent civilians innn whatever theater considering entering were always better off when we have more consideration and deliberation rather than less. but the process is debatable. from the errors that i just described especially after the
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l.a. situation in world war ii, the balance between the commander-in-chief started to change. it is continued along the trajectory since the end of world war ii. the shift is relatively upfront and continued in that direction but the shift happen within the space of a few years. it has remained more or less along the same path oversensitive. in addition to occurring somewhat abruptly it was not entirely without reason in quick succession military technology shrunk america's greatestt traditional means of defending itself, its inherent natural, national defense system, the ocean that separated us from political enemies and their entangling conflicts across the atlantic ocean in the pacific
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ocean. the rest of the world had been ravaged by war while the u.s. homeland had remained unharmed. or mostly unharmed. with warfare suddenly nuclear, global, supersonic, and even intercontinental, and america's alleys vulnerable and reliant on us more so than ever before, the natural decisiveness of the executive branch came to the forefront u, the world look to e united states for freedom and security in the united states beautifully answer the- call. cold war president fled the long twilight struggle against communism with the support. president truman deployed u.s. forces into korea to combat the soviet korean fryers under the offices of a police action declaring he did not need congressional authorization. instead he elevated the united nations revolution as justification for his legal authority to send troops into
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harm's way into the theater of warfare abroad and far outside of our borders. the scope of the justification of truman's actions were unprecedented. with a crated new president. they pave the way for future presidents in congressional authorization as somehow optional and certainly not essential even for prolonged sustained conflicts one in which there would be a lot of sacrifice of american wanted treasure and a lot of casualties. not only american but adversaries and innocent bystanders who may have none nothing to do the conflict. soon after truman lyndon b. johnson deployed u.s. forces into vietnam with the thin veil of the gulf of the tonkin resolution which was neither a declaration of war or any clear
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authorization for the use of military forces. president ronald reagan deployed troops to lebanon in 1982 in the midst of instability and violence, again without congressional authorization. even after signing a resolution to withdraw from lebanon over the course of 18 months just days before the bombing reagan continue to assert as commander-in-chief over any limitations imposed by congressg president george walker bush cited un resolution in the nato security agreement as sufficient authority to invade iraq and protect kuwait asking for congressional support while clarifying his position that the support from congress would be optional, i don't think i need it, i feel i have the authority to fully implement the new united nations. many added the constitutional
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authority existed because many attorneys have so advice me. president clinton denied that he needed congressional authority for his actions and co-civil for potential invasion of haiti citing predecessors of both parties in un resolutions, the trend has developed for president to ignore congress altogether and thereafter to seek legitimacy elsewhere. in entities that have no power over the american people and certainlyav no role within our constitutional structure. ruso regardless of what role you think the united nations should play or can play or does play, it was not created as, never intended to be a tool for circumvent in congress, it was never intended as a substitute for the authority to achieve
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constitutional legitimacy for the declaration of war, that can only come from congress and not through any other body, not the united nations, not nato and not any other organization that i'm aware of in the copy of the constitution has the authority to do that. and at no point should any of the documents or organizationsni worthwhile and peaceloving incapable of giving us pathways toward avoiding conflict in future wars, the fact that they can help us do that is properly utilized does not mean they can win the author's war in the absence of the proper constitutional organ functioning. in fits and starts, congress has periodically attempted to arrest this trend were periodically taken action so as to appear falsely that it was arresting was trend responding to president nixon unauthorized engagement in vietnam and congress passed the war power
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act. the purpose of the law, was to reclaim congress constitutional authority to declare war. to provide divine limitations on the president's power as commander-in-chief and to assure congress ability to swiftly instruct the president to remove troops from the battlefield absent of declaration of war or statutory authorization for the use of military force byy congress. unfortunately, over the 46 years since it became law, the war power act has proven to be a pale truthful substitute for the constitution clear meaning in congress actual is chronically ignored and the powers simply assert itself in the arena. look no further than the unauthorized deployment of u.s. forces into somalia in the 1990s
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or the scandalously ongoing operation in the middle east that far exceed the missions established by congress after 9/11, colleagues in the house in the senate have used the word per act to challenge these engagements including this past year in an effort to bring about an end to the unauthorized and moral indefensible involvement in the civil war in yemen. but as historic as the passage of the yemen were par resolution, recalling our troops was, it was still be towed. and congress still field to override the veto, still refuses to act affirmatively and resigned itself to acting defensively and intentionally
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weekly and in truth the word power act is a crutch. or it has become such over the 46 years of its existence. not a crutch used by hobbled legislature, stand upright, no. in this instance it's a crutch used by a negligent and dishonest legislative branch as a prop to portray the shameful self-indulgence and evasiveness as mere incapacity. you know you're in a bad situation when somebody wants to betray themselves as incapable rather than what the impact are. remember being stunned a few years ago when i first learned of our impending involvement of what has become ours for soon to be five your involvement in the
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unconstitutional immoral, unjustifiable civil war in yemen. this was almost unthinkable that we would have some role there and yet we became involved. after it went on for longer than anybody in congress wanted to admit that it would go on, i became uneasy with it and i started looking for allies in the fight against it, i got together with bernie sanders, i love bernieve sanders. one of the many reasons i love him, is because he believes that war carry significant consequent this, he believes that war. significant consequences should not be undertaken lightly. so bernie and i got together and ran the resolution that i mentioned a moment ago to direct the president of the united states to bring her troops home and withdraw from our involvement as a co-belligerent in the civil war in yemen. we have been acting under a
