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Trump Goes Out as He Came In

His term in office is bookended by botched transitions between administrations.
November 19, 2020
Trump Goes Out as He Came In
(Photo by TIMOTHY A. CLARY / AFP) (Photo by TIMOTHY A. CLARY/AFP via Getty Images)

Donald Trump’s presidency is ending the way it began: with a handoff between administrations that could have been smooth but is instead confused, mired in controversy, and less useful for good governance than it could have been.

Think back to the transition that followed the 2016 election. If an incoming administration doesn’t believe in government and is run like a sole proprietorship, the transition is simply a nuisance, and it is not surprising that the incoming transition team that year experienced considerable turbulence. New Jersey Gov. Chris Christie had headed the team, but was replaced almost immediately after election day. The binders full of personnel picks that his team had prepared “were apparently thrown out the day I was terminated,” Christie said, leaving the new administration scrambling to fill thousands of positions in the federal government.

If the Trump transition left any other mark on history, it was probably the unpleasantness involving Michael Flynn. In the weeks after the election, the retired Army lieutenant general had several conversations with Russia’s ambassador to the United States, and then misrepresented those conversations to Vice President Mike Pence. When this came to light, he was forced to resign as Trump’s national security advisor after just twenty-two days on the job. He subsequently pleaded guilty twice to making false statements to federal investigators and is awaiting sentencing by Federal District Judge Emmet G. Sullivan. The case is currently embroiled in a controversy over whether the Justice Department should be permitted to withdraw criminal charges against Flynn.

For reasons I’ve never understood, the Justice Department decided not to charge Flynn for violating the Logan Act—a 1799 law that provides:

Any citizen of the United States, wherever he may be, who, without authority of the United States, directly or indirectly commences or carries on any correspondence or intercourse with any foreign government or any officer or agent thereof, with intent to influence the measures or conduct of any foreign government or of any officer or agent thereof, in relation to any disputes or controversies with the United States, or to defeat the measures of the United States, shall be fined under this title or imprisoned not more than three years, or both.

In his conversations with the Russian ambassador, Flynn suggested that Russia not overreact to the sanctions the Obama administration imposed in response to Russia’s intervention in the 2016 election. This is a clear violation of the Logan Act. Although the Logan Act has not produced a single conviction and could probably be more tightly written, my own view—unlike some others’—is that it would withstand constitutional challenge.

Flynn’s conduct in the course of the 2016 transition evinced an utter disregard of the criminal prohibition on private diplomacy. The subversive effect of that misconduct cannot be overstated. At the time Barack Obama was president. The country has only one president at a time. Foreign relations are a core presidential responsibility, on which much of our national security obviously rides. Just as the Republican-controlled Senate effectively and (as subsequent events richly confirmed) cynically truncated President Obama’s term when it came time to fill a Supreme Court vacancy, Flynn truncated his term with respect to relations with another major world power.

Fast-forward four years, to the other end of the Trump administration. Once again we see a disregard for norms of orderly government in the administration’s unwillingness to facilitate basic preparation by the incoming administration. The Biden transition team is not seeking to jump the gun the way Flynn did. It simply wants to be ready when power is handed over.

By starving the Biden administration-to-be of resources and information, the Trump administration is doing its best to hobble the successor team’s ability to hit the ground running. And it is doing so, again, in the context of crude norm-busting—in this case a president who has not only refused to concede but has, with his surrogates, repeatedly distorted the facts of the election.

Fortunately, the Biden administration will have a deep bench of experienced public servants who are preparing for office regardless of whether the overpaid marionette who serves as Trump’s GSA administrator ever feels liberated enough (or is ordered by some judge) to turn on the funding and whether or not the rest of the current waning administration starts to share information on the many problems the government and the country will face on January 20—and are facing today.

Eugene R. Fidell

Eugene R. Fidell is an adjunct professor of law at NYU Law School, a senior research scholar at Yale Law School, and a former president of the National Institute of Military Justice. A co-author of the textbook Military Justice: Cases and Materials (3d ed. 2020), he is of counsel at Feldesman Tucker Leifer Fidell LLP. Twitter: @globalmjreform.