Executive Power

What Happened to Post-Trump Reform?

By Quinta Jurecic, Andrew Kent
Monday, March 28, 2022, 11:31 AM

Listen to the authors talk about the article on The Lawfare Podcast.

“I have an Article II, where I have the right to do whatever I want as President.” 

So said Donald Trump in 2019, reflecting on his perception of the powers of his office. Trump’s understanding of executive authority may have been oversimplified, but his time in office revealed a great deal about the dangerously broad powers of the presidency and the ease with which the executive can exploit weaknesses in existing systems of regulation and oversight. 

Anyone who read the news during those four years could easily compile their own list of abuses of executive power. A few examples: Trump repurposed money to build the Mexican border wall even after Congress had denied funding for that project; he publicly dangled presidential pardons or commutations and later delivered them—to Roger Stone, Paul Manafort and Michael Flynn—in an attempt to deter their cooperation with Special Counsel Robert Mueller’s investigation; he hounded the Senate-confirmed attorney general out of office and replaced him with a manifestly unqualified subordinate on an “acting” basis, in apparent violation of a statute setting out rules of succession at the Department of Justice; he met requests from Congress for documents and testimony with stonewalling; he gave his son-in-law a top-level security clearance by decree even though the recipient had reportedly failed to pass the normal screening process; he targeted the vice president’s limited role in counting Electoral College votes for pressure and exploitation to try to overturn the results of the 2020 election. 

Though Trump was unusually promiscuous in his abuse of the office, the truth is that many serious issues predated his presidency. Presidents Bush and Obama waged a global war of targeted killing of terrorists since 2001 using creative and sometimes implausible readings of a statute passed allowing the president to respond to the Sept. 11 attacks. The George W. Bush administration engaged in torture of war-on-terror detainees based on a far-fetched (to say the least) reading of a prohibitory statute. Previous presidents exploited overly broad and vague delegations of power by Congress to respond to self-proclaimed emergencies and threats. With only the barest legal justification, the Obama administration delayed enforcing inconvenient parts of statutes like the Affordable Care Act. The Department of Justice’s Office of Legal Counsel (OLC) had over the years developed an extremely broad view of executive privilege to restrict congressional oversight. We could go on.

The post-Trump period should have been a moment ripe for reforms of executive power. The post-Nixon era is a useful comparison. In the years after Watergate, the death of J. Edgar Hoover, and the ugly denouement of the Vietnam War, Congress bestirred itself to enact significant reform across a variety of domains of presidential and executive power. Crucially, Presidents Ford and Carter were broadly supportive of congressional reform efforts, and pushed forward with internal executive branch upgrades at the same time. Ford and Carter also filled key posts, such as the attorney general’s office, with committed reformers. Scandal and crisis opened up political space for creative restructuring of the executive branch. One might have hoped, post-Trump, to see the same type of energy for reform —though admittedly the partisan dynamics are less favorable to legislative cooperation today than they were in the 1970s. 

During his 2020 campaign for president, Joe Biden indicated in general terms that he would be supportive of some executive branch reforms, arguing that Americans “must strengthen our laws to ensure that no future president can ever again use the office for personal gain.” So when Biden took office in 2021, with Democrats in control of both chambers of Congress, the circumstances seemed promising for change. Scholars, legislators and advocacy groups alike proposed ideas for patching the holes uncovered by Trump in the legal framework of presidential power. Lawfare released a book on the topic by Bob Bauer and Jack Goldsmith—and even a podcast series.

And yet, more than a year into the post-Trump era, progress has been slow. As Goldsmith noted in November 2021, “Most of the significant presidential reforms require legislation.” But no major legislation has been enacted. The marquee legislative package for reform proposals has been the Protecting Our Democracy Act (PODA), a hulking package first introduced by House Democrats in the months before the 2020 election and passed by the House of Representatives in December 2021. Yet the Senate is moving slowly, and the White House and the Justice Department have remained largely quiet. When it has spoken, the Biden administration has supported some reforms but opposed others. Only a handful of legislative proposals seem to have much momentum. As the 2022 midterm elections grow nearer—and, with them, the likelihood of Republican control of at least one chamber of Congress—it seems increasingly possible that this window of opportunity may pass by without much achieved in the way of successful reform.

