Transition 2020-2021

Last Hundred Days?

By Benjamin Wittes
Monday, November 2, 2020, 1:31 PM

Don’t look now, but as of Oct. 12, the United States may—and the word “may” requires no small emphasis here—have entered the last hundred days of Donald Trump’s presidency.

The public won’t, of course, know whether the country did pass that rather arbitrary milestone until the election results are tallied, and until any challenge that may materialize is resolved. But if and when that day comes, Americans will be able to look back at Oct. 12 as the magic line when the last hundred days began.

Analysts don’t normally talk about a presidency’s last hundred days. When a presidency is on the way out, we tend to talk about the presidency that’s on the way in to replace it. The terms for the end stage of a presidency—“lame duck,” for example—tend to be disparaging. And the popular vocabulary for actions taken as a presidency is winding to a close—remember the “midnight judges”?—tend to imply illegitimacy.

By contrast, Americans love to talk about a presidency’s first hundred days. The love affair with the first hundred days began when Franklin Roosevelt took office on March 4, 1933, at the height of the Great Depression. Roosevelt immediately called Congress into special session and, in the course of the first hundred days, pushed through 15 pieces of landmark legislation that created millions of jobs and established a slew of agencies charged with overseeing new avenues of government-funded protection and relief. So began a transformative presidency, one that would remake the federal government's role in the social, economic and political fabric of American life.

Ever since, the first hundred days have loomed large for every presidential administration. Presidents enter office with the understanding that this period is perceived as more than just a preliminary test of their energy, policy priorities and raw leadership ability. Particularly for presidents inheriting crises, the window serves as an enduring snapshot of their ability to translate promises on the campaign trail into action in office. And the first hundred days of a presidency offer a look into how the president understands his own power and obligations.

Yet the last hundred days of the Trump presidency, if we indeed entered them last month, could well prove far more consequential than the first hundred did.

Anxiety about the lame-duck period is nothing new. In 1933, concerns about the democratic legitimacy of actions taken by departing presidents and congressional representatives, and the incentives driving those actions, led to the ratification of the Twentieth Amendment. This halved the lame-duck window by moving Inauguration Day from March 4 to January 20.

But the fears expressed by commentators in recent days about Trump’s potential swan-song days in office (see here, here, here and here, for example) are different in kind, not just in scale, from the anxieties of the past. The fear is that an electoral defeat will leave President Trump with nothing to lose, and still armed with the extraordinary powers of an office that he has already seen fit to misuse. As I explain below, these fears are justified, though diverse in character and likelihood of coming to fruition.

Consider what has happened in only the first of what may prove to be Trump’s final hundred days. The hundred-day threshold came and went just a week after Trump was released from Walter Reed National Military Medical Center, where he and his wife were treated for COVID-19. Trump did not emerge chastened by the experience or regretful for his months-long efforts to play down the dangers of the coronavirus. Instead, he doubled down with the confidence of a survivor. In an Oct. 12 video, Trump tears off his mask and declares, “Feeling really good! Don’t be afraid of Covid. Don’t let it dominate your life. ... I feel better than I did 20 years ago!”

In the ensuing days, he dangled the possibility of firing a second FBI director, Christopher Wray; he continued spreading unsubstantiated allegations of voter fraud; he appeared at multiple campaign rallies and invited thousands to hear him speak from the White House balcony; he disparaged a governor who had been the subject of a violent kidnapping plot; and he publicly contemplated his opponent’s postelection assassination.

Of course, Trump’s last hundred days would also include his loss this week—and his reaction to it. It would include any efforts he might make to prevent votes from being counted after Election Day. It would include the spree of tweets he will issue as his defeat becomes clear. It will include his concession speech, if he gives one, and his refusal to do so if he does not. All of this could happen on day 78 or day 77, or it could drag out over a few additional days or weeks.

And then, of course, the last hundred days would include the period that will follow the election defeat.

A loss this week won’t trigger a sudden transformation in the style or substance of Trump’s governance; there’s no reason to believe change is even possible, given who Trump is, given how he conceives of the presidency and given the competency of the advisers with whom he has chosen to surround himself. Based on everything that has already happened in the course of the Trump presidency, Trump’s transition period can be expected to serve as an acute stress test for American democracy itself. Assuming he loses, can the country actually manage a peaceful transition of power from a president who has declined to commit to one and has refrained from calling on his supporters to avoid violence? Can he meaningfully challenge the election results if the will of the voters is not seriously in doubt—either in the courts or through the political system? And what damage can he do on the way out the door?

