Donald the Lame-Duck President

The Donald is officially a lame duck. That’s all folks! Or is it….

On November 9^th, not even one week after the general election that eventually quashed his chances of a second term, the president fired Defense Secretary Mark Esper. This decision catalyzed a purge of senior officials in the Department of Defense, including the Pentagon’s acting policy chief James Anderson, the undersecretary for intelligence Joseph Kernan, and Esper’s chief of staff Jennifer Stewart. This is not to mention the many other deputy chiefs of staff and department officials who, either by force or by will, no longer work for the Pentagon.

These vacancies did not last long. Over the course of the last week, these roles have been filled by hard-line Trump loyalists. These are roles that won’t necessarily be erased by the inauguration in January, not to mention the impact these appointees will have on the next two months of crucial national security decision-making and continued transition defiance. Trump’s lame-duck actions will reshape the Pentagon long after he moves out of Pennsylvania Avenue.

The question the American public must now address is how these actions set the stage for democratic erosion. It is important to note that the actions of a lame-duck president are not inherently anti-democratic. In fact, Trump is by no means the first lame-duck president to make controversial decisions on his way out the door. John Adams’ “midnight judges” continued to occupy federal circuit courts across the country for decades after their lame-duck appointments in 1801. The infamous 146-day presidential transition period inspired by President Herbert Hoover’s decision not to meet with Franklin D. Roosevelt upon the latter’s victory in the 1932 general election deepened the economic suffering of the Great Depression. Bill Clinton is perhaps the most recent perpetrator of controversial lame-duck decision-making when he issued more than 140 presidential pardons on his last day in office which included clemency for many Democratic donors and his even his half-brother Roger.

When examining lame-duck decisions through the lens of democratic erosion, it is imperative to vet them through their context. Not only does this mean evaluating the motivation behind their actions, but also the implications those motivations have on the future of democracy. What makes Trump’s recent installations different from previous lame-duck decisions is not necessarily that they were inappropriately motivated, as there are strong arguments to be made that Adams, Hoover, Clinton, and others were inappropriately motivated in their own lame-duck decisions. The kicker in Trump’s case is how the implications of these decisions will deepen the potential for democratic backsliding in the U.S. for years to come.

The connection between Trump’s recent actions and democratic erosion cannot be ignored. The anti-democratic implications of Trump’s actions are best framed in the context of existing academic literature. The first troubling contextualization comes from Tom Ginsburg’s and Aziz Z. Huq’s How to Save a Constitutional Democracy. These authors warn against the anti-democratic implications of centralizing and politicizing executive power as Trump’s recent moves suggest. They use the term “horizontal accountability” to refer to the “thick ecosystem of institutional actors that works as a hedge against democratic erosion.” [1] Trump’s recent Pentagon purge qualifies as a deliberate attempt to remove the horizontal accountability that is so crucial to the maintenance of our democracy.

Perhaps the most frightening component of Ginsburg’s and Huq’s theory is the lack of constitutional protection against Trump’s, or any president’s, elimination of horizontal accountability. This is a situation to which there is no easy fix (besides electing public officials who will respect the integrity of our country’s democratic institutions, of course).

Some of you might still be asking: so what? In fact, nearly 50% of the country who voted for the president in 2020 might not see any problem with his most recent brush with autocracy. However, controversial lame-duck decisions can quickly become a catalyst for democratic erosion, as illustrated by the aftermath of the 2015 parliamentary elections in Venezuela. After the unpopular United Socialist Party was democratically ousted from the National Assembly, the lame-duck parliament controlled by President Maduro filled the Venezuelan Supreme Tribunal with party loyalists. These appointments led to the forced removal of four democratically elected members of the opposition party from parliament, which prevented a supermajority in the National Assembly that could legitimately challenge Maduro’s centralization of power. This set the stage for years of court-sanctioned executive aggrandizement, the gifting of the National Assembly’s legislative powers to the politicized Supreme Tribunal, and ultimately “Maduro’s call for a constituent assembly expressly designed to minimize representation outside of the ruling party.” [2] This process of “self-dealing, the theory that actors will seek to maximize the power of the offices that they control,” [2] is clearly evident in Trump’s Pentagon purge and signals a potential opening of the flood gates for democratic erosion.

Even though it may seem like our nation’s own would-be autocrat is on his way out of office, empirical evidence tells us that lame-duck decisions should be taken very seriously, especially when they politicize institutions of accountability. In light of this evidence, the connection between Trump’s actions and democratic erosion is clear, and if recent rumblings are any indication, it’s entirely possible that we have yet to fully realize the anti-democratic consequences of Trump’s lame-duck presidency.

Endnotes

1. Tom Ginsburg and Aziz Z. Huq, How to Save a Constitutional Democracy (Chicago: The University of Chicago Press, 2018), 150.
2. Javier Corrales, “Venezuela’s government wants to write a new constitution. That way lies autocracy,” The Washington Post, May 15, 2017.