Legislative Efforts

Unveiling PODA, House Intelligence Committee Chairman Adam Schiff framed the legislation as the natural continuation of the congressional reforms implemented in the 1970s, saying, “After Watergate, Congress enacted a series of landmark laws and reforms … to prevent the abuse of authority and to ensure that it would be discovered. We are taking a similar step today[.]” PODA covers everything from corrupt presidential pardons to enforcing the Emoluments Clauses to boosting the enforceability of congressional subpoenas to limits on the executive’s ability to redirect funding away from uses that Congress intended. 

The legislation passed the House in December with unanimous Democratic support, along with the vote of one Republican, Rep. Adam Kinzinger. While the House consolidated its reform work in PODA at the direction of Speaker Nancy Pelosi, the Times wrote in September that the plan in the Senate was to break up the bill into different portions, the better to attract Republican votes. But little from the legislation has yet made it through the upper chamber.

That said, some of the proposed reforms seem to have made more headway in the Senate than others. In response to Trump’s adversarial relationship with inspectors general—several of whom the president fired in response to their conducting investigations into his administration—PODA contains various protections for these officials, including limiting the president’s ability to dismiss inspectors general without good cause. As of November 2021, the Senate Homeland Security and Governmental Affairs Committee advanced bipartisan legislation that would implement other protections for inspectors general, though not the good-cause removal requirement. Shortly after the committee approved the bill, committee chairman Sen. Gary Peters and ranking member Sen. Rob Portman introduced it as an amendment to the National Defense Authorization Act for Fiscal Year 2022 (NDAA).

The NDAA was a popular Senate vehicle for other proposed reforms, too. PODA includes a subtitle devoted to strengthening congressional control over the president’s ability to declare a national emergency under the National Emergencies Act—an authority used by Trump as a means of funneling resources into the partial construction of a wall along the Mexico-U.S. border. In November 2021, Republican Sen. Mike Lee introduced a similar proposal, which would cause all presidentially declared emergencies to expire after 30 days without the approval of Congress, as an amendment to the NDAA. And the Senate NDAA also contained an amendment that would have repealed the now-unused 2002 Authorization for Use of Military Force (AUMF) for the Iraq War, which the House voted to revoke in July 2021. Both Lee’s amendment and the Iraq AUMF repeal seemed to enjoy bipartisan support.

But a holdup in the Senate in late 2021 meant that neither inspector general reform, nor emergency power reform, nor AUMF repeal made it to the Senate floor for a vote. For now, all three Senate proposals seem to be on pause. The emergency power and AUMF provisions made for a natural fit with the NDAA. But because the contemporary Congress tends to pass legislation rarely, instead bundling proposals together into large omnibus bills like the NDAA, these amendments may have to wait until another legislative vehicle comes along in order to hitch a ride, even if they have the necessary votes. The ongoing war in Ukraine, though, may give members of Congress and the White House second thoughts about dialing back presidential authority in this area. Perhaps inspector general reform might have a better chance. 

One set of PODA reforms has proceeded through Congress in just this fashion—in a big omnibus bill. These reforms, referred to as “Reasserting Congress’ Power of the Purse” in PODA, aim to limit the ability of presidents to—sometimes secretly—decline to spend appropriated money or divert it to other purposes. Similar “power of the purse” reforms were inserted into the major appropriations bill for fiscal year 2022, which Biden signed into law on March 15. The reforms passed into law will apply for only one year, however, unlike the permanent versions in PODA. 