The last hundred days of the Trump presidency—if that’s the period we’re in—thus gives rise to a number of distinct concerns about the excesses of an involuntarily lame-duck president of, shall we say, an unconventional disposition. These concerns often get blended together, but they are worth separating into four broad categories. The most alarming of the set, but probably the least likely, relate to the possibility of a contested election. A far more likely possibility involves the president’s delegitimization of an election that he cannot fruitfully contest. A third set of concerns involve self-dealing and other abuses of power during the transition. The final category involves simple mishandling of the transition itself.

Let’s consider each of these possible features of the last hundred days in turn.

A Contested Election

For weeks, as voting-related lawsuits have percolated up to state supreme courts and up and down the federal courts, the country has been provided a series of small previews of what a meaningfully contested election would look like.

This possibility has induced an enormous amount of public anxiety because a significantly contested election would be a high-impact, potentially catastrophic event. But it’s also a relatively low-probability event.

Yes, the courts will likely be tasked with resolving any late-breaking disputes over whether and how certain ballots should be counted in key battleground states. Trump has reportedly dispatched lawyers across the country to prepare to contest the vote count in battleground states, and Biden has readied his own battalion of lawyers as well. Hundreds of suits have already been filed over pandemic-related rule changes and organized efforts to limit mail-in votes. And there’s one small matter further exacerbating the perception that the courts are poised to facilitate Republican victories: Only a week before the election, Trump successfully placed a third justice on the Supreme Court, after indicating he thinks the court will “end up” deciding the election outcome and needs a full complement of justices in time to do so.

The risk here is the real though small chance that the president will have a significant opportunity to contest the election—and will attempt to snatch legal victory from the jaws of vote-counting defeat with the help of judges and justices he elevated to the bench or party-faithful state legislators willing to go to the mat for a president who lost. The latter is the extreme case laid out by Barton Gellman in the Atlantic and by Jeffrey Toobin in the New Yorker, and it involves state legislators swooping in to jettison the ballot-counting process entirely in key states and appointing their own slates of Trump electors.

These scenarios are certainly possible under the law, and the 2000 election crisis in Florida shows that perfect electoral storms do happen. With Trump actively attempting to gin one up, it’s not unreasonable at all to worry about the situation arising again.

That said, perfect storms don’t come around all that often, and Trump is not Prospero: He cannot simply summon one. It requires a close-enough race, in which contested ballots in a decisive battleground state, or maybe two, actually would swing the election. It also requires that there be a plausible legal dispute over the counting of votes. In other words, for the real crisis to hinge on whether the president manages to steal the election, the election itself has to be close enough to be amenable to theft.

But a crisis is not required for this scenario to take its toll. The biggest risk of all is also a near-certainty: that both sides believe that the other is attempting to—as the president puts it—“cheat.” And this fact marks a degree of breakdown in public trust in the institutions that are collectively the cornerstone of a functioning democracy that is simply unprecedented in modern times. That’s true irrespective of whether or not this particular election proves vulnerable to being stolen.

Election Delegitimization

Assuming the polling numbers bear out, Biden definitively takes the Electoral College, and a serious election contest thus does not materialize, Trump won’t be able to barricade himself inside the Oval Office. But that does not mean the last hundred days will fail to stress American democracy. Trump is, after all, already exercising other options. Chief among these is the use of the bully pulpit to rhetorically undermine the legitimacy of the election results. This rhetoric can only be expected to ramp up in the event of a loss, given the rage the president has expressed in the face of criticism or rejection, and his well-known distaste for losing.

Fundamentally, convincing large numbers of people that the election was “rigged” is a way of undermining a successor’s ability to govern. People who don’t believe an administration was legitimately elected are less likely to comply with its laws, after all. The cultivation of grievance-based political mythologies in which the true will of the people is “stolen” can have lasting political consequences in a polarized society, even if it doesn’t in the short term result in any kind of successful effort to hold power.

What’s more, not all rhetoric is created equal, and efforts to delegitimize election results can yield violence, not just inchoate disillusionment. For months, the country has seen the president reject the legitimacy of mail-in voting, but he has also gone so far as to urge his supporters to turn out to “watch” the polls, inducing legitimate fears about voter harassment and intimidation. And in other contexts, Trump’s incitements to violence and refusal to denounce those who explicitly invoke his rhetoric to justify their violence are well documented. The question is whether a sitting president will encourage violence in direct response to an election loss, and whether any of his supporters will take him up on it.

There is good reason to be concerned on this front. Gun and ammunition sales are way up nationwide. The past few months have already seen significant confrontations between protesters and authorities, and right-wing groups have committed significant acts of violence. In other words, even in the absence of a meaningfully contested election, Trump’s last hundred days could well see not merely rhetorical delegitimization of the results but also active or passive encouragement of political violence.

