Published by The Lawfare Institute
in Cooperation With
As the U.S. begins to see the light at the end of the Trumpian tunnel, it is time to begin thinking about the issue of repair. One should not assume the result of the election, but it is nonetheless worth asking the question: What should be done in a post-Trump world to restore the rule of law?
Of Trump’s many excesses, his assault on legal norms has to rank high in terms of damage to fundamental values that form the fabric of America. His attacks on the free press, the independent judiciary and the independence of the Department of Justice have all created significant damage. His abuse of executive discretionary authority has made a mockery of the concept of checks and balances. His gaming of the judicial system has revealed weaknesses in our legal process. His attempts to place himself (and his family and his business interests) above the law have called into question foundational national conceptions of equal justice. In short, President Trump has led a wrecking crew (aided and abetted by William Barr and Mitch McConnell) that has severely damaged American legal norms of behavior.
Trump’s attacks on foundational norms and principles leave policymakers with two choices. Lawmakers and voters can accept that damage and admit the inevitability of American decline, or they can fight to restore and strengthen the country’s legal guardrails. This post is an effort to begin that fight—to identify practical steps that the country can take to reinvigorate the rule of law and the concept of checks and balances.
(For reasons that will become clear, the initial portion of this discussion needs to be told from the perspective of only one of us—Paul Rosenzweig. But much of the analysis of legal reforms that follows thereafter was provided by Vishnu Kannan; hence the joint byline combined, somewhat awkwardly, with an article written partially in the first person singular.)
The partial list below is necessarily idiosyncratic. It focuses to a large degree on areas of my own interest—national security law and the balance between the three branches of government. In doing so, I mean in no way whatsoever to diminish the damage Trump has done to social and moral institutions. I simply lack the background to have a useful, rigorous perspective in identifying that damage or proposing solutions.
This list also reflects my own assessment of the art of the possible. Some reforms that others have suggested seem too speculative to merit consideration. Indeed, some commentators may even say the same about certain items identified below. But I have tried to weed out ideas (like eliminating the Senate) that simply seem to me unrealistic.
One other important preliminary note: This listing, and my proposals for consideration, spring from my own perspective as a conservative practitioner of national security law.
For years (at least since World War II, and perhaps earlier), the architecture of national security law has been one in which Congress expresses the normative requirements of law, while providing the executive with significant discretionary authority to deviate from those requirements in time of crisis. This structure is quite the opposite of the original Framers’ conception. That framework saw an executive far more subservient to the legislative branch and far more ministerial in nature (George Washington’s entire executive branch numbered fewer than 100 people).
The change away from the Framers’ conception has made sense in the modern world—especially in an era of significant national security threats. It was, however, premised on a fundamental assumption—that the nation could count on presidents to exercise their discretionary authority within the boundaries of expected behavior. That is to say that even though the public might disagree with individual exercises of the authority (see, for example, Truman’s unwise effort to nationalize the steel industry), the public could be confident that presidents would, generally, be acting for the benefit of the nation and out of motives that were relatively benign and well intentioned.
To take but one example from my own experience, Section 706 of the Communications Act of 1934 gives the president discretionary authority over some aspects of the telecommunications network. More pointedly, it provides (in §606(c)) that:
Upon proclamation by the President that there exists war or a threat of war, or a state of public peril or disaster or other national emergency, or in order to preserve the neutrality of the United States, the President, if he deems it necessary in the interest of national security or defense, may suspend or amend, for such time as he may see fit, the rules and regulations applicable to any or all stations or devices capable of emitting electromagnetic radiations within the jurisdiction of the United States.
Back in 2012 (before the age of Trump), I thought this grant of emergency authority was a wise decision, writing that “any President of either party should not be presumed to exercise powers granted in a dictatorial way.” And in the run-up to Trump’s election, I wondered if we could extend the same presumption to a putative President Trump.
Today, the answer to that question seems obvious. The fundamental norm to presume a lack of malevolent intent is now in doubt. And that, in turn, means that the entire postwar architecture of federal power—congressional legislation backed by executive discretion—is also in doubt.
Some commentators may understand this as a reason to argue for extreme limits on executive authority. They see Trump not as an aberration but, rather, as a purer expression of that which they have always feared, a government with too much power and authority. For myself, while I understand that impulse, I respectfully disagree. I fear that too great a retrenchment of executive authority will come with its own unanticipated costs.
To put it more practically: Even after Trump, I still want a sensible president (by which I mean a president like every other president of my lifetime, since Eisenhower) to have adequate tools to respond to crises. I would not want the nation to face, say, a war between China and India or a Russian invasion of Belarus with a president whose responsive authorities were hamstrung by excessive congressional management. Though Trump has, for me, proved a cautionary tale (and that is an understatement), the fundamental nature of world conflict has not changed and, in my respectful view, anyone devoted to the project of reform cannot disregard that fact.
