In anticipation of having a lame duck president, it is important to discuss the tendencies and capabilities of presidents serving at the end of their final term.
If there is one conclusion to be drawn from my research on lame duck presidents, it is that leaving presidents tend to become the person that they always were at the end of their political careers. In the case of Donald Trump, however, we haven’t really seen the president unfiltered.
Therefore, at least in his behavior, Trump as leaving president will give us more of the same.
Lame Duck Presidents
Lame duck presidents lose power because they can’t keep the promises they make. For the lame duck president, the days of making appointments, passing laws, and changing regulations are over. But there are still some remaining options, and those can be quite significant indeed.
First, the goals of a lame duck president depend on whether they view their presidency as a success.
Some presidents like Andrew Jackson and Dwight D. Eisenhower take a metaphorical victory lap in their final months in office.
Others, such as Lyndon Johnson, engage in a frenzied attempt at closure, in Johnson’s case to end the Vietnam War.
Others again try for a “hail Mary” pass to burnish their reputation for the history books. President Bill Clinton tried to broker peace in the Middle East and got just that close before Yasser Arafat pulled out of the deal. Benjamin Harrison made a last-minute bid to annex Hawaii and John Tyler tried to bring Texas into the union but had to wait for his successor to close the deal. Most of these efforts fail. All the opposition needs to do is wait the president out.
But in the main what presidents want to do is to lock in their legacy and in that quest their powers at this point are rather limited.
Pass a Law
Getting a bill passed into law is the gold standard of building a legacy because while it is hard to pass a bill, it is equally as hard to get rid of laws once passed. The problem for the lame duck president is that complex legislation takes a long time to develop and if the other party is coming into power, they will do everything within their means to stop it.
For example, President-elect Franklin D. Roosevelt contacted Democratic congressional leaders and instructed them that nothing President Herbert Hoover wanted to do would be passed without being cleared by Roosevelt first.
Regulatory Changes
The interpretation of the law can be determined without the input of Congress. Those changes become Federal Regulations; they become the legal interpretation of the law.
Perhaps in anticipation of leaving office, President Trump’s cabinet is already issuing regulations at a breakneck pace. However, the process of regulatory reform is governed by the Administrative Procedure Act that mandates an extensive vetting process including prepublication and a set period of public comment for all proposed (and changes of existing) regulations. The Trump administration hasn’t done any of this, meaning that most of their issued regulations won’t stand legal scrutiny.
Executive Orders
As CEO of the Federal Government, the president can order the Federal Government to take specific actions to conduct its own business. But executive orders have to have some basis in law. They also can be reversed by the president himself or succeeding presidents.
President Trump last week issued an executive order that removes much of the civil service protections of as many as a million Federal Employees. He won’t succeed. Besides the fact that a President Joe Biden will reverse the order, even if Trump is reelected, it probably violates both the statutes that regulate the Civil Service and the collective bargaining agreement between the Federal government and the federal employees’ unions.
Appointments
Most presidential appointments expire at the end of the president’s term. If appointees don’t leave at that point, they will probably be terminated. The only exceptions to this rule are appointees who serve for terms not concurrent with the president’s term and judges. This is an important exception indeed as we found out with the appointment and confirmation to the Supreme Court of Judge Amy Coney Barrett.
Go to War
The president as commander in chief can order troops into situations that will likely lead to war. Outgoing presidents generally avoid the use of force. They don’t want to burden the incoming administration with an ongoing deployment.
President George Bush as a lame duck ordered American troops into Somalia on a humanitarian mission that morphed under President Clinton into a nation-building disaster. I doubt President Trump will want to use force unless he has to.
Things Outgoing Presidents Can Do
But there are some things that the president can do.
They can travel and outgoing presidents travel a lot. Why not take advantage of Air Force One?
They can make speeches. Most outgoing presidents deliver a farewell address of some kind. The most famous of these, besides President George Washington’s warning against foreign entanglements, was Eisenhower’s speech warning against the influence of the military-industrial complex.
Leaving presidents can use the presidential pardon and outgoing presidents do that a lot too. President Trump has a number of friends in jail, so we’ll probably see a lot of pardons. Furthermore, President Gerald Ford set a precedent by pardoning President Richard Nixon before he was even indicted for crimes related to Watergate.
It is possible that President Trump will try to issue a blanket pardon to protect his immediate circle and family. But even if he does, the president can only pardon violations of Federal Law and he can’t pardon himself.
He may have to deal with a crisis and with the pandemic, we are in the midst of a major crisis. Under normal circumstances, in such a crisis the outgoing and the incoming president will coordinate for the good of the country. President Bush and President-elect Barack Obama did just that in midst of the great recession of 2008.
Whether President Trump will want to do the same with the incoming administration is anybody’s guess. I suspect he will, but if he doesn’t, he should consider the judgment of history.
On January 3, 1961, President Eisenhower as a courtesy to the incoming Kennedy administration had his staff call Dean Rusk, Kennedy’s point man on foreign policy, to inform him that the US was going to break relations with Cuba. Rusk called back a few hours later, thanked the president, and told the White House something to the effect that the president-elect appreciated the advance notice. But it wasn’t Kennedy’s call. After all, Eisenhower was still the president.
Eisenhower didn’t think much of Kennedy. But as it turns out, the Eisenhower – Kennedy transition was the model of a peaceful takeover.
Eisenhower was the ultimate organization man and he knew at that moment what he needed to do. Kennedy knew what the president thought of him and he made sure to show the outgoing president the proper deference. They both understood their obligations.
It would do President Trump a lot of good for him to recognize his role even at what must be a difficult moment. It requires a special kind of heroism, displayed by presidents such as William Howard Taft, Jimmy Carter, and George H.W. Bush who lost elections and left the scene with grace.
Let us hope that President Trump displays the kind of heroism that recognizes that peaceful transitions are about principles larger than any single individual.