The Rogue Presidency

How Biden and Trump both pushed the limits of the Oval Office during the transition

Our country is the longest-running modern democracy because of our separation of powers and our system of checks and balances, all premised on the idea that the people being governed — not any one person or body in government — are the ultimate authority.

But the polarization, distrust, and general lack of faith in our civic leaders and institutions is a potent mix that makes any effort to undermine the foundations of our democracy more insidious. That’s why the recent presidential transition, including the last days of Joe Biden’s administration and the first days of Donald Trump’s, were so troubling.

As the chief executive of the most powerful country on earth, the president is the most visible face of our government and of the American system, both at home and abroad. And in a handful of days, both presidents used their pardon authority in ways that violated any reasonable understanding of the proper exercise of presidential power. Both claimed to have rewritten the Constitution through executive fiat.

Most Americans would call that corruption. No matter what you call it, it’s no wonder that most Americans have lost faith in the system.

If we’re going to restore that faith, we need to commit to upholding the separation of powers, the Constitution, and the principle that elected officials — including the president — have a responsibility to serve all Americans. That starts with calling out bad behavior, no matter whether it comes from a Democrat or a Republican.

The Abuse of Pardon Power

On his first day in office, Trump pardoned roughly 1,500 people involved with January 6, who had been charged or convicted of crimes including violence against law enforcement officers. Trump’s pardons were nakedly political in nature, a favor for his most zealous supporters and a not-so-subtle wink to others who might break the law or commit violence in his name in the future.

Earlier that same day, Biden issued preemptive pardons to all of his siblings and their spouses, elected officials who participated in Congress’s investigation into January 6, and high-level administration figures like Dr. Anthony Fauci. To most Americans, the only thing these people have in common is their affiliation with the Biden White House.

While it’s true that Trump had threatened to go after all of these people if he won the presidential election, it’s also true that Biden often framed his presidency in terms of restoring our institutions and the public trust in them. Apparently he met the limits of that trust when it came to his family and his staff. Trump, meanwhile, made no bones about his pardon plans. He ran on a promise to pardon the January 6 rioters.

Bogus Efforts to Rewrite the Constitution

The U.S. Constitution is the foundation and supreme law of our Republic. The separation of powers, the authorities of each branch of government, and individuals’ foundational rights all emanate from it.

The framers designed it as a document that could be amended through the democratic process. What they did not do was give the president the authority to amend the constitution by executive action. But over 24 hours, both Biden and Trump sought to do just that, daring others to stop them.

On his last full day in office, Biden proclaimed that the Equal Rights Amendment approved by Congress in 1972 was now the 28th Amendment to the U.S. Constitution, right there with the Bill of Rights and abolition of slavery. I support the ERA, which would establish a Constitutional protection against discrimination on the basis of sex, but there’s no way around the fact that it’s been decades since the ERA’s deadline for ratification was passed without the requisite number of states approving it. The Archivist of the United States quickly made clear that Biden’s opinion was “irrelevant” and that the ERA was a proposed Amendment, nothing more.

The next day, Trump issued an executive action to declare birthright citizenship illegal, ignoring more than a century of legal precedent related to the 14th Amendment. The action was an effort to override the Courts without using the process laid out by the Constitution.

The Only Way Out

These final acts of President Biden and first acts of President Trump sent a clear message: The American people should expect presidents to do everything in their power — and to assert new powers — to further their own interests and the interests of their political allies. The message is: “Pick a side and fight like hell to keep the other side out of power, because there’s no limit to what they’ll do.”

But that no-holds-barred, us-vs-them approach is exactly what created the conditions and incentives that led these men to such unconstitutional acts last week. We cannot reverse course with the same strategy.

We need to lead by example. Where the president pursues blatantly political ends, we must set aside partisan considerations. When any president seeks to unconstitutionally grow executive authority, we must assert our own and that of the people.

But this pushback only works if we call out misbehavior on our side of the aisle as loudly as we do the other, and if we are as willing to find common ground with our political opponents as we are those in our own party.

I can hear the criticisms of this prescription now. I know that in Washington and among the most vocal partisans, there is a sense that calling out both sides is some political ploy. They’ll claim that my calling out Biden’s behavior in this piece will be received by some in my party as unconscionable friendly fire, or as negating the fact that I criticized Trump in the very same piece.

In their world, one side is so self-evidently righteous that any criticism could only possibly be an underhanded attempt to bolster the other. But in the real world where most of us live, we face a more difficult reality — one in which there is not one lawful and one lawless side, but in which the most recent presidents of both parties both went rogue in ways that deserve our condemnation. To condemn one and not the other is to tell half of America that your problem isn’t with reckless or unconstitutional behavior, it’s with them.