So, as I identify the numerous possible revisions for an agenda of repair, I do so mostly from the perspective of advocating for “mend it but don’t end it”— modest reforms, greater procedural checks, and a reinvigorated legislative branch that performs meaningful and effective oversight. I tend to reject suggestions for the wholesale elimination of various authorities as unwise and likely to have unintended adverse collateral consequences.
Finally, I offer this list as a starting point for discussion and debate. For the other thing I have learned from the Trumpian era (and it is a rather humbling lesson for one of my age) is that, at times in the past, I have taken disagreement on the specifics of some issues to reflect disagreement on fundamentals. I now recognize that many of those with whom I have disagreed in the past have more in common with me than I had thought they did. I will continue to advocate for my own sense of what is a wiser course—but my renewed commitment is to listen with respect to the thoughtful arguments of those with whom I disagree. And my hope is that, through that discussion, thinkers and policymakers may come closer to a consensus than they have before.
With those thoughts in mind, herewith is an incomplete listing of some of the issues that seem worth addressing, along with some suggestions as to a possible way forward. In the interests of brevity, we’ve pared down the list from an earlier longer list, so this particular selection is by no means intended to be comprehensive:
-Reform of the Federal Vacancies Reform Act to prevent perpetual “acting” appointments. Vacancies happen. Not every political position within the executive branch is filled all the time. And the Senate confirmation process for political appointees is not always expedient. As a result, through the Federal Vacancies Reform Act of 1988 (FVRA), Congress provided general authority enabling the president to temporarily fill vacancies in high-level federal government positions. The law also establishes rules for the appointment of such temporary officers. When not superseded by other statutes, the act specifies whom the president can appoint to fill a vacancy and how long that individual can serve.
The Trump administration has exploited this authority to avoid the Senate confirmation process while placing preferred individuals in key positions. The Department of Homeland Security has not seen a confirmed secretary for more than 500 days (the longest such vacancy in American history). Instead, three acting secretaries have led the wayward agency and the president has only recently announced his intent to nominate a full-time leader. Similarly, the Defense Department was run by an acting head for 203 days. And the director of national intelligence position was filled by an acting official for 188 days, most recently by Richard Grenell, a Trump loyalist with little intelligence experience. In a particularly egregious case, the administration rearranged the line of succession in the U.S. Citizenship and Immigration Services (USCIS) to install Ken Cuccinelli as acting director of USCIS under the FVRA, a move that the U.S. District Court for the District of Columbia ruled unlawful.
The FVRA should be modified in at least two ways. First, current law allows the president to appoint anyone holding a Senate-confirmed position in the executive branch as the new acting official of any agency. The law should be modified to make clear that no individual may be appointed to serve as acting head of an agency if his or her senatorial confirmation is for a position in a different agency. Second, the law should deny salary funding to any appointee after a fixed period of time. Other measures (such as limits on the qualifications of who may serve in a temporary position) may also be appropriate.
-Mandatory disclosure of presidential candidate tax returns and strengthening of presidential financial disclosure. To mitigate concerns about a conflict of interest between the performance of the president’s official duties and his personal financial interests, it has been custom since the Nixon administration that American presidents provide the public some insight into their finances by releasing their tax returns. The form and substance of these releases have varied over time, largely because there is no law compelling such disclosure. President Trump has refused to release his tax returns and has fought in the courts to challenge requests and demands for almost all information about his personal finances. Moreover, since the beginning of his administration, President Trump has retained control over and financial stakes in his various businesses, and the potential conflicts of interest raised by his financial entanglements are now well documented.
Although presidents are subject to certain disclosure requirements under the Ethics in Government Act of 1978 and the Stop Trading on Congressional Knowledge (STOCK) Act of 2012, they are not subject to the disqualification or divestiture rules that bind other public officials. As a result, disclosure is the principal mechanism for regulating conflicts of interest between presidents’ personal financial interests and their role in public office.
Congress could remedy this by making the disclosure of tax returns mandatory for all presidential candidates and should also consider revising the already-mandatory financial disclosure forms to require greater particularity.
Redefining “emergency” authority to limit such declarations generally. Discretionary emergency authority, generally, is (as we’ve noted already) at the heart of the current structure of national security law. But that discretion seems now to be subject to abuse.
