By Timothy L. O’Brien / Bloomberg Opinion
Now that Donald Trump’s administration has allowed Joe Biden’s team to formally begin its transition into the White House, the president is running out of overt ways to disrupt an election he clearly lost more than two weeks ago.
His flimsy and misbegotten lawsuits challenging the vote are all but deflated and he’s been less active than usual on TV and Twitter. Perhaps he’ll make his traditional visit to Mar-a-Lago for the Christmas holidays and then stay put, preferring to endure his humiliation over Biden’s Jan. 20 inauguration outside the capital.
Out of sight shouldn’t mean out of mind, however. Even if he’s off sulking, Trump has ample opportunity over the next two months to abuse his powers or throw sand in the federal machinery Biden will inherit. In this context, Trump loyalists overseeing the bureaucracy, including Attorney General William Barr, Secretary of State Mike Pompeo, Acting Defense Secretary Christopher Miller, Treasury Secretary Stephen Mnuchin, Health and Human Services Secretary Alex Azar and senior adviser Stephen Miller, may be just as important to watch as the president.
Trump’s clemency powers enable him to issue potentially undeserved pardons at the last minute (think back on the 176 pardons Bill Clinton issued just two hours before exiting the White House in 2001). Seven of Trump’s political advisers have been charged with crimes since his own inauguration, and he’s already commuted the sentence of one them, Roger Stone. Trump is also mired in ongoing civil and criminal probes, and he’ll undoubtedly be tempted to pardon himself and family members for potential federal crimes, such as obstruction of justice. (His pardoning power doesn’t extend to the possible state charges he faces in New York.)
Trump also can deploy executive orders, which he has already used to great effect to roll back environmental regulations and change immigration rules. In June, he signed an order instructing federal agencies to drop environmental laws that slow approvals for oil pipelines, mines, highways and other projects in protected areas. That same month, Trump issued an order suspending new work visas for foreigners and their dependents, making it impossible for American companies to hire skilled immigrants. His administration is now reportedly considering an order meant to end birthright citizenship and challenging whether it’s protected by the 14th Amendment.
A couple of weeks ago, Trump moved to lock down his tough trade stance toward China through an order banning U.S. investments in companies linked to China’s military. The day after Election Day, the Health and Human Services Department introduced a new rule that would suspend thousands of its own regulations automatically after granular reviews, a move the New York Times reported was likely meant “to tie the hands of the next administration.”
Last week, the Treasury Department successfully clawed back $455 billion in covid-19 relief funds from the Federal Reserve, a move it said was designed to sunset unused rescue programs. But it also gave the incoming Biden administration less flexibility and resources to combat any further economic downturns stemming from the pandemic. On Tuesday, Mnuchin placed the funds in an account that his likely successor, Janet Yellen, can’t access without approval from Congress.
Trump still holds the nuclear weapons codes (try not to think about that one) and also has the latitude to pursue covert special operations and military confrontations overseas. Miller, the interim defense secretary Trump installed after canning Mark Esper recently, has been rushing policy changes that will be thorny for Biden to manage, including a Jan. 15 troop drawdown in Afghanistan. On Nov. 12, Trump reportedly asked senior advisers, including Miller and Pompeo, about options for a military strike against Iran. (The group advised against it.)
Shortly after Election Day, Barr gave Justice Department prosecutors the authority to probe Trump’s claims of voting fraud, a move that roiled the agency and broke with longstanding federal policies aimed at keeping law enforcement authorities from influencing election outcomes. Given his track record running interference for Trump in the Mueller probe and other matters, it’s possible that Barr could use his agency’s Office of Legal Counsel to draft memos in coming weeks that protect Trump from future Biden administration investigations.
What about recordkeeping? I imagine Barr and others in the executive branch might tell the West Wing that, despite the legal perils, it’s well within the president’s rights to shred or retain files that outsiders, such as law enforcement officials, journalists and historians, might otherwise want preserved.
Executive orders can be unwound, of course, and policies eventually can be retrofitted by the Biden team, but some of Trump’s personnel moves may be longer-lasting. For all of its complaints about a “deep state” of civil servants set against it in the federal bureaucracy, the Trump White House has been determined to leave an indelible imprint on the federal workforce. It has hollowed out agencies such as the State Department and Justice Department, and spread Trump loyalists across the rest of the government and federal judiciary, some of whom may prove hard for Biden to ignore, much less dislodge.
Trump has nominated or installed supporters on such government panels as the Federal Election Commission, the Federal Communications Commission and the Federal Energy Regulatory Commission who will enjoy lengthy terms that may outlast Biden’s presidency.
In October, Trump issued an executive order making it easier to fire civil servants critical of the president, stripping them of protections meant to guard against partisan meddling. Ronald Sanders, a Trump appointee who oversaw a government panel that sets compensation for civil servants, quit after the order was issued.
The order was “nothing more than a smokescreen for what is clearly an attempt to require the political loyalty of those who advise the President,” Sanders wrote in his resignation letter. “I simply cannot be part of an Administration that seeks to do so, to replace apolitical expertise with political obeisance.”
The House of Representatives temporarily blocked the order, so for now Trump can’t use his remaining time in office to purge naysayers. But would he have liked to? You bet. And does he want to make life as hard as possible for his successor? You bet.
Some of this isn’t new. Herbert Hoover went out of his way to stymie Franklin D. Roosevelt’s policies before they traded places in the White House in 1933. But as with all things in the Trump era, the wrecking ball is now swinging with far more force. What began with Trump’s efforts to overturn a presidential election will end in a flood of policy and personnel decisions grounded in resentment and retribution.
Timothy L. O’Brien is a senior columnist for Bloomberg Opinion.