The destructive power of a lame duck president
In nature, a lame duck is a weakling, a bird that can’t keep up with the flock and is easy pickings for predators.
In politics, a lame duck president is a lot more vigorous. The term, coined in the 18th century to describe stock market victims and applied to outgoing politicians in the 19th, feels particularly inaccurate today. The power of a US president is substantial, particularly when it isn’t checked by concerns about repercussions or legacy.
It remains to be seen how graceful an exit Donald Trump chooses to make, but he’ll have ample opportunity to create a mess on his way out should he so desire.
History of presidential transitions
Among recent presidents, Barack Obama and George W. Bush both received high marks for a smooth hand-off and relatively controversy-free final few months in office. Both were influenced by Bill Clinton’s lame-duck period in 2000, which was more chaotic, in part because the extended Florida vote recount shortened the normal transition period. It was marred by petty vandalism and pranks from outgoing Clinton staffers, who removed some W keys from keyboards, stole antique doorknobs, and caused about $15,000 worth of damage.
Perhaps more damaging, however, were the 176 clemencies Clinton granted on his final day, which included pardoning figures ranging from his brother Roger to Susan McDougal, a Little Rock associate jailed for contempt in the Whitewater scandal, and Marc Rich, a wealthy fugitive who illegally sold oil to Iran and was wanted for wire fraud and tax evasion.
The political blowback from Clinton’s pardons led Bush and Obama to consider their clemency power very carefully, and very differently. Bush granted very few pardons, while Obama granted thousands after creating a process to review the sentences of prisoners serving in federal prisons for low-level drug offenses.
Perhaps the most notorious abuse of the lame-duck presidency occurred in the 1930s, after Herbert Hoover lost to Franklin Roosevelt. Hoover was a Republican who bitterly opposed Roosevelt’s interventionist approach to rescuing the economy from the Great Depression and after the election, undermined him wherever he could. He worked to prevent legislation that would help alleviate suffering, such as a farm relief bill, and refused to intervene during a wave of bank failures unless FDR repudiated the New Deal policies which got him elected (FDR refused).
Notably, FDR’s inauguration was the last held in March, since the 20th Amendment, ratified in 1935, moved presidential inaugurations to January. That meant Hoover had a full four months to work is mischief.
What can Trump do?
Unlike Hoover, Trump will only have about two-and-a-half months remaining in office, but that’s plenty of time. In June, a group of more than 100 current and past campaign and elected officials from both parties convened to try and game out all the ways the presidential transition could go wrong. Called the Transition Integrity Project (TIP), it focused on both potential efforts by Trump to contest or discredit the election results if he lost, as well as the disruption he could cause during his lame duck period.
The TIP was particularly concerned about the ability of Trump and his family using their final weeks to enrich themselves. “Participants in our exercises of all backgrounds and ideologies believed that Trump would prioritize personal gain and self-protection over ensuring an orderly administrative handoff to his successor,” their report says (pdf).
One option identified by the TIP would be for him to simply move to Mar-A-Lago in Florida for the final months of his presidency. Using Trump properties has already cost tax payers millions of dollars (he’s racked up more than $550,000 in golf cart rental fees alone). Housing and feeding his presidential retinue and Secret Service could cost the government tens of thousands of dollars more, all of which would flow to the Trump family business.
Executive orders
The most obvious source of unfettered presidential power, lame duck or no, is the power of executive orders. Trump has used hundreds of them to roll back environmental and other regulations and to score political points, such as with the creation of a “National Garden of American Heroes,” an effort to contrast his administration to protestors tearing down monuments. While he could issue a flurry on his way out, they may be of limited impact. Since many of his orders would probably be challenged in court, their implementation would be delayed, and it’s likely a Biden administration would either reverse them or choose not to oppose them in court.
Pardons
Trump has already used his pardon power to reward allies and associates, and there’s no reason to think that will stop after the election. As law professor Mark Osler told NPR, Trump tends to grant clemency to “people he knows or learned about from Fox News.”
One person he knows very well is himself. Although Trump has insisted he has the ability to grant his own pardon, the constitutionality of the claim had never been tested. It’s also not clear what he could pardon himself over, since most of the investigations into Trump and his businesses are in New York State courts. But he continues to be under the scrutiny of the Internal Revenue Service, and The Atlantic raises the specter of Trump using his pardon power to direct the agency to erase his tax liabilities.
Records
The TIP also speculates the outgoing Trump administration may destroy records that might embarrass or implicate the White House or its foreign allies in wrongdoing. The example the project provides is information about the murder of Saudi journalist Jamal Khashoggi, but it’s not hard to imagine how the administration’s fingerprints might be on any number of controversies. Human rights activists are particularly concerned about maintaining a record of the administration’s handling of detentions on the southern border.
There are extensive laws governing the retention of presidential records, and in 2016 the laws were amended to cover electronic documents like emails. Historians have already criticized the administration for its sloppy record-keeping. Trump has torn up notes after meetings with foreign leaders, a violation of the Presidential Records Act, and there are White House staffers tasked with taping together Trump’s ripped-up paperwork.
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