Trump And Reining In The Imperial Presidency

The proposed legislation is no longer a direct affront to Trump while he is in office.

(Photo by Win McNamee/Getty Images)

It’s interesting looking back at your thoughts from several years ago. (I’ve been filling this space for more than a decade now. Lord knows, I’ve got a lot to read.)

But four years ago, I predicted something interesting: I predicted at the start of 2018 — without focusing on Donald Trump in particular but plainly having him in mind — that Congress would soon begin to rein in the imperial presidency.

And now, it turns out I was right! (I know, I know: Even a blind squirrel … .) Democrats have introduced legislation intended to restrict the powers of the presidency and thus to hedge against the election of another Trump. The bill apparently will be chopped into smaller segments to gain Republican votes in the Senate, but it will include things such as restricting the pardon power in situations that raise suspicions of corruption, requiring the president to respond to oversight subpoenas, preventing the president from retaliating against whistleblowers, and so on.

That legislation would never have passed while Trump was in office. First, the office of the president, institutionally, doesn’t want to yield power. Trump would have opposed the legislation. Second, passing this law while Trump was in office would have been an obvious rebuke to Trump. Trump never would have permitted it. He would have tweeted nasty stuff about Republican members of Congress who spoke in favor of the legislation, and those powerful members of Congress would have been cowed into submission by the power of the tweet.

Now, in a Biden administration, the office of the president, institutionally, still doesn’t want to yield power. Indeed the article in the Times (to which I linked above) suggests that the White House rejected some proposals for reform in recent negotiations. But the proposed legislation is no longer a direct affront to Trump while he is in office. The Biden administration understands that some reforms are necessary, and it apparently will support this legislation.

Trump’s reaction to this proposed law is uncertain. Although the law is plainly aimed at Trump, it’s being passed while Biden is in office. Maybe Trump will remain silent or say that Biden is weak if he signs the legislation into law or have some other reaction that does not involve speaking out against members of Congress.

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I assume that Democratic members of Congress will largely line up to support this new legislation. Why not? The law is an obvious slap at their political opponent, and the reforms are necessary. And maybe Republican members of Congress will see that this law is a good idea, that there’s only a small political price to pay for supporting it, and that they can vote in favor.

So here’s a follow-on to my “predictions” column from January 2018: I predict that at least some aspects of this law, reining in the imperial presidency, will ultimately be enacted into law, which will be a good thing.

As for my prediction in January 2018 about the likely Democratic nominee for vice president in the 2020 race — I don’t know who was impersonating me and publishing columns in my name at Above the Law.  I had nothing to do with that idiocy.


Mark Herrmann spent 17 years as a partner at a leading international law firm and is now deputy general counsel at a large international company. He is the author of The Curmudgeon’s Guide to Practicing Law and Drug and Device Product Liability Litigation Strategy (affiliate links). You can reach him by email at inhouse@abovethelaw.com.

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