Lame-Duck Exercises of Executive Power

Then there are the powers of the presidency itself, which do not lessen just because the president’s term is approaching its end.

Typically, lame-duck foreign policy escalations would seem to present the biggest potential headache for an incoming administration. Writing recently in Foreign Policy, Timothy Naftali describes the presidential transition as “among the least studied moments of potential mayhem in the U.S. political system.” Naftali recounts some of the Eisenhower administration’s most high-stakes, last-minute foreign policy plays, from lending support to attempted regime changes in Cuba and the Dominican Republic, to ramping up U.S. military operations in Southeast Asia. But Naftali also acknowledges that the risks posed by the Trump administration on its way out the door are of a different order and that, in Trump’s last days, the country might see moves that worsen relations with NATO allies and heighten tensions with Beijing.

But the domestic front is potentially dangerous too—on several different fronts.

Consider first pardons. Can anyone imagine that Trump will not abuse his clemency powers as a lame duck? As Jack Goldsmith and Matt Gluck have documented, “[N]o president in American history comes close to matching Trump’s systematically self-serving use of the pardon.” With few exceptions, the vast majority of Trump’s pardons and commutations were based not on recommendations from the office of the pardon attorney, but on the recipients’ personal connection to Trump. He has granted clemency to friends and political allies, like Maricopa County sheriff Joe Arpaio, conservative columnist Dinesh D'Souza and former campaign adviser Roger Stone. And that’s how he’s used the pardon powers while ostensibly restrained by the need to face voters.

This will likely accelerate in a lame-duck period. There will be additional pardons for Trump’s friends, and perhaps even family members. And, of course, the biggest constitutional question, as he goes out the door, is whether he will attempt to pardon himself. As to self-pardons—one of the many executive-abuse issues Justice Amy Coney Barrett declined to address during her confirmation hearing—a number of scholars have endorsed the logic of a 1974 opinion in which the Office of Legal Counsel declared, “Under the fundamental rule that no one may be a judge in his own case, the President cannot pardon himself.” But this rule has never been tested. Trump’s last hundred days may change that.

Closely related to the question of a self-pardon or self-interested clemency actions are steps Trump might take to benefit himself financially before leaving office. In an extreme example, David Frum has pointed out that the IRS has the power to partially forgive tax debts, which raises the question whether Trump could simply direct the agency to forgive whatever taxes he might be found to owe. Less exotically, Trump’s efforts at self-enrichment in the last hundred days may amount to variations on what has been a major theme of his presidency since its inception: self-dealing. The president’s conflicts of interests have been tracked in real time by the ethics watchdog CREW, and to date include more than 2,000 visits to Trump properties by government officials and 67 foreign trademarks granted to Trump brands. One could imagine something bigger in scale. Last year, for example, Trump announced that one of his own struggling golf resorts, the Trump National Doral Miami, would host the 2020 G-7 summit of world leaders, before backtracking in response to what he deemed “Crazed and Irrational Hostility.”

The more menacing side of Trump’s use of the office to benefit himself has been his use of the office to go after political opponents. Trump’s effort to pressure Ukraine into investigating Biden led, of course, to his impeachment. A year later, he has persisted in using the powers of the executive branch to leverage an investigation into the younger Biden. During an Oct. 20 interview with “Fox & Friends,” he called for William Barr, his attorney general, to “act fast” in investigating unsubstantiated allegations about Biden and his son, Hunter. The last hundred days thus can be expected to include a serious push for investigations into Biden and other political opponents—not to mention continued rhetorical uses of the office to make accusations against disfavored individuals. Standing in Trump’s way on this score are career civil servants and political appointees, but post-loss, Trump may see no downside to replacing people who decline to do his bidding. Earlier this month, for instance, the Washington Post reported that Trump has considered firing FBI Director Christopher Wray for refusing to open a criminal investigation into Hunter Biden. Only this past weekend, he floated the idea of firing Dr. Anthony Fauci. And he issued an executive order recently giving himself greater latitude over personnel matters involving the civil service.

Possible firings raise the larger problem of Trump’s potential last-minute efforts to further transform the hundreds of departments, agencies and subagencies within the executive branch in his waning days. These could include not only changes to key personnel but also changes to consequential rules and regulations. So-called “midnight rulemaking” is nothing new, and is not necessarily reason for concern, at least not in normal times. In the lame-duck months of recent presidential administrations, federal agencies have issued an increased number of regulations, raising concerns about diminished political accountability and inadequate review. But a study by Jack Beerman of Boston University, suggests that much of such regulatory activity is “routine” and controversial midnight rules are “relatively few.”

