From Bad to Worse

Newsletter 44: What’s ahead in the waning days of Trump’s first term

President Trump is not above the law. That’s the good news from a pair of Supreme Court rulings late last week. But as ensuing events underscore, we’re not out of the woods yet. 

The Court rejected Trump’s claims to “absolute” immunity from states’ criminal investigations and congressional oversight. In both cases, however, it failed to resolve the concrete issue at hand: could the plaintiffs get the sought after records right away? That matter is unlikely to be settled until after the election, a consequential victory for Trump’s strategy to run out the clock. 

Publicly, however, Trump was not celebrating. He took to Twitter that morning to denounce the Court’s ruling, calling it a “political witch hunt.” 

But actions speak louder than words, and Trump’s decision Friday evening to commute Roger Stone’s sentence makes clear that the Court’s decision is not slowing him down. If anything, it would seem it’s left him feeling emboldened. 

Congressional Oversight

Trump’s advisers have either gone along with or actively encouraged the President to do a heap of truly terrible things. So it is notable that commuting Roger Stone’s sentence four days before he was supposed to report to prison was a bridge too far. Even Attorney General William Barr, a man who has repeatedly made clear that he believes Trump enjoy’s nearly absolute power, advised against it

Their collective opposition did not spring from some mass ethical epiphany, but from a recognition that this would be beyond their power to spin. Trump’s decision to pardon Stone -- who had been found guilty of lying to a jury and interfering with the Mueller investigation -- in exchange for Stone’s assurance that he wouldn’t feed more information to federal prosecutors  is corrupt, pretty much no matter how you look at it. 

House Democrats should heed this signal and force Trump’s team to defend the indefensible. On Saturday, Revolving Door Project joined Free Speech for the People, Demand Progress, Lawyers for Good Government, and Mainers for Accountability to call on the House Judiciary Committee to open an impeachment inquiry into Trump’s efforts to bribe Stone for his silence. The case is a strong one; bribery is not only a federal criminal offense, but an explicit ground for impeachment. And two Republican Senators, Pat Toomey and Mitt Romney, have already publicly condemned the president’s actions. 

Of course, the chances of actually removing the president remain slim. But making the attempt is undoubtedly better than allowing these horrendous abuses of power to go entirely unchecked. As Trump nears the end of his first term and potentially his presidency, his transgressions are likely to become even more unbridled. While nothing is certain, it seems likely that a rousing opposition effort would limit the damage. At the very least, it can’t hurt to give it a try. Indeed, as our Max Moran and Jeff Hauser argued last fall -- why stop at Trump? Bill Barr has committed impeachable offenses and might be a less effective henchman if worried about how his obituary might eventually refer to him as the first Attorney General ever impeached by the House of Representatives.

It’s important that Congress not only focus its opposition on the flashier instances of the president’s end run on power. As the President grabs the public’s attention with his pardoning pen, his administration is quietly working to cement power over the supposedly independent  corridors of government. 

Consider, for example, Trump’s ongoing attacks on the Office of Personnel Management (OPM). First, he sought to destroy the agency by merging it with the General Services Administration (GSA). That move faced backlash from both inside and outside of the administration and ultimately foundered. Despite that, with a loyalist as the agency’s acting head and another set to be announced as the nominee for the permanent role, his coup has been a success. 

This victory could have implications that last well beyond the end of Trump’s term. OPM has authority over hiring policy, personnel allocations, the designation of positions as either political or career, and burrowing (i.e., conversions from political appointments to the civil service). With a committed Trump ally at the helm, OPM could help Trump loyalists maintain a grip on power even if the president loses this fall. 

This is just one example of what is likely a broader trend. By putting these moves under the microscope, House Democrats may be able to deter the most egregious rule breaking. But even if that’s not true, with a transition ever more plausible this winter, it is essential that Congress begin taking stock of the federal government’s capacities and its wounds. Such investigations could be the difference between a Biden administration that hits the ground running and one that remains mired in administrative chaos for months upon taking office. 

(And rest assured that RDP is taking its role as a think tank which engages with technical but consequential issues in the executive branch seriously -- look for more from us on these issues in the coming months.)

2020 (and potentially 2021):

We’ve written at length in this newsletter about the appointments and agencies that enact a President’s domestic agenda, but that’s only one aspect of the job -- and it’s not even the aspect where the President has the most authority. On foreign policy, the executive branch truly takes center stage, and so personnel matters all the more. As anyone familiar with the phrase “the Blob” already knows, there’s a massive cast of revolving-door figures who’ve controlled US foreign policy for the last several decades. Their handiwork has not engendered confidence.

