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tv   Waging War  CSPAN  November 26, 2016 6:45pm-7:46pm EST

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participation will be $0 take him for the bottom 90% of income earning families and the families that can reasonably afford a low class life on a single person's paycheck will need two or three incomes to live the same life a generation from now. obviously giving such as speech would have doomed anyone's presidential campaign. his party probably would have been out of power for years. no one in america would have voted for such a vision and yet just like you optimistic first part the second part of our fictional presidential speech would also turn out turn out speech or became true not because of some historical accident but because our economic system was intentionally rigged in favor of large corporations and wealthy americans over everyone else. trickle-down economics was loaded in a national consciousness as if you're the founding documents or can they founding documents or can they pay 200 years of struggle and progress had been intentionally reversed over the course of the last 40 years. if a foreign power had announced
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that was its plan for america we would have gone to war. [inaudible conversations] [inaudible conversations] >> good afternoon everyone. thank you so much for being here at the national constitution center. my name is jenni parker and i'm the vice president indications. before we begin i would like you to take a few moments to share some basic housekeeping. we will begin, we will take the
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obvious -- audience questions at the conclusion of our program today. please address your question the notecards provided for you and they will be gathered by one of our staff members that if you're on twitter i urge you to follow us at at constitution center and you can also hashtag questions comments hashtag than with america's town hall. after the program are going to have a book sale at a book signing opportunity with david barron. please join us in the lobby to get your signed copy of this book. i would like to thank any members hear for joining us today. the center is a private nonprofit and our work relies heavily on the generosity of people around the country you are inspired by her nonpartisan mission of constitutional education and debate. if you are not yet a member please consider becoming one and support our work including
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today's program. you can get information and today's gallery talk. that will benefit the membership and high content today. lastly please take a moment to silence your cell phones. now i will introduce today's guest. david barron is the honorable william green visiting professor of public law at harvard law school and judge of the first circuit court of appeals. he has clerked for both judge steven reinhardt and john paul stevens and previously served as the acting assistant attorney general of people's counsel at the u.s. department of state. david barron joins us today to discuss his newly-released book, waging war, the clash between presidents and congress 1776 to isis. a timely count of the eternal tug-of-war between congress and presidents over how and when to wage war.
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moderating today's program is ted ruger dean professor of law at the university of pennsylvania law school. his research draws on his broader works on judicial power and constitutionalism and addresses the manner in which american legal institutions including the u.s. supreme court have shaped the field of health law over the past two centuries. please join me in welcoming judge david barron and dean. [applause] >> thank you and i want to thank our hosts at the national constitution center. an institution that i'm really pleased that we are doing more collaboratively with this excellent institution over the past few years and it's a pleasure to be here.
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a pleasure to be here with a very old and dear friend of mine , david barron. we have known each other for a gas almost 25 years since we were in law school together. judge barron i've seen you do a number of things over the past couple of decades working in the highest levels of government, researching and as a scholar at harvard law school. your research includes a number of areas including the subject of this book. i want to start out asking you to talk about what led you to write this book over the past many years and given the different roles in which i've worked how does this book reflect your thinking over this long period of time? >> thank you to the center and all of you for coming and on a day when you had to go outside. i started thinking about the book when i was still a professor.
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it was in the early years after the attack of 9/11 when it was formulated its initial response. that that time some of you may recall there were a range of pinions coming out of the justice department which i had worked on years before the end of the clinton administration. those opinions have in them some very sweeping statements about the presence power to fight a war and position on those opinions was it was for the present alone to decide how to wage the war on terrorism. at the time that struck me and i know others scholars as a controversial statement so i've really wanted to get into the history of it and started researching. over time by i then ended up serving in the justice department in the first years of the obama administration. and within the same office at the early stage.
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so i had a new perspective not only systemically but for real. what is the present supposed to do in wartime operations? if congress put obstacles in the way what is the present supposed to do in overtime that led me to write this book which is really an account less of a legal argument about what the right answer is in more account of how has the president handled that aspect of how has congress handled it and the delicate dance between the two of them that we have been living with before we have the constitution. >> let's pick up on where you just ended. when we teach constitutional law we often take about the constitution convention in 1787 ratified a couple of years later in 1789. her book title, your subtitle is 1776.
