What Trump can do during his lame-duck session

Joe Biden has been elected president, but Donald Trump still holds the office for the next two months. And in that time, for better or worse, he still can get a lot done.

There are no formal limitations on what a president can and can’t do between losing an election and the next president’s inauguration. For a historical indication of the most egregious stuff former presidents have done in that time, take a look at this piece by Slate.

“The short, simple answers is he can do pretty much anything he can do now,” Lindsay Cohn, associate professor at the US Naval War College, told Vox. “He’s still president and still has all the normal powers of the office.”

It’s more a question of what he can do given that Democrats control the House, making it all but impossible for him to push through legislation House Speaker Nancy Pelosi doesn’t like. Still, he has power over federal agencies and over Joe Biden’s transition.

As of now, Trump has not conceded the election, so he hasn’t accepted that his is a lame-duck administration. Regardless, it is. And steps Trump has taken so far provide some clues about what he’ll try.

A bumpy transition to Biden

When one administration transitions to another, there’s supposed to be an orderly process in place to ensure the government can continue to function.

The process includes briefing the new president on the state of affairs and giving the new team access to important information and to federal agencies. Pranks aside — the Clinton administration was suspected of taking the Ws off keyboards ahead of George W. Bush’s arrival — the period is supposed to be one of comity.

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That might not be the case this time.

So far, the Trump administration has refused to sign a letter that would formally begin the transition process and release millions of dollars to fund it, which could lead to a rare transition delay.

(Business Insider reported that former Virginia Gov. Terry McAuliffe said on a call with Biden supporters that he and other Democrats would raise private funds for a smooth transition, should the Trump administration hold up the money.)

When Trump entered office, he largely declined to participate in this process, so there’s reason to believe he might not be very helpful with Biden’s transition.

“The transition is supposed to be professional and generous because it’s not about you, it’s about the work,” UCLA law professor Jon Michaels said. “I worry this is going to be quite different because they’ve presented a unified front that this is not a legitimate transfer of power and that the administration is not duly being replaced.”

Thwarting the transition could hinder Biden’s ability to quickly accomplish his agenda.

President Obama talks with President-elect Donald Trump in the Oval Office on November 10, 2016.
Jabin Botsford/The Washington Post/Getty Images

“If documents are missing, if you don’t have an org chart, if no one’s told what are the pending investigations, that presents challenges,” Michaels said. In turn, it will take more time for Biden to get up to speed.

A rough transition could also affect Americans in the middle of a pandemic and economic recession by making it more difficult to get them what they need from the government.

“The failure to cooperate could interfere with normal agency operations,” Beth Simone Noveck, director of the Governance Lab at New York University, told Vox. “It’s not just inconsiderate to Biden, it would disrupt the delivering of services to the American people.”

The Biden camp is nonetheless moving forward swiftly, announcing a coronavirus task force on Monday. Biden is expected to announce key White House positions this week as well.

Major executive orders

Trump is free to issue all the executive orders he wants, and there will likely be more to come, though the president hasn’t committed to anything specific so far.

President Trump has issued 192 executive orders, according to data from UC Santa Barbara’s American Presidency Project, more than presidents Barack Obama and George W. Bush did during their first terms. It’s likely he’ll issue even more in the next two months.

“He’s been pretty brash about issuing executive orders and overturning different regulations he doesn’t like,” Todd Belt, director of the political management program at George Washington University, told Vox. “I expect him to continue doing that.”

While executive orders are common at the end of a presidency, they’re usually inconsequential, according to American University history professor Allan Lichtman. “If he were to impose a new Muslim ban, greatly expand crackdowns on immigration, roll back more significant environmental orders, that would be unusual to have truly important substantive executive orders during the lame duck,” he said. “But we know he’s not restrained by democratic norms or historical precedents.”

Biden can overturn Trump’s executive orders with his own when he becomes president. He immediately plans to reverse course on Trump policies with executive orders pertaining to climate change, immigration, and public health. The problem is that reversing a new slew of executive orders will take effort and time, and a potentially split Congress may make things more difficult.

“Yeah, they can be reversed, but there’s so many of them, it’s not going to be simple,” Lichtman said.

