John Dean: …he’s going to select as his Vice President. And I've been asked about two of his now leading candidates:

Mitt Romney
People say, "Isn't there something Nixonian about Romney?" And I said, "Well, as a matter of fact, he strikes me as Richard Nixon on Prozac." [Laughter.]

Rudy Giuliani
But far more serious, Rudy Giuliani strikes me as Richard Nixon on crystal meth. [Laughter.]

Cass Sunstein

I'd like to start by paying tribute to the first blogger, John Stewart Mill, who wrote in a post many decades ago, "It is hardly possible to overstate the value, in the present state of human improvement, of placing people in contact with others dissimilar to themselves, and in contact with ways of thought and action unlike those with which they are familiar. Such communications have always been, and are, peculiarly, in the present age, the primary source of progress."

What I'm going to speak about is, in general, the most important contribution of the framers of the Constitution – probably their only genuinely original contribution. I'm going to identify that. And I'm going to talk about judging and executing the laws, identifying three domains in which things have gone badly wrong, and briefly sketching prescriptions to handle each of the three blunders of the last eight years.

There's been a lot of talk in the last eight years about the genius of the American Constitu-tion. But what's been missing from the discussion is what the Constitution framers did that actually was new. There was a debate in the founding era about the legacy of someone who was widely admired by all sides; that is, Montesquieu. And the opponents of the Constitution, the Anti-Federalists, argued with great vigor that our founding document betrayed Montesquieu's legacy.

What they urged in rejection of the new model that Madison and Hamilton had helped produce was that Montesquieu rightly believed that in a republic – and this is a quotation from Brutus, a leading Anti-Federalist – "In a republic the manner, sentiments and interests of the people should be similar. If this be not the case, there will be constant clashing of opinions, and the representatives of one part will be continually striving against those of the other." This notion of the destructive force of heterogeneity, the impossibility of self-government amidst diversity, was Montesquieue's central theme in his discussion of Republican thought.

The Framers – and here's their originality – thought Brutus and Montesquieu, though they were delicate about Montesquieu, had it exactly backwards. They welcomed rather than feared the constant clashing of opinions. They affirmatively saw a situation in which the representatives of one part will be continually striving against those of the other – Montesquieue's nightmare.

Hamilton spoke most explicitly on this point, arguing that the differences of opinion and the jarring of parties in the departments of government often promote deliberation and circumspection, and serve to check the excesses of the majority. For the framers – and this is what they did that was novel and fresh – heterogeneity was a desirable feature because it promoted better deliberation. The jarring of parties and differences of opinion would provide safeguards against indefensible movements in view.

We can see this idea in various spots in the Constitution. Two domains that have gotten a lot of attention of late involve the war power and the independence of the judiciary. The war power was deliberately split between the executive and the legislature, with legislative authorization being, in general, a legal prerequisite for war making, with the exception of cases in which we're trying to repel sudden attacks. Otherwise, legislative authority is a requirement. Hamilton, in Federalist 78, was insistent on the value of judicial review in the form of an independent judiciary, which would vindicate the judgments of we, the people, against the judgments of our temporary representatives.

Okay, that's the Constitution. Let's shift forward a bit and talk a little about judicial independence, about the division of authority between the executive and the legislature, and something that's emerged more recently – that is, post-Founding, which is internal processes within the executive branch. There's at least one University of Chicago law school graduate here. I wonder and hope that there are others. But I don't see anyone dazed in this room. And some University of Chicago law students are, I'm sad to say, dazed because they've worked on a project that I've been involved with which involves counting judicial votes.

They have counted, in the past years, 30,000 judicial votes. This is not aimless counting. The goal is to see how Republican and Democratic appointees differ in a way that's systematic and empirical rather than anecdotal and accusatory. Here's basically what we now know. On the Supreme Court, we're prepared to grant awards. We have awards for the most partisan justice, the most activist justice, the most neutral justice, and the justice who is most restrained. We have four awards to give out.

The way we measure the awards is by seeing how their votes differ depending on whether the agency in question has made a liberal decision or a conservative decision. If the EPA has gone liberal, does the judge vote more often to invalidate it than if it's gone conservative? And we measure activism by asking very simply, and I hope neutrally, whether the judge votes to invalidate the decisions of the executive branch or not, the neutral definition.

