An alternative remedy to abuse of presidential power is internal executive branch resistance. There were widespread reports during the Trump presidency of possible resistance by high-level executive branch members, from the cabinet to the military. Indeed, many across the ideological spectrum called for such action, especially because individuals on the inside of the administration arguably were best positioned to know when a breakdown of our democratic order was imminent. What is the legal and historical basis for such resistance? What are the constitutional implications of civil servants and other officials taking this type of power into their own hands? What reforms are necessary to help provide appropriate channels with checks and balances so that civil servants can sound the alarm without threatening a coup?

Moderator: Amanda L. Tyler, University of California, Berkeley School of Law

Former President Trump is facing multiple prosecutions. What’s the historical precedent for prosecuting a former or sitting president? What are the arguments for and against presidential immunity? Assuming a president isn’t immune, what are the benefits and risks of trying to hold a president accountable in a court of law as opposed to the court of public opinion?

Moderator: David A. Sklansky, Stanford Law School

With the publication of Will Baude and Michael Stokes Paulsen’s law review article arguing that section 3 of the Fourteenth Amendment bars President Trump from holding office because of his engagement in an insurrection, presidential disqualification has been a live topic this election cycle, resulting in litigation that is currently ongoing. Building on the conversation they started, this panel steps back to evaluate the historical grounding and precedents for disqualification more generally. What was the intent behind and structural design of the Founders’ various disqualification rules for the presidency? How have those rules been applied over time? What are the merits of the legal arguments in the current litigation over Trump’s disqualification? What are the prudential concerns about removing a popular frontrunner from the ballot or letting someone who arguably participated in an insurrection run for the highest office?

Moderator: Jane S. Schacter, Stanford Law School