House impeachment manager Jamie Raskin’s (D-MD) pointed to a constitutional conundrum that would be created by not impeaching President Trump. This “January exception,” as Raskin called it, “is an invitation to the president to take his best shot at anything he may want to do on his way out the door, including using violent means to lock that door, to hang on to the Oval Office at all costs, and to block the peaceful transfer of power.”
This year’s particularly tumultuous lame-duck period saw a crisis with fascist mob violence and racial grievance, but Raskin’s speech reminds us of another problem that is far less sensational, especially now that Trump has been acquitted. The lame-duck period in the U.S. is too long and as such allows outgoing presidents to sabotage the new one as well as for problematic implications in legislative negotiations and foreign policy.
Trump used the lame-duck period to foment lies that ultimately led to the Jan. 6 insurrection. Even before the election, President Trump used his platform at the debate stage to sound the alarm about a “rigged election” by spreading lies about mail-in voting, telling his voters to watch the polls “because bad things happen in Philadelphia.” So when he spoke from the White House in the early morning hours of election night, claiming that the election was “a fraud on the American public,” and that “frankly, we did win this election,” the groundwork had already been laid on the debate stage.
To his most devoted followers, Trump could not fail, he could only be failed. The narrative was only further proven after 86 lawsuits ended in defeat and the ultra-conservative Supreme Court denied a case brought by Texas alleging election fraud in Pennsylvania, Michigan, Wisconsin and Georgia. Multiple protests claiming that the election was stolen laid the foundation for the rally-turned-riot on Jan. 6. The Stop the Steal Rally—which killed 5 and injured 138 police officers and an unknown number of rioters—could not have happened without the months of wind-up. Without the lame-duck period, the story would not have been able to build as it did. Ambitious Republican politicians wouldn’t have had the opportunity to fall in line. Assembling the crowd and the fervor it took to storm the Capitol required planning, permits, press and people with influence. All of those depended on one thing: time. The lame-duck period provided it.
In the U.S., an outgoing president holds power for between 73 and 78 days after the election of the next president, based on when Election Day falls on a given year. This is abnormal for a democracy. Looking at the last transfer of power, the U.K.’s last transfer of power between parties took five days. France’s lasted a week; Canada’s took a little over two weeks. India and Japan both had interregnum periods of 10 days. Our months-long lame-duck period recalls to a time where information and people took far longer to travel, but the fact it remains speaks to political inertia within this country that chains us to long-outdated institutions.
While impeachment shone a spotlight on the insurrection, that and other election-related conspiracies are far from the Trump administration’s only suspicious action during the lame-duck period.
In November, Bloomberg News reported that now-former Treasury Secretary Steve Mnuchin transferred $455 billion of Cares Act funding into the Treasury’s general fund, thus forcing Janet Yellen to seek congressional approval to use those funds. At the time, it was a distinct possibility that the Georgia runoffs would retain Republican control of the Senate, which would almost guarantee a partisan fight that would leave the American people hurting for $455 billion in desperately-needed funds.
In January, Secretary of State Mike Pompeo designated the Houthi rebels a foreign terrorist organization, which experts feared could trigger famine in Yemen.
Trump’s Department of Justice executed 13 people on federal death row, despite some dubious circumstances. These marked the first federal executions in 17 years, as noted by Justice Sonia Sotomayor in a dissent, who also noted that the “Federal Government [has] executed more than three times as many people in the last six months than it had in the previous six decades.” Moreover, Trump’s threatened government shutdown would have exacerbated economic and pandemic-related hardship, none of which the outgoing president would have to oversee.
This particular transition was especially chaotic because the structure of the transition relies on the outgoing president and their administration to act in good faith, and Trump was desperate to cling to power. The strength of institutions relying on political actors to engage in good faith is a problem in and of itself, as was revealed time and time again during the Trump presidency. However, even if both the incoming and outgoing presidents demonstrate integrity, there are structural problems that arise from such a long lame-duck period.
Typically, the White House engages in negotiations with Congress in order to push senators and representatives to meet their priorities. Oftentimes, the end of the year is a particularly contentious time because if an appropriations bill is not passed by October 1, stopgap legislation is passed to keep affected agencies funded. If Congress and the White House cannot come to a consensus on the budget, the government shuts down. This means November and December are vital months in the policymaking process, but if either the president or Congress knows they are soon to be out of power, they have far less incentive to negotiate for a strong budget.
In such a situation, negotiation rooms may be filled with lame-duck congresspeople and a lame-duck president who know they will not have to answer to voters—they’re already out of power. When voters provide a party with a mandate for change, the lame-duck period delays that change by forcing the incumbent party to work within the constraints of the budget passed by the outgoing Congress for the entire fiscal year. Thus, the lame-duck period opens up an opportunity every two years for the budget-making process to be fundamentally undemocratic, as it is driven by lawmakers entirely unaccountable to the voters.
The president’s largest power is arguably in the realm of foreign policy, where they are able to radically alter the course of international politics with very few checks on their actions. This, in addition to the total lack of accountability a lame-duck president faces, has proven disastrous for foreign policy. In December 2008, George W. Bush signed a Status of Forces Agreement that ensured troops would stay in Iraq for three additional years despite Obama winning thanks in part to an anti-war campaign.
Beyond limiting an incoming president’s ability to affect change, the lame-duck period also lessens America’s ability to negotiate. During the Iran hostage crisis in 1980, the Iranians had no incentive to negotiate with Carter, who would only be president for a few more weeks. Reagan held no official power, though, which left negotiations in limbo. The foreign policy apparatus is virtually entirely in the hands of the executive. We need strong diplomacy, and leaving our diplomatic structures in such a precarious position for two-and-a-half months is reckless.
Even without an insurrection fresh in the national memory, the lame-duck period has been shortened before. Congress and the President were typically both sworn in on March 4 before the ratification of the Twentieth Amendment in 1933, which set the January 20 date. As technology has advanced, even the shorter, then-practical interregnum period has become outdated.
In 1984, two Senators proposed changing the inauguration day to Nov. 15 for Congress and Nov. 20 for the president. That date would take a constitutional amendment to change, which would depend on its ratification by three-fourths of states, making it unlikely. However, election day was set by federal law in 1845 and thus would only take federal law to change. Changing such an entrenched institution would be difficult (especially if the filibuster is not abolished), but it is necessary to ensure strong governance.
Something as sacred to democracy as the peaceful transfer of power should never rely so heavily on the good faith of leaders. To shorten the lame-duck period would make policymaking more democratic, strengthen our foreign policy and ensure that a president can never abuse it as Trump did.