Here are the awards which I'm prepared to announce. The winner of the Supreme, let's call it, for partisanship is Justice Thomas, who votes to invalidate conservative decisions 46% less frequently than liberal decisions. It's worth pausing over that number. That is an amazing divergence between his approach to liberal agency decisions and his approach to conservative agency decisions. By contrast, the award for neutrality goes, pleasingly, to Justice Kennedy, who votes basically the same rate of invalidation of liberal and conservative decisions.

The award for judicial restraint goes – and I hope some of you will be surprised; I know the recipient of this award knows about it and was pleased to hear it – is Justice Stephen Breyer, who, frequently challenged on blogs as an activist, actually votes overwhelmingly to uphold decisions both by conservative and liberal agencies; 82% validation rate. The award for the most activist judge in terms of invalidation of decisions of federal admini-strative agencies goes to Justice Antonin Scalia, whose rate is far below Breyer's 82% rate. It is 52%. That is very low, because under established law the justices are supposed to give the benefit of the doubt to the executive branch in the face of ambiguity.

There's a more serious point than these awards in the background, which has to do with the problem, a real challenge facing the next President, which is that Republican judges are voting to strike down liberal agency decisions at a very large rate compared to their votes to strike down conservative agency decisions; that is to say, Republican appointees show a significant partisan split in their approaches to decisions of the Environmental Protection Agency and the National Labor Relations Board.

Where things go most haywire in terms of highly politicized voting on the lower federal courts – and that's where all the action is, even though the Supreme Court gets more attention – where they go most haywire is on panels consisting of three Republican appointees. If you get a Bush-Reagan-Bush panel, the politicized voting rates look like Justice Thomas's, and not like Justice Kennedy's.
There's a link between the politicized voting rates on those RRR panels and Hamilton's rejoinder to Brutus in the context of the founding era debates. What Hamilton was intuitively alert to is that homogeneity, a lack of diversity, is a recipe for trouble. Likeminded people typically go to extremes. They reach unjustified conclusions just because they aren't checked by counterarguments. That's exactly what our 30,000 votes are picking up on the lower federal courts. There's a great challenge here for the next President, especially if it's Obama, but McCain is going to face some difficulties too on both RRR and DDD panels.

What's the prescription, the corrective? Well, the clue I was given, actually, in 1980, when I was clerking for the Court, when the Marshall clerks had a very pleasant lunch with Justice Rehnquist. And he spoke candidly – I hope he won't be unhappy if he's listening – about this disclosure of what he said. It reflected, I think, his view, which he was willing to state publicly, which was, he said he thought the Court at his time when he entered was like a boat that had tilted; it had tilted to the left. And his job was to restore the balance. That's the first goal, it should be, with respect to the position of the judiciary of the next President of the United States: to undo a kind of quiet but massively effective revolution in American law that's occurred over the last twenty years and that our 30,000 votes are picking up.

Okay, let's now talk about the unitary executive, shall we? I was in a university town not long ago, and some person who looked very crazy and wild came up to me with a piece of paper that I think had the word ‘Marx’ on it every other – Karl, that is – every other line and said, "Do you know where the unitary executive comes from?" Actually, I do, it turns out. Not Marx. There are two conceptions of the unitary executive, an idea that's gotten a lot of action in the Bush Administration, that will have to get much more attention in the next administration, much more sustained attention than it's received from the analytical perspective.

There are two conceptions of the unitary executive. It's very important to split them. One says that the President is in charge of the administration of the laws; that if we're talking about the Environmental Protection Agency or the National Labor Relations Board, or the Securities & Exchange Commission, or the Federal Communications Commission, the President is their boss – that they are basically executing his will. That's a view which, since the New Deal, has become controversial and, in the view of the current Supreme Court, too simple. But it's honorable. President Reagan spoke for that in good faith. President Clinton occasionally spoke for that, though more cautiously. That view deserves attention, but it's not alarming – that conception of the unitary executive.

There's another view, which has emerged basically under a stream of post-Nixon Republican presidents, which takes the unitary executive idea to insist on inherent executive authority to operate in the absence of congressional authorization, and even in the face of congressional prohibition. Is it clear – the distinction between these two conceptions? One sees the President in charge of administration, but always subject to the will of Congress. Recall Hamilton and the jarring of parties and the check on the excesses of the majority. The other view sees the President basically as a unilateral actor with a great deal of inherent authority.