This may not hold true during Trump’s last months in office. As it is, Trump has already implemented sweeping transformations to the rules and minutiae that govern realms like immigration. As Catherine Rampell of the Washington Post pointed out recently, the resulting institutional and reputational damage from these administrative tweaks is not so easily reversed by the succeeding administration. As to midnight rules in particular, depending on whether the Senate flips, Congress may be able to reject them through exercise of its powers under the expedited procedures of the Congressional Review Act. These procedures were used by the Republican-controlled Congress, and Trump, to repeal Obama-era rules affecting everything from the protection of streams to telecommunications companies’ obligations to protect consumer privacy and data security. But the point holds: Trump’s executive branch should be expected to exercise all kinds of key decision-making authority in the months before his departure.

There are other possible areas for abuse—or simply aggressive use—of the powers of the office in the last hundred days. We have already seen an unusually aggressive push on a single judicial confirmation. The president could theoretically install judges or executive branch officials by recess appointment—though only temporarily. He could also, and this seems likely, continue refusing to reach a compromise on a coronavirus relief package, thus saddling the incoming administration with greater economic and public health damage. Perhaps the most extreme case involves, as Goldsmith discussed recently, some gross mishandling of classified material—perhaps for pecuniary advantage, perhaps just out of spite.

The broad point here is that during a hypothetical last hundred days, the president is still the president. And he still gets to use—as Justice Antonin Scalia once put it—not just some of the executive power of the U.S. government, but all of it.

Transition Sabotage

The final area of concern—the one that seems almost certain to pan out—involves simply running a bad transition.

The executive branch is a massive, many-limbed beast, commanding a budget of almost $4 trillion, employing a civilian workforce of more than 2 million civilians and well over a million active-duty service members, and generating untold millions of federal and presidential records over the course of a single presidential term. Even in normal times, presidential transitions are accompanied by a host of technical and structural challenges and require tightly coordinated cooperation between the outgoing and incoming administrations.

Much of the process is governed by the recently amended Presidential Transition Act of 1963, which establishes formal milestones and transition personnel requirements to ensure the smooth transfer of power and to minimize the country’s vulnerability to national security threats during the changeover. As Kate Shaw and Michael Eric Herz explained in the Atlantic, the process is already underway, and the country can take some comfort from the fact that, under the statute, career employees hold “almost all of the responsibility for managing the transition.”

But only some comfort. While the required involvement of career officials offers significant protections against an outgoing administration’s efforts to undermine the transition process, in major ways the process also relies on the good-faith and competence of senior administration officials and others currently holding the keys to the kingdom.

Transitions don’t always work well. The transition between the Clinton and Bush administrations was famously rocky. But George W. Bush, to his great credit, made sure as he was on his way out that his officials supervised a thoughtful and careful transition to the Obama administration. Obama has talked publicly about this as a gift that his predecessor gave him. And Chris Lu, executive director of President Barack Obama’s transition team, and later deputy secretary of labor, largely attributed the success of transition planning to cooperation from the Bush White House. It was the memory of this that caused Obama to give instructions to his own administration to prepare meticulously for the transition to the Trump administration. Their efforts, and the degree to which those efforts were ignored by the incoming administration, are detailed in Michael Lewis’s book “The Fifth Risk.”

Suffice it to say that it is most unlikely that President Trump will be touched by grace similar to either Bush or Obama. Spite here may play a part. But this is an area in which the Trump administration’s incompetence will exacerbate, not mitigate, the president’s malice. Even if Trump wanted to, he’s not capable of running a good transition, which involves some of the same management skills that have been famously lacking over the past four years.

The bottom line? Even if there isn’t a seriously contested election, even if Trump’s efforts to delegitimize a result fall completely flat, and even if he keeps abusive lame-duck actions to a minimum, Trump’s last hundred days are going to see a grossly mishandled transition—one that may well leave the incoming administration blind on important issues as it takes office.

Put simply, if Trump loses on Tuesday, so begins a fateful period. It may well test the system’s resilience against a president who feels entitled to remain in office, election results be damned. It will certainly test the electoral system’s ability to generate its own legitimacy in the face of sustained presidential efforts to deprive a result of legitimacy. It will provide ample opportunity for the sort of abuses the man has shown himself eager to use his power to commit. And it will, at a minimum, offer the country a model of how not to transfer power in the American system.

It is a mark of how low President Trump has brought his office that this terrifying outcome is, hands down, the best the country can hope for when the votes are tallied.