In his final months in office, President Trump and his administration have made a variety of audacious personnel and policy moves that aim to affect the course of individual lives and government operations well into the future. In one respect, that could be good news. By taking steps that would be unnecessary if Trump were to remain in office past January 20, 2021, the administration appears to accept the reality that Trump will leave the White House upon Joe Biden’s inauguration. Although Trump continues to make and retweet preposterous lies about massive voter fraud while pressuring Republican elected officials at every level of government to abet his effort to destroy American democracy, his actions to sabotage the next administration tell a different story. Perhaps the blizzard of fraudulent allegations of fraud simply constitute a fundraising scam, albeit a grotesquely irresponsible one.
Yet the eleventh-hour maneuvers are problematic in their own way. Trump’s lame-duck moves thus far include: escalating tensions with China and Iran; dramatically easing environmental regulations; converting political appointments into civil service positions to prevent President Biden’s dismissal of Trump loyalists; and pardoning criminals like Mike Flynn who displayed their fealty to Trump (and who, upon receiving his pardon, urged Trump to declare martial law and have the military supervise a do-over election).
Trump apologists might object that all presidents take advantage of the lame-duck period to cement their legacy. There is indeed something to that objection. From the earliest days of the Republic, prior presidents have also sought to extend their influence into successive administrations, often quite controversially. Burrowing—placing people loyal to the outgoing administration—has an especially colorful history. Most famously, after Thomas Jefferson’s election in 1800, John Adams and the defeated Federalist Congress enacted the “Midnight Judges” law creating new federal judgeships and other positions that they then packed with Federalists.
Likewise, prior lame-duck presidents have issued controversial pardons. On his way out the door, George H.W. Bush pardoned six people involved in the Iran-Contra scandal of the Reagan years. On literally his last day in office, Bill Clinton issued a pardon to indicted financier Marc Rich as an apparent reward for his very large campaign contributions. If Trump were to issue himself a pardon, that would be unprecedented (and perhaps unconstitutional), but he would hardly be the first president to abuse the pardon power.
What, if anything, is different about Trump’s lame-duck period? As I explain, in some ways Trump’s actions simply underscore pre-existing problems. However, in at least one respect, he breaks completely new ground: whereas other lame-duck presidents have sought to advance policy aims beyond their terms, Trump and his minions also aim to do damage for its own sake.
Why Do We Even Have a Lame-Duck Period?
In many countries, there is no substantial lame-duck period. Very shortly after an election in which a new president or prime minister is chosen, the transition occurs. The two-and-a-half-month lame-duck period in the United States is mostly a product of our antiquated Constitution. That long delay was arguably necessary in the earliest days, given late-eighteenth-century means of communication and transportation. The Twentieth Amendment, adopted in 1933, moved up the inauguration, but we still have a lengthy transition period. It would be possible to shorten that period somewhat, but our rickety election procedures sometimes require a month or longer to determine a winner.
To be sure, this year it was clear that Biden won by four days after the election. We have had a period of prolonged political conflict only because Trump and his enablers do not respect democracy. In most presidential elections, the Constitution stands as no impediment to speedy determination of the winner.
Yet most does not mean all. In 2000, George W. Bush’s election-night margin over Al Gore in Florida was so slim that legitimate legal contestation took over a month to fully resolve. The uncertainty and resulting delay were in turn a product of the Electoral College, which has a tendency to convert clear results (Gore won the popular vote by a margin of over half a million) into photo finishes. If we amended the Constitution to eliminate the Electoral College (as we should), a modern election system could shorten the time needed to determine the winner of the national popular vote to a maximum of a few days.
But wait! Weren’t Biden’s people recently complaining about General Service Administrator Emily Murphy’s delay in acknowledging his status as the apparent winner of the election? If that delay of a few weeks was really problematic, then maybe we really do need more than a couple of months for a smooth transition to occur.
Based on the practice in other countries, I believe that the transition period in the U.S. could be substantially shortened—although some additional accommodations would be required so that new presidents could have their own team in place from day one. For example, statutes governing who may serve as an acting officer pending Senate confirmation might need amending; depending on how the courts construe the Appointments Clause, a constitutional amendment might even be necessary.
