Dr. Jeffrey Engel, "Fifty Years Since Watergate: Presidential Power in the Age of Rampant Immunity and Feckless Impeachments"

On October 30th, 2024, CPH Director Dr. Jeffrey Engel presented a lecture as part of the SMU Dedman College Interdisciplinary Institute Godbey Lecture Series, described below. A few weeks later, we sat down with Dr. Engel for a Q&A about his talk -- that conversation follows a recording of the lecture itself.

Fifty Years Since Watergate: Presidential Power in the Age of Rampant Immunity and Feckless Impeachments

It has been fifty years since Richard Nixon resigned the presidency. Congressional power rode high in Watergate's wake, followed by a rejuvenated judiciary and invigorated national press corps. Reports of the imperial presidency's death proved premature. The past three presidential impeachments, the first since the 1860s, resulted in zero convictions. Zero was also the conviction left among the American people that anything more than partisan politics explains those verdicts, which recent Supreme Court rulings on presidential immunity appear to vindicate. This evening will trace that history since 1974, and outline the likely future of our nation's highest office.

Transcript

This is Susie Penman, Assistant Director of the Center for Presidential History at SMU. On October 30th, Dr. Jeffrey Engel, the Center’s Director, gave a talk, put on as part of the Dedman College Interdisciplinary Institute’s Godbey Lecture Series.  

This talk marked the 50th anniversary of Richard Nixon’s resignation of the presidency. But as you’re about to hear, it was more broadly a lecture on impeachment and our conceptions of presidential power, presented in the final few days before the 2024 presidential election. 

 Given the import of that major political event, we’re going to spend a few minutes after you hear the talk in conversation with Jeff. So stick around for that. 

 Big thanks to Karisa Cloward and Kate Kimmis for arranging Jeff’s talk, and for all the great programming they do at the Dedman College Interdisciplinary Institute. So without further ado, here is Dr. Jeffrey Engel, presenting his lecture, “Fifty Years Since Watergate: Presidential Power in the Age of Rampant Immunity and Feckless Impeachments.”  

Let me begin by noting that if you are here for a good time, sorry. So I'll begin. It has come to this. A week from today, we will know. A week from today, Americans will have selected their next president. Seven days, not counting recounts, court fights, and other delays, until what is, by any measure, a historic election. An election shaping up to rival the most consequential in our nation's history, the 1968 contest of war versus peace, 1940's competition of isolation versus engagement, 1900's referendum on empire, and 1824's on popular democracy, dare I include with an ominous shudder, the mother of all fateful elections, 1860. 

Now politicians and pundits tell us every four years that this is the most important election of our lifetime. They typically lie about this. It's better that way for fundraising and better, by the way, for advertising dollars. But at the very least maybe they exaggerate. Not every election, by definition, can be the most important. Not every time does the entire national fate seem to turn on the voter's whim. And then there's this one. Every now and then it's true. And that's more than a bit terrifying, I think. The election we have before us is between two quite different candidates. A Democrat and a Republican, but of course that's the least of their differences. One male, one female. One white, the other South Asian and Black. One a businessperson, the other a prosecutor. One in his late 70s. Indeed, prospectively, the oldest person to occupy the Oval Office. The other a comparatively sprightly 60. Which, in case you're wondering, is in fact, older than the median age at which our presidents have taken the Oath of Office, which is 55. Now, I want the baby boomers in this room, so used to controlling everyone else's lives, not to worry. She's still one of yours. By one year. You'll not yet have to turn over power to what is clearly the superior generation, Gen X. Yes. Perhaps the last generation in human history capable of sustaining a thought longer than 13 seconds and capable of writing more than 140 characters without the use of chat GPT. Now because God has a sense of humor, we as Gen Xers expect to be skipped. We're used to being an afterthought. But one of those candidates currently sits a heartbeat away from the presidency. The other, having already been president, is now vying to be the second person in all of American history to win nonconsecutive presidential terms.  

Unlike Grover Cleveland, however, Donald J. Trump is also the only impeached president in all of American history to ever make a serious bid for reelection. To remind you quickly of your presidential impeachment scorecard, Trump was impeached by the house in 2019, and then acquitted by the Senate early the next year. Bill Clinton was also impeached by the house late in the year, in 1998. Also acquitted the ensuing year. But of course he'd also already run out of his potential presidential bids. Therefore Al Gore was left to face the voters’ ire and pay the electoral price for Clinton's indiscretions. So too Hillary Clinton. Though that's another lecture.  

Andrew Johnson managed to fit his impeachment trial and acquittal into a single calendar year, but of course, he was never really a viable candidate in 1868. Last but not least, Richard Nixon resigned the presidency just ahead of sure impeachment and sure conviction by the Senate in 1974, and spent the rest of his years in the political wilderness. He was valuable enough to be consulted by ensuing presidents on foreign policy matters in particular, but always in private. From a public standpoint, he was considered too toxic, even by the near association with the process of impeachment, to ever be fully accepted again into the ranks of acceptable political society. As one London newspaper quipped in 1974, in the two centuries that Americans had traveled from George Washington to Richard Nixon, they had managed to go from a man who could not tell a lie to a man who could not tell the truth.  

Now perhaps, given what you think of either Donald Trump or Kamala Harris, you sense that little has changed in the 50 years since. However, Tricky Dick's leaving was certainly the last moment in American history when we may confidently say a majority of American citizens trusted the people in their governments to do the right thing. And that's it. That's the whole list. Johnson, Clinton, Nixon, and Trump. That's the list of presidents singed by impeachment. 