This is the unifying theme in domains that seem disparate. Consider signing statements not that reflect a view by the President of what the legislation means – that's fine – but signing statements that claim that provisions of the law that interfere with the inherent authority of the President will be ignored for that reason. That's not fine; that's new. Consider [not] the suggestion in the early days by the Bush Administration that the authorization to use military force implicitly included the authority to wiretap people, an argument that, I think implicitly rejected by the Supreme Court, produces good faith disagreement.

Consider instead the view, expressed by the Justice Department, that FISA, the apparent prohibition on presidential wiretapping, invades presidential authority because there's inherent power on the part of the Commander in Chief to wiretap people even if Congress says otherwise. Consider, just for a moment – too unpleasant to consider it for longer – the torture memorandum, which suggests, implausibly, that the President has statutory authority to engage in coercive interrogation; but much worse, the suggestion that if Congress attempts to prevent the President from torturing people, Congress is invading the President's inherent authority.

Consider, as the most disturbing of all these examples, the not-so-famous September 25th memorandum of the Office of Legal Counsel of the Department of Justice, which goes way beyond the torture memorandum. It's gotten hardly any attention. This is the fundamental basis for the distortion we've observed in the last years, and this says the President has inherent power, as Commander in Chief, to protect national security, and the President can proceed in the face of congressional prohibition.

What's the corrective for this? Well, the next President needs to spend a lot of time thinking about the Office of Legal Counsel in the Department of Justice, which in its first six months has a big job, which is one of restoration, the restoration of a conception of presidential power which respects certain conceptions of what a unitary executive is which are time-honored but which redoes, rethinks, in a way that's public, and in the sunlight, the notion of inherent presidential authority in a way that's not only substantive, but kind of a tip of the hat to the Congress of the United States and the Constitutional founding.

Last point. How many of you, I wonder, have read Scott McClellan's book on the Bush White House? It has a secret theme which none of the reviews has picked up on. This is the theme of the McClellan book: not that the Iraq war was unjustified and not that Vice President Cheney made a lot of mistakes; it's the structure of the executive branch under President Bush. The suggestion is that his advisors failed him because they participated in a process that involved far too little in the way of internal dissent, disagreement, conten-tion, correction.

McClellan's book, I think, is a historically valuable one because it connects with a much more famous book, and a greater book, Doris Kearns Goodwin's book Team of Rivals, a phrase which is worth remembering, where Lincoln's genius, as she describes it, was to construct an executive branch which had a kind of internal system of cheeks and balances.

This theme was picked up in a very obscure book by one of Roosevelt's advisors the last time America's security was threatened. A high-level official under President Roosevelt named Luther Gulick wrote, in 1948, a really tedious volume called Administrative Reflections from World War II, which is basically about bureaucratic structure and administrative reform. I teach administrative law, so I find this book riveting. [Laughter.] But I don't recommend it to any of you.

After the tedium to all, he has a brief discussion of World War II and why America won. And what he says is that they thought, the fascist powers, that we wouldn't fight because we were too messy and disorganized and dissentful. We thought that they wouldn't fight –
because they were so authoritarian and horrible, the soldiers would desert. We had it wrong. They fought like tigers. In authoritarian systems, in part because of the coercive pressure brought to bear by the government, in part because of the structure of human nature, we didn't get a lot of deserters who came over to our side.

But they were wrong, too. What they saw as our fatal weakness was actually our strength. In an authoritarian system, fascists or terrorists don't hear from their subordinates when things are going wrong. They don’t have a team of rivals. They hear good news and happy talk; that the victory is imminent. Hitler, in Gulick's view, made tons of strategic errors just because he lacked information. Roosevelt was in a very different position. When things were going wrong, he heard about it immediately. His structure of the executive branch ensured a system of internal checks and balances that provided in indispensable safeguard against military error.

There's a large lesson there about what's gone wrong in the domain of national security in the last eight years. There's a large lesson, too, about what's gone wrong in the domain of domestic policy. But we're looking forward and not backward. The prescription with respect to the executive branch – and this is the theme that Hamilton, Madison, and others didn't adequately see – is with a massively powerful executive branch of the sort we will inevitably have, a team of rivals is an indispensable safeguard on the President's behalf. It's not a way of diminishing his power; it's a way of ensuring that his decisions don't go wrong just because he lacks that kind of clash of view and safeguard against majority processes against which Hamilton warned in the founding period.