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what was happening in 1776 and why is that relevant? >> is here that was an important one and the book opens with the beginning of the revolutionary war and the first commander-in-chief george washington as he confronted this dilemma very early on. he confronted it most directly after a relatively successful encounter with the british in boston and then the battle moved to new york. while in new york things were not going well. he became a ticket and he would have to retreat from new york and the huge naval force off of long island was going to be attacked at his quest at the time was if you leave new york house do we leave it? we burn new york to the ground. street t. jackley would not make sense. better they raised the.
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before deciding to order the destruction of new york he wrote to the congress and asked should we leave new york for the enemy? that sets off the leading question. he expected the answer would be no, go ahead and raise it but that's not the answer you. at that stage he got a letter from john hancock that silly for bit him from burning new york down. washington thought this was a real ridiculous strategic decision but he obeyed it and did not plan a strategic fire. a good chunk of new york did burn but by all accounts washington had not organized it. it wasn't as successful as it would have been. that very early incident is the
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kind of conflict we have been living with it ever since. washington was extraordinary as you know in being a powerful commander-in-chief and the successful ones are also one who is very cognizant of the limits of its power. >> this leads us to an interpretive question. why is it important to think about something that happened before this over a decade before and how we interpret the document that was ratified in 1789. what kind of theory gives us license or promotes the desirability of taking things that have happened before into account? >> and all of these kinds of situations there always two to be thinking of. we can be thinking of it as an turbo question the legal sense. you'll have the legal dispute and the judge has to make a
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decision in deciding what the constitution means but there's another sense in which the constitution operates which is it sets up a framework for government in which people and the government have to make hard decisions. and what conclusion they draw are very common ones is to look back at how other people who came before them made those decisions. in washington as you know most people think if you were doing what you did u. r. doing something pretty good. he has a lot of purchase and did have a lot of purchase. one of the very striking things after the constitution have been formed and went to the state to decide whether to approve it is that the rita which the opponents of the constitution realized they had a problem which was that washington was such a revered figure. it made claims about the dangers of executive power rings somewhat hollow because there was fear that it was impossible to have a chief executive who
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people could respect. since he was likely to be the new president that made those arguments harder. what you see the constitution doing his cousin we stressing to the audience they are going to be people after washington that may not be like him and the power you are giving not to think about the people who are not washington coming down the line. >> let's be more concrete in your book is magisterial scope. take a problem that happened over 200 years ago with the algerian pirates were somewhere outside the u.s. in the territory of the united states you have attacks on american commercial interests by a state actor or nonstate actor. we might think that our constitution gives someone or some institution the power to define what those acts are.
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are they more apt to find a response? first i would ask what have we learned from the text itself the algerian pirates years ago. what this article ii of the constitution say about who gets to decide whether that's war and did we learn much? it tells us that congress has the power to declare war and it also tells us the president is the commander in chief and that is how do we reconcile that on the subject of huge debate. what the book focuses on is the conflict that got somewhat less attention but in our current situation has a great deal of relevance which is what do we do when congress has said nothing. tickets to decide can the president start a war and use military force on his own and
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more question of what happens if congress has entered and reported to regulate in some way .. >> >> and many of the artist
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questions when about how to fight that war limiting surveillance power, the statutes regulating interrogation, with that kind of dilemma has a longstanding history with many of the issues you are racing of commercial interest. and those that try to keep american neutral from the european wars going on at the time it was true be early in the late 18th century a huge fight with four congress that fight was going on about john adams when the french were attacking the ann adams was
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very hesitant to follow and tried to negotiate his way and then that was the run-up to world war ii that was the huge fight of what roosevelt could lend to the of british with the neutrality statute to keep americans out of another european war. >> even in the institution that congress statute making behavior greg many scholars say that we think of this as part of the constitutional you comfortable with that? with those major statutes in the area? >> often we think of a bill
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of rights but of course, that be -- that came after the constitution that was the charter of government to be an active participant in and then as president who was supposed to be executed so congress's role at particularly in war making but arthur schlesinger that came up at the tail end of vietnam for presidential war making over generations and account the congress being weak and never since the error -- end
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of world war i how to wage war and to dominate the scene in a way it is a response is a little more complicated congress checks of president he pushes congress and worried about taking it too far. >> i liked your metaphor to push that well past the breaking point of people dancing and there it is judges. [laughter] so what role? talked-about uh checks and balances with the supreme