President Trump has repeatedly invoked federal emergency powers to pursue his more controversial political priorities. He declared a national emergency at the southern border, which allowed him to secure funds for constructing a border wall—a policy priority that Congress had refused to fund. More recently, he used emergency powers to criminalize cooperation with the International Criminal Court’s investigation of U.S. activity in Afghanistan, effectively stonewalling the investigation. Notably, under the cover of declared emergencies, President Trump has used the expanded powers to pursue economic objectives such as imposing tariffs on Mexico and China.
The rules for invoking emergency powers were established by the 1976 National Emergencies Act (NEA), which requires presidents to formally declare an emergency and specify which of the 123 statutory powers unlocked by the IEEPA that they intend to use. The emergency declaration lasts for one year unless renewed by the president. Congress has the power to terminate emergencies and is required to “consider a vote” on a joint resolution terminating the emergency declaration every six months. However, it has almost never met this mandate.
Current law makes it difficult, if not impossible, to challenge an emergency declaration— few citizens are injured in a way that permits a suit, and Congress itself probably lacks standing to challenge the declaration. Congress should consider amending the NEA to either permit a declaration to be challenged in court or to provide that the declarations terminate automatically and may not be renewed absent confirmation by Congress. It should also undertake a systematic review of the statutory emergency powers and pare those that are no longer necessary or are subject to potential abuse.
-Clearer prohibitions on reprogramming funds. As part of its effort to build a wall along the southern border, the Trump administration used a national emergency declaration and the accompanying powers to reprogram funds from the Department of Defense to support the border wall project. Crucially, Congress had already considered and declined funding requests for a border wall. A revised law could explicitly prohibit all reprogramming or, more narrowly, could do so where Congress has already considered an issue and rejected the funding.
-Enhanced inspectors general protection. Inspectors general are the first bulwark of accountability—responsible for in-house oversight of the operations of the various federal agencies. Without their oversight, the executive branch has more discretion to do as it pleases.
Since April 2020, President Trump has fired or removed inspectors general from the State, Defense, Transportation, and Health and Human Services departments, as well as from the intelligence community. While the official reasons for their removal are varied, reporting indicates that all of the displaced inspectors general were replaced by individuals perceived by the president to be more loyal to his administration. The laws governing the appointment and removal of inspectors general date back to the Inspector General Act of 1978 and were revised in the 2008 Inspector General Reform Act. The 2008 law allows presidents to fire or remove inspectors general from their posts, requiring only that they inform Congress of their reasoning in writing 30 days before doing so.
The current law is inadequate and does not deter presidential misconduct. For example, the letter informing Congress of Intelligence Community Inspector General Michael Atkinson’s dismissal read that Trump no longer had the “fullest confidence” in Atkinson. However, Trump seemed to admit his true rationale the next day when he attacked Atkinson for passing the Ukraine whistleblower complaint to Congress—the complaint that touched off the House of Representatives’s impeachment investigation into the president.
Congress must revise the Inspector General Act to provide the inspectors general with greater protection. It might, for example, allow inspectors general a private right of action to contest their removal. Or it might follow the structure of the old independent counsel act and give inspectors general greater formal independence from the executive branch (though this would be subject to legal challenge).
-Statutory protection for special counsels to allow challenge to removal. Following Robert Mueller’s appointment as special counsel to investigate Russian interference in the 2016 election, experts began to worry that the president would fire Mueller in order to prevent the special counsel from probing his ties with Russia. The concern was well founded. President Trump had already established a reputation for running roughshod over the norms protecting independent law enforcement investigations when he fired FBI Director James Comey.
The special counsel enjoys more protection against arbitrary firing than political appointees, but individuals who occupy that role are nevertheless squarely within the president’s jurisdiction. The rules governing that position were created within the Department of Justice at the end of the Clinton administration in response to the perceived unaccountability of the special counsel’s predecessor, the independent counsel. The new rules gave the attorney general broad authority to fire the special counsel for “for misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of Departmental policies.” On at least two separate occasions, Trump directed the relevant official (in this case, the deputy attorney general) to use this amended authority when Mueller’s investigation moved in directions with which Trump was uncomfortable. Both times, Trump was stopped not by the law but by threats of resignation and the counsel of close advisers.
In response to these concerns at the time, the Senate Judiciary Committee advanced a bipartisan bill that would allow special counsels to appeal their firings to a panel of judges and possibly be reinstated. The legislation was never brought to a full vote. It should be adopted.
-Overturn Franklin v. Massachusetts. In Franklin v. Massachusetts, the Supreme Court held that as a matter of statute the president was not an “agency” for purposes of the Administrative Procedure Act. By contrast, all “agencies” in the executive branch are subject to the exacting rules of the act. The implications of Franklin are significant—even when presidents are acting exclusively in a statutory manner (that is, without regard to their constitutional powers), their actions are immune from the traditional aspects of administrative review. Presidents, for example, face no requirements for notice and comment, nor are they subject to judicial review for the arbitrary and capricious nature of their actions.
