Rumors of War

What a Defeated Trump Could Still Try to Do Before Leaving the White House

A lot can go haywire in the months before a new Congress and president are sworn in

Photo illustration: Anthony Gerace; source: Image by Erik Pronske Photography/Getty Images

In most countries, power changes instantly after an election. The winners take it, and the losers cede it. That’s not the case in the United States. Instead, because we have a presidential system where executive officials hold discrete terms and the legislative branch is never dissolved — as it is in most parliamentary systems — there is a lengthy period after a federal election occurs before the winners are seated.

In fact, in the United States, a new Congress isn’t seated until two months after Election Day, and the president remains in office for 10 long weeks. This means bills can still be passed, judges can still be confirmed, and executive actions can still be undertaken by politicians who have been rejected by the voters at the polls. If Joe Biden wins in November and Democrats retake the Senate, Mitch McConnell will still be calling the shots on Capitol Hill for two more months and Trump will remain president, in charge of the same apparatus of state he’s repeatedly turned toward his own self-interested ends. Here’s how that could go haywire.

What exactly is a lame-duck session?

First, some background: A lame-duck session of Congress is any time that the legislative branch meets after the November election and before January 3, when the new Congress is seated under the 20th Amendment to the Constitution. That’s right — congressional seats turn over nearly a full three weeks before a new president takes office. The president, meanwhile, gets ready to turn power over to his successor through an elaborate transition process that involves hundreds of staffers to ensure that the intricate machinery of government continues without issues.

According to the Congressional Research Service, the term “lame duck” comes from 18th-century Great Britain, where it was applied to bankrupt business people who were likened to wounded waterfowl. The term was eventually extended by the 1830s to elected officials with a limited and discrete tenure in office remaining.

Why do we even have this?

This is actually the new and improved version of the American lame-duck session. Before the 20th Amendment was ratified on January 23, 1933, the new president and the new Congress took office on March 4, although elections were still held on the first Tuesday after the first Monday in November. This created real issues during times of national crisis. In particular, there was the matter of the Great Depression. The move to amend the Constitution to seat the president more rapidly came as Herbert Hoover occupied the White House while President-elect Franklin Delano Roosevelt waited in the wings, powerless to change the nation’s course for a quarter of a year after votes to oust Hoover were cast. The constitutional amendment cut the length of the lame-duck period from four months to two months, allowing Roosevelt to take office more rapidly and implement his own reforms during this turbulent time.

Further, in the case of a disputed presidential election, it allowed the newly elected Congress — instead of the rejected, outgoing one — to pick the president in the event of an electoral crisis requiring legislative intervention. Under the 12th Amendment, if the Electoral College does not produce a winning candidate with 270 electoral votes, the choice of the president is left to the House. There, each state delegation has a single vote for the presidency, and it requires a majority to win. Concern about this scenario in recent weeks has led to increased efforts by Democrats to win state delegations and, in particular, to focus on contested at-large House races in Alaska and Montana, where, under this scenario, a single member of Congress would exercise as much power as the 53 from California combined.

How does a lame-duck session work?

It’s just like a regular session of Congress. The only difference is the timing.

What can happen during a lame-duck session?

In recent years, Congress has undertaken more and more during lame-duck sessions, including passing, or trying to pass, vital bills to fund the government. The 2018–2019 government shutdown, which started as a fight over whether to fund a border wall with Mexico, took place during a lame-duck session after Democrats won the House of Representatives but before they could take power. Four years earlier, in December 2014, after Republicans won the Senate but before they could take over, Congress passed a “Cromnibus” bill to fund most of the federal government through October 2015.

But those lame-duck sessions happened in years without a presidential election. The last lame-duck session where control of the Senate and the presidency both flipped was in 1980 after Ronald Reagan defeated Jimmy Carter. During that time, Congress passed government funding bills as well as environmental legislation, including the creation of the Superfund program to clean up sites heavily contaminated by hazardous waste. There was even a then-rare judicial confirmation vote: In December 1980, future Supreme Court Justice Stephen Breyer was confirmed to an appellate court by an overwhelmingly bipartisan Senate majority.

So what could happen during this lame-duck session?

A lot. There is still the possibility of a coronavirus relief bill, although Capitol Hill has been deadlocked on the issue for months. But, as one plugged-in Republican on Capitol Hill told GEN, “if Republicans aren’t going to take up a big coronavirus relief package before the election when it could help them, I don’t know why they would do it after when it certainly won’t and could help lighten the load for the new administration.”

Instead, if Biden is elected — and particularly if Democrats take control of the Senate — there could be a last-minute push to confirm as many GOP judicial nominees as possible. Although Capitol Hill was once governed by the informal “Thurmond Rule” to avoid the confirmation of controversial judicial nominees during the second half of a presidential election year, that clearly does not apply anymore; the GOP-led Senate has rushed to confirm Amy Coney Barrett on the eve of the presidential election. Many expect Republicans to focus on federal judicial confirmations during the lame-duck period because those lifetime appointments would help conservatives cement control of the courts for decades to come.

There also is the potential for all sorts of other mischief to happen. As one former Democratic leadership aide who witnessed control of the Senate flip in 2014 explained it, “weird shit happens” during a lame-duck session. There is the potential for leadership challenges in both parties and in both chambers. Even the most secure member of leadership will be on edge.

Further, the contested backdrop to the 2020 election could add more challenges. There are likely to be senators in recounts and runoffs as well, and the pandemic makes it more difficult for any deals to be reached. The plugged-in Republican noted that “deals get done when [elected officials] are worn down and don’t want to be in D.C. anymore.” The pandemic makes it less likely that they will be in Washington in the first place.

What can Trump do?

Trump still has the full powers of the presidency available to him as a lame duck. These are only limited by his tenure in office. While Trump could successfully push the Department of Justice to prosecute political enemies, those prosecutions would only last until he leaves office. Any executive orders issued during the transition period also could instantly be revoked. Further, while Trump could still issue a host of federal regulations through the formal rulemaking process, many could be overturned by Congress under the Congressional Review Act. This provides that simple majorities of both chambers of Congress can override any federal regulation within 60 legislative days of it being submitted. (And that’s legislative days, i.e., days when Congress is in session; in essence, it gives legislators an extended period of time to overturn legislation.) When Republicans used the Congressional Review Act to override 14 different regulations issued by the Obama administration, they stretched out the process until May 2017.

Trump also can still fully exercise his powers as commander in chief — George H.W. Bush deployed troops to Somalia as a lame duck, and Jimmy Carter reached a deal with Iran just before leaving office — as well as declassify information as he sees fit. However, the one truly unlimited ability left to Trump is the power of the pardon. Trump could use it freely, without any political consequences, to pardon associates, donors, or even himself. The lame-duck use of the pardon power has long been controversial. Most notoriously, Bill Clinton used it to pardon Marc Rich, the husband of a major donor who was on the lam in Switzerland for tax fraud. Trump’s pardon power only applies to federal cases and not to violations of state law, but other than that, there are no limits.

Ben Jacobs is a politics reporter based in Washington. Follow him on Twitter at @bencjacobs.

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