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court intervention given the current roll but may be thinking his starkly or is this a particular part of of constitution with individual rights where judges need to leave the two other branches quick. >> we have said things and when we do speak we have an impact to shape how the rules are understood face said that it is important for the president to follow the law in dallas as said that congress does not have the power of how to conduct
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the campaigns of you are listening closely there not consistent with one another and that has created a great deal of ambiguity because the court did say there are boundaries and one of those from world war two as you may know in 1942 and number of german saboteurs came over on the youth vote from long island with a campaign for the united states but they were picked up by the fbi and handed over to the of military for trial tried in a military commission in one of the offices on the fifth four of the justice
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department they contended that it was wrong to try them in a military commission there is an open military court they could have been tried by roosevelt did not believe that they should get a civilian trial that led to the supreme court whether or not they could be tried in a military commission but the court upheld that also had jurisdiction to make clear they were watching and another thing that happened with the course of deliberations is the court had to confront what roosevelt had done if one did was legal and the question was he set certain procedures the were favorable to the prosecution but congress had they down provisions in they had to
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decide if they would couple deep tribunal. and at the time roosevelt was in gauged because wary about inflation of world war two and there was a one laugh at the time roosevelt made a big speech which he threatened that if congress did not give him the powers that he wanted he would do it on his own as commander-in-chief and it was quite an extreme statement and he was making the accord was made aware that roosevelt as making always at the time they're trying to decide the military commission said you looked at the internal debates with the court their
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very cognizant to say nothing one that would give a green light to roosevelt to assert that type of power as commander in chief. so it was very narrow to not give the green light soleil say that the cuts they do not laydown hard and fast rules historical even also they are sensitive to the atf of giving a green light. >> as something that you address in the book and with that japanese internment case maybe participated long term.
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>> and one feature of the system that is open and ambiguous that decisions are made in the republic as a cool recognizes and in light of history it does not look like a decision that can be justified. but the system as a whole is how to evaluate do you evaluate in a moment, more from larger timeframe if you look at it from a famous perspective over to the
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house centuries to enable the country with a fair degree of frequency and then to be a leader of the world stage and then it operate as a system with those two branches could recognize that would occur peacefully. >> with respect to the people who designed the system of government and one of those features is the ambiguity and a product of that is you have to make
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your own judgment in retractions need to be made and with that capacity for self correction. >> so to this point of one institution in our democracy i want to ask about that of checks and balances. they did not structure them into the constitution that they design those institutional checks and balances with the interested restraining each other. but in a world of two-party democracy is how does that
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put a strain on the checks and balances quick. >> and with that functioning democracy that the system can accomplish so sometimes a few branches of the same government to be supportive of that program to enable that program and one thing that is interesting with the same party government it does not mean the president and the congress the eye-to-eye and example of
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that is the civil war itself . but they have very different ideas of how hard should be fought how aggressive, because they thought it was atrocious at the beginning and congress pass the statute as commander-in-chief. >> will before he was ready if he usurped his role many people were telling him they will be running the war you will not sophie tucker is
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time now and then thought i could use this with the emancipation of the slaves suss adjust to say that they're the same party means they go on the same direction. >> and the dance between talking about the president as an individual with the executive branch as a collective and with the constitutional interpretation with that executive branch is that a collective process?
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warning to the advisers of the president with those legal decisions that were with me from my inexperience and jeremiah black on the supreme court from the late 19th century with the years leading up to secession that is a hard time to be the attorney general it was a hard time. and gave them three days to answer the question. what legal power to have to respond?
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the cuddy right down the exact questions and that it wanted paper to say the last with those questions so then he got of questions those are not all that different but writing those questions so flu can use the force first and said you really can use the force. as he was condemned for being part of the treason and in consequence of that. of course, there was a very different position then he
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immediately called up the thousands of troops. >> diocese of cards being passed around i think those will be collected soon so i just want to ask you with a historical scope that relationship is ongoing that said we live in a world of cyberattacks where non-governmental groups really is an world of pathogens seemingly on a moment's notice.