Okay, I am done. The basic theme of the unique and great contribution of the Constitu-tional founding is the turning on its head of Montesquieue's conception of what a republic needs to work well. The thought is, our judiciary has been turned in a way that endangers at least some forms of independence which are an indispensable safeguard, and that kind of restoration of the straightness of the boat for which Justice Rehnquist spoke is what would be very useful for the next President to insure.

With respect to the diminution of the system of checks and balances signaled by an odd and novel conception of the unitary executive, the goal is to insist, in the first six months of the administration, on a rethinking of what the unitary executive specifically entails, with an insistence, above all, on the need for congressional authorization for what is effectively lawmaking.

The third point has to do with internal processes within the executive branch in which either the Republican or the Democratic nominee ought to see the words "team of rivals" in bold, big letters as part of his guidance in deciding what to do in the first six months.

"It's the Constitution, stupid" is not exactly a winning campaign slogan. But restoration of the system of checks and balances and of the Constitutional order is among the largest tasks of the next decade. Thank you. [Applause.]

Michael Waldman

Thank you all for coming out early on just the first morning here. Thank you to Adam for putting this together. And it is intimidating and a great pleasure for me to be on a panel with Cass Sunstein and John Dean. I should say that when John said that one of the other panelists ought to go to the Court, I was alarmed and thought, "Oh, my god, do I have another jury duty notice?" But relieved to know that it was something else that he had in mind.

And both from the perspective of somebody who was in the government at a time when there was a roaring Right-wing infrastructure, making it very hard for a Democratic government, Democratic party administration to function, and now at the Brennan Center trying to hold the current administration and our legal system accountable, the impact of the Netroots has been extraordinary, and the terrain on which we're standing and talking is really quite different because of all of you, so thank you to all of you.

And I want you to take a moment to think about this year and the context in which we are having this discussion. This is a thrilling election. We see in positive trends and positive terms a surge in voting, a surge in volunteering and engagement, an explosion in small contributions through the Internet, especially to Obama. But overall, all these things are very positive trends for our democracy. But that positive trend will likely, if we don't do something about it, run smack into some very basic ways in which our democracy is dysfunctional and our government is broken.

We have a voting system that is ramshackle and rife with disenfranchisement. We have a campaign finance system that, for all the progress of the small donors in the presidential system, for Congress – believe me, they are raising their money the good, old-fashioned way. Only one out of ten dollars for members of Congress comes through small contribu-tions of any kind. K Street still is in the saddle and will be a source of tremendous gridlock and dysfunction even next year. And the system of checks and balances has gone way out of whack because of an overreaching surge of power to the presidency, and a grab of power by this administration.

All of these systemic problems will affect whoever the next President is, will affect President Obama, should he take the oath of office, and will affect the prospects of what we all care about enormously. And evolutionary scientists used to think that the way evolution happened was very slowly – that over many years a fish grows an arm, and then a million years later it grows another arm, and then a million years after that a leg, and so forth.

But now evolutionary scientists think something different. Increasingly they believe that there's tremendous periods of stasis in the way species develop, and then something catastrophic happens. A meteorite hits the earth and there's a leap upwards in evolution based on how the species adapt. Well, for the American political system, George W. Bush is the meteorite. The damage that he has done and that this administration has done create opportunities for tremendous improvement in the way our government works, and tremendous renewal of our democracy.

And one of the key areas is the topic that we're talking about today, which is putting the presidency in its proper place in the Constitutional order. This is, in the first instance – and I won't dwell on this – this is something for the President. It will require, on the part of President Obama or any president, an act of renunciation very much counter to human nature, very much counter to the metabolism of people who tend to run for President.

We will be asking President Obama to voluntarily give up power. Presidents love power. I love barbecue. That's why I was out last night. Presidents love power. And some of the greatest acts of presidential leadership have been renunciation, from the time George Washington stepped down, first as the general of the Continental Army and then as President. And when the word reached King George that George Washington was going to step down as the leader of the Continental Army, he said, “Well, if he really does that, he is the greatest man of our age.” And it is that level of self-restraint that we're asking the next President to have.

