Opinion by Ross Douthat on April 19, 2025.

President Donald Trump may forever reshape the boundaries of executive power. For his new New York Times Opinion podcast, “Interesting Times,” columnist Ross Douthat spoke with Jack Goldsmith, who led the White House’s Office of Legal Counsel under President George W. Bush, about the legal issues that have arisen during Trump’s second term.

This transcript has been edited for length and clarity. You can find the full episode and subscribe to the show wherever you get your podcasts.

Ross Douthat: In a recent essay, you wrote that Donald Trump is “taking a moonshot on executive power.” What does that mean, and how is this administration different from all other administrations?

Jack Goldsmith: The Trump administration is pushing executive power to unprecedented places in new ways on many dimensions.

First, vertically down through the executive branch, the administration has taken an unprecedentedly broad view of the unitary executive theory. The basic idea is that the president gets to completely control the executive branch. Its decisions. Its firings. The interpretation of the law. The president’s views of the law prevail for the entire executive branch, and everyone has to get in line for that. And there have been elements of this before, but this is much more extreme than ever. That’s the vertical dimension.

The horizontal dimension is that they are asserting super broad executive power claims vis-a-vis other institutions that have checkpoints against them, trying to weaken those institutions.

Let’s start with Congress. The executive branch has basically been attacking Congress’ appropriation power, its core power. It’s been attacking Congress’ traditional ability to determine which agencies are which and how they’re organized. And it’s doing something analogous with courts. It has been extremely aggressive in pushing back against and game playing with courts. I would not say that there has been any sort of systematic defiance yet, but they’ve come close to the line and they’re being extremely disrespectful toward courts.

And then they’re pushing out executive power against civil society. You see this in the law firms, the universities and the like.

So, horizontally and vertically, they’re pushing executive power, sometimes through interpretation of statutes, sometimes through Article II.

Douthat: I think it was clear from the beginning that Trump back in power was going to be a more aggressive figure. What in this area has surprised you the most?

Goldsmith: I wasn’t prepared for the extent of the onslaught. It’s really just remarkable how many things they’re doing, especially inside the executive branch, to try to bring complete control of the president. And I wasn’t expecting the extent of the loyalty tests and the insistence that the president gets to determine what the law is and that there’s no independent legal check.

Traditionally, my old office, the Office of Legal Counsel, made legal interpretations for the executive branch subject indeed to the review of the attorney general and the president. That office has been basically set aside and the White House is interpreting law, and the basic rule appears to be if the president wants to do something, it’s lawful.

That really does seem to be the operating principle. So, the extent of that surprises me. The extortionate elements of the administration, the shakedown elements. They remind me of a book I wrote about Hoffa and the mob. That has all surprised me.

Douthat: This is the law firms.

Goldsmith: And arguably what they’re doing a little bit with the universities. I didn’t anticipate that form of aggressiveness.

Trump and his administration were pretty bad in their disrespect of courts in the first term. In fact, it was about eight years ago that the chief justice issued an announcement not unlike the one from a few weeks ago saying that the president needs to stand down a little bit in his criticisms, but this time, they’ve gone much further.

And frankly, I don’t really understand the strategy. It has been a strategy of utter contempt for the courts. Reading directives narrowly, filing massively disrespectful briefs, threatening noncompliance. I didn’t expect the extent of that, and I don’t fully understand what goal it serves.

Douthat: There’s been a lot of talk just in the first few months from critics and skeptics of the administration saying: We’re already in a constitutional crisis. The administration is messing with the courts, being disrespectful to the courts, not following congressional statute and so on. In your view, what is a constitutional crisis, and how will we know we’re in one?

Goldsmith: So, I’m going to give you an answer you won’t like. I don’t like that terminology. I don’t like that conceptualization because it gives one a sense that there’s an all-or-nothing line, after which we’re in a crisis. And I’m not quite sure what happens when that crisis hits.

Here’s the way I think about it: There has definitely been a significant diminution in legal checks on the president. He’s wiped them out inside the executive branch. Congress has not only been silent, but it’s facilitated the wiping out of congressional prerogatives by confirming people who they knew were going to do things that were going to emaciate Congress.

The only real legal check right now on this presidency is the courts. And so if the courts were issuing directives on a regular basis and he was defying them, or if the game playing continues to such a degree that they’re not really paying attention to law, then we would be in a place where the president was approaching lawlessness. I don’t think we’re close to that yet.

I want to emphasize: It’s extremely early in the judicial process. There’s a lot going on. There are 150 cases, and the administration can do a lot of damage before courts can weigh in and set boundaries.

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This article originally appeared in The New York Times.

By Ross Douthat/Eric Lee
c. 2025 The New York Times Company