Other proposals have fared less well. A provision in the version of the NDAA passed by the House that would have given Washington, D.C., more control over its own National Guard—a response to Trump’s deployment of the city’s guard against racial justice protestors—was stripped out of the final legislation. As far as we can tell, there has been no Senate movement on the provisions in PODA that speak to congressional oversight of potentially corrupt pardons. The Senate has likewise been quiet on a host of other issues: reining in presidential power over vacancies in high-ranking executive offices that require Senate confirmation, barring the kinds of abusive nondisclosure agreements that Trump forced White House employees to sign, enforcing the Constitution’s Emoluments Clauses, and many other reforms contained in PODA. On the question of enforcing congressional subpoenas—which Schiff referred to as perhaps “the most important” portion of PODA—there’s been little public activity in the Senate other than a Judiciary Committee hearing in that chamber in August.

The Role of the White House

So what’s causing the holdup? There are likely many different factors at work. Even sheer chaos, such as the dustup over the 2022 NDAA that prevented a vote on repeal of the 2002 AUMF, has played a role. Among those factors, though, seems to be the relative lack of engagement by the White House. Despite his rhetoric on the campaign trail, Biden does not appear to have made a push for presidential reform into a priority: When it comes to publicly backing legislation, he’s focused instead on his administration’s infrastructure and social policy bills along with voting rights. And the White House has been lukewarm when it comes to PODA—in part, it seems, due to concerns over jeopardizing institutional interests of the executive branch.

The administration has made a handful of objections to reform proposals on policy grounds. Attorney General Merrick Garland opposed legislation, separate from PODA, that would allow the Justice Department inspector general to review misconduct by department lawyers, an area currently outside the inspector general’s jurisdiction. To give another example, after House passage of the omnibus spending bill containing power of the purse reforms, the Biden administration publicly objected to those provisions on policy grounds, saying they would “undermine” the ability of the Office of Management and Budget “to ensure the effective implementation of the law, and efficient use of taxpayer resources.” The White House is also unlikely to have a favorable view of statutory constraints on the president’s ability to install “acting” officials in senior executive branch positions. 

But other potential concerns over reforms within the administration stem from executive branch legal views about the scope of presidential power. According to the Times, House Democrats “spent months negotiating with the Biden White House” to revise PODA in line with the preferences of the executive branch. Shortly before the House passed PODA, the Biden administration released a formal and somewhat muddled statement of its position on the reform package, writing, 

The Administration applauds the sponsors’ preparation of a bill devoted to the formidable, but essential, challenge of reinforcing the norms and safeguards that prevent our democracy from eroding. The Administration will continue to work with Congress throughout the legislative process to pass a bill that is grounded in constitutional principles and a commitment to protecting and improving our democracy, and that appropriately addresses the balance of powers[.]

Absent from this (generally encouraging) language is any commitment to backing specific proposals. The Times reported that the White House “expressed skepticism and objected to some of the proposals as going too far and intruding on presidents’ constitutional prerogatives.” In addition to White House concern over strengthening enforcement of congressional subpoena power, the administration says it “is uncomfortable with a related proposal to require disclosing to Congress internal White House communications and Justice Department case files about clemency recipients,” according to the paper. The administration also objects to “proposals to give Congress logs of White House interactions with the Justice Department, and to bar presidents from firing inspectors general without a good cause.” 

As the Times hints, long-standing executive branch postures on presidential power are likely at play here. The objections that the Times alludes to are generally consistent with positions taken in the past by OLC. Consider, for example, the Biden administration’s position on the inspector general reforms contained in PODA. This issue is only one of many such areas in which constitutional questions raised by the executive seem to have snarled a reform push—but it’s a useful case study of how such concerns on the administration’s part have added to the complicated dynamics of post-Trump reform. 

Concerns about the constitutionality of statutory limits on firing inspectors general stem from OLC’s long-standing practice of expansively reading the Supreme Court’s precedents about the president’s Article II power to supervise senior executive branch officials. OLC has many times opined—including during the Biden administration—that congressional limits on the president’s ability to remove very senior officials are unconstitutional if those officials “possess broad operational and policymaking responsibility for core Executive Branch functions,” as the office wrote in a 2008 memo. (An exception to this rule, recognized by the Supreme Court and OLC, is that Congress may restrict removal even when officials have significant executive powers if they are part of multimember commissions heading independent regulatory agencies that also engage in rulemaking and adjudication.) 