As both the previous speakers have said, 9/11 didn't change everything. This was a longstanding effort to restore untrammeled presidential power. President Nixon didn't even give full voice to it until he left office, when he told David Frost in that interview that was the subject of the play last year in New York, when he said, “If the President does it, it's not illegal.” Dick Cheney, as a congressman – and this is something to which he proudly points now – wrote the minority report in the Iran Contra investigation in which he said that the President has the monarchical prerogatives to avoid the law.

This is not just rhetoric when we talk about this being... monarchical. That's what Cheney wants it to be. When Gonzales came in on the first day in the first day as White House Counsel, he said that the job of the White House Counsel was to be vigilant about seizing any opportunity – any opportunity to expand presidential power. So when 9/11 happened, it didn't change everything. Untrammeled presidential power was just a bad idea whose time had come.

So the big challenge for the next President is to reverse human nature, reverse personal ambition, and bring his own Office into balance. But the job cannot only be something for the President and those immediately around him, and it's not only for those of us pushing the President to do those things. There are other institutions that play their role, and I just want to mention two of them.

The first is the Department of Justice itself. Because one of the major tasks –– and Cass alluded to this – of any new administration is going to be to restore the integrity and independence, and respect for law, of the Justice Department. This is one of those federal agencies that... Presidents come and go, but it has remained a crown jewel of our system, and it has been badly degraded in the past eight years.

And this is something where, interestingly, I think lawyers – those of us who have the misfortune or fortune of being lawyers – feel a lot more strongly about this than others because we know how off the charts what has happened really and truly is.

The Netroots played a very significant role in exposing the scandal at the Justice Department about the politicization. If you remember, at the beginning of the U.S. Attorney scandal, the Time magazine Bureau Chief scoffed at it. But as you know, Talking Points Memo and many other sites kept at it – [applause] – there ought to be a Pulitzer Prize – and brought down the Attorney... Think about it: they brought the Attorney General of the United States...

This has more or less fallen down the- memory hole; you don't hear about it very much. But the Attorney General, the Deputy Attorney General, many other top officials resigned in this scandal. You had the Civil Rights Division – such a critical institution in American life – politicized, with the head of the Division pushing out African American staff attorneys, saying he wanted to make room for some real Americans; where you had his number two being praised in law review articles for voter disenfranchisement moves, but the law review article was anonymous, because it could only find one article to do it, and it turned out that the article was written by the guy himself, Hans Von Spakowsky.

And all of this revolving around the issue of voter fraud, and in effect, as you all know, voter fraud, more or less, does not exist. Certainly it is not necessary to bring prosecu-tions and take other steps to combat this nonexistent threat. Firing prosecutors for failing to find voter fraud is like firing park rangers for failing to find Sasquach; it just...it isn't there. And make no mistake that it is a partisan drive; it's part of the partisan use of the Justice Department – in effect, to try to rig the outcome of the 2006 election, the midterm elections.

There's a person here from Texas named Royal Masset, who's the Political Director of the Texas Republican Party, and he said to the Houston Chronicle last year, he said – very honestly he said, "Well, there's no voter fraud. Everybody knows that. But the voter ID requirements that come out of the fight against voter fraud depresses the legitimate Democrat vote enough to add three points to the Republican total. That is the strategy, and the Justice Department itself was used as an instrument of that strategy.

So what do we do about it going forward? It's not enough merely to have a new attorney general. We have a new Attorney General now who's certainly better than Gonzales, but is still covering the flanks of the Bush administration. There are numerous specific steps that need to be taken. They range from releasing those remaining memos from the Office of Legal Counsel that justified torture and justified other things, consistent with national security, so the public can see what was done. There ought to be full internal investigations of what happened. There ought to be a clear policy stated about what kind of signing statements the next President will use. Not all signing statements by Presidents are bad, and we ought not want to cripple the next President by going too far in the other direction, but making very clear that the signing statements cannot be used as a mere opportunity to evade the law. And a number of things.

But the goal really is not radical experimentation at the Justice Department; it's restoration of the rule of law, and restoration of that agency. The other institution that I'll quickly mention is Congress. Well, Congress is Democratic now. Isn't the problem solved? Not really. Not really. You can't have a workable system of checks and balances if the coequal legislative branch doesn't do its part.

