Editor’s Note: For months before Election Day, the question had been a staple of late-night comedy television: How would President Donald Trump behave during his final days in office, should- will he lose the White House to Joe Biden? Then, as November 3 approached, more serious discussions emerged about the damage a wounded and enraged Trump could do to the federal government and American democracy – even on the property at 1600 Pennsylvania Avenue. With the election ending and Trump’s resistance to calls to concede the race to Biden, it’s worth revisiting Steve Appleford’s October 29 article examining Trump’s options ahead of inauguration day.
He threatened to challenge the election results by any means necessary. He refused to engage in a peaceful transfer of power. But even in the event of defeat, Donald Trump can still do a lot in the 72 days preceding the inauguration of his successor. First on his agenda: self-preservation and revenge.
Representative Adam Schiff (D-CA), who has been primarily responsible for impeaching House Democrats, warns Trump could strike back at his “list of political enemies” and engage in a rush “Executive orders or extreme policies that he will try to sign in the months that followed. “
His next salvo could come in an avalanche of last-minute deals with Trump’s favorite authoritarian regimes or dramatic regulatory changes to the environment, immigration, labor or transportation, and among several executive branch agencies. .
Just days before the election, Trump signed an executive order depriving officials of protection from political interference and advanced a seismic study looking for oil in the Arctic National Wildlife Refuge in Alaska, bypassing a normal environmental review . Cabinet departments are now looking to increase the number of hours truckers can drive before resting and allow trains to carry dangerously flammable liquefied natural gas.
Whether more such damaging measures are forthcoming depends on how Trump keeps his administration together after his loss. “He’s so unstable,” says Matt Dallek, presidential historian and professor at George Washington University, author of books on Reagan and FDR. “If you just watch his daily actions on nearly every issue, it seems unlikely that he will say, ‘These are the three policy issues I want to try to work on before I leave office.’ This is just not the way the guy works. “
Representative Eric Swalwell, one of several Democrats in California to have criticized the administration, said Trump had made so many mistaken attempts to achieve his supposed goals that the worst-case scenario might not happen. “We are often spared as a country by its cowardice and incompetence,” Swalwell says.
Even at the height of Trump’s presidential powers, his executive orders were invaluable to him as photo opportunities at the Resolute Desk. Any initiative signed in his final weeks in office could mean even less.
“Orders are valid only for the president who issues them,” said Cynthia Lebow, senior lecturer in political science at UCLA and former general counsel for the US Senate Judiciary Committee under then-president Joe Biden. “He could issue as many decrees as he wanted in the last two weeks or, for that matter, [on] on the last day of his presidency, and they could all be toppled and reversed [on] day one [when] Joe Biden becomes president. “
Still, it’s likely that Trump will want to watch out for his family and friends, granting a tsunami of pardons to at-risk family members, campaign devotees, and White House officials. Donald Trump Jr., as well as President Trump’s son-in-law Jared Kushner (who could face perjury charges) and two convicted felons – former National Security Advisor Michael Flynn and 2016 campaign manager Paul Manafort – will all be candidates.
Many detractors of Trump fully expect him to attempt to forgive himself for any federal crimes, including cases of possible obstruction of justice, as noted in the Mueller report. “I have the absolute right to FORGIVE myself,” Trump tweeted in 2018, “but why would I do it when I haven’t done anything wrong?” Andrew Weissmann, former senior prosecutor for Special Advocate Robert S. Mueller III, said in recent interviews that Trump has little to lose by making the attempt, which would at least delay any prosecution.
The extent of Donald Trump and his family’s crime is “potentially so vast that he could be charged with multiple indictments,” Dallek says. “There are campaign finance violations, obstruction of justice, lying under oath, multiple Hatch law violations, self-dealing, self-enrichment and, of course, tax matters. “
Schiff calls the notion of self-forgiveness “patently unconstitutional and contrary to the idea that no one, not even the President, is above the law. I would expect the courts to overturn this.”
He seems to be right: a 1974 opinion from the Office of the Legal Advisor of the Department of Justice stated: “Under the fundamental rule that no one can be a judge in his own case, the president cannot forgive himself”. Trump’s attempt at self-forgiveness would inevitably face a legal scuffle, especially if a new attorney general decides to prosecute the outgoing president. But it can end before the Supreme Court of the United States.
“I’m not even sure the Supreme Court would take a case involving the exercise of the presidential pardoning power under the separation of powers theory,” said Lebow, who remains a Biden campaign adviser. “This is so clearly something that falls within the power of the president under section 1.”
* * *
For nearly 90 years, presidential re-election has been the norm, with two notable exceptions being Jimmy Carter and George HW Bush, both of whom gave tearful concession speeches. Rejection at the polls is a devastating vote of no confidence for any incumbent, and a rejected Trump could be unpredictable. He could, for example, decide to retaliate against those he deemed insufficiently “loyal” to him, just as Lt. Col. Alexander Vindman was kicked out of the National Security Council after testifying at Trump’s impeachment hearings. In recent weeks, the President has been openly angry with Dr. Anthony S. Fauci, the government’s leading infectious disease specialist, and FBI Director Christopher A. Wray, among others.
“It would be deeply concerning and utterly corrupt if Trump fired Wray or Fauci because they didn’t agree with him,” Rep. Ted Lieu (D-CA) said, adding: “I believe Joe Biden will hire Dr. Fauci right away if that was the case. “
The real damage Trump leaves to his political opponents could be the most insidious administratively, pushing for changes to regulatory rules while continuing to include Trump loyalists in science advisory boards that will be hard to remove after he leaves.
“To be honest with you, they rushed these things from the start – lots of poorly justified decisions and shoddy rule-making,” says John Coequyt, Sierra Club’s director of global climate policy. In terms of climate change, the Trump years have meant a step backwards, starting with the president’s decision to leave the 2015 Paris Agreement.
“Much of what we were very concerned about has already happened,” adds Coequyt. “What we’re talking about now are mostly smaller rules.”
The advantage of this “shoddy” rule-making process in the last few days, notes Coequyt, is that it tends to make reversing easier, although this is still complicated and time consuming. Legal challenges are inevitable, as the usual public comment requirements are set aside. And some regulations will still be under legal scrutiny and could be withdrawn by the new Biden administration.
“It will still take a long time to change, although the rules will never really come into effect. It’s a lot of paperwork and a lot of uncertainty for anyone affected by standards, ”says Coequyt.
Former Rep. David Jolly, who left the Republican Party two years ago, is worried about how opponents around the world might react as the United States is frozen in an ongoing crisis during the election.
The potential for a catastrophic error in judgment in US foreign policy is limitless, similar to Trump’s almost offhand decision in 2019 to withdraw US troops from a largely peacekeeping role in northern Syria, leaving Kurdish allies vulnerable to attacks from Turkey. Over 130,000 Kurds have thus been displaced.
Jolly, now independent from Florida and openly critical of Trump, expects the president’s influence over the GOP to wear off quickly. “He will not have Republican allies who will support his chaos and his campaign of retribution,” Jolly said.
Jolly also predicts that the president’s instinct to protect and project the Trump brand will hold him back from a campaign of utter shock and awe as he leaves the Oval Office.
“The president lived every day trying to figure out how he could extract so much personal wealth from the presidency for himself and his family, and I don’t think that’s changing,” Jolly says. “He [will] use the office for personal gain every day until noon on January 20 and possibly thereafter. “
Copyright 2020 Capital & Main
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