The scope of a president’s statutory authority includes many actions in the areas of trade, immigration, public land use and so on. As Kathryn Kovacs notes, “recent purely statutory actions, for which no decision-making record was created include (to name but a few) President Trump’s decisions to withdraw from Trans-Pacific Partnership Agreement, block all property of the government of Venezuela, incentivize domestic production of rare earth metals, impose a 25 percent duty on imported steel, regulate the acquisition and use of technology from foreign adversaries, sequester agency appropriations across-the-board, cap the admission of refugees for 2020 at 18,000 people, bar the immigration of people who do not have health insurance, and redirect billions of dollars appropriated for military construction to building a wall between the United States and Mexico.”
Many of these are good ideas; some are poor ones. None was justified with anything approaching an administrative record. (And, to be clear, as Kovacs notes, President Obama acted similarly— he used his “delegated authority to prohibit the import of jade and rubies from Burma, prohibit federal employees from texting while driving on the job, and block the property of individuals deemed to have contributed to the conflict in Somalia.”) It would be a relatively easy statutory fix to amend the Administrative Procedure Act to make clear that the president’s actions are subject to its procedural requirements—and doing so would have substantial constraining effects on arbitrary executive power without significantly diminishing the actual scope of that authority.
-Define emoluments violations and create a right of action. Since the day President Trump took office, he has faced legal challenges for violations of the foreign and domestic emoluments clauses of the Constitution. Together, the clauses prohibit government officers, including the president, from accepting payments or benefits from a foreign state or from the federal government, unless authorized by Congress. The ongoing lawsuits challenge the president’s decision not to divest from his business assets when he took office. By and large these suits have failed for lack of standing, or a cause of action. Congress can pass a law creating a right of action for injured parties (whether Congress itself, or those whose businesses compete with the president’s or those who are injured by actions the president takes in response to receiving such a gift) and define liquidated damages.
-Automatic Hatch Act penalties. The Hatch Act generally prohibits federal employees from engaging in “political activity” on federal property, while “on duty,” when “wearing a uniform or official insignia identifying the office or position of the employee,” or when using government property, such as vehicles, computers, printers, copiers and telephones. Several Trump administration officials have been alleged to have violated the act. Most notably, the Office of Special Counsel determined that Trump counselor Kellyanne Conway serially violated the act and recommended Conway’s firing for the violations. More recently, the president’s renomination convention was rife with apparent Hatch Act violations.
However, the provisions of the Hatch Act are not self-enforcing, and no outside watchdog organization has standing to enforce its provisions. The act could be amended to automatically terminate the employment of anyone found by the Office of Special Counsel (the body charged with review of Hatch Act violations) to have violated the act’s provisions on multiple occasions while providing them with a forum for post-termination judicial review. It could also, more punitively, be amended to provide for criminal sanctions.
-Minimum qualifications for White House staff. In several cases, the Trump administration has gone out of its way to marginalize expertise at the highest levels of government, particularly within the White House staff. The president tasked his son-in-law, Jared Kushner, a 39-year-old real estate magnate, with everything from brokering peace in the Middle East to solving the opioid crisis and managing the country’s response to the coronavirus pandemic. Another example is the White House’s hiring of a college senior to a top position in the Presidential Personnel Office. Both Kushner’s ever-present role and the improbable ascension of the George Washington University student are possible because the law governing the hiring of White House staff does not impose any minimum qualification requirements for their positions. It seems clear that, as with other positions in government, Congress could provide for certain minimum qualifications that would be required. It is possible that this change might run afoul of presidents’ authority to designate their own staffs, but it’s hard to doubt the reasonableness of the proposal.
-Expediting judicial review of congressional demands for records in relation to oversight and impeachment. The Supreme Court has now made clear that congressional subpoenas in support of its oversight of executive authority are valid and subject to judicial review. During the House of Representatives’s impeachment inquiry into President Trump, the administration flatly refused to comply with subpoenas for Ukraine-related documents, despite Congress’s general oversight authorities and investigative powers for the purposes of impeachment. And although the House responded by including in the articles of impeachment a charge for obstructing Congress, it avoided challenging the administration’s behavior in court because doing so would simply take too long. Likewise, Congress’s subpoena for the testimony of one of the president’s advisers has been pending for nearly two years. This history makes clear that the lack of an expedited process for reviewing conflicts between Congress and the president can have the unintended effect of immunizing executive action from congressional scrutiny. It is well within Congress’s power to mandate the expedited judicial consideration of such matters, setting affirmative time limits that bind the courts to act more quickly.