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is this a challenge to your paradigm of continuity? >> in almost every age they ask themselves that question they thought it should be for the president alone into voice tried to make some argument from that time and it was true in adams' day dealing with the french to content their rule was such reword vulnerable in ways we have not contemplated to have a standing force and the congress was hesitant.
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>> but that fight was reconstituted of course, with that crisis of orders of magnitude that they were confronting that they should be operating differently and that whole concept of total war not just on a battlefield with the entire economy at war with each other to change our thinking with uh nature of secrecy of the non state actors raises that issue.
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it is just to say the idea that we have to do this differently itself is old we have been engaged in that debate for a very long time by march -- a young large let's try to do with the same way if we can. it is a debate. >> moving to a few of your questions you alluded to the commander in chief that he is the president and commander in chief of the armed forces of the nation as a whole. >> it is a great question.
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one author of many of you may know that is not as the commander of chief but the commander chief in what? you think that is the president with those military forces editing that tension has arisen and roosevelt very much felt this. to say he thought the greatest threat was legislation use extremely worried if that got out of and that if they could persevere so it cannot just
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be thought of as those powers but unsuccessfully to win the war and what powers to need and it is a similar issue with the regulation of his forces are the commander-in-chief as he claims to end slavery through those powers but as a matter of design the idea we have a president of the united states and a commander in chief. >> to follow-up on that. the with those misgivings like grenada but before we
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started is the notion to say that this was not the big concern of the framers. >> but with a most concerned >> what struck me was with ratification. which many people were with that latent concern of a military dictator who at that time it was a concern to have. so what would be most resonant your audience? >> so the idea taking over
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countries is not very plausible no army or navy but there was a concern with that uprising at home. so to call about the militia and you would not just put that down to become very popular and then start doing whatever he wanted labatt was their real concern you can give the president of power was the power to pursue a command of troops but the general:horseback leads the troops into battle
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so to require congress to authorize the you can never put this in their place and then they decide to leave that up for grabs but they are not to our concerns. and in some ways to design the system that to something of an but they managed to do it. >> so with the concern to contextual a and those instances but there is no
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declaration of war. and it is thought to be required. and that there is the end run around the. >> but the substitution of the declarations of war. to say that we are now or. and then to use military force that is how i iraq was structured and we haven't had that since world war two .
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but also look at correa. with hundreds of thousands of troops. but in the sense of a complete innovation the way america goes to war. and then to be on the ground with no declared war. as with congress to declare war. and for many reasons but one of them which i don't think it is known as well but then is scared of the signal it would send it to the world and why was that? there was another declared war but before either of those was declared but by
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the time transix is in correa it appears that he and those around him said that signal that will send to china about what kind of conflict this is, is the signal we may not want to send. said they had an incentive to downplay that operation operation, not to associate could do what he wants but as the matter of global policy that is a police action not they just want to do what congress tells me but i don't want the world to see the so think of that is what happens. that is just another way in
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context that they had failed logic in keeping up with that constitutional system was vietnam's a war? answer that descriptive flee and then as a constitutional scholar. >> there is a book called the vietnam war. and i think if you view it been this in is hard to see is something of that scale. and it was authorized of statute and how much that resolution did with the appropriation and the war dragged on with the
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hostility at home we start to see many critics start to fall on and on the fact what does that congress stop? that there was an equally strong view maybe congress was implicated in what is their role to an end if it? and that's schlesinger is raking how presidents have unlimited power to wage war but when congress for the first time in the nation's history, was legislating the end of the war by passing very specific combat operations generally to the point that when ford comes
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in after nixon faces are really difficult challenge that basically stripped him of the powers of combat force but he has to get u.s. suggestions out of cambodia and vietnam. how can he do that without any force greg c. goes to congress what my supposed to do? you said it can use force you obviously want me to get the amount would my supposed to do? they basically said you will figure out. [laughter] and they did dad because they were very scared to give him an inch that he would take a mile and ford in internalize that it cannot but his way to do evacuation but that
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particular challenge that he faced is he felt obliged the of the south vietnamese out in congress people said obviously you can use force if you have to tuesday eve their lives and not to get the south vietnamese out we will not go to war for that not for that purpose. afford and his lawyers decided they could use the force to get the personnel out of they could make the argument to deal the safe way to get the ball was to interview their evacuation with the evacuation of the south vietnamese. the argument was plausible if we just take up the americans of the chaos we have to do it together and that was the legal theory
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notwithstanding the restrictions on combat. >> so your story of ford and the is where we favor transparency your clarity the choice that the framers made it is this an area where the rules are helpful quick. >> and if i was a lawyer in the government it is where you wish it was not fake then you would not have to do very much it would be a lot easier. but i also thought that, it is a virtue that is unappreciated in the well functioning system.