There’s also the possibility that some executive orders may be politically unpopular to roll back after the fact. Belt gave the example of Bill Clinton issuing an executive order at the end of his term to limit arsenic in drinking water. George W. Bush attempted to reverse it back but gave up because it turns out it looks really bad for a president to want more arsenic in the water.

While Trump could certainly try to enact new laws or spending bills as a lame-duck president, he probably won’t because that legislation would likely have trouble getting through a Democratic House.

“If there’s anything that requires legislation, they can wait him out,” George Washington University’s Belt said.

Pardons, pardons, pardons

Trump still has the power to pardon, an action widely used by outgoing presidents. Obama used his pardon power to shorten the prison sentences of a record 330 inmates convicted of drug crimes, for example.

The power might be especially useful for Trump, who has a number of people in his administration who’ve had charges against them, like Paul Manafort and Michael Flynn, among others. While there have been plenty of controversial pardons in the past, these would be especially uncommon for a president.

As American University’s Lichtman put it, “Their own people aren’t usually in jail.”

What would be the most unconventional, however, would be if Trump pardons himself. It’s not clear if that would be possible.

“These are untested, uncharted, and choppy constitutional waters,” Lichtman said.

That doesn’t mean Trump won’t try. He has already commuted the sentence of his former campaign adviser Roger Stone and pardoned Rod Blagojevich, former Illinois governor and a contestant on Trump’s show The Celebrity Apprentice, and his friend Conrad Black, among others.

Even if he pardoned himself, pardons only work for federal crimes, meaning that Trump would still be on the hook for criminal cases in states like New York or from the civil rape case against him.

President Trump speaks at the Trump campaign headquarters in Arlington, Virginia, on November 3.
Alex Brandon/AP

Hiring and firing

It’s likely Trump will try to fill any open judicial appointments in his remaining time in office. He has already appointed nearly 200 judges, according to Pew Research Center, including more federal appeals court judges than any president at the same point in his presidency. Senate Majority Leader Mitch McConnell said last month that he would continue confirming judges through the end of Trump’s term.

Trump is also likely to bring in or dismiss numerous civil servants. He issued an executive order late last month that essentially makes it easier to hire and fire government employees.

So far, the Trump administration has already let go the heads of three federal agencies, including the deputy administrator of the US Agency for International Development, the chair of the Federal Energy Regulatory Commission, and the administrator of the National Nuclear Security Administration. He also fired Defense Secretary Mark Esper.

Previously, civil servants — “technologists in the VA, astronauts in the space station, or frankly just any person who works on Social Security checks” — had more protections in order to make sure they’re not “unduly influenced by partisanship,” NYU’s Noveck said. The executive order would allow him to reward loyalists with jobs or fire people he doesn’t like.

“In short, the order gives him power to hire and fire civil servants with the snap of his fingers,” Noveck said. “It could effectively convert civil servants into at-will employees.”

Biden could hire these people back, but that’s time-consuming and another thing for the incoming president to have to deal with. Biden will already have to hire a huge backlog of employees the Trump administration failed to hire.

“The rhetoric is of purging the ‘deep state,’ but the real move would be incapacitating Biden, who is already going to come in with his hands tied because of the Senate,” UCLA’s Michaels said.

Padding his pockets

As Trump exits office with loads of debt, it’s possible he’ll try to use his office to make money — something he wasn’t above doing throughout his presidency.

Trump, for example, has billed the Secret Service to stay at Mar-a-Lago and his other properties while guarding him. As a result, taxpayers have paid at least $900,000 to Trump-owned businesses since he took office. That’s in addition to the money that foreign governments have paid to stay at his properties.

“The only recourse is political, and once he’s voted out, it doesn’t matter,” American University’s Lichtman said.

And he has plenty of ways to pad his pockets. He’s still got his hotels, where he and his entourage can stay. He’s also privy to information that is valuable to American corporations as well as foreign countries.

“How he will use that information or already is using it to profit or to hold people hostage is very worrisome,” Noveck said. “We’ve seen lots of ways he’s traded on his brand and position, and that may only grow in ways that he’ll be very careful to shield from view.”

Trump lost, but his term is certainly not over. He still has time to demonstrate that a lame-duck session doesn’t have to be unproductive.