Published by The Lawfare Institute
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Yes, “a second Trump administration would be much worse,” as the Vox headline said after Trump’s CNN town hall meeting. And yes, “Trump’s Second-Term Goal” would be to “Shatter the Norms He Didn’t Already Break,” as the New York Times reported following the same event.
Yet the “news” in the CNN town hall has long been obvious. Trump’s norm-breaking grew during his presidency (and Trump got better over time at manipulating the bureaucracy). It continued after the 2020 presidential vote and before President Biden was inaugurated, most notably on Jan. 6, but not just then. It has persisted and grown in his post-presidency, most notably (but not exclusively) in how Trump handled classified documents at Mar-a-Lago. And as Isaac Arnsdorf and Jeff Stein at the Washington Post have documented, Trump in videos and speeches has been outlining a second-term agenda that portends a very aggressive and in many ways novel conception of the presidency.
Of course Trump’s second term will be worse on the norms and legal compliance front.
And yet while the nation has been on clear notice of this possibility, it has done very little since Trump left office to build up the institutions of government and put guardrails on the presidency to check these tendencies. The major exception is the Electoral Count Reform Act, a crucial improvement of the presidential selection process. Other modest but important reforms of the presidency include new protections for inspectors general from opportunistic removal and replacement by the president, and power-of-the-purse reform.
But most of the needed reforms of the presidency (and presidential elections) have not been realized. Consider:
- Congress got close but failed on emergency powers reform, thus leaving in place a massive array of emergency powers that are easy for a president to trigger and use indefinitely.
- Congress has discussed and made progress on very modest war powers reform, but has not yet done anything concrete.
- Other than in the inspector general context, the dysfunctional presidential vacancies rules remain in place, thus giving a president enormous leeway in skirting the confirmation process and putting unvetted and unconfirmed loyalists in place in senior executive branch jobs.
- Congress has failed to clarify that the core obstruction of justice statute applies to certain presidential actions, thus leaving in place the same criminal law limitations that bedeviled the Mueller investigation (and the same opportunities for presidential abuse outlined in volume II of the Mueller report).
- Congress has not enacted reforms of the pardon power that are constitutionally available—most notably, it has failed to criminalize a presidential pardon used to bribe or to obstruct justice.
- The Justice Department has not taken formal steps to enhance its independence from partisan political influences (and president Biden has not done his part either).
- The major gaps in the law governing foreign state influence that were exploited in the 2020 election remain.
- Congress has enacted no law to stop Trump from repeating his gnarly financial conflicts of interest in a second term.
- Trump still faces no standing legal obligation to disclose his tax returns as a candidate or as president.
The reasons for these failures are many. Congress, the White House, and the Justice Department have had agendas full of very important items. Time and resources are limited, and presidential reform usually lost out in the inevitable tradeoffs. The House, for example, chose to spend tremendous resources on Jan. 6 accountability and comparably few resources on hardening executive branch institutions. The executive branch has quietly opposed some reforms due to partisan-transcending executive power prerogatives, and has been silent or passive on other reforms. And many reforms were non-starters because they just seemed too anti-Trump, which made Republican support more challenging.
Yet here we are, with Trump back on the scene, threatening to break norms like never before if he returns to the presidency, and with dim prospects for reform in the next eighteen months due to the partisan split in Congress and the presidential election cycle. A few reforms remain within grasp. As Bob Bauer and I have explained, vacancies reform, emergency powers reform, and war powers reform are in theory still achievable because, among other reasons, no party or particular presidency would be structurally advantaged or disadvantaged, the case for reforms on the merits are strong and intuitive, and these reforms already enjoy significant bipartisan support in Congress. In addition, the Pentagon has done preliminary work for what could be important changes to the process for activating the D.C. National Guard. Getting any of these reforms done will take significant leadership in both Congress and the executive branch; and it is far from clear that such leadership exists.
At the end of the day legal reform can only do so much to check a defiant president. If every reform outlined in After Trump had been enacted, a second-term Trump presidency would be significantly hemmed in with respect to his worst first-term abuses. And yet a shameless norm- and law-challenged second-term president Trump could still do boundless damage, since the presidency carries with it enormous discretionary power.
“Ultimately, the proper operation of the presidency depends on the character of the president who, at a deep level, values American institutions, including institutions with competing interests that are so vital to the proper functioning of our government,” Bauer and I argued in After Trump. We elaborated:
This means that, when all is said and done, reform depends on the American people. . . . “Laws are always unstable unless they are founded upon the customs of a nation,” Alexis de Tocqueville once said. The laws and norms that govern the presidency work only if a wide swath of the population believes in them, and their legitimacy, and wants them to work. The right kinds of laws and norms can guide action in a proper direction and check many abuses. But ultimately, the efficacy of checks on the presidency depends on the identity of the man or woman whom the American people choose to elect, and the types of pressure that the American people place on members of Congress and other government actors to resist executive branch abuse.
If Trump is elected next year, the main limits on his second-term abuses will be the limits of his fertile imagination. Yet reform remains an imperative despite the challenges to and limitations of reform—for a possible second-term president Trump, and for future office-abusing presidents. It makes no sense to ignore these dangers.