Fool Me Once: Breaking Norms, Changing Laws

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By Gallagher and Schleicher

[as also in Waco Tribune-Herald, Sunday, January 13, 2019]

The day will come when a chief justice again administers the oath of office to a president. Maybe Donald Trump for his second term, or Mike Pence. It may be a Democrat with a familiar name — Sen. Kamala Harris or former Rep. Beto O’Rourke, for example. Or maybe the oath will be taken by someone we have not yet heard of, or on a date sooner than we imagine. Whenever and to whomever, we have some suggestions: laws to be passed now for the next term of office.

Love him or loathe him, Trump has to date established his place in history in large part by shattering norms — customs governing presidential behavior based on tradition and social expectations rather than law. This is not to say his ultimate defining moments won’t be criminal; the president faces a slew of investigations and is already linked to at least one felony. But so far, his willingness to make appointments and decisions in clear defiance of “how things are done” has many asking how they can possibly be legal when the fact of the matter is often they’re not clearly illegal. Yet.

Set aside the rage tweets, costly stunts and press conference babbling. While clearly beyond the norm and disturbing for most Americans, this is what some of us voted for. And while coddling dictators and mocking veterans is an affront to many others of us, there’s no legitimate basis to ban these and similarly troubling acts.

Instead we propose changes that would be enforceable, constitutional and may even find agreement on both sides of the partisan aisle, at least if applied prospectively.

1. Tax Returns. Upon whichever comes earlier — nomination by a major political party or taking the oath of office — the treasury department should make public the last five years of tax returns of the nominee/president. This is one of those very useful and long-lived (40 years) customs suddenly no longer a norm. Modern times have reminded us of the value of Deep Throat’s Watergate-era command to “follow the money” and of the wisdom in the biblical admonition that “where your treasure is, there will your heart be also.” Better the voters know.

2. Blind Trust. We mean an independent legal structure for the president’s assets, not the eyes-shut-tight goodwill he expects us to extend. This is a straightforward idea: a president who doesn’t know how his or her decisions are likely to affect his or her own assets is less likely to take actions for reasons of personal financial gain. The law should require that the blind trust be truly blind…turning over control to relatives or partial control shouldn’t cut it. A provision already in place (“Certificate of Divestiture”— 26 U.S.C. § 1043) to protect government officials from undue/premature tax burdens when selling assets to avoid conflicts of interest could be expanded to cover presidents surrendering assets. With a blind trust in place, the question of what constitutes unconstitutional emoluments no longer need occupy the courts.

3. Acting Officials. This one will be more complex, so that we preserve the thoughtfulness of the Federal Vacancies Reform Act of 1998 and similar laws, while avoiding situations like the present one in which we have an acting attorney general, chief of staff, and secretary of defense. With the White House asserting that Acting Defense Secretary Patrick Shanahan faces no deadline for nomination and Senate approval, legal experts are left scratching their heads: another situation in which the president’s actions/inactions may not technically be illegal but seem unlikely to have been intended to be permanently permissible, either. One possibility would be to treat someone serving in an acting role beyond a certain amount of time as automatically submitted to the Senate for nomination.

4. Nepotism. Whether with President Kennedy appointing his brother as attorney general or Ivanka Trump and Jared Kushner holding senior White House posts, presidential family members serving in public positions is understandably controversial. Trump got around the post-Kennedy, 1967 law (5 U.S.C. § 3110) prohibiting hiring relatives by having his daughter and son-in-law serve without pay. He further obtained a Jan. 20, 2017 Justice Department opinion that a 1978 law giving the president broad authority in appointment of White House staff overrides the 1967 law. Trump’s boldness likely would surprise Nixon, Carter and Obama — all of whom saw efforts to appoint (such as to commissions) relatives of one degree or another turned down as illegal. The 1967 and 1978 laws should be amended to outright prohibit nepotism, even as to White House staff, even if unpaid.

5. Pardons. Congress and the courts lack the constitutional ability to rescind even the most unwise or unwarranted presidential pardons. But consider that existing laws guide implementation of other presidential powers. For example, the Administrative Procedures Act requires many presidential policy prerogatives be carried out through rulemaking with advance notice and consideration of public comments. The Justice Department has an Office of the Pardon Attorney for processing and making recommendations to the president on clemency requests. Congress should at least require all pardons first be processed through that office. Then the president ultimately can grant or deny them as he or she sees fit.

True, congressional passage of the laws suggested above would not stop all future presidents from misbehaving or misusing their power. But it would grant courts authority to enforce what turned out to be mere customs and give Congress a stronger basis to challenge their violation.

Ironically, perhaps Trump’s done our democracy at least one favor, revealing the difference between norms and laws. If we still prefer a president to a king, our laws must evolve promptly in response, to protect our democracy from abuse under that new reality.

David Gallagher is a transplanted Texan, working in London and tweeting @TBoneGallagher. David Schleicher blogs at when not practicing law in Waco, D.C. or Houston.

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