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kingdom of saudi arabia led coalition against the hutu rebels in a unjustifiable manner. bernie sanders and i enjoy bringing this forward and we found success in the first time of the war powers act, nearly 50 year history. we actually got a resolution directing the president of the united states to bring troops home from a particular conflict to disengage from the conflict. for the first time in the law history. but again, this is used as a crutch. or as a prop, we feel and act a little bit like the unarmed english body whom being unarmed upon seeing the commission of a crime yells, stop or i'll yell stop again. [laughter] when that resolution predictably resulted in the veto, congress came back and pounded the table and said this is not right, we
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tried to override the veto but we did not have the votes. we will get back to that later. it is not a incident that this history of congress slow-motion surrender of the constitutional role in policymaking rather precisely mirrors its surrender of the domestic policymaking authority. these two things have gone hand-in-hand and followed the same chronology and they've taken a path that is closely reminiscent of one of the other. they're both part of congress self-servinserving retreat from constitutionalal responsibly. the real reason congress defers to the executive branch on national security and on domestic policy, in a sense has nothing to do with modern political or military technocracy, it simply because
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it is easier for us to be pungent than statement. almost every recent use of military force shows congress the authority of the executive indifferent to the ministration and refusing to exercise its prerogative. after the attack on our homeland on 9/11, the country understandably and rightfully wanted to respond. it's only human to have that desire one something that horrific happens. the authority that congress gave to president bush in the 2001 authorization for military force to go after al qaeda was remarkably stunningly shockinglr broad. 18 years later congress has refused to visit the authority and refused to renowned authority even as it has been used time and time again to pursue new entities across a the world deviating far from its purpose. in 2013 president obama came to congress after seeking
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authorization to involve u.s. troops in syria and i remember this moment well right about the time my wife and iha were goingo celebrate our 20th wedding anniversary and i had to inform her that i have good news about news, good news and william mr. anniversary because i gotta go back to washington to get classified briefing and the good news, i can't remember the goodg news. i guess the good news there was after looking at that we decided not to declare war but then there was more bad news. after congress decided not to declare war president obama went ahead and did it anyway without congress. at least to a limited degree. i have to give them credit that he did not go all in as he previously intended to go, he showednt some restraint but when president trump declared his decision to withdraw u.s. troops from syria almost every member of congress, president company excluded vaulted its decision and yet still no authorization
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for the use of force in syria was forthcoming. so you had members of congress beating their chest saying this is awful, barbaric why would we retreat from the theater ofs w. it did not happen, we are still there and yet nobody is even talking about it. under the constitution the three branches are all coequal but they are equal only in the same sense that michael jordan and larry bird and i are all former basketball players. [laughter] i really am good at boxing out. and other than the fact that i'm slow, i'm not terribly core needed, i'm not very good at jumping in my ballhandling skills are not what they should be, other than that i would've been great in the mba. in truth, congress domestic and foreign policy powers worked those of the other two branches
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and by design it was quite intentional that congress would be made while coequal to the other two was the most dangerous ofio the three intentionally dangerous and dangerous in the sense had been given broad powers but those broad powers were subject to all the layers of constraints and accountability. two different branches, both had to act before any legislative action was consummated. in all members of the house of representatives subject to reelection every two years, a third of the senate subject to election every two years. but just the burdens off her shoulders, the founders gave congress accountability. representatives and senators don't want to vote on legislation or worse because doing so increases the chances that voters might hold them
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accountable for bad decisions so they punt, too often arguments about congressional supremacy of deficiency. advocates of both the modern administrative state and executive driven war making point to the inherited advantages of an individual centralized decision-maker over the self-evident morass of dysfunction. advocates of congressional reassertion like me must readily admit it's much easier to make decisions in the executive branch and let's face it, congress is an institution facing approval rating of 11% making us slightly less popular than fidel castro in america and more popular in the influenza virus which is inexplicably
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obtaining on us. it makes it easy for full members of congress to say you don't want us making these decisions were unwashed masses like you was handed over to the expert in that executive branch, the professionals who know what they're doing, don't trust the unwashed masks like us to make this decision only by doing that their disempowering those they represent, those of were elected to serve and take an oath of office to protect and defendd within our constitutional structure. but where it's written that our constitution, where exactly i would ask is it written that our constitutional framework should ever prioritize ease of decision-making. even a cursory reading of articles one and two of the constitution strongly suggest that for the founders and efficiency was not a bug but a feature, this is exactly what they had in mind was in efficiency. they wanted to make policymaking
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difficult whether it was in domestic policymaking, regulatory policymaking, warmaking or otherwise. and while it should be in a republic in any republic especially republic as diverse as ours in the absence ofna national consensus, it is probably a better thing that they not be excessive inefficiency less than be federal law that does more damage to the republic than iter should.ay one way our republic accommodates diversity of viewpoint and opinion, the great demographic and political diversity in our country is by allowing the separate semi sovereign states to exercise their own policymaking ruggedness within their own spheres.
