President-elect Donald Trump has said he might do away with regular press briefings and daily intelligence reports. He wants to retain private security while receiving secret service protection, even after the inauguration. He is encouraging members of his family to take on formal roles in his administration, testing the limits of anti-nepotism statutes. And he is pushing the limits of ethics laws in trying to keep a stake in his business.
In a series of decisions and comments since his election last month — from small and stylistic preferences to large and looming conflicts — Trump has signaled that he intends to run his White House much like he ran his campaign: with little regard for tradition. And in the process of writing his own rules, he is shining a light on how much of the American political system is encoded in custom, and how little is based in the law.
On Jan. 20, Trump will take the oath of office having never released his tax returns, the first incoming president not to do so in four decades, and he has not given a press conference since he was elected, flouting another custom for presidents-elect. It remains to be seen whether he will file a personal financial disclosure during his first year in office. Presidents are not legally required to do so, but all have since 1978.
“If it’s not written down, you can get away with it. That’s the new premise. And that’s pretty staggering,” said Trump biographer Gwenda Blair, author of “The Trumps: Three Generations that Built an Empire.”
It’s a natural extension of how Trump ran his unorthodox presidential campaign and transition effort — but the expectations are different for a President Trump. “Candidate is one thing, president is another,” said Richard Painter, a professor at the University of Minnesota Law School, who served as chief White House ethics lawyer under President George W. Bush. He added: “He said things that were clearly unconstitutional, but there’s no legal prohibition about saying you’re going to do something unconstitutional. There is against doing something unconstitutional.”
But Trump is finding the holes in the system wherever he can. The looming challenge for the president elect and his incoming White House counsel, the combative libertarian Donald McGahn, will be navigating the difference between presidential norms and constitutional and legal requirements that carry potentially dangerous domestic and international consequences.
But for now, it is rearing its head as Trump seeks his own rules in structuring the government. Trump’s desire to employ some members of his private security team to work alongside the Secret Service is a perfect example.
“You can get into a statute that prohibits outside supplementation of government budgets — that might come into play,” explained Painter. “But if there’s just one guy he feels comfortable with, a guy who can work with his secret service, who can get a security clearance, it’s not categorically prohibited. It’s just one more way in which he just wants to be different.”
The unusual — if not unprecedented — arrangement that would allow a private citizen in the building carrying a weapon, however, is surprising to longtime presidential scholars, who said that barring a law that prohibits Trump from doing what he wants, it will be up to his lawyers to warn him of the risks he is imposing on himself.
When it comes to appointing Ivanka Trump and her husband, Jared Kushner, to formal advisory roles in the White House, Trump is, again, operating outside the norms. But there, he has some legal precedent — in a 1993 D.C. Circuit opinion, the court ruled that a federal anti-nepotism statute would not necessarily cover White House staff positions, only appointments to cabinet-level positions.
Republicans close to Trump also appear to be egging him on in terms of how much freedom he has as president.
Trump can rely on “the power of the pardon” to organize his White House any way he pleases, former House Speaker Newt Gingrich bragged in an NPR interview on Monday. “It’s a totally open power,” Gingrich said. “He could simply say, ‘Look, I want them to be my advisers. I pardon them if anyone finds them to have behaved against the rules. Period. Technically, under the Constitution, he has that level of authority.”
Trump’s top aides claim his approach is consistent with the person America elected and his campaign promises to be a different kind of president. And longtime associates said they expect Trump to be emboldened to make his own rules by his unexpected victory that he delivered by relying mostly on his own instincts and disregarding the conventional wisdom of campaigns.
“People will have to get used to the fact that President Donald Trump isn’t going to be judged by other presidential standards,” said Louise Sunshine, a Miami Beach-based real estate developer who worked for Trump for 15 years and remains close with the family. “He’s not a politician. He owes nothing to anybody.”
But how Trump chooses to flout custom or stretch the law, experts said, could end up reinvigorating checks and balances by other branches of government.
“It will expose how well other institutions function when one of them is operating outside the normal framework,” said attorney Robert Bauer, who served as White House counsel to President Obama. “If you have a president who is going to push hard against standing limits and expectations, are other institutions, like the Congress, going to step into the breach? Are they going to take on a more muscular role than they otherwise would?”
When norms or expectations, like releasing tax returns, break down, said Bauer, “the natural answer is that what used to be something available by choice, but expected of a president, has to be turned into a legal command.”
The question Trump’s presidency will help answer is whether anybody cares. If Trump becomes the first president not to release his tax returns in April, and the suspicion grows that he has no intention of doing so, said Bauer, “it may well be Congress comes under pressure to pass a law requiring the release of the returns. Maybe Congress will, maybe it won’t, but at least what then happens could clarify just how strongly the the public feels about having this information.”
As the Trump transition figures out the biggest hurdle of all — how to separate Trump from his business interests at home and abroad — experts said the next best thing to following any legal requirements will be catastrophizing the consequences Trump risks opening himself up to if he does not divest and place his assets in a blind trust.
While he is not required by law to place his assets in a blind trust, he could open himself up to criminal complaints and oversight hearings if there is private money connected to the apparatus of government.
“They are for the most part optional but important precautionary measures to reduce risk,” said Norman Eisen, who served as the ethics czar under President Obama, referring to using a blind trust for Trump’s business assets, releasing tax returns, filing financial disclosure forms, providing full press access and relying on private security. “They may seem relatively minor taken individually. Collectively they increase his risk profile, legally, but also physically. That’s reckless for him personally, even more so for the country he leads.”
There might be upsides for convenience and for Trump’s sense of freedom, as he enters the confines of the White House. But “in my opinion, having administered some of these practices in the first years of the Obama administration, that is not nearly enough to make up for the risk,” Eisen said.
Supporters, however, see blowing up tradition as Trump’s greatest strength.
“Trump does not reflect anything you’ve ever learned about traditional governmental leadership,” Gingrich said in an interview. “He’s an American pragmatist. I think on balance, we need a breath of fresh air, even if it involves some risk.”
Darren Samuelsohn contributed reporting.
Powered by WPeMatico