The Biden administration is advancing a plausible and perhaps winning view of the Constitution here. But there might be more room for flexibility than OLC allows. Inspectors general are charged by statute with auditing agency activities and investigating and reporting to Congress and executive officials on illegality, fraud and waste within agencies. They operate under the supervision of the heads of their agencies, and perform specific, limited roles. They neither make nor execute policy. As long as the agency heads themselves are removable by the president without restriction, one could argue that under the Supreme Court’s most recent case law, Congress should be able to require that the president have good cause to remove an inspector general. But that depends on how the Supreme Court construes its famous 1988 decision in Morrison v. Olson, which upheld statutory removal restrictions protecting independent counsels. The current court might think that inspectors general have broader powers and less supervision by the department head than independent counsels did, making congressional limits on removal constitutionally unacceptable.

The executive branch has legitimate policy interests in allowing the supervision of important officers like inspectors general, and any administration would likely take the view that Biden’s has expressed here. But the abuses of the Trump years—during which Trump fired multiple inspectors general in retaliation for legitimate investigations of his administration and regularly harassed and berated inspectors general on Twitter and in news conferences—arguably call for some more creativity when it comes to reform. The White House’s Office of Management and Budget issued a memorandum to agency heads in December 2021 calling on them to communicate to staff about the need to cooperate with inspectors general and the importance of inspector general independence. 

But more could be done. Former Intelligence Community Inspector General Michael Atkinson—who was himself removed by Trump in the midst of the scandal that launched the first impeachment of the president—recently suggested that Biden could issue an executive order imposing self-limitations on when the president would fire an inspector general. This would avoid a debate about the constitutionality of statutory restrictions. And when it comes to legislation, is there a compromise that could give more protection to inspectors general while also accommodating executive branch interests? The Senate inspector general reform bill lacks the potentially problematic removal restrictions—but as far as we can tell, the White House has not made any public statements in support of that legislation. A White House prioritizing the push for reforms might lobby more aggressively for that proposal while pairing it with Atkinson’s suggestion. 

Interbranch Dynamics

The current stasis over reforms is all the more striking because of the upcoming midterm elections in November 2022. If historical patterns hold, Republicans will likely take control of the House and perhaps the Senate as well. And given the party’s continued fealty to Trump, it seems unlikely that any reform that are obviously motivated by Trump’s abuses would make it through a GOP-controlled Congress. So if reformers want to push through some of the many proposals put forward to respond directly to the Trump presidency, the clock may be running down. 

Yet the looming midterms likely have a lot to do with why many reforms are not moving forward. Proposals to limit unilateral executive action and strengthen Congress’s hand were always going to be a hard sell to any White House concerned with preserving presidential power. But they’re probably even less attractive to the Biden administration given the likelihood of a Republican-controlled legislature. Providing a friendly Congress with the power to enforce subpoenas and restrain presidential use of emergency powers is one thing; it’s quite another to hand that authority to a Congress eager to stymie administration initiatives and investigate a Democratic president. 

Along these lines, the New York Times reported in September that, “amid the possibility that Republicans may regain control of Congress in the 2022 midterm elections, the White House is reportedly skeptical of a proposal to give lawmakers a clearer right to sue the executive branch to enforce its subpoenas.” Republicans anticipating victory have already threatened to turn investigations on Biden, particularly when it comes to leveraging innovative uses of congressional power explored by the House committee investigating the Jan. 6 attack on the Capitol.

The concerns of the executive, though, are not necessarily the concerns of Congress. The branches can be expected to have different views of their own institutional interests—and Democratic members of Congress acting with the interests of the legislature in mind could take the step of increasing congressional power even though the near-term benefit might be to the other party—what’s at issue is the power of Congress as a whole. And  if Congress cares enough, it can pass legislation over presidential objections and make it politically difficult to veto. 