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i don't think it's a coincidence that as washington has progressively ignored it and abandon its own constitutional duties both the efficacy of federal policy and public trust and federal institutions have simultaneously and greater.dingly we are not to be trusted, we are not trusted because we don't deserve to be. it was only this week that we discovered that both military c and civilian leaders and administrations of both political parties have engaged in what can only fairly be characterized as a massive conspiracy to mislead the american people about our failure in afghanistan.
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trillions of dollars and thousands of lives lost on the line, it's one of the most shameful political scandals in american history. it has already largely d disappeared down washington short-term memory hole. congress surrender of warmaking powers is of a piece with the delegation of domestic policy to the ministry of state of monetary policy to the federal reserve of social policy to the supreme court, congressional authority of the government was made to run on, it's a very thing that is supposed to power the federal sovereign within our system and just like a car filled up with lighter fluid instead of gasoline, our current executive judiciary is sputtering toward inevitable
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breakdown, what happened in afghanistan is basically what has happened with the federal budget when congress abandons its own constitutional responsibilities. and empowers the other two branches, it is not a natural evolution of republican governance as many want to make it out to be, it's an affirmative betrayal of the american people and a violation of the constitutional right to live under a government of checks, balances and delicately deliberated and delicately compartmentalized and divided powers. this arrangement if followed in the harsh lights of the two for our new cycle wouldfe make life and reelection for members of congress more difficult is a bad thing for my colleagues but a good thing for the american
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people, for the 330 million americans represented by the 435 representatives in the 100 senators, this is something we should be quicker to acknowledge. make no mistake, the status quo of centralized power, congressional difference in delegation executive and judicial use in the political classes will full disregard even exasperation a grave of growing problems is about nothing more complex or more mysterious than elite self interest, the restoration of constitutional balance through congress reclamation of the rightful role in domestic and foreign policymaking, it is not just one choice among many possible paths back toward stability, it is america's only path.
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thank you very much, bac. [applause] >> i have questions from the audience enough questions to keep you here for another hour, we don't have the opportunity to do butut let's begin with the first question that we have, what would you like to be fundamentally in a new authorization for the use of military force, what do you see as the fundamental component part of what congress should be pushing for. >> will be pushed back on the premise of the question that we ought to be involved in any war right now, i'm not sure ico coud think of a conflict in which i think we should start, certainly
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not a new theater of war and obviously we can't abruptly pull out of an existing operation like what we have in iraq and afghanistan but the fact that we can abruptly pull out in a days time does not mean we should start and look for and aggressively nurture the possibility of making a more timely gradual withdrawal into any authorization for the use of military force should not introduce us into a new theater of war and secondly should be geared toward getting us out where we are now. >> what was your view on the war authorization for iran in the nda that passed in the house but did not make it out of conference at the ultimate bill. what is your view right now about what they should take toward the conflict on.