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think about what kind of choices one would make if don't know exactly the dimensions of the national security crisis and you have rules and indians reduce selector rule that says you could do a lot or very little? opposed you say i don't know which? if you say you can do a lot that may be too much but very little could be too little power. if you just love to open in the basic instruction was like my father would give me don't stay out too late. [laughter] it is hard to violate and hard to comply. >> is father was a law professor.
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you may think that was so wise way to allocate the that is what the framers did and what is remarkable is how many presidents their legal advisor as members of congress have tried to keep things in very few presidents have actually ever asserted a sweeping power when they confront the limit congress puts forward they try to find a way to read in their favor, conform their conduct, take their time, often they get what they want in the end but not street through the claim of power. they go sideways or they take longer and congress has been insistent my way or the highway.
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congress really did come close to taking away the powers running with the end run in a true crisis now you know, what led to the impeachment vote. by and large they said back off because they understood the virtues of leaving things undecided. >> so with uh checks and balances of coequal branches and we have not talked about treaties as an empirical matter have they felt bound
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through prior presidents and how much of a constraint is that to stick with uh treaty to withdraw? >> the results will separate history with the treaty obligations they have had some impact on correa whether he would seek u.n. approval there was the debate if he would if russia was not present to help them get through the security authorization to validate but with war making that treaty is only passed by the senate so lot of people
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think that is a pore substitute for authorization and also to use military force some of the treaty cannot be a full substitute one. >> as this relates to event one block or two north of independence hall, is this an area where the framers themselves look at what was intended with the original intent? how important was the intent >> one thing to remember of how we adopted the constitution with the
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ratification process it is a very nice piece of writing but has no legal meaning so how they thought about the powers of the commander in chief but they don't figure out what was intended by those that wrote that charter and if you think about it they decide for themselves whether to make the document what. in the opponent's focus on patrick henry and george mason to come to the war powers what will happen in the future? byword the intentions of those that drafted it? look at this document but 45
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words article to third team of them talk about the powers. >> that is 4,000 words or 3500 words will be 13 tully about the war powers of the constitution c. might have thought as they spent time they are acutely aware how open-ended. with that x delicate. with the two years before. and then to think about is that wise?
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cement and here is the augustan -- the question interpreted with the powers. who is the most skilled yielding the war powers in recent times? so others of the past century friday skilled as say constitutional scholar? it is just remarkable. inability to seek tactically and other uh commitment to
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this struggle this is the framework and is extraordinary about texture the thinking is. but i am very impressed with the situation. to gun in the unelected president when fear of the president still in n combat operations are you using your powers wisely or not? or restore faith in the presidency.
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end was extremely sensitive and you can debate those judgments that he made throughout but it is not a small feat in the they could restore the country's fate senate that is a maze commented maybe under appreciated. >> so those of you who want to continue the discussion stage around and sign some books i will give you the
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last word. >> how to the president's relate to one another what they think of what happened and is which former presidents they put up in their office don't just leave the one that was there before. [laughter] and they're both in enrollment to be successful in the moment but it is in a
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laundered narrative. but there is a lot of history for them to draw upon in one of the themes is the new problems that we confront has a history if we look hard enough reconsider the similarity of our own situation. >> added 89 swayed to conclude. [applause] [inaudible conversations]

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