Yet the Democratic-controlled Congress seems reluctant to move without firm backing from the president of the same party. This failure to move forward speaks to the strength of party over institutional interest. Democrats in Congress don’t want to hand a Republican majority the power to investigate Biden—and they also don’t want to hand congressional Republicans the power to investigate Democrats within Congress itself. ABC recently reported that the Jan. 6 committee has decided against subpoenaing members of Congress over concerns among Democrats that a Republican majority in 2023 could turn that tactic against them.

This is also a matter of political expediency. Thus far in the Biden presidency, congressional Democrats and the White House have worked together relatively well to push forward legislation on domestic policies on which members of both branches have managed to cobble together consensus—albeit with, most prominently, Democratic Sens. Joe Manchin and Kyrsten Sinema declining to back certain policies desired by the White House and Democratic leadership on the Hill. And with limited bandwidth to pass new legislation, along with looming midterms and the crisis in Ukraine, congressional Democrats likely don’t want to go out on a limb. 

There is also a limited overlap between what the White House will support and what Senate Republicans appear willing to get behind. Some of the proposals now on the table—including those packaged into PODA—were originally introduced by Republican legislators, such as Lee’s bill to reform the National Emergencies Act. Theoretically, it should be easy to rally GOP votes for some reforms. In 2019 the Senate Homeland Security and Governmental Affairs Committee passed, with Republican support, legislation quite similar to Lee’s current bill. If the White House wanted to seize this opportunity, it could push for reform here. Yet the administration has remained quiet on the subject.

On the flip side, the Times reports that the White House supports components of PODA that, for example, would toll the statute of limitations for crimes committed by presidents during their time in office and clarify both that presidents cannot pardon themselves and that criminal law prohibits granting a pardon as a bribe. But there has been little sign of movement on these issues in the Senate—perhaps because they’re so closely associated with Trump’s misdeeds that it would be difficult for Republican senators to vote for such provisions without appearing to repudiate Trump and risk political backlash. 

In this respect, the early decision by Democratic leadership to bundle various reforms under PODA’s umbrella may have undercut the push for reform. House Democrats first introduced PODA in September 2020 in the runup to the presidential election, framing it specifically as a rebuke of Trump: In an op-ed in the Los Angeles Times, Schiff described the bill as the natural “next step” after fighting “Trump’s abuses in the House, in the courts, and in an impeachment trial in the U.S. Senate.” That framing might have made a great deal of sense in the final stretch of a political campaign against Trump and a Republican Party committed to enabling him. But it’s not hard to see how the same framing could make even previously bipartisan reforms harder for Republicans to support, even once PODA reached the Senate and was split into different components.

The risk is that the dynamics we describe will add up to a situation of prolonged stasis while the window is closing on a major opportunity for presidential reform. It’s representative of the political tangle in which reform efforts seem to be snarled that a prominent White House push for reform could arguably make this stasis worse—associating the program with a Democratic administration disliked by Republican voters and therefore driving away Republican members of Congress who might be otherwise inclined to support legislation. The best hope for post-Trump reforms may be that they can manage to sneak through without very much attention. And perhaps there is time yet: Though some post-Watergate reforms passed quickly, others took several years. Reforms to surveillance and the creation of an independent counsel, established in the Foreign Intelligence Surveillance Act (FISA) and the Ethics in Government Act, respectively, became law only in 1978.

If quiet support is the White House’s strategy, though, there are few traces of it. The longer that reform efforts stall, the more it looks like this White House’s theory of presidential power rests on the belief that filling offices with good people is an adequate substitute for legal or institutional reform. Certainly law-abiding and responsible officer-holders are vastly preferable to the many unfit characters who populated the upper reaches of the executive branch during the Trump years. But the Trump presidency itself is a reminder that protections against executive abuse can’t depend only on the self-restraint and good will of those working in government.