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>> it's a swirly thing to do to add technical language to trick colleagues into voting for something that might be construed as a backdoor settle authorization for the use of military force and especially in the new theater of war, i think of are going to get involved militarily or any other new place in the world, that needs to be debated and discussed in front of the american people under the light of day openly and aggressively rather thaner squeeze into an nda provision summer. i did not like that approach at all. when i approach these things i like to start from diagnostic schism which is to save 70 want to make an argument of why we ought be be involved in the war, i will listen, i will be skeptical and i'd have to be brought along but for me it's going to require some showing that the conflict in question would make the american people safer and not undertaking the
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proposed action would result in a very serious threat to american national security into the lives of the american people and there is a plan to go in, get the job done and get out and most important to know what the job is. in the recently released michael horowitz id report has sparked a debate about pfizer. and you have publicly stated you believe the legitimacy of the program has been called into question, what is your view on how congress should respond to the movement toward reform wind upyou think it'llll as you said a few minutes ago to getting swallowed up in washington short-term memory hole or we have an alarm bell that will ring loudly enough to call people to sustain basis. >> the shortrt answer, i think we've reached a tipping point, i think with the surveillance act
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and the use of section 70202 of the legislation, i think we reached a tipping point where members of congress who have in the past and the boldest defenders of the program are now seeing their problems, i have been worried about this for the entire nine years i served in the united states senate, i was largely alone for most of the time is republican and i joined up early on by democratic colleagues on the judiciary committee, pat hate lahey and dick turbine for the first two work with on this, democrats tend to be much more sympathetic to the cause of changing section 702 and putting more robust standards making it look like a due process -- like a real probable cause standard rather than a fake probable cause standard that tries to look like a real one.
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something magical happened inyesterday, something that brought us forward, much more than ever thought we could be brought forward in this time increment, we had a hearing with inspector general horowitz, i believe many if not most of my democratic friends still believe that we need section 702 reform regardless of how they feel about the horowitz report and how significant it is. but a bunch of my republican colleagues in a bunch who have been self-described intel hawks, i came out in public and said we need reform, i had to try to not look smug as my friend, a self-described intel hawk said one of the things that makes me mad about the report is that we have been having an argumentrg r five years and i've been telling him he is crazy to have these
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concerns. in this report makes me mad because it makes him the right and if he were a drinking man i take him out and get them drunk. it sounded like a good time toti start drinking but i thought -- by the way if you're around the mormon who starts to drink it's about thing because we haven't build up tolerance. walk away if you see the happening. thought back another question that has been raised, how the debate winds up in the influence by congress of perception of what policy outcome they can live with. the question that was put was your support to president trump's decision to withdraw troops from syria and yet of course we hear policy experts saying the withdrawal was chaotic and there were significant applications in the matter of national security policy for our allies in u.s. national security, do you have
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concerns that the constitutional point you're making was vindicated in the policy outcome should givere us policies. >> sure, i'm an admirer of edmund burke, the english statesman from a couple centuries ago who always approached everything from the standpoint of starting in the world in which we live and instead of the world we wish we lived. if you fall orma jump from a ten story building is not the fault of the abrupt halt at the end of the fall. you have to be careful when making the decisions doing then to abruptly can cause harm including to our allies. reason i felt so strongly about voicing support for the announced intention to withdraw is one of the first times, only times in my entire lifetime when you've seen a president who
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under other circumstances in modern history would've been double down and step on the accelerator, he was tapping on the brakes. i like that, i'm glad he was thinking about tapping the brakes. i friendly wish you were tapping the more. >> if we could hold you for a couple more questions. this is fun. i get to talk about separation ofof powers. [laughter] >> you support president trump's decision to pull out of the treaty with russia, andsi the question in the audience is, what is your view of president unilateral withdrawal from treaties that congress had to advise and consent with and ratify in t the first place and what is the future of the arms-control architecture given these developments but i think primarily given the topic of the
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talk, how do you view how that affects balance of power that congress is involved in the treaty making the first instance and not in the termination of the treaty relationship. >> this is interesting area and i have not spent as much time as i have with others, generally my view just as the president can sign on to a treaty and it's been up to congress to ratify or notfy ratify the president also has the power to take us out of the treaty. the off switch and the constitution is not specified but i think the natural extension of the president born relation power in article two that he can make a withdrawal decision like that. i know there are people who disagree with mee on that, thats the view that i have embraced. as far as the substance of the particular decision, we were getting to don left and right. if they were complying with the
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agreement and the russians were complying with the agreement, the merits of the decision would be different entirely. interestingly, when you go to certain air force bases with the equipment subject to the treaties are stored you will see signs written in russia on air force bases, it's an interesting thingonin but they have not comd in anywhere close to a satisfactory manner with those and i don't think treaties or suicide pacts and were ongoing compliance has been disregarded and would otherwise imperil a national security and i think presidents are within the right to withdraw. >> the senate judiciary committee has conducted oversight of the fbi and asgh yu know congressman from the house oversight and house intelligence
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committee coming to address these issues and these controversies are hot right now inin the context to struggle wih the president over impeachment, the question is what is your view on how all of this, the implications of controversy for power of congress to subpoena documents in the name of oversight in the hot button issue of impeachment in the context of oversight but feel free to address in any dimension that youou wish. >> i want to make sure i understand the question. what do i think about the power of the congress to subpoena documents from the executive branch and compliance withd said subpoena and what the consequences are for noncompliance given the fact that there is nose to nose confrontation between president trump over the particula partics
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and some matters gone into the court and now a second article vote in these may impeachment context suggesting that these refusals made themselves an impeachable offense but as i said speaking more broadly have to be entirely in the context of impeachment. >> i think the i latter part --i think it's bad president and without to suggest congress can come up with deadlines and demands and if you don't meet these or if you try to settle this in a court of law c we will hold you in contempt of congress and on that basis we will impeach you for the term that they use in the article for obstruction of congress. i don't think that is a good argument. as to the broader argument about congress authority over the executive branch to supply documents, there is a little bit unarmed english problem there.