Now, for three of the four, it was, of course, the end of the political road, or at least in terms of their own quest for elected office. Not so, of course, for Trump, who in the pantheon of impeached presidents is, of course, the only two-time occupant. That meant that 2020 was actually the first time an impeached commander in chief genuinely vied to keep the job. In 2024, he remains the only person in history twice impeached, and once defeated, who subsequently retained a serious chance of returning to the highest office in the land. Now that fact – that he's still a viable candidate – would have truly befuddled the generation that authored our beloved Constitution, that generation that we used to call the founding fathers. You may prefer a less gendered term, the founders. That's still a little bit too biblical for my taste, which is why I prefer to call them the revolutionaries and architects of our nation. Not one thing alone, but both. And that's an important distinction. Often cast as a monolith, they in fact were anything but. 

Twenty years, of course, separates the Declaration from the Constitution. Much changes over the course of a generation. Opinions, circumstances, certainly the cast of characters. This is why serious scholars of the period know that the Declaration and the Constitution are in fact quite different documents forged in quite different eras. The first, a rallying cry for revolution. The second, best understood as a conservative counter revolution against too much democracy run amok. And if you'll permit me a personal aside, I have been married to a serious scholar of the revolution for 23 years. That is long enough, maybe just barely, but long enough to have learned to recoil in horror any time someone blithely employs the phrase “the founders believed.” The truth is they didn't agree on much of anything at all. They were as diverse and opinionated a group as we are today, which is why running counter to the sage scholarly and marital advice, I nonetheless feel confident making the following broad statement: the authors of the Constitution of 1787, that we still live by today, overwhelmingly presumed impeachment would be a career killer. Even to be impeached by the House, Federalist insider and future Broadway star, Alexander Hamilton subsequently wrote, would doom a president to “infamy.” In an age when honor arguably mattered more than anything else to the class of men who chose public service, nothing was worse than this loss of reputation. An impeached president would face, Hamilton continued, “perpetual ostracism from the esteem and confidence and honors and emoluments of his country.” The shame, to be clear, was attached to impeachment by the House, not Senate conviction. No one, they overwhelmingly reasoned, so thoroughly and properly ashamed at the dishonor of such a public rebuke would ever dare show their face in public again, let alone put themselves up for public office. 

Why? Because of what they believed impeachment actually represented, and more specifically, when it was warranted. One couldn't, or at least shouldn't, be impeached just for being a bad president. Maladministration, they called it in 1787. We just call it being lousy at your job. But being bad at being a president and being a bad president are actually two very different things. Voters can reject a lousy president the next time they go to the polls. But a bad president, one who puts his own personal needs ahead of the nation he swore to lead and protect, could no longer be entrusted with the national welfare. This was a president worth impeaching. And I hate to tell you this, we've had lots of lousy presidents. But only four times in history has a president been deemed so fundamentally bad that the nation couldn't withstand the wait for voters to set it right. This is why the Constitutional standard for impeachment requires not maladministration, but instead commission of high crimes and misdemeanors.  

Now the phrase sounds a little bit unfamiliar to us, but it was actually quite common in the jurisprudence of the 18th century. A regular crime, you see, is a crime against the laws of the state. A high crime is a crime against the state itself. I like this example. A president could be convicted of jaywalking, but I don't think any of us really think that warrants impeachment. Bribery, treason, abuse of power, or any other act in which a president places his own interests above the nation. That's a high crime. 

Now, a quick aside that these distinctions help us understand why the Constitution's authors did not explicitly bar something that has come up quite frequently in our political discussion of late: the question of whether a president could self-pardon. I mean, the Constitution doesn't say he or she can't. Such an explicit prohibition appeared utterly unnecessary in 1787 for two reasons. First, because it was simply unfathomable, as I mentioned before, that an impeached president would have a political future at all. And why bother, therefore, pardoning something whose only real penalty was the inability to hold office ever again? It's not like the voters would ever in a million years vote for an impeached president. Second, because any president who even threatened to employ his pardon to self-pardon to secure his own future, or to safeguard associates who had conspired against the Constitution, was in reality a president who was offering clear evidence of being utterly unfit for office.  

This is a line of thinking that ultimately brought Richard Nixon, by the way, to his resignation. A president who considered exonerating law-breaking coconspirators was simply unfit for the job. Period. An executive who even discussed self-pardoning should be removed at once. James Madison argued during the Virginia ratification debates. As Madison warned, such an ill-disposed president was likely to impede the wheels of justice or thwart any investigation into his conduct. “It may happen at some time, some future day,” he warned, “and if allowed, he will establish a monarchy and destroy the republic.”  

I want to say that again, in order to highlight that these are not my words, but James Madison's. James Madison, father of the Constitution, our shortest president, but more importantly, one of the most learned students of democratic society our nation has ever produced, who warned that a president willing to impede an investigation into his own conduct, or one who considers pardoning those who committed crimes in his name reveals not only his willingness to put himself ahead of the state, but also a clear proclivity, in time, to establish a monarchy and destroy the Republic. 

Now to close out the thought on Donald Trump being the only impeached president to ever seriously again challenge for the nation's highest office, it is important to note that the morals and values of the 1780s need not be ours today. We, for example, allow women to vote and reject the proposition that one human may own another. Thus merely because the men, and yes, they were men who wrote the Constitution would have blanched at the idea that an impeached president might still have a political future. Let us not immediately be bound to their sense of right and wrong. You see, I'm a historian. I'm not a Supreme Court Justice. Therefore, my concern is telling you what actually happened in the past, not mythologizing a fictional past in order to dictate what you may or may not do today.  

