Transition of Power
A new blog post by USRESIST Reporters on the transition of Presidential Power from the Trump to the Biden administration
Post # 1: What Trump Could Do on the Way Out
By Sean Gray
November 12, 2020
It’s all over but the crying in the case of the 2020 presidential election, and rest assured there will be crying. Celebrations broke out in cities across the country at the news the Associated Press had called the race in favor of Joe Biden. Donald Trump has refused to accept the results and has threatened legal action to challenge the results. To date he has offered no evidence of voter fraud and his coming legal challenges are likely to die on the vine. Nevertheless, his obstinance is reason enough to temper enthusiasm at his ouster. He has treated the presidency like a vanity project and governed in a most haphazard fashion. John Bolton in his memoir could not recall a single Trump decision that was not made with reelection calculations in mind. For the remaining 72 days of his presidency, Trump does not have that consideration, his power is not officially curtailed and he’s watched the masses celebrate his political demise.
Over the past four years, Trump has issued a number of impulsive executive orders, often when someone or thing has displeased him (see the repeal of Section 230 after Twitter fact-checked him). While not inconsistent with the number issued by recent predecessors, Trump’s usage of the tact has been self-serving and has circumvented the normal channels of government. Environmental rollbacks, for example, have been a constant subject of Trump’s executive orders. Now there is nothing to prevent him from issuing a slew of executive orders on his way out which could wreak untold harm.
Remaking the courts in his conservative image, was perhaps the chief selling point of Trump’s reelection bid. He has appointed three Supreme Court Justices and 214 judges to the federal court system, based on adherence to a right-wing judicial philosophy. 57 vacancies remain between the circuit and appeals courts. There is no firewall against Trump and his allies further stacking the court with politically motivated appointees.Pushing the court further right might drastically alter the American landscape.
Take Roe v. Wade for example. The landmark 1973 ruling has been under constant assault by religious conservatives. Recently they have adopted the tact of ‘’death by a thousand paper cuts’’ with restrictive state measures passed in Louisiana and Texas that were expected to fail constitutional muster. Now drafters and enactors of such bills can throw them against the proverbial wall, see how the courts react and tailor future challenges to Roe accordingly. Roughly a quarter of federal judges and a third of Supreme Court justices have been appointed by Trump, with the explicit litmus test that they disagree with how Roe was decided. 60 more appointees could make their way to the federal court before Trump leave office. That makes reproductive freedoms and other key issues in the country more likely to be adjudicated through the lens of conservatism.
Presidential pardons have traditionally been granted by outgoing presidents. It is a particularly thorny issue for Trump considering how many of his allies find themselves in some phase of the criminal justice system. Roger Stone has already been convicted for crimes committed on Trump’s 2016 campaign, and granted clemency for his refusal to incriminate the president. A similar fate could await the currently incarcerated former campaign manager, Paul Manafort, or Trump associate Michael Flynn, who has twice pleaded guilty to lying to Robert Mueller’s investigators. It wouldn’t be out of character for Trump to put his finger on the scale for a few friends one last time. Doing so would be a final black eye on his Justice Department and likely embolden future political operatives. It also is not beyond belief that Trump may use the pardoning power of the Executive Office to pardon himself and free himself from the worry of federal prosecution (though Presidential pardoning power will not make Trump immune from prosecution at the state level.)
Fired employees are sometimes escorted out of their workplace for fear of what they might do on their way out. It is truly unfortunate such a measure can’t be taken for an outgoing president. Trump’s presidency will make for an interesting historical study. He has previously violated The Presidential Records Act by destroying or altering documents to be placed in archives. Any record that contains incriminating or unflattering information could meet with the same fate, losing for posterity the black box on the nation’s most controversial presidency.
Archival violations pale in comparison to the damage Trump could inflict if he sought to undermine Biden’s presidency before it starts (which he erroneously believes happened to him). Shortly before the election, Trump signed an executive order stripping federal employees of protections they had enjoyed for decades. It gave him the near-unilateral ability to fire any government employee at will. A ruthless purge is not unthinkable in the aftermath of Trump’s defeat. He could throw a tantrum, and thwart the incoming administration by removing key cogs of government and throwing executive branch agencies into chaos. Again Biden could undo these moves, but the cure would not be instant. Monday, two days after the AP called the race, Trump fired Defense Secretary Mark Esper, with whom he had clashed since July. His timing of Esper’s removal seems arbitrary and serves as a troubling omen. Esper must think so as well, remarking ‘’God help us’’ if his replacement is a yes man.
Trump’s impending court battles and refusal to gracefully accept defeat put his government and its citizens in an unnecessarily precarious situation. Never in 230 years has a defeated president refused to leave office peacefully or questioned the legitimacy of election results unfavorable to him. It is only fitting that Trump leave office with one more assault on the infrastructure of our democracy. No evidence exists of meaningful voter fraud and recounts seldom alter the results of elections. That won’t deter Trump from crying foul and seeking to overturn the will of the American people. It is a troubling move that serves to undermine public confidence in elections, particularly among the astonishingly large segment of the electorate inclined to believe whatever wild-eyed falsehood Trump may offer up.