Interview: Sai Prakash

by Hugo Rosen

Saikrishna Bangalore Prakash is a James Monroe Distinguished Professor of Law and teaches at the University of Virginia. He has  authored several books on presidential power, including The Living Presidency: An Originalist Argument Against Its Ever-Expanding Powers and Imperial from the Beginning: The Constitution of the Original Executive. Prior to entering academia, Professor Prakash clerked for Judge Lawrence Silberman of the U.S. Court of Appeals for the D.C. Circuit and Justice Clarence Thomas.

What first attracted you to the law? 

I studied political science and economics in college, which was a natural fit for me. Once I got to law school, I very much enjoyed it and learned a lot. 

You’ve clerked for Judge Laurence Silberman and Justice Thomas. What did you learn from these experiences? 

Judge Silberman was an excellent teacher and mentor; clerking for him was my first full-time law job. He spent a lot of time with us. And, you know, he had been a judge for quite a long time, appointed by President Reagan. Justice Thomas was a very similar experience. I spent a lot of time with him; he has been a mentor ever since. I definitely learned a lot about the law and a lot about legal interpretation and the role of judges, at least their perception of what that role ought to be, from both Judge Silverman and Justice Thomas. 

You’ve written a great book about executive power, The Living Presidency: An Originalist Argument Against Its Ever-Expanding Powers. How would you say the institution of the presidency has changed since Washington’s inauguration in 1789? 

That’s a big question. So, the presidency is an executive institution. Executive institutions are principally involved in executing the laws made by someone else, in this case, Congress. And so, the president’s principal function is to supervise and direct law execution. But there are other things the president can and must do. He’s the Commander-in-Chief of the Armed Forces. He has to share information with Congress. He has some authority over foreign affairs. And he can detail legislation, which gives him a role in the lawmaking process. These are all adjuncts to the law execution function.

Concerning foreign affairs, the president has specific powers related to treaties and sending ambassadors in the Constitution. But the original idea was that the president has unilateral authority where authorities are not given to Congress and are not checked in Article Two. This traditional conception of executive power encompasses law execution and other things like foreign affairs, appointments, removal, and pardon power. So, authorities are given to the president in some cases and checked in others. That focuses on what the president could do in the 18th century. It’s also important to focus on what he couldn’t do, what the institution couldn’t do. And what the institution couldn’t do was rewrite the laws. 

The Constitution says presidents must faithfully execute the laws, not rewrite them. The presidential veto reinforces this idea. Since the president has a veto, the implication is that if they don’t use it or it’s overridden, they must abide by the statute Congress passes. If the president could rewrite statutes, that veto wouldn’t be necessary as an independent instrument. The 18th-century president needed the Senate’s consent to make foreign treaties. In the 18th century, Congress was thought to be the branch that would respond to emergencies either with legislation during the emergency or with ex-ante, meaning, beforehand, legislation that empowered the president to take his own action. The president really had a limited amount of authority over emergencies. 

An 18th-century president needed congressional approval to wage war. The Declare War Clause grants Congress the authority to decide whether to wage war and to declare war in the 18th century was to wage war. The president’s role was limited to making recommendations. He couldn’t wage war on his own, and he couldn’t disobey congressional declarations of war. So that’s the 18th century. Today you can see that presidents have a much more significant role in legislation than they did in the past because they are more likely to use the veto and communicate with Congress throughout the legislative process. The Constitution says presidents can make recommendations and then veto, sending objections back to Congress. What presidents do now is tell Congress that if they pass this bill, I will veto it. This obviously influences what Congress does, meaning that many bills the president would’ve vetoed never make it to his desk in the first place. 

Modern presidents are more willing to stretch statutes to accomplish their policy goals. For example, presidents started claiming the authority to go to war without congressional approval in the late 20th and early 21st centuries. So we have several conflicts the president inserted the United States into, such as Korea, Libya, and, more recently, Kosovo. These are all wars as the Constitution understands wars, except they were initiated without a congressional declaration of war or authorization to use military force. 

Another significant change is that the president is now seen as his party’s leader and endowed with a mandate from the people. That’s a radical departure from the 18th century. The founders didn’t want political parties to arise and didn’t foresee the president becoming his party’s undisputed leader. Today that influences how Congress reacts to the president and how the people perceive him. Having won their election, presidents now claim a popular mandate in a way that wasn’t true in the 18th century and use this mandate to support their legislative agendas. Being a party leader means that presidents have a significant part of Congress predisposed to favor what they want purely based on party affiliation. Republicans have a hard time crossing Donald Trump, and Democrats have a hard time crossing Joe Biden. This changes our perception of the presidency. Unlike in the 18th century, we now think presidents should be able to solve every problem in the country because they run on that platform. Those are some ways in which the institution has changed. 