This is why it's important to note that whatever the Constitution's architects might make of an impeached, excuse me, impeached, multiple time president running for office, in neither instance, was Trump, of course, convicted in his ensuing Senate trial. While subsequently convicted of financial crimes and found civilly liable for sexual assault in other courtrooms since leaving office, and while facing both state and federal indictments in other courts, in the court that gets to decide his potential guilt of high crimes against the Constitution and the American people, he was twice acquitted. Case closed. Or cases closed from the Constitution standpoint. He remains eligible to run again despite impeachment's wounds to his honor, no matter how much Alexander Hamilton or James Madison would have found that a very surprising turn of events. 

All of which leads by the way, to an additional irony on display in this year's presidential contest. It is not only the only instance in American history in which a twice impeached president has sought a return to power. It is also the only time that a Senator who voted for conviction in a presidential impeachment trial is the last thing standing between that impeached person and the oval office. This was a vote, to be clear, that was in the minds of the Constitution's authors, at least, to be less about determining commission of a crime than a referendum on the character of the impeached president on trial. Ultimately, this means the following: many presidential contenders do not like each other. Some even loathe each other. But this is the first time in American history that a presidential contender has gone on record, not merely before the press or before some audience, but in the Senate roles themselves, having declared her opponent fundamentally unfit for office.  

Now there are of course, plenty of additional differences between Donald Trump and Kamala Harris. Though neither their age, their experience, their gender, nor ethnicity, nor the reasons each has spent years in court speaks to the real divisions between them. The difference that makes me conclude, by the way, this difference, why this is going to be such a historic and important election, the real difference between them is that each sees something different when they look at the United States today.  

More to the point, each thinks the country should head in a different direction. One talks of an opportunity economy, the other of carnage, crime, and chaos. One talks of Americans today being, “heirs to the greatest democracy in the history of the world.” The other fears is we have lost our identity to invaders from abroad and so-called enemies within. This is why the election may be the most important of our lifetimes. The nominees for the nation's office today, in 2024, offer as divergent a choice for American voters as any two presidential candidates since, I would argue, at least 1932. 

One promises to return the country to past glory. The other promises to never go back again. This is a wider gap than normally separates candidates or the political tribes they represent, being at heart neither a question of America's place in the world, nor the government's place in your life. Trump and Harris offer fundamentally different assessments of who can rightfully claim to be an American and who should enjoy the blessings and responsibilities of citizenship, and who ultimately the country is for.  

Kamala Harris speaks of broadening the American dream, and by her very candidacy, broadens the panoply of what power and citizenship can look like in the 21st century. She is not, let's be clear, whom the Constitution's authors envisioned when they considered a future president. A Black Indian woman married to a Jew was nowhere envisioned and certainly nowhere to be found in Independence Hall in 1787. Trump looks more like what they envisioned. Though he is as much a child of an immigrant as Harris, it was Trump who recently told his campaign supporters, “You won't have a country anymore. You're pretty close to not having one now. You better hope I get elected.” Consider please exactly whom he does he mean when he says “you.” He refers, I think, not only to his supporters, those he might dub “real Americans,” those with a hereditary right to not only live in these United States, but be entitled to the full blessings and protections of its laws. The people who populated and controlled the country, back when, in his idea, America was great, before they came to take the country away from you. 

Perhaps it's simply the nation's growing racial, ethnic, and religious diversity, catalyzed, in fact, by the immigration act of 1965, that makes Trump's largely white and evangelical Christian base fear they are losing the country they had expected to inherit. Perhaps it is their fear of losing their privileged place within their vision of America that makes Republicans in general, and Trump voters specific, interestingly enough, less likely than their Democratic neighbors, according to recent polling, to believe that America's best days lies in the future and not in the past. The Republican Party, of course, has historically called itself the party of patriotism. By one sense of the word, in which patriotism is defined as having pride in one's country, it isn't anymore. It is a party that takes pride not in what America is or is projected to be, but instead, in America's past, though one might argue a whitewashed version of the past at that. Now, you need not take my word for it. Please don't. The facts, you see, speak for themselves. According to a recent Pew Research Center study, native born Americans are less proud of American accomplishments than their fellow citizens who happen to have been born overseas. 

Native born Americans also distrust the government and other public institutions more than those other citizens. Indeed, the data on this is remarkably clear. The more you think a president should look like, think like, pray like, and govern like the men who wrote the Constitution, the less satisfied you are today with the state of the country and the more you fear for its future. 

If you hear Trump warn that soon you will not have a country and you interpret the you as you, he wants your vote. More to the point, everyone in this audience should also ponder if they are, instead, part of whom Trump refers to as “the enemy within.” These are, of course, American citizens with whom Trump disagrees. Citizens he has named, like current members of Congress, including a former Speaker of the House of Representatives, whom Trump believed has forfeited their right to liberty the moment that they decide to disagree with his vision of America. Now, maybe this is just campaign rhetoric. Maybe 12 years after he first entered the presidential fray, we should continue to take Trump, as his supporters suggest, figuratively and not literally. Don't judge the man based on what comes out of his mouth, one of his lieutenants suggested, but instead what's in his heart. Maybe it is Kamala Harris, in fact, whose words demand greater scrutiny and condemnation. She did call Trump a fascist, an assessment offered by a four-star retired Marine general and his own former White House chief of staff. She has not to date that I have seen said “lock him up” when referring to her opponent. And in fact, I would suggest this is an important distinction between calling someone a fascist and vowing to act like one.  

