In the Interim: Staying vigilant through Trump’s remaining time in office

I jumped with joy on November 7 when I heard the news: President-Elect Joe Biden had won the election and current President Donald Trump will soon leave office. I was absolutely elated. But, it didn’t take long for me to realize that until January, Trump will retain his presidential powers, reward his friends and stack commissions with his current allies. Trump remains president until his final day in office. 

As seen historically, after a presidential defeat, there are no constraints on ordinary presidential powers between the election and the inauguration for the incoming president. Currently, President Trump has already demonstrated during the course of his presidency a willingness to stretch the limits of executive power and the norms of what has been done and what can be done. My expectations and fears are that the next few months will be just as, if not more, controversial and consequential than his entrance four years ago. 

Three notable powers Trump can exercise are executive clemency, “burrowing in,” and “midnight rule making.” Executive clemency is the idea that a president can wipe away or minimize past offenses with pardons, commutations, remissions or reprieves. The first pardon was in 1794 by President George Washington- he overturned the leaders of the Whiskey Rebellion’s criminal convictions. So far, Trump has commuted, or shortened, the sentences of 11 prisoners and pardoned 27 people, as compared to a massive 1,927 clemencies during the Obama administration. 

His clemency choices are particularly interesting as most have gone to political allies and people championed by conservative media and prominent Republicans, including his longtime ally Roger Stone, who was convicted in the Russia investigation. Numerous people connected to Trump, through business and during his presidency, have been charged with crimes, many of which came into the public view from Robert Mueller’s investigation into Russian election interference in 2016. These allies include: Steve Bannon, former White House Chief Strategist who pleaded guilty to defrauding donors through a campaign to crowdfund the U.S.-Mexico border wall; Michael Flynn, Trump’s first national security advisor who pleaded guilty to making false statements to the FBI about his talks with Russian Ambassador Sergey Kislyak; Paul Manafort, Trump’s former campaign chairman who was convicted of tax and banking crimes; Rick Gates, former campaign aide to Trump who was sentenced for conspiracy and making a false statement; Michael Cohen, Trump’s former personal lawyer who pleaded guilty to campaign finance violations; and George Papadopoulos, former Trump campaign advisor who plead guilty to lying to the FBI as a part of the Mueller probe. All of these allies and more may face shortened convictions as a result of Trump’s last-minute executive clemencies. Considering that many plead guilty to fraud and embezzlement charges, granting clemency to any of these associates, as Trump did with Roger Stone, would be a heinous slap in the face of justice.

Burrowing in” is when political appointees get jobs in civil service careers, and under certain circumstances, presidents can make recess appointments so personnel can serve in the succeeding administration. “Burrowing in” is a frequent concern during administration transitions, with the fear being that political appointees of one party that become anchored into permanent career positions could foil future initiatives of the next president.

These fears have been intensified in the face of the Trump administration’s politicization of multiple federal agencies. Additionally, the purges of employees who weren’t considered ‘loyal enough’ to the Trump post the White House’s impeachment trials uncovered the issue of Trump filling government positions with individuals whose interests align with his, rather than the interests of the American public. For instance, Trump named John Gibbs — a former conservative commentator and software developer who pushed a baseless conspiracy theory involving senior Democrats and tweeted about “gender bending” — as the new head of the U.S. Office of Personnel Management (OPM) in the summer of 2020. This appointment came after the previous OPM chief, Dale Cabaniss, had abruptly resigned in frustration of the White House budget office and a lack of respect around the office. Whilst it is less clear who Trump may appoint, the fear is very much real. He has the opportunity to fill the office with civil servants who will oppose the Biden administration’s every move, thereby debilitating any hope of progress. As John Burke, a retired University of Vermont professor who specialized in presidential transitions, said: “it might be tempting for him [President Trump] to fire those he deems disloyal, for example, but it will not serve him well over the long run. Pettiness is an expensive exercise.”

Midnight rule making” is when outgoing presidents often rush to finalize the rules that administrations write to enact laws passed by Congress. During the midnight period, or when these rule making processes occur, both Republican and Democratic presidents have noticed significant increases in regulatory activity. Between November 1, 2016 and January 19, 2017, President Obama left the Oval Office with a bang, issuing 41 economically significant rules. Economically significant rules are those rules expected to result in $100 million or more in annual costs and/or benefits to the economy. These are rules that will likely have a significant impact on the public. The appeal of these midnight rule makings is that less regulatory analysis is required and there are fewer opportunities for public engagement, which might otherwise handicap policy implementation.

Midnight rulemaking has the potential to dramatically influence domestic and international  policymaking. Because of an increasingly short amount of time to finish key initiatives, larger priority regulations that will have an enormous and long-lasting impact on our nation and other countries will likely be pushed harder than ever. Initiatives like the National Highway Traffic Safety Administration’s move to relax corporate average fuel economy (CAFE) standards for cars and trucks, the Homeland Security proposal to allow lengthier detentions of migrant children, and the Labor Department’s rule that would define who falls within the employer-employee relationship which may implicate fair payment of wages and overtime rules, are most susceptible to midnight ruling. According to Burke, “presidents who are leaving office usually do not feel wholly unrestrained; in fact, there is now a more immediate and pressing restraint: ‘What will history think of me?’” Trump’s legacy is on the line as he leaves the White House, and now is the chance when it might actually be easiest to deregulate and roll back entirely on any Obama-era administration policies. Unfortunately, this would make it extremely difficult for President-Elect Biden to fight for regulatory affairs, such as the Green New Deal, that Democrats would push for. Therefore, it is of utmost importance that we, the public, pay close attention to any rule making that is propelled by the GOP in the coming months.  

It seems like an obvious point, but it’s incredibly important to recognize that Trump will still be president until January 20, 2021. We must closely watch out in the next few months for executive clemency, “burrowing in,” and “midnight rule making,” and then, hopefully, as Biden said in his victory speech, the American nation can begin to heal. 

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