Now, you had a complete... [Applause.] It's important to understand the magnitude of the collapse of oversight that has occurred over the last ten years. When I was in the White House – and this was not a pleasant experience – a single House committee deluged the White House with a thousand subpoenas, and we complied with them. And by contrast, in 2001 to 2006, when you had unitary control of both branches, there was not a single Congressional subpoena of the White House – not one. We had received endless subpoenas about the White House Christmas card list. You remember that scandal – you know, Santa-gate. Endless oversight – not substance; on sort of imaginary scandals. And then when Bush came in and the Congress was controlled by the Republicans, there was no oversight of any kind.

Now, the Congress has stepped up to some degree, but in a far too toothless way. As we all know, Karl Rove is showing contempt for Congress. Whether he's being held in contempt, Congress has had to go to court to enforce a subpoena for Harriet Meyers and the White House Chief of Staff. Congress is moving very slowly in really enforcing its role. They're taking some good steps, but they seem to be afraid that they will look too shrill and too partisan.

So Congress needs to do more. We ought to think about a proposal that Rick Pildes of NYU Law School has made: that the minority party get the ability to call witnesses and issue subpoenas. That's a way of building into checks and balances some real accountability. There ought to be Church Committee, which was the committee that investigated previous abuses of presidential power. [Applause.] And we ought to look at reforming the way the intelligence committees work. But again, we need the people in Congress to step up to their responsibilities.

Think about this: in the run-up to the Iraq war, we can talk about war powers all we want; we can talk about restoring the War Powers Act. Of a hundred Senators, the number who actually read the intelligence estimate on Iraq, which was available to all of them, was six – six people. If they're not going to be willing to cross the street to read that sort of thing, then any institutional changes are going to be of minimal impact.

Which comes, finally, to the role we all must play in terms of holding people accountable; in terms of being both a prod and a backstop for those who want to change and want to bring back the rule of law. You know, we have this election where Senator Obama is running on the theme of change, and Senator McCain is running on the theme of reform. There ought to be a competition among the two of them over what they would do to restore the rule of law, and what they would do to reform our democratic system. It is not currently, frankly, on the tip of either of their tongues.

There's a sense that the public gets bored by this kind of process stuff. There's always a push – and I was involved in two Presidential campaigns – there's always a push for something tangible – food on the table. It's really up to all of us to say to candidates not just what is the tax cut you're offering us, what is the health care plan you're offering us, but what will you do specifically to restore the rule of law and restore American democracy.

When Ben Franklin, at the Constitutional Convention, which was very much like Netroots Nation, I should point out, though they didn't air conditioning, when the Constitutional Convention was over, Ben Franklin left Independence Hall in Philadelphia. And a passersby called out and said, "Well, Dr. Franklin, what is it? A monarchy or a republic?" And he said, "A republic, madam, if you can keep it." Well, it's up to all of us here and on the Web and in the country to do what we can to keep it. Thank you.

[Applause.]

Q&A

Adam Bonin: I have one question that I want to ask our panelists, and then we've got a microphone available for your questions as much as time permits, and I encourage you to line up behind it. And this is on something, Michael, that you address, and that I think a lot of people would like to get into, and that question is, how much energy should the next Department of Justice put into investigating and potentially prosecuting abuses by this administration?

John Dean
Well, we certainly know that candidate Obama has said he would do this. He's hedged it; he's qualified it…whether it's a determination of bad policy or blatant violations of law. It is a huge break in precedent that a candidate would say that he's not going to just give his predecessor a pass, which has been the norm, of course, where no one has BEEN investigated.

So the question is, how much energy and time should be devoted to this? Actually, I think there are other things that require more time, like plowing through OLC's secret memos that we don't know about, and so many of the foundations upon which... And for the audience that doesn't know the impact of OLC, they really give the legal basis for the rest of the government as to how they can or cannot operate. And some of those are public; some of them are not. Similarly with executive orders.

And as I emphasize, these processes really should start, as best we can, right now. And bloggers of the Netroots basis could start this process and encouraging it, because I'm not sure there's a whole lot that I’ve picked up on my radar so far that's going on.

Cass Sunstein

Well, I think the first priority is to get things straight going forward. So the initial task, and the indispensable one in the first year, is what Michael called restoration.

John Dean

Good word.

Cass Sunstein

That’s what we need. In terms of punishing what's happened in the past, there are some risks in that. For one administration to be criminalizing, in particular – and I don't believe Senator Obama's called for anything like that – criminalizing – putting in jail people in the prior administration, that's something to be very careful about. Yes, not only because it risks terrible polarization of the country with respect to the past, but also because it threatens to create a spiral going forward a little like impeachment.