This ultimately is what this election is about. It is about which vision for America will be proclaimed from the highest bully pulpit in the land, whose occupant also happens to be the Commander in Chief and Chief Law Enforcement Officer. It is about who will be entrusted to call themselves Americans in years to come. Now, perhaps you came here tonight hoping to find relief and release from the stress of our current presidential present by leaning on our presidential past. Sorry. Let us not delude ourselves as we gather tonight for a talk that purports to be about presidential history. In this current moment, it is the presidential present that most matters. Most matters likely to you. And it certainly most matters likely to me. It is the future of the presidency and thus the future of the United States that colors every topic, every discussion, every point we choose to make one week before this election. 

Tonight, as we mark 50 years since Richard Nixon's resignation, the question of presidential immunity also hangs uncomfortably in the air. The same Supreme Court that forced Richard Nixon to suffer investigation of his crime and Bill Clinton to face civil suit while in office, in each instance using the argument that the chief executive is not beyond the rule of law, that same court this past July ruled that a president enjoys legal immunity for any act in office deemed part of their official duties. 

Now, I'm sure you recall this decision in a case officially known, I think ominously so, as Trump v. the United States, a decision likely to go down in history alongside Plessy vs. Ferguson, Dred Scott, Buck v. Bell, and Bowers v. Hardwick in the pantheon of the court's most infamous decisions. This is a decision so fundamentally wrong, so painfully ignorant of American history, even though offered in large measure by a group of self-proclaimed originalists who claim allegiance to the Constitution's original meaning as understood in 1787, so incongruous with the previous two centuries’ understanding of our Constitutional principles, it beggars belief. Or at least begs the question: if the legal sophistry of the court of these self-appointed life guardians of our Constitution would not benefit from a refresher course in third grade civics. What part of George Mason's statement offered at the Constitutional Convention in 1787 that in a successful republic, no man is above the law, do they fail to understand? If no one is above the law, then how could it be that any citizen, any leader, any chief executive of the United States of America sworn to defend the Constitution and uphold the nation's laws can somehow also not be subject to them? 

Consider, for example, my prior discussion of presidential pardons. The Supreme Court decision gives absolute immunity to all presidential actions within the scope of the president's official duties. As Associate Justice Amy Comey Barrett’s concurring opinion points out, the court's decision, her words again, not mine, for all practical purposes means that a president cannot be prosecuted for accepting a bribe in exchange for a pardon because the pardon power is a core presidential function. 

The absurdity of that situation, I think, is somewhat hard to grasp, which leads to an ominous alternative explanation for why this Supreme Court would rule so blatantly against a core principle of our Republic: that this was not judicial maladministration, but in fact, something worse. That their ruling emanates from an open desire for a greater unchecked presidential authority, an idea known widely and colloquially as the unitary executive theory. This conclusion is all the more troubling when one fully considers the full context of George Mason's most enduring phrase. Perhaps this is something only historians have time to do, and not a Supreme Court justice, poorly playing the role of a real historian. “No man is above the law,” he said in 1787, but as you can see already, that's not precisely what he said. The full quote: “No point is of more importance than that the right of impeachment shall be continued. Shall any man be above justice? Shall the man who has practiced corruption, and by that means procured his appointment as president in the first instance, be suffered to escape punishment by repeating his guilt?” 

That is the real question for tonight. The intertwined question of presidential impeachments as an ongoing tool in American politics in an age when the Supreme Court has given presidents full immunity from investigation and prosecution so long as they act within the broader “outer perimeter” of their Constitutional activities. This should not be a question. We shouldn't need to debate something so obvious to any serious student of American history, nor so intrinsic to the democratic principles that underlie our republic.  

Believe me when I say it gives me no pleasure whatsoever to severely criticize a court, a group of, I like to believe, honorable public servants, who not being in this room have no ability to defend themselves. Neither does it give me anything other than a sense of genuine dismay to think that I, a mere historian, might have anything to say to such learned legal minds. But as we gather to mark Watergate and Richard Nixon's resignation from office, it is worth noting that were the current standard of presidential immunity in place back in 1974, he need not have resigned. 

Nixon, you see, could not have been prosecuted for any of his crimes, could not have been investigated for any of his crimes, all of which easily fit within a reasonable definition of “outer perimeter” of his responsibilities. Not for the wiretapping, the bribery, the cover up, the IRS audits, nor any of the other ways he used his office for personal gain. He could not—again I have to stress this—even be investigated. When Nixon said in his own defense that “if the president does it, it's not illegal,” the pure audacity of the statement in the 1970s was self-evidently shocking. At least to most of us. Now it appears actually to be the law of the land. 

Could a president today order SEAL Team 6 to assassinate a political rival? That's a question Justice Sotomayor asked in oral arguments, and the court's overwhelming answer was, at least for its majority, yes. Organize the military to retain power? Immune. Take a bribe in exchange for a pardon? Immune. Take a bribe to negotiate a treaty? Take a bribe to redeploy an aircraft carrier? Or impose an economic sanction on one regime or remove one from another? Immune. Immune. Immune. 

When we gather here tonight, a week before the consequential vote, and 50 years removed from the only time a president resigned his post, a moment traditionally celebrated as a triumph of a republican system of checks and balances, it is worth asking if there is anything left to restrain a president who aspires to greater authority and greater authoritarian rule. The threat of impeachment over the last 25 years and in more recent times, especially, has ultimately, undoubtedly diminished to be impeached as we've seen is no longer a career killer. Moreover, if a President cannot be convicted by today's hyper partisan Senate, if she can't even be investigated for anything even remotely to do with her office, including the possibility of involvement in an insurrection – which would, by virtue of the 14th Amendment to the Constitution, bar her from office – and if she could not be forced to answer for any act she claims to have been presidential, what safeguard remains on a unitary executive becoming a tyrannical executive, save for the goodwill and good character of the Oval Office's occupant? 