-Mandatory federal agent identification. On several occasions, most recently in Portland, Oregon, federal officers were deployed in circumstances where they did not identify themselves. As a general rule, no federal law requires federal officers to identify themselves or the agency with which they are affiliated. This is an easy fix and would require only a statutory amendment that, except in cases where a federal officer is operating in an undercover capacity, all officers in uniform must wear an identification, such as a badge, and appear only in the uniform of the agency by which they are employed. To be sure, the definition of undercover activity might have some edge cases, but in the end, this would be a modest change.
-Enhanced whistleblower protection to prevent retaliation in the intelligence community. As the subject of regulation and oversight by Congress, the intelligence community is often a special case, given the sensitive nature of its work. The 1998 Intelligence Community Whistleblower Protection Act (ICWPA) details the process for a whistleblower to make a complaint to Congress. Subsequently, the fiscal 2010 Intelligence Authorization Act and accompanying Presidential Policy Directive 19 banned retaliation against intelligence community whistleblowers who complied with ICWPA procedures in filing their complaint. Yet retaliation continues. Congress can strengthen the protections by creating an independent private right of action for whistleblowers that includes a right to damages.
-Permit the intelligence community inspector general to report directly to Congress without going through the general counsel of the Office of the Director of National Intelligence. In August 2019, on the advice of the Justice Department, then-Director of National Intelligence Joseph Maguire withheld a whistleblower complaint from the intelligence committees, despite the fact that the intelligence community inspector general had deemed it to be an “urgent concern”. On Sept. 9, Inspector General Michael Atkinson informed the House Intelligence Committee of the complaint’s existence. He wrote that while the director of national intelligence was not required to transmit a complaint to Congress solely on the basis of the inspector general’s determination, the director’s “treatment of the Complainant’s alleged ‘urgent concern’ does not appear to be consistent with past practice.” In response, House Intelligence Committee Chairman Adam Schiff subpoenaed the director for the complaint and demanded his testimony. The law can be amended to make clear that the intelligence community inspector general may report directly to Congress.
Finally, we diverge a bit from our own rules and end with two possibilities for reform that are, in our view, highly unlikely to be enacted because they would require either constitutional action or a significant political sea-change. But these are, in our judgment, worthy of consideration in light of the president’s conduct:
-D.C. statehood. In response to protests in Washington, D.C., following the police killing of George Floyd, the president leveraged his position as commander in chief of the D.C. National Guard to crack down on protesters. He authorized the use of tear gas against peaceful protesters in Lafayette Park to make way for a photo op and oversaw the stationing of armed guards at national monuments, the deployment of unidentified law enforcement officers to suppress the protests, the use of military helicopters to intimidate protesters, and reportedly considered seizing control of the D.C. police force to further quell the demonstrations.
These measures were possible because of the unique relationship between D.C. and the federal government. The Constitution grants Congress “exclusive legislation in all cases whatsoever” over the District, and although Congress has ceded much of its power to D.C.’s local government, it retained certain core functions of the District for the federal government, in particular, the president. As a result, the president is commander in chief of the D.C. National Guard, and he is, for example, explicitly authorized to take control of the D.C. police department. The only way to resolve this state of affairs is to take the step of granting D.C. statehood—a complex and highly controversial enterprise.
-Pardon reform. There can be little doubt of two things. First, as currently constructed, the president’s pardon power is nearly absolute. Second, President Trump’s use of the pardon power has transgressed the Founders’ expectations. Indeed, the idea that a president might pardon his own criminal confederates (as is arguably the case with Roger Stone) is exactly why George Mason opposed the pardon power altogether. At some point, Congress might give serious consideration to a constitutional amendment that, for example, makes pardons illegal for individuals personally known to the president and makes the misuse of the power judicially reviewable.
-Disqualification of family for POTUS. One of the concerns about executive authority has been the tendency of America to accept dynastic succession as the norm. While the concern is immediate with respect to the Trump family, it is of equal applicability to the Bushes, the Clintons and, before them, the Kennedys. The dynastic impulse fosters quasi-authoritarian structures and permits repeat advisers across multiple administrations. We might therefore consider a constitutional amendment along the following lines: “For a period of twelve years following a person’s service as President of the United States, whether elected or acting and for however many days, no person shall be a candidate for, or serve as, President who is the present or former spouse, parent, child, cousin, or in-law of such person, in each case whether by marriage or otherwise. But this Article shall not apply to individuals related to any person holding the office of President, or acting as President, when this Article was proposed by the Congress.”
We look forward to a constructive discussion.