That’s why it’s worrying to see the Biden campaign lean on a host of regulars in its nascent foreign policy operation. Over the last few weeks, these regulars have received far more attention than they’re likely comfortable with: first, The Intercept caught former CIA Deputy Director Avril Haines erasing her Palantir connections from online bios, then the Daily Beast examined how Haines’ legacy can be seen so positively by establishmentarians and so negatively by progressives. Unsurprisingly, we fall firmly in the latter camp. Any decent administration should have no room for torture apologists, a statement so obvious that it betrays the disturbing power of the foreign policy establishment. If Biden continues to empower Haines and others who adopt “pragmatic” takes on human rights, it will seriously undercut his campaign message of empathy and human decency.

Yet the greater question may be whether Biden asserts any personal influence over foreign policy at all. Last week, the American Prospect’s Jonathan Guyer reported a longform expose on WestExec Advisors, a political consultancy where Haines is a principal. WestExec is so ingrained in the Biden camp that he might as well officially hire it as the outsourced State Department-in-waiting. Guyer followed up with a blistering look at Jake Sullivan, another foreign policy consultant clearly eyeing a spin through the revolving door. WestExec had been on our radar at RDP for a while, due to their work building relationships between Google and the Pentagon. But as Guyer shows, WestExec principals Tony Blinken (Biden’s former national security adviser) and Michele Flournoy (Obama’s first undersecretary of defense) have spent the Trump years sleazing and schmoozing on behalf of any big business looking to cash in on global affairs: private equity funds, military contractors, Silicon Valley and more. Flournoy in particular talked down one Democratic effort to condemn the war in Yemen and Saudi Arabia’s Mohammed bin Salman, making it all the more horrifying that “if a Democrat were to win office, she would likely become the first woman defense secretary,” according to Guyer. The thought of neoliberals congratulating each other for appointing a woman as the new face of brutal global wars and the military-industrial complex is just half a step away from a classic Onion segment, but such is the world we live in!

Readers who focus mainly on domestic politics shouldn’t disregard foreign policy jobs; indeed, they will be key battlegrounds in the fight for progressive economic populism. For example, much like how the Office of Information and Regulatory Affairs has long undermined progressive governance, good laws and worthy regulations can be totally neutralized by trade agreements negotiated by the United States Trade Representative. (See the Section 230 fight for a recent case study.) And even if populists succeed at keeping corporate America out of the Biden domestic affairs team, they can still catch the would-be President’s ear if they control the State and Defense departments. To that end, it’s important to recognize just how deeply ingrained WestExec in particular is with Biden: Haines, the torture apologist, is officially running Biden’s foreign policy transition team, alongside Evan Ryan, who is married to fellow WestExec principal Tony Blinken.

Independent Agencies

It happened so fast you might have missed it. For one glorious month, the U.S. had a governing body empowered to enforce election law. But, on July 3, Republican Federal Election Commissioner Caroline Hunter resigned, leaving the commission without a quorum once again. No word yet on whether Trump will put forward a new nominee and restore the quorum. 

We aren’t holding our breath. After all, Trump and Mitch McConnell would really probably prefer that election law go unenforced this fall. And therein lies their significant advantage. Since they don’t want the FEC (or indeed, many other agencies) to function, they can just opt-out altogether and allow them to collapse under the weight of neglect. 

In addition to vociferously opposing this strategy over the short-term, Democrats should consider how it might be remedied over the long-run. What changes, for example, might be needed to key legislation, like the Federal Vacancies Reform Act (FVRA)? What can they do to provide for continuing operations, even in the face of staggering Senate intransigence? If congressional Democrats are serious about learning the lessons of the Trump presidency, that must include making structural changes such as these. 

And as always, you can check out our monthly updates on independent agency nominations to get a clear picture of the depths of the nominations crisis.  

Want more? Check out some of the pieces that we have published or contributed research or thoughts to in the last week:

Trump’s Tax Returns Remain Hidden. Blame Richard Neal.

How the Trump Administration’s Small Business Protection Program Has Failed Communities of Color

Supreme Court’s Decision in Trump v. Mazars Underscores Costs of Rep. Neal’s Delays

Why We Should Worry About Big Tech’s COVID Tracking Plans

June 2020 Update on the State of Independent Federal Agencies

Is BlackRock the New Vampire Squid?

Palantir Affiliation Disappears from Biden Adviser Avril Haines's Bio

The Proxy War over Joe Biden Adviser Avril Haines

In Wake of Supreme Court Ruling, Powerful House Democrat Richard Neal Faulted as 'Biggest Obstacle' to Getting Trump Tax Returns

Will the Biden-Sanders Economic Task Force Report Rattle the Rich?

Supreme Court Gives Progressive Challenger Ammunition Against Rep. Richard Neal