On the other hand, transparency with respect to what's been done is probably a really important part of getting clear on the future. So I guess what I would want to know is, first, what exactly has happened that we don't know about yet, with the theory that sunlight is the best of disinfectants. And criminal prosecution, any kind of punishment, should be only if it's really, really egregious.

We don't want to replicate anything like the unconstitutional and almost unbelievable impeachment of President Clinton. We don't even want something that has a slight appearance of that. So I think there is a massive amount to do with respect to restoration, and that should be the first focus.

Michael Waldman

I agree with what's been said, and that is, where potentially the role of Congress can be quite useful, in the sense that a congressional investigation or some other kind of formal truth-commission-type notion is both orderly; it requires, by its very nature, some bipartisan or two-party involvement; and it could have an educational impact that would be important, especially if the new administration waives secrecy and doesn't claim executive privilege.

There are a lot of legal challenges. As you may know, the current Justice Department and White House have claimed, in one of their assertions of executive privilege for Karl Rove, that a close advisor to the President does not have to testify ever on anything. And that's a rather broad claim that will survive this administration, and they will claim it for years afterwards, even when they're not in office.

John Dean

I'd just like to footnote this. It's come out of a number of varying hearings that the number of people within the Bush/Cheney White House who are authorized to contact senior officials in the Department of Justice has been unprecedented. I mean, the count was up around three, four hundred at one point. That's something that Day One, has to be cut back. Traditionally, it was the President's Chief of Staff, the White House Counsel, and maybe a handful of other people can do it.

Because the White House should not be meddling in the Department of Justice to keep its pristine independence. I have a lot of friends who, during the Bush administration, have left the White House – some of the best and brightest. They've lost a lot of talent in the Department as a result of its being politicized. So this is something that really is one of those, first day, "We're not going to do that, and here's who can contact the Department."

Adam Bonin

Okay. We've got a lot of questioners and not much time. I'm just going to ask you to phrase your question in the form of a question and let's get in as many as we can.

Female Audience Member

I disagree entirely with your answers to that question. I think the worst thing that ever happened to the rule of law with respect to the Executive Branch was the pardon of President Nixon. [Applause.] That established a moral hazard that says there are no consequences for bad behavior. President Bush built on that by stiffing Congress at every point of disagreement with, again, absolutely no consequences.

If you don't hold people accountable for the bad things they've done, it's not going to change. Couple that with the observation that only power-crazed people want to be president, and I think it's hopelessly naive to think that any new president, including Obama, would ever give up any of the executive powers that have been so easily accumulated. [Applause.] Perhaps the behavioralist and the person who thought that there would be restoration would care to comment on those observations.

John Dean

I certainly hope you're wrong. An as far as the Nixon pardon, history has proven that it's probably done more to heal than to hurt. I can understand people who wanted to punish Nixon; wanted to see him in the dock; wanted to see him in the prison. That was certainly understandable -- but [was] also consuming the Ford administration in their ability to go forward.

The whole relationship between the White House and the Department of Justice has to reestablished as a much more formal relationship than it's been, so I stand with my prior comment.

Cass Sunstein

Can I say a little bit? There are two different affects I detect in the room and they both make a lot of sense. One is great distress over what's happened in the last eight years, and the desire to hold accountable people who've produced what has happened. [Applause.] That's one affect. But the other affect is tremendous excitement at what looks now of the likelihood that we have, for the first time, I think, in several generations, really, a specialist in constitutional law as a likely occupant in the White House. [Applause.]

So I appreciate very much both the passion behind the comment and the substance, which, whatever our views, this deserves sustained public attention – your thoughts. But notice, if you would, we have someone who's likely to occupy the White House who has stood for and taught and understood the separation of powers for a long time now. So we have a real possibility of producing something that is terrific, from the structural standpoint and the standpoint of results. So I think we ought not to lose, for the distress over what's happened, the immense possibility, which looks kind of imminent now.

Michael Waldman

And I would add that the most significant accountability that has not happened that must happen is exposure and education. And that has not happened. And there's a lot the new administration could do – and the new congress – in that direction, that would not tangle up the new administration in immediate and instantaneous partisan recriminations, and wouldn't make it so that each new administration...so that every administration had to pardon everybody on the way out the door so that the next one didn't come after them criminally.