However, because such changes seem very unlikely and would, in any event, leave us with some period of transition, we will remain vulnerable to lame-duck shenanigans.
Unacknowledged Virtues of Unaccountability
The lame-duck period has many vices, but we should also acknowledge its virtues. Lame-duck presidents and members of Congress who are either retiring or have been voted out of office do not need to fear that they will be held accountable for their actions by the voters. Although political accountability plays a vital role in democratic government in most circumstances, where the public hold misguided views, it can be problematic. In other words, unaccountable government is sometimes beneficial.
For example, although lame-duck presidents sometimes issue unjustified pardons to political allies, personal friends, or key donors, they also pardon unpopular people who deserve mercy. The day before he left office in 2017, Barack Obama issued pardons to 330 non-violent drug offenders because he concluded that they posed no threat to public safety, even though a public “tough on crime” mentality might have resulted in his taking unjustified heat for that decision had he made it earlier in his presidency.
Likewise, between November and the end of December in even-numbered years Congress sometimes reaches agreement on worthwhile legislation that politics precluded for many months leading up to the election. This dynamic could lead to imminent enactment of a pandemic relief bill that eluded Congress before the election.
Perhaps the most intriguing benefit of unaccountability concerns executive action. It is widely believed that presidents and the administrative agencies they oversee use the lame-duck period to issue “midnight rules” that put into law their policy preferences, despite having just been rejected by the voters. A fascinating empirical study by my colleague Professor Jed Stiglitz found that presidential administrations do indeed issue more controversial rules during the lame-duck period than at other times but that such rules frequently follow the same pattern that we see in Congress: they “rise above” politics to put in place policies that benefit the public even though they face political opposition.
How Trump is Different
Despite the often-overlooked benefits of the extended lame-duck period, it nonetheless remains problematic because it is fundamentally undemocratic. It is one thing for a lame-duck administration to rise above politics. It is another to thumb its nose at the People by pursuing policies that the People had good reason to reject in the last election. Unfortunately, Trump is not the first president to use the lame-duck period to advance a benighted vision of the good.
Yet, as a lame duck as in so many other respects, Trump breaks new ground in awfulness. Prior presidents have sometimes acted in ways that promoted policies contrary to those of the incoming administration, but in so doing they have almost always been guided by their own view of the public good. Conversely, where there was agreement between an outgoing and an incoming administration on what would serve the public interest, responsible lame-duck presidents facilitated a smooth transition.
George W. Bush provides an outstanding example. With the global financial system in peril during his lame-duck period, he and his administration worked closely with the incoming Obama administration on legislation and executive action to prevent a financial crisis from becoming a second Great Depression. Aided by sound decisions from Federal Reserve Chair Ben Bernanke, Bush and Obama cooperated for the good of the country.
By contrast, Trump appears to be trying to sabotage the country in order to damage Biden politically. In the more than a month since the election, the COVID-19 pandemic has worsened dramatically, even as drug companies have produced very promising vaccine news. A responsible administration would do everything in its power to limit disease spread pending full vaccine availability. Trump has done virtually nothing but golf and spread lies about the election.
To be fair, Trump did little to combat the spread of COVID-19 before the election either, so maybe his continued inaction simply reflects incompetence. If so, however, there is other evidence that malice, rather than policy disagreement, motivates his administration’s lame-duck posture.
Consider the decision last month by Treasury Secretary Steven Mnuchin to terminate a multi-billion-dollar loan program administered by the Federal Reserve. Mnuchin said that the money could be reallocated by Congress in more useful ways, but the claim is not credible. Congress already had the authority to reallocate unspent funds. The most plausible explanation of Mnuchin’s decision is that he wishes to empty the till before his successor—likely to be former Fed Chair Janet Yellen—has a chance to put it to good use. Trump and Mnuchin want people to suffer under Biden.
Throughout most of U.S. history, the primary danger of the lame-duck period was that a president would use it to promote policies the voters had only recently rejected. That was and remains undemocratic, but at least the damage was tempered by the fact that the lame-duck president was pursuing some conception of the common good. With Trump, no such principle provides a limit because he has no conception of the common good.