Wednesday, November 30, 2016

Needed: The Audacity Of A Lame Duck

Barack Obama seems to view his role in the last weeks of his presidency as that of enabler-in-chief -- to ensure the transition to the new administration will be as smooth and as peaceful as possible.  He deeply believes in the efficacy of our democratic institutions and seems to assume that traditional checks, balances and the norms of governance will constrain President-Elect Trump's more dangerous impulses.  Further, being the extraordinarily decent human being that he is, Obama wants to help the next president to succeed -- notwithstanding that the next president is a woefully ignorant, emotionally unstable, conflict-ridden, racially insensitive, anti-immigrant demagogue. 

There are times for decency and there are times for fighting indecency.  The notion that it is premature and overly alarmist to confront the grave threat Trump poses to democracy and the Constitution is frighteningly naïve.  Given what has already transpired since the election -- his courting of racists and right wing extremists for major executive branch posts, his intemperate and mendacious late night tweet storms, and his unabated financial self-dealing -- it is clear that Donald Trump is exactly the nightmare we knew he would be.  Doing anything that would help him succeed would only succeed in giving him more power and making him more effective -- and, therefore, more dangerous.

Once Trump assumes power, Senate and House Democrats should fight, resist and oppose everything he does. (See How to Respond to the End of Normalcy)  They should continue to press for investigations of Trump's business entanglements and unethical conduct, and, as Rep. Elijah Cummings and Sen. Elizabeth Warren have done, press the Government Accountability Office to review Trump's "chaotic" transition and conflicts of interest.  But between now and the inauguration, unless the recounts in three states disclose something explosive enough to undermine the legitimacy of the election, it is largely up to Obama to mitigate some of the disastrous effects of the transition even as a so-called lame duck and even if it would go against his preternatural faith in the power of our governmental norms and in the humanity and good will of others -- including, apparently, Donald Trump. 

The Bully Pulpit

President Obama remains enormously popular and well-respected.  Addressing some of the most fraught aspects of a Trump Presidency would greatly influence the national discourse going forward.  Obama thus needs to condemn the rise of white nationalism, nativism and anti-Muslim bigotry that Trump has encouraged, and denounce Trump's more overtly racist moves, including his appointment of Stephen Bannon as chief strategist and nomination of Jeff Sessions for Attorney General. 

He should also speak out against Trump's mingling of business interests with the country's business.  Obama should explain to the American people why what is good for the Trump Organization is not what is good for the Nation.  He should warn that Trump's blithe refusal to sell his assets and put them in a blind trust is unacceptable.  He should point out that ceding responsibility to his children still permits him to use his office to enrich his family -- and that Trump's highly questionable actions to date -- from including his children on the transition team, to asking foreign leaders for favorable treatment with regard to his businesses, to encouraging diplomats to stay at his hotels -- reflect a remarkable insensitivity to the appearance of conflicts of interest that will -- and should -- undermine every policy position of Trump's presidency. 

Special Counsel

Obama should request that the Attorney General appoint a Special Counsel to investigate Trump's business dealings in Russia and determine what communication and coordination there was between the Trump campaign and the Russians prior to the election.  We know that the Russian government claims to have met with Trump campaign officials prior to the election and that Trump's son reportedly met with Russian diplomats.  There have been reports of a Trump email server connected to Russia and other suspicious circumstances suggesting an inappropriate, perhaps treasonous, Trump-Putin connection.  A rigorous, independent investigation is essential.

While he is at it, Obama should also request appointment of a Special Counsel to investigate the machinations of FBI Director James Comey and other FBI personnel and whether their statements and leaks were purposefully designed to influence the election -- and whether they were in communication with the Trump campaign. 

Recess Appointments

Obama can also strike back at unprecedented Republican obstruction designed to allow Trump to fill what was previously Justice Scalia's seat on the Supreme Court as well as the many vacancies throughout the federal judiciary.  President Obama nominated a Republican-approved and highly respected jurist, Merrick Garland, in May 2016, after Scalia left the building.  The Senate nevertheless abdicated its advise and consent role by refusing to hold hearings or vote on his nomination -- or even meet with the man.  Such rank partisan gamesmanship violated any reasonable interpretation of logic, history and traditional norms.  At the same time, the Republican-controlled Senate also blocked the nominations of dozens of qualified judges to fill the lower federal courts, creating what has been termed a judicial emergency. 

Obama has the power to use recess appointments under Article II, Section 2 of the Constitution.  This power has been used by other presidents to fill federal vacancies and was used by President Eisenhower to put William Brennan on the Supreme Court.  Obama can appoint Judge Garland to the Supreme Court and other federal court nominees to the federal district and appellate courts when Congress adjourns on January 3.  While the appointments would only last until the end of 2017, unless the Senate approves them, this would at least slow down Trump's frightening remaking of the federal judiciary.  Besides, who knows what the state of Trump's presidency would look like then?  And, importantly, such recess appointments would also show Republicans that Obama and his Party are not going to meekly accept the untenable Republican position that the third ostensibly co-equal judicial branch of government belongs to them. 

Can Obama take these actions?  Yes he can.  Will he have the audacity to do so?  Unlikely, but that means we have to use our collective voices to demand that he do so. 


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