Male Audience Member

I just don't understand why politicians should be the only occupational class in America to have immunity from breaking the law. [Applause.] I think Professor Sunstein had said, "unless it's very, very serious." Well, I grew up learning that the United States doesn't torture; we don't wiretape; we don't kidnap people from other countries and throw them in gulags. That's what I learned, and to me, that's pretty serious.

Precisely because politicians are the most powerful people and can do these things, that's why we need the most accountability from them. [Applause.] And walking away from this and pretending it didn't happen, or having some kind of truth and reconciliation committee just isn't going to be enough, because Republicans are evil. They will take the office again – [laughter] – and they will do this again. We've already seen it repeated in less than twenty or thirty years from Nixon to Bush. There's no reason to think that it's not going to happen in eight years if we let this band of bandits off with no accountability at all.

I also wanted to mention that I'm a law student at the University of Virginia. When the thing went down with John Yoo, I went from outside in the blogosphere and the news, where people were really outraged about this, inside the confines of the law school, where people were debating whether or not this man was moral or whether or not his opinions were okay. We invite people like Myron Ebell from the Competitive Enterprise Institute, to debate whether or not global warming exists.

The time for debate is over. The time for outrage is now. Because a lot of outrageous stuff has happened. [Applause.] And you folks are the intellectual leaders, and I think it's time to stop debating yourselves and stop debating the other judges on the circuits. And when you see this kind of Republican partisanship of the bench, call it out in the strongest possible terms, because that's what we need. [Applause.]

Cass Sunstein

I appreciate this, what you say. And there's only one sentence that I very clearly disagree with, and that is, "Republicans are evil." I don't agree with that. President Roosevelt, our greatest 20th Century President – [applause] – yay for that – referred to Republican leadership in harsh terms, but never called out Republicans. And I think that's good strategy.

Outrage is appropriate, but there's looking backward and looking forward, and we have to kind of do both at once. And what I worry about a little bit is that sometimes outrage is a great motivator of looking forward at the incredible opportunity we have. Let's be more excited about the next two years, even, than furious about the last eight, I think. [Applause.] But you're right, you ARE right that the excitement has to be informed by an appreciation.

I don't believe – just to clarify – that people who have violated the law should be happy and rich because they work for the government. Crimes are a different matter from the sorts of things I'm being cautious about – calling people out on. If there are crimes, federal crimes, then that can't be just blinked away.

Adam Bonin

Okay. Next question.

Male Audience Member

Not enough, gentleman. If Obama rejects the unitary executive power, that means for the next four years, probably the next eight, we're okay. But that doesn't do anything for when Jeb Bush comes. What we've seen with the Bush administration is that our constitutional protections are not sufficient. We need something much stronger to protect against this kind of criminal administration. [Applause.]

Adam Bonin

This is going to have to be the last question, unfortunately.

John Bonin

I think one answer to that is that the laws are there, the constitutional structure's there. The separation of powers was not enforced whatsoever during the first six years of the Bush administration when the Republicans controlled the Congress. There has been some mild effort during the almost two years now that the Democrats have been power. There's no shortage of laws; there's been a shortage of inclination to hold people to honor those laws. So it's not that we don't have the machinery, the remedies.

For example, what's on my mind as I sit here right now is the ability of the witnesses from the Executive branch just to tell the Congress, "We're not even going to appear." Now, the Congress has the inherent power to support their own subpoenas. [Applause.] And if they don't do that, since we've now had several attorney generals say, under Republicans, we will not take that, per the statute, to the grand jury, they've got to build their own machinery and start enforcing their contempt citations to have any meaning. And it's very important they do that sooner rather than later.

Michael Waldman

And there is a jail in the basement of the Capitol for such purposes.

Adam Bonin

Unfortunately, I'm getting a flashing monitor that says that we need to wrap things up. So I do want to thank our panelists for joining us here today. I'm sorry we couldn't get to all the questions. [Applause.] And I want to remind everybody that following us in this room is going to be a conversation with Don Siegelman, the former Governor of Alabama. If you're interested in these topics and you want to know what it's like to be on the receiv-ing end of the Bush administration and its executive power, stick around. As Dallas Cowboys' wide receiver, Terrell Owens says, "Get your popcorn ready."

Thank you.

[Applause.]