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we have the power of the purse, the parts make policy, we don't have our own independent police force that operates outside the capitol grounds that is capable of enforcing those things so in many respects congress finds itself in the situation in a position of saying stop or all yell stop again. in the absence of an executive branch across willing to take that to court and pursue more formal charges, typically you cannot getse there. that creates a difficult problem that we have and a set of struggles with previous demonstrations fast and furious investigation led to congressional subpoenas that were not complied with. i wish i had the answer to those questions, i don't, there's not any way to answer them because not all of these are disputes
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that can or have shown a i strog inclination to settle. a lot depends on the two branches interacting with each other in a neighborly fashion. it's not always going to work most the time itei will. >> thank you senator. this is our last question, you been a leader to achieve y bipartisan consensus. do you believe there is space for this to continue and there is a potential for reassembling what people believe to be a breakdown generally on national and the consent of core national security issues, is this a one-off that involves saudi military action in yemen or do you think something else is changing in the congressional world. >> that's a great question i'm glad you asked. the short answer, i don't think it's a one-off, i think this is a tipping point and i think this is what we saw in yemen, bernie
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and i are just getting started, i'm feeling. the burn. [laughter] in the burn runs strong toward restoring separation of power and i think the american people, republicans and democrats are unique for this thing. we have mom and dads, husbands and wives, all over the country who have been affected in some way or another by someone they know, someone they love who has been sent off to war or deployed multiple times and i think these things are starting to be recognized much more in terms of practical in the past and that in turn has led to a certain very appropriate loss of faith
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known as the military-industrial complex. that complex is harmful, it does bad things. it manifests itself in the form of a humble obeisance to the executiveo branch, it is wrong. i think this -- winston churchill was reported to have said they american people will always make the right choice after they have exhausted every other alternative. [laughter] that's where we are here and we will make it. thank you. [applause] >> congressman has arrived and we will go straight to him and will kick off or we just left off on the whole question of the current conflict of the congress
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and executive over access to information of oversight in the congressman as you know represent the eighth district in illinois and he is a young leader on the house oversight reform committee as well on the house intelligence committee and he will speak briefly he hasas n appointment so he has kindly conformed to schedule as best as he could to in the program here but without further to do i say he's having a conversation with senator in the dialogue is taking place as we speak on a bipartisan basis. i'd like to introduce you to him. [applause] >> good afternoon. it is so nice to i be here. thank you for having me. it is nice to come someplace where that production improperly. it's a true story, i don't know
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if i told you when i first ran for office in chicago i said hi, my name is, and the person looked right back at me and said, roger christian murphy, very nice to meet you i did not know the irish made it to india. [laughter] and it's so nice to be here. i want to observe the three rules of public speaking, be short, sweet and be drawn. and i want to first of all ask all of you to give bob a big round of applause for organizing today's event. [applause] bob i known bob for a long time, bob you know the first time we met was 20 years ago this winter and you know how i remember that, i was tasked at that time i worked on the bill bradley presidential campaign and i was
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tasked with driving bob from boston logan airport to new hampshire for a debate between bill bradley and al gore. and bob was assigned the role of plain al gore. in the debate prep right before the debate. it was a horrible snowstorm so i picked him up, and i was driving a 1999 dodge neon and i said, bob, i'm sorry, i'm not sure were going to make it on time to this debate because my car does not do well in snow or any type of income it whether for that matter. anyway we ended up missing the debate prep and maybe the debate. but in that case, bob became very good friend along with hisi wife anita and i'm so proud to be here.