Goodwill, you should note, was not something the Constitution's authors put a whole lot of faith in. Recall our republic was designed to be run, not by angels, but by people. People, who, according to the standard republican thinking of the day, had very human flaws, including an innate aspiration to greater and greater power. “Power encroaches” was the popular phrase back in the 1780s. It grasps for more and then more and then more. This is why the court, full of people who also aspire for power, was supposed to check presidential ambition. This is why the legislature, full of people who also aspire to power, was supposed to oversee the executive. This is what, through the recent history of presidential impeachments and presidential immunity, both Congress and the Supreme Court itself has forgotten, forsaken, and forfeited.  

This ultimately is why they chose George Washington to hold the office first. Because he'd shown remarkable restraint when offered remarkable power. More to the point, he demonstrated the quality that those people most sought in a public servant, especially when entrusted with the general welfare. He demonstrated virtue. Virtue defined as a willingness, even an eagerness to put one's needs behind the nation’s. George Washington, you see, was really never considered the smartest man in the room. He was vain. He struggled his entire life to control his volcanic temper. And he was anything but a successful businessman. He wasn't, in truth, a very good military tactician, and to be completely honest, wasn't a whole lot of fun to be around. But, and this is key, he had virtue.  

No one ever had to wonder what George Washington would decide if faced with a choice of personal or national gain. He'd done so many times in his life and come out of retirement to preside over a Constitutional convention only with the greatest reluctance in 1787 because he knew the moment that he showed up in Philadelphia, he was in fact signing up to lead whatever government that convention produced. 

This is one of the reasons the Constitution's architects offered surprisingly little when it came to outline the responsibilities and restraints on a chief executive. Remember that article two of the Constitution describes the presidency. Article one is about Congress and that order was intentional. Congress, most believed, is where real power should reside. In the legislature, the people's chamber, the product of popular sentiment and the source of government's legitimacy. Congress was, to them, the wellspring of law. Recall that the president's job, as discussed repeatedly in the Constitutional conventions debates, was less to author policy than to execute congressional will. Hence why we have a chief executive: to execute policy. If the word had not had other less savory connotations, the document's authors might as well have called the president the nation's chief executioner, which given a future president cloaked in immunity may not be that far off after all.  

Washington presided over this entire discussion and this, let's face it, made for some very awkward conversations. How could the delegates openly discuss restraining a flaw, or malevolent chief executive, when the person everyone knew in the room was seated right there in front of them. Benjamin Franklin, in fact, cut to the heart of the matter on June 4th, 1787 during debate when he said, “The first man put at the helm will be a good one, yet nobody knows what will come afterwards.” And one of Franklin's contemporaries made the similar point a touch more cheekily when he noted, “General Washington would in all probability be the first president under the new Constitution. In that case, all might be well, but perhaps after him, General Slushington would be next.” The fictional General Slushington, we are obviously to infer from his name, was no George Washington. General Slushington would likely not have Washington’s extraordinary sense of virtue. General Slushington had aspirations requiring guardrails and restraints.  

It would appear, unfortunately, that this moment of critical Constitutional history was never taught in the Supreme Court majority's respective law schools. The president described in their 118-page immunity decision is a president swayed, even driven, by personal interest. It is a vigorous, energetic president, unrivaled, decisive, speedy. Perhaps their version may be more accurate for today, but that's not how originalists are supposed to think about the Constitution. I refer you to page 13 of the majority opinion, which I'm sure you've all read, authored by Chief Justice John Roberts. It refers to the president repeatedly as energetic, as vigorous. There are two problems with this analysis. First, it's bad to say the framers designed for the President required them to act with vigor and energy. On this point, the Constitution's architects certainly did not agree. On this point indeed, the idea of an energetic executive was, I would argue, by far the minority opinion in the 1780s. And the Court's majority’s repeated reference—got to read the footnotes, everybody—back to Federalist No. 70 as proof text gives away the game. Federalist 70, as I'm sure you all recall, was written by our good friend and Broadway star, Alexander Hamilton. This is the same text that, in fact, offers the phrase “unitary executive.”  

Of course, as anyone who has seen the play well knows, Alexander Hamiltons were not always universally endorsed. His desire for an energetic executive, in fact, was a key criticism offered by his political rivals as proof of his dearth of Republican virtue. As Pennsylvania governor – Pennsylvania's, he's not the governor, his name was Gouverneur, Gouverneur Morris, noted the convention's overall sense of a constrained and limited presidency, “we first form a strong man to protect us, and at the same time, wish to tie his hands behind him.” Note, this was not Morris offering a critique, but a guiding principle.  

The current court's ruling on immunity stems from a selective misreading of history focused on a microscopic selection of the documentary record. While I've already said we should not be bound to the founder's values, equally troubling, I think, is the court's sense of the unfettered executive in their fear, again, as expressed in Chief Justice Roberts's majority opinion, that the chief executive, suffering from anxiety over investigation and prosecution, might hesitate. It might constrain her energy or otherwise force a president to pause when facing a difficult choice when action is the very purpose of the position. Except, as I've already said, unilateral action is not something that most of the Constitution architects ever discuss giving the new president or new chief executive. Neither, by the way, was vigor, energy, or speed.  