Do you think the partisan affiliations you’ve described weaken the efficacy of checks on presidential power like impeachment? 

I think the president’s role as the party leader actually strengthens the presidency because it generates support in both chambers for the president’s policies, almost without regard to what they actually are. However, it does accentuate criticism by the opposing party. For example, suppose a president has 40% or 50% support in a chamber. In that case, he and his party can stop investigations and convictions in the Senate. 

The Constitution says the punishment for a president committing a high crime and misdemeanor is removal. However, you’ll often find members of Congress who say, “I don’t think he should be removed for this.” And that influences whether they characterize his actions as high crimes or misdemeanors in the first place. During the Clinton trial, some Democrats said, “Well, I think he did this, but I don’t think he should be removed for it.” They thought Clinton’s actions were impeachable but not enough to warrant his removal. 

Impeachments are easy because you only need a simple majority in the House of Representatives. But conviction is another thing entirely; it’s very hard to do. No executive branch official has ever been convicted in the Senate. They’ve been impeached but not convicted. And when I say official, I mean everybody. Not just the president but also secretaries and other impeachable officials. The only people that have ever been convicted are judges. 

Regarding executive punishment, could the indictment of former President Donald Trump set a new precedent for how presidents are treated once they leave office? Could this change how they act in office? 

I don’t think it will change how they act in office. After all, Trump wasn’t indicted for anything he did while president; he’s being indicted for his personal finances and acts. I do think that every time something happens to a high-level governmental official, it creates a precedent that will then be cited by the other side. You can weaponize investigations and prosecutions; some say that Congress has already weaponized investigations. 

I think further weaponization is certainly possible as Republicans come to the conclusion that the New York indictments, at least by their account, are political. In that case, Democratic prosecutors may have opened up a pandora’s box of weaponized prosecutions. We could see prosecutions of Hunter Biden at the state level. We could see prosecutions of other former presidents. There’s really nothing in the Constitution that directly addresses whether you can prosecute a sitting president.

Why do you think that no sitting president has ever been prosecuted? 

There’s a consensus that the president can’t be prosecuted. You could argue that no one has bothered to; no one has thought that the sitting president has committed a crime and then pursued the action of prosecution. The Office of Legal Counsel and the Department of Justice don’t believe you can prosecute a sitting president. That legal judgment binds the executive branch, meaning that no federal attorney will ever try to charge a sitting president as long as those opinions remain on the books. Those rules don’t bind local prosecutors. They can come to different conclusions and act on them. For example, the Arkansas Attorney General could try to criminally prosecute Joe Biden if he thinks there’s probable cause to seek an indictment. This could cause a court opinion about whether you could indict or prosecute a sitting president. 

How do you think the media affects all of this? 

One of the problems in the media is that the various media sources speak to only a portion of the country. The conservative media speaks to conservatives, and the liberal media to liberals. It’s fair to say that Fox News doesn’t pay much attention to Donald Trump’s flaws. It’s also true that the mainstream media doesn’t pay much attention to Joe Biden’s flaws. So there’s been little attention by the mainstream media on President Biden’s son and his influence peddling or on whether or not there was an Emoluments Clause violation while Joe Biden was vice president. I recollect that Hunter Biden was selling his services, which could be considered influence peddling, while Joe Biden was vice president during the Obama administration. 

There’s a similar question about whether Joe Biden indirectly received foreign government money while vice president. But these aren’t issues the mainstream press focuses on. The conservative media, likewise, doesn’t pay attention to President Trump’s scandals. This means that each side only hears about problems on the other side. More partisan people listen to what they already believe, and people in the middle don’t necessarily hear both sides of an issue.

What should high schoolers take away from this conversation about the presidency? 

The big picture question to consider is: What authority does the president legitimately have? Is presidential power a function of what the Constitution originally meant, or is it a feature of what it has come to mean through changing practices and precedents? In this context, it’s essential to think about limits. What would an illegitimate change look like if the president can “acquire” the power to declare war legitimately? Suppose the president acquired the power to imprison citizens without a trial; is that beyond the pale? If it is, what makes imprisoning citizens different from war powers? 

One of the points in my book is that it’s easy for the president to change the Constitution by using his power to slowly change established norms. And we can see this change throughout history in things like war powers. So it’s crucial for everyone, including high schoolers, to ask who decides what the presidency can and can’t do. Is it the presidency itself? Is it United States citizens? Is it the Supreme Court? Is it Congress? Is it all these institutions acting in concert? I think these are the questions your generation has to ask and keep in mind in the future.

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