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i want to make a few points and then we will open it up, the first point, i have to acknowledge that me joining you comes with a tinge of sadness, as you know i actually came here to fill the shoes of the late congressman elijah cummings. which we all know is impossible. chairman cummings devoted his life to public service and becoming a great man he never good a and over the last several years he became a friend as well as a mentor to me as i became the chairman of one of his subcommittees thanks to him selecting me. i want to tell you and anna to about him that in my view encapsulates who he was. as you know, chairman cummings was a fierce supporter of oversight by congress of the executive branch. for that matter he made sure
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nobody whether the government agency, private actor, congress and of course the president was spared congressional oversight regardless of party. chairman cummings also never walked away from a fight. but he was always quick to make peace "after words". one time ranking member, as ranking member of the oversight committee he and then chairman had a confrontation at a hearing during which, this is true, chairman cut off his t micropho. we went back to listen to the particular hearing, it turned out after chairman cut off his microphone he continued to talk for another tenta minutes. after tempers cooled the to bury the hatchet with the term and apologizing and giving congressman cummings a megaphone along with a plaque that read
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the gentleman will not yield. i know the chairman would be thrilled to know where here today to discuss congressional oversight but i wanted to tell the story because i think that exemplifies chairman cummings life, a fierce advocate, a champion of congressional oversight but in conducting oversight he never made war. that is really important because at the end of the day even though we do conduct oversight over the executive branch, private industry and congress itself we have to remember at the end of the day at least collaborate with each other and make sure the government functions. i think chairman example for that. let me tell you a little bit about congressional oversight history, very briefly. as the american historian gary wells once wrote, accountability
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is the essence of democracy, if people do not know what their government is doing, they cannot be truly self-governing. congress oversight powers and unfortunately are implied whether the numerator in the constitution but since the country founding courts as well as other authorities have recognized and reaffirmed congress oversight powers repeatedly. the first congressional oversight occurred in 1792 when james mattis led an investigation into alleged military failures in the western territory. since then congress has conducted investigation from political patronage to bribery. for example, in the 1940s as america prepared to enter world war ii stories of widespread mismanagement, inefficiency and profiteering in the defense sector deeply troubled one
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little-known senator from the midwest, the senator embarked on a 10000-mile tour of military bases across the country and discovered that contractors were being paid a fixed profit, no matter how efficient or inefficient the operations proved to be. when he returned to congress, the senator h put together a senate committee to investigate national defense programs. throughout the course of the war his oversight efforts were instrumental in saving billions of dollars in military spending as well as thousands of lives of u.s. servicemen by exposing faulty airplane ammunition production. . . . airplane and munitions production. it was so widely recognized that they launched into prominence. this was harry s truman, who went on to become our president. this is one example of the many people in our congressional oversight committee that made a
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difference. let us fast forward to congressional oversight today. in a timegly, we are where the executive when the executive branch has resisted a lot of oversight. as chairman cummings put it earlier this year, unfortunately our president engaged in an unprecedented level of stonewalling and refused the most routine of oversight requests to yet despite the current culture, congress has fulfilled its duty to conduct oversight. these include investigations into prescription drug prices, the impact of trade policies, the impact of family separation policies and natural disasters
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occurring as a result of climate i change. i am the chairman of the overall committee and in my rural life taken on a few issues one of them i want to talk to you very briefly today is fighting the youth creeping epidemic -- is vaping epidemic. we learned 11% of middle schoolers are vaping. middle schoolers and this is dangerous because as you know, young brains are developing and in that process, if they are subject to these cigarettes and nicotine they become damaged and addicted to other substances so
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i took on leadership in this issue to investigate why the and wwe brought in executives from the largest maker of the cigarettes with 80% market share and in the hearing that we conducted on the issue back in the summer of this year we were able to write a letter with detailed findings from the hearings basically saying the following which is that along with other companies they are not properly characterizing the risks associated with e-cigarettes and they are advertising in waysig that make the u.s. more susceptible to taking up e-cigarettes and the very nature of the products, the
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fruity flavors, the mint mango are inherently appealing to young people and we hav they hao ban those flavors. they decided to do a couple things they issued a cease and desist letter to juul and to make her stop e-cigarettes saying you are not advertising it according to the law and second, they announced a ban on the flavored e-cigarettes. thankfully, juul in response to being issued cease and desist letter decided to halt a all advertising marketing which is a big deal.