The court compounds this historical inaccuracy with historical misunderstanding. They inaccurately state, without reservation, that the Founders want an energetic president, even though the majority did not. And they also misunderstand the notion of virtue as understood, at least, in 1787. Roberts and others fear a president might hesitate to act if she fears doing so might bring personal harm, perhaps even criminal liability. George Washington and those around him would respond, “Then why'd you want to be president in the first place?”  

Public service broadly, and the presidency in particular were all about personal sacrifice. The architects wanted a president fearful of personal liability for his or her decisions, including potential criminal penalties and thought that these would restrain the executive's vigor. Now we prefer to think that a president would never do anything illegal, or anything that is in his personal interest and not the nation's. But as Franklin warns, such purely virtuous people are indeed quite rare. There was only one around in 1787. Any other president should have to think twice before breaking the law or violating her oath to preserve and protect the Constitution. And if their virtue wasn't enough bar to malfeasance, and if public condemnation and harm to their reputation wasn't enough, jail just might be. 

And at the same time—and this is the key point which I'd like to leave you with tonight—the Constitution's architects would truly want a president, if faced between the prospect of doing what is right for the nation and their own personal welfare, to choose the nation each and every time, even if that meant opening themselves up to investigation, prosecution, conviction, and potential punishment. A president willing to sacrifice, willing to lay his own life and freedom and fortune on the line. Indeed, willing to give them all up in a heartbeat for the sake of the people. That was a virtuous president indeed. One can easily envision George Washington and those around him saying to today's court and to next week's contenders for office in that critical election seven days from now, if you aren't willing to sacrifice, if you aren't willing to put country first in all instances, if you aren't willing to make a decision that puts you in jeopardy for the sake of the people, quite frankly, if you're not willing to go to jail to be president, you aren't up to the job at all.  

Fear of prosecution, not just fear of impeachment, was one of the ways the majority of the Constitution authors, note again, not everyone, just the majority, considered a critical restraint on overarching presidential authority. There was simply no outer perimeter for virtue in 1787, nor should we expect one today. And if the Congress won't act to give teeth to its impeachment power, and the courts won't remember that a president's power is supposed to be constrained and subject to critique, and if necessary censure, well then I guess it's all up to us. We must vote next week for whichever candidate we think has the most virtue. The greater ability to sacrifice for the common good. The willingness to lose so the country might win. One might even say a willingness to accept the loss, if that is what the electorate decides. Thank you.  

 [applause]

[end of lecture]

PENMAN: Jeff, you gave this talk knowing that within the week, we would have a new  President-elect. And for those who attended thinking that they were going to hear a little more about the Nixon impeachment, they probably left a little bit surprised by the content of your lecture. So what were your hopes and your goals for the talk?  

ENGEL: It's a great question because it's, I'm going to give a historian's answer, which  is to say there's a back story here. They asked me to give this lecture, I think two years ago, and I wasn't able to do it schedule wise, so then they said, Oh, okay, this year coming up is the anniversary of Watergate. Would you give a talk? And, 17 months ago, I thought, sure, I'll talk about Richard Nixon and Watergate. Wouldn't that be interesting? And then as we got closer and closer to the election, in particular after the Supreme Court's decision this July to allow presidents basically total immunity, I thought this, a moment where we need to be discussing bigger things that affect us today than just the commemoration of Watergate. That's important. But the question is not what happened during Watergate. It's why does Watergate matter to us today? And clearly it's a great instance, which we may never see again, of presidents having their power constrained. 

PENMAN: And you stated that the authors of the, and this is a quote, “the authors of  the Constitution of 1787 that we still live by today, overwhelmingly presumed impeachment would be a career killer.” And then you spent much of your talk pointing out that impeachment has really lost its teeth. So what role does impeachment play now in 2025? 

ENGEL: Boy, that is seriously a great, unknowable question that I spend a lot of time thinking about. On my better, happier days, I say that it is still within Congress's power to restrain a president through the impeachment mechanism, especially if the Senate were to have what might be described as a legitimate trial. On my worst days, I say clearly the last three impeachments, the last two for Trump and the one for Clinton before that, demonstrated that you could have written down the final score before the trial began. So at the moment I am glad that Congress still has that mechanism. I also don't anticipate it actually will have much teeth. And in particular, with an incoming president who has already survived impeachment twice, I see no reason whatsoever to think that he's going to feel that he has to worry about that particular sanction from Congress.  

PENMAN: I'm going to quote you quoting James Madison here. So you note that  Madison “warned that a president willing to impede an investigation into his own conduct, or one who considers pardoning those who committed crimes in his name reveals not only his willingness to put himself ahead of the state, but also a clear proclivity in time to establish a monarchy and destroy the republic.” So keeping that warning in mind, why do you think it is that Americans don't seem to take seriously the threat of authoritarian rule? Or do they? 

ENGEL: There has always been in American society and in democracies more broadly, a totalitarian streak. Democracy is in some ways an unnatural act, because it requires people to accept losing. And one could argue that if you look at the 1930s with people like, whether it's Charles Lindbergh or Huey Long, you look at the 1990s with Pat Buchanan, we can find a stream of supporters throughout American history in every generation, let's hypothesize 35 percent of Americans who are perfectly cool with the government doing whatever they want so long as they're a person in charge. That number seems to have increased and at this particular moment, I think on both sides, the hatred of the other side has generated enough momentum that people no longer trust that the other side is going to do a legitimate job of governing.  

So why are they not heeding the warnings about authoritarianism? I think in part it's because they think the other person is completely illegitimate. But also, they're kind of cool with their own side being authoritarian once they get back into power. And that's actually one of the things that I think is really critical to stress from the talk and in general, that many of my critiques of the Supreme Court's decisions on impeachment ring of a critique of Trump because Trump is the one who generated the cases that went before the court that generated that decision. I cannot stress enough that this is a nonpartisan concern for authoritarian rule. Madison did not say, when you have a Republican or a Democrat or a Federalist or whatnot. Madison said, any human being who would use this power to defend him or herself, himself in Madison's case, and abuse the office so that he is putting himself above the state, that human being is a problem. It's not a question of red or blue, it's a question of humanity.  

PENMAN: Which brings us to the next question. I was wondering a little bit about  unitary executive theory, which you bring up in your lecture. And I just, I don't know, and this is reflecting my ignorance here, but I don't know if a lot of American voters know about it. Can you talk a little bit more about it and how you anticipate it playing a role in the coming years?  

ENGEL: You hit upon something funny, and since these interviews are historic  documents in and of themselves, let me point out that we are talking about this, what are we, six weeks since the election? And the number of stories that one reads, the number of polls that one sees, that shows that people are really surprised by what Donald Trump is proposing to do now that he actually has won, is surprising and disheartening, to be honest, because he's not doing anything that actually should be a surprise unless you didn't actually pay attention to what he was saying. And his supporters would say the same thing and his detractors would say the same thing. He is actually doing exactly what he promised he was going to do so far with his nominees and with his proposed policies. One example of that is that Donald Trump, throughout the campaign, disavowed Project 2025. But now that he's about to be in power, it's clear that Project 2025 is in fact the blueprint for what his administration wanted to do. And again, if you were paying attention, you probably shouldn't be surprised by that.  

One of the elements of Project 2025 is giving greater authority and granting power to the executive. And here I want to be really careful how I describe this, because there's a part of me that thinks when I explain how the thinking behind a unilateral executive works, I hear myself in the back of my mind going, “That's ludicrous. That's crazy. Haven't these people read the Constitution?” So I’m going to tell you something which I say and then going to say, “That's ludicrous. That's crazy. Haven't these people read the Constitution?” 

Essentially the argument is that the president's authority in the Constitution is unlimited or rather only limited by what is explicitly said in the Constitution he or she cannot do. Everything else is presumed and that the president should be the unitary force for driving policy, both driving and implementing policy and in some sense interpreting policy. That essentially we live in such a fast-paced modern world that we need someone who is willing to take the reins of power and use them quickly for the best of the American people. By the way, that was Adolf Hitler's argument. That's every fascist’s argument. It’s a fascist argument. There's no doubt about it. What is the definition of fascism in some ways? It's centering authority in one figure or one office. Well, that seems to be what the unitary executive is designed to do. So I think this is a complete misreading of the Constitution, which begs a second question, if I may, which is who cares? In the sense that I, as a historian can say, Hey, you guys are totally misreading what was discussed at the Constitutional convention. By the way, hey, Supreme Court, you're totally misreading the history here. But that's one of the interesting things about history, isn't it? That people only need to use it when it's helpful for them to make their contemporary arguments. And historians would like them to be faithful to what actually happened, but you don't, there's no law that says you have to be faithful to history. So when I say that this unitary executive theory is very, very popular on the right in particular – almost exclusively on the right – and is antithetical to the basic premises of American republicanism, those two statements can coexist equally at the same time. 

PENMAN: You stated that the 2024 presidential election was shaping up to be one of  the most important in American history. Do you stand by that? 

ENGEL: I would love to be wrong. I would love it if we came back 20 years from now  and we did this interview and you said, You said in 2024, this was the most important election and nothing interesting happened after, I would say, thank God, I would love to live in boring times. I just think that with the, with two things: with a president who has already survived impeachment twice, and survived essentially trying to disregard the results of the last election and remain politically viable—and by the way, won the subsequent election—there's very little restraint upon what Donald Trump may choose to do at this point. I also think Donald Trump's agenda is among the most radical that we've seen in American history. And by the way, he would love that statement. That's not a criticism. The things that he is looking to do, whether it's in immigration law, whether it's in tax law, whether it's certainly in foreign policy and our relationship with our allies, those are all fundamental shifts from where Americans have typically stood at least since 1945 on all of those issues. So Kamala Harris, conversely, and I think this is one of the reasons she lost, was essentially saying, I'm going to do what's been working for us for the last 80 odd years. And people responded by saying, I don't feel like it's working for me. Well, consequently, the guy who says I'm going to break everything and start anew, seems very appealing. But I would point out that most of those policies for the last 80 years, while not ideal for everyone, have, on a societal level, worked out pretty well. What have we not had since 1945? We haven't had a major international war. We haven't had another depression. Unemployment's been historically very low. Some spurts here and there, but historically very low. So the system currently is putting a lot of stress on a lot of people. There's no doubt about that. And a lot of frustrations that people feel, and I certainly feel frustrated with the lack of malleability of our political process, the fact that it basically is broken as far as I can tell. But I do think it's important to note that the ideas that allowed us – that that's a nice problem to have. I'd rather have a society really upset every 80 or 90 years with the way things are, than a society that ruptures because of war, disaster, famine, et cetera, every 10 years.  

PENMAN: So looking forward, how should we consider your words post-election? 

ENGEL: Full disclosure, I did not think Donald Trump was going to win. By the way,  half of America didn't think he was going to win in terms of the punditry and the scholars involved. Even my conservative and Trump-supporting friends thought Kamala Harris was going to win. The result, I think, took many people by surprise and I think it's important to note that it looked on election night like it was a landslide. Now that we've been able to crunch to numbers more, we see that in the Electoral College it was clearly a dominant victory, but in each of those individual states, it actually was very narrow. Remarkably narrow. This is one of the, in terms of the popular vote across the country, this is one of the more narrow win that any president has ever had.  