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on the radio, tv, billboards and so forth so that was a very positive step that came out of the oversight. it can actually lead to significant positive outcomes even divided government where we have a republican administration and the democratic congress but to special interests and lobbyists can sometimes get in the way of proper implementation in this particular case the industry got to the white house and was able to slow the rollout of the regulations that would
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ban the flavored e-cigarettes so we often have to grapple with private industry actors who may not want to see the results of our oversight be robustly implemented the way they should be, but that his why we go to the solutions that we come up with and hopefully the people will speak at the next because that's something that's very something i me and will be campaigning on quite frankly so with that i just want to close with my favorite sayings which is that yesterday is history, tomorrow is a mystery that today is a gift that's why we call it the present so i am so honored to be with you here for just a few
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minutes of your precious time to talk about oversight and how important it is not only how important it has been in our history, but how important it is today and the practical impact of oversight and where we go fromom here. thank you so much. [applause] >> you are traveling so we are going to move you along here. let me begin before i move to these questions i very quickly,o you have attempted to work on a variety of issues at a time when the press is so intensely focused on polarization. there are lessons to be learned from your experience as a young member that's been able to find opportunities to work with the other side. can you reflect on that
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experience on the area of congressional relations with a combination trying to find ways to branche branches work workedd parties work together can you reflect on that for a second? >> in the vaping example, you can see there was bipartisanship with regards to this issue and we started a bipartisan, bicameral caucus to end the use vaping. the republican congressman from long island and to senator dickk durbin democrat from my home state of illinois. we came together very quickly, 60 of us and basically said this is a bipartisan, nonpartisan issue and we need to act upon it and at this issue of ending
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domestic advertising, obviously somethingth the trump administration believed as well and w we've are able to accomplh that because they saw the strengths on both sides. now there are other issues we haven't been able to come together and yet we were still able to accomplish a lot. for instance, we conducted robust oversight hearings with regards to moving the citizenship question from census, and credit goes to elijah cummings was dogged in conducting these hearings even when it looked like wers had no recourse. but what ended up happening is because of this pressure and additional information that surfaced during his investigation, bolivians were able to access more of that information and able to take it to court and ultimately the supreme court did the right thing in ruling a as a dead ende trump administration backed
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down. so that was a situation where the trump administration wasn't willing to cooperate butit you still do the oversight anyway because you don't know what information is going to surface and it might help others that may use the court to actually effect change. so, that is an interesting set ofes issues. >> you might be surprised to hear a membe number of the quess have to do with the house intelligence committee hearings into the struggles between the president and the congress that played out through the oversight committee that use it on. you said on the intelligence and oversight committees. can you speak to what you see as the distinction between the mandates and specifically what is your response to the concerns that some have put the intelligence committee has conducted in the i impeachment hearings is that fundamentally a
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house judiciary function and this sets a precedent that some find it's not troubling, confusing. >> as you know, this whole saga began when the inspector general from the community came to us d th the whistleblower complaint and basically said to us he couldn't reveal the content of the whistleblower complaint but he said, and i ammp paraphrasing he said red lights flashing, do something about this because technically the acting director of national intelligence needs to turn over the complete review and he's not giving it yet and that is what's at the sirens of info began the impeachment inquiry. and i think that it was only
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appropriate that they be conducted in the committee because of the origin of the information that led to it but also the fact we did overly forgiving in two quite frankly, and so having it in the intelligence committee means we have access to the infrastructure to handle classified information. we are used to dealing with those issues and also dealing with the actors who were coming forward with the information, so i think that it was appropriate the way that it was situated. obviously now the impeachment inquiry technically and. i shouldn't say ended, let me back up. it has not ended but a report was prepared with the predominate findings and then forwarded to the judiciary committee for itsfo consideratin and obviously it's considering it now as you can see on tv. >> before you spoke, the
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congressman addressed the question that the second article i am only bringing it up because it goese y into help congress protect its equities in seeking information for the discharge functions and he did not agree that a president could be subject to impeachment for taking the position this hresident did that he would cooperate with congress in the impeachment process, he didn't believcouldn'tbelieve that it wd faith and he would essentially take his defense to the united states wants the house had impeached. congressman lee didn't believe the congress should be standing on that as it has in the second set of articles the judiciary committee has developed, do you think they ought to to cite these disputes and do you have a comment on a?