So I can't think of a moment in American history where a president has been more explicit about what they're going to do in office. And I am struck by the fact that so many of the things that Donald Trump said over the last eight years, over the last 12 years, and certainly on the campaign trail over the last year, are fundamentally un-American. What does that mean? Un-American is a squishy term. But by un-American, I essentially mean following the ideas that are embedded, though not religiously-embedded, but embedded philosophically in the Constitution, especially as the Constitution has evolved to include more and more and more Americans under its protections. The 14th Amendment is really important. Well, Donald Trump wants to get rid of the 14th Amendment, at least with birthright citizenship. And he's been very clear about this, and I don't know that Americans really have thought through what it means to get rid of birthright citizenship. Just as one example of how rights can easily be eroded. When I heard Donald Trump talking on the campaign trail, I thought most Americans would say, whether I like what he's saying or not on policy—he of course said very little on policy—whether I like what he's saying or not, that doesn't strike me as really what we're supposed to be doing here in this American democracy. Well, it turns out either more Americans were cool with that, the authoritarianism, than I thought. Or, what is probably more likely is most Americans said, only people in the ivory tower care about such things. I care about the price of bread. And he promised he was going to bring bread down. I don't think he's going to, but that's a different question. 

PENMAN: Before we let you go, any concluding thoughts? Anything else you want to say about this lecture? 

ENGEL: I am very uncomfortable with the lecture I gave. And was very uncomfortable writing it and giving it. Because I firmly believe that my responsibility in this society, where I fit into this larger ecosystem, is to be, for lack of a better phrase, a neutral arbiter. Or at least a neutral commentator. To not talk about what policy is good or bad, but simply to talk about, here's what has happened in the past, in a neutral fashion. And I would have been much happier doing what I did throughout 99 percent of my career, which was to simply keep this in broad Constitutional terms or keep this in terms where you would say at the end of the day, gee, Is Jeff even a Republican or a Democrat? I love when people ask me that, they say, we've seen you on TV or we've seen you around town. We can't tell what side you're on. I say, yes, that's exactly right. That's exactly my job. But I thought every now and then in history, since I do think we were at a critical inflection moment, people need to stand up and be counted. And if there was anything I could do to argue on the side of Constitutional principles, I thought I had to put away my desire to not be a part of the fray and actually do the tiny bit I could to jump into it.  

So I hope never to give a speech like that again. I also hope that people like me have the opportunity to give those speeches in the future. I think it is less likely now that we will have that kind of free speech, not necessarily legally, but morally, or rather socially, than we had before the election.  

PENMAN: You talk in your lecture about what quote, vision of America might prevail. So there's the one marked by hope in “the greatest democracy in the world,” quoting Harris, and the other marked by the sort of fear mongering over American identity, who is American, us versus them in this mythic, lost, glorious past. And so how do we construct a meaningful present and future as Americans when we know that the latter message won out? 

ENGEL: I want to go back and mention why I paused and smirked to myself when I  used the phrase un-American. Because in some ways it's un-American to use the phrase un-American, which is to say one of the central questions of our nation's history, perhaps the central question of our nation's history, is who counts? Who is an American? Who is a legit member of our society? And you can argue that's been a steadily expanding range of humanity over time. But the two fundamental ways that you can look at this sort of sociologically is to say, well, an American is somebody who was born here and whose parents are American and they inherit this, the way you inherit anything. The other way you can look at society, at our society, which I think was the popular view after 1965 or so, is an American is anybody who's willing to abide by American principles. Yeah, we have some laws about citizenship. But essentially, who can become an American? If you're willing to come here and buy into the system, and buy the credo, and follow the rules, you too can be an American. That is, I think, what was at stake in the 2024 election. Clearly again with the incoming Trump administration's promise to provide mass deportation, but also to get rid of, and this was in Project 2025, to get rid of birthright citizenship. And, and this is really interesting, and I wish more people had thought about this. Project 2025 also promises to get rid of naturalized citizens who commit crimes, can be deported out of the country. Again, that sort of is antithetical to the idea of once you're a citizen, you are a part of this collective, period.  

So those are the two visions I think that we are confronting. So what can Americans do at this particular moment? Jokingly, I would say buy gold. But more realistically I would say, something. That Americans need to do something, and everybody needs to do something. And again, that puts me in this uncomfortable position because I include myself in that. It's not just an old Chinese proverb that we all joke about, that the best lives are lived through uninteresting times. These are clearly becoming interesting times. I was just reading something about Lincoln yesterday and noted that, I think it was maybe 1863 he gave a speech in which he talked about the fiery trial that we were in as a nation. And that's the title of many books, The Fiery Trial. It's a nice phrase. I'd never really thought about the second part of the sentence, which was, The Fiery Trial, that we are in, history will judge us, whether we succeed or fail, based upon how we do at this moment. And wouldn't it be great, I'm putting words in Lincoln's mouth, if that wasn't the case. This doesn't happen to every generation, but it's happened to us. That we have what Franklin Roosevelt would say is a rendezvous with destiny. And by the way, rendezvous with destiny doesn't mean destiny is going to be appealing. It means your fate is coming and that can be good or bad. So I, the only thing I can encourage, and I feel like a loser saying this because it's so blase is everybody needs to look inside themselves and say at this point, what kind of country do I want and what can I do about it? What a hokey, silly thing to say. But that's all we got. 

PENMAN: Alright. Well thank you so much, Jeff.