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>> yes. i disagree. here is the issue which yes there may be some valid disputes where the executive can assert executive privilege over a certain testimony or with regards to certain documents, and perhaps those should be decided in court bu that you can just nobut you can'tjust not tu. you can't in this particular situation not only did he not allow it in the production of documents from the state department, from the defense department and the office of, tf management and budget or any other agency, he basically
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instructed every single witness to not testify. so, even people who couldn't possibly assert executive privilege, even people who couldn't possibly assert this crazy claim of absolute immunity that i'm still trying to wrap my head around is something that my ten or 14-year-old might assert at home. and my wife will make never recognize that immunity. but the point is this, that if he had confined his objections to certain specific issues and said this is executive privilege and it is a valid and it looks like something within the realm of a valid assertion of privilege, i think that's something that probably congress would say let's decided in the courts, but when it's just absolute stonewalling if saying
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we are not going to produce anything and two, close, get over it, that isn't going to go over well. the other thing i want to mention very briefly if i was just struck by the incredible professionalism, bravery and patriotism off all the people that came before us. 17 witnesses. 17. that's a lot of people who defied the president and came forward often times putting their career on the line to justify her oath. i was moved to say the least by their example and it's just a reminder that there are really good people in our government and we have to do everything as public servants to protect them and to allow them to do their jobs especially as career public
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servants. >> i'm trying to win a popularity award with the schedulers. [laughter] >> power of the purse. some say why does congress not have the ultimate ability to enforce if they could just shove off funding in ways that are painful for the executives and to put it politely, to encourage them to accommodate, to put it less politely, bring them to their knees. is there a reason why congress otesn't resort more to the power to help enforce its oversight flex >> i think it's the collateral damage. i think a lot of innocent people could be heard, and when you do something like that, you just don't know what the unintended consequences could be. especially for instance in the intelligence space where we operate. it's's interesting, like i am in the skiff almost every day at this point and it's not aboutut impeachment. it's about all the other programs that we have oversight
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for a. we might disagree on occasion with how theas president conducs the affairs and the intelligence community. in the intelligence community. but we always try to find an accommodation as best we can to make sure that those civil servants were in our intelligence community were the brave soldieror thebrave soldieo their jobs. and i think that once you start, that is the ultimate tool, but once you abuse the power of the purse in that way, you could end up hurting a lot of people, too and that may not be the best way forward. >> last question for you. picking up a few themes into the question the congres congress wg the power to find someone in not compliant and there is a numberow of questions about how aggressive -- >> is dawn mcgann here?
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fruman parnas left before you could exercise that power. [laughter] the question i guess i would ask to bring some of these concerns together which brings to question how they could file suit in the judicial redress for some of these problems it could is there any particular reform in the way that changes the way congress addresses these kind of issues that you think could be most effective and begin to move us what some believe needs to be sort of a better balance on these oversight and investigative issues? >> it's a great question because if anything comes out of this that's positive in the long run, it has to be ways that we can actually conduct oversight without making it kind of a bare knuckles brawl which is what it's gotten into now. i honestly don't think that in
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the last 50, 60 years people anticipated the level of obstructionism because the tools for us are basically go to court. we can talk about inherent contempt, but like we have dismissed at the jail a long time ago and in the house there is no jail by the way, we don't have it. although some committee hearings serve we will put you in this committee hearing for five hours unless you turn over documents. [laughter] aside from those forms, we don't have any other way to enforce the power of having to go to court. the problem as it was a sad day
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before, it takes eight months to get a ruling from the appellate court and it will take another eight months to go to the supreme court and basically what happened is that the executive branch runs out the clock and if they have the opportunity to run out the clock to the courts, then what's the purpose, there's no way we can conduct oversight. in terms of the reform, i think that it would obviously require a some kind of constitutional amendment because right now we are in that space between branches of government, and we can't just put a wall in place. maybe someone disagrees with to try to put one in place that says certain types of documents
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should be available to us with regards to an issue should be available to us, but i bet you that will be taken to court right away and it will be a constitutional case. we could do it that way and let the courts decide ultimately but i have a feeling they would send it back. so that's kind of the issue that we have right now. ii think the last thing i would say on that point his is just we have the impeachment tool but it's a very blunt instrument as you can tell, and hopefully, you know right now we are going through a very serious process,
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and i never use the word impeachment when i ran for office, let alone did i ever think that i would be part of impeaching a president. it really is a somber moment in our history but as blunt as a tool as it is, it's the tools we have to make sure the people's will is always done and where someone in the white house might do some of that is completely outside of the balance of what is in the best interest of the country or plausibly within the best interest of the country, then we have to resort to this tool and that is where we are right now. thank you so much, everybody. [applause]
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thank you all. you were a terrific audience. love the questions that came from you and some of you have been here from the very beginning and probably want a bathroom break badly. between here and the next floor up, there will be a reception and there are some food and drink you can have. thank you so much for your support. we do understand that parts of this -- and c-span is doing all of it, so if you missed something and want to see it again, be in touch with your media folks or cal called c-spar find out when it's coming. again, thank you for being such
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a great audience. appreciate it. [applause]
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alaska governor talks about the states fiscal outlook and other issues including the development of state natural resources. from the heritage foundation, this is 40 minutes. >> the executive vice president. [applause] a nice rainy day outside if everybody is bunched together to keep warm, good morning everybody. how is everybody this morning. governor, welcome to the heritage foundation. it is a pleasure to have you here. it's a pleasure to welcome the governor of alaska and he will be speaking on


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