Thursday, November 14, 2024

Part I

---

Trump’s New Inner Circle: What Do President-Elect Trump’s Appointments So Far Reveal About the Trajectory of His Presidency?

Increasingly, when we elect a President of the United States, we are effectively electing a government. Now, you might say that’s been true from the very beginning of our constitutional order. And in one sense, that’s right. As you go back to the invention of the American presidency, as is seen in the US Constitution, as it was actualized throughout the Constitution in the creation of the executive branch, the President of the United States from the beginning had vast powers of appointment. Those vast powers of appointment are vested directly, not only in the executive branch but in the President of the United States. It’s still a fact that most of these important federal appointments, even if they do not require confirmation by the Senate, they still require a direct signature from the President of the United States. No one else will do.

But even as that’s been true from the beginning of our constitutional order going all the way back to George Washington, there are two realities that have starkly changed, and in one sense, radically increased the power of the presidency. Well, for one thing, you have the vast expansion of the federal government such that there are now so many positions including so many positions that are directly appointed by the President of the United States. As I say, even in other appointments, you’re going to require some presidential affirmation, if not a presidential signature, but for about 4,000 of the most crucial federal appointments, it is a direct appointment from the White House approved by the President of the United States. The higher you go, the more personal the nature of the appointment, the more involved the president is directly in making the decision. 

The second big change is the vast expansion to the federal government, which means a vast increase in the concentration of power in the executive branch. Now, this gets right down to the development of the administrative state, which is a major political problem in this country. Our separation of powers doctrine, as is made clear in the Constitution, calls for an assertive executive branch as the framers of the Constitution described it, energy in the executive, but increasingly you have the administrative state which is supposed to be accountable to a president, which has developed a life of its own, and that’s one of the reasons why I believe we need a considerable disruption in terms of the national leadership going all the way up to the president. And yet I would argue this disruption needs to be a strategic disruption, not a disruption for disruption’s sake, but a disruption for the sake of clarifying and increasingly controlling, limiting, and disciplining the growth of the administrative state. Well, all right, but at this point, we are just speaking days after the election of Donald Trump to his role as what will be both the 45th and the 47th President of the United States.

So for a second time, with the interregnum of the Biden administration, you have President Trump assembling an administration, but there is considerable evidence that President Trump has learned some very important lessons as you look at his forming of a government in 2016, 2017, and now in 2024, it will be continuing into 2025. For one thing, it is extremely clear that in his second administration, President Trump is prizing personal loyalty over just about anything else. Now, before we take this issue further, let’s just ask the question, how loyal should say Cabinet members be to a president? Well, just remember that Cabinet secretaries and those who operate at that level and even at the sub-Cabinet level, they serve very directly at the pleasure of the President of the United States, which is to say that if he is displeased, he may remove them from office.

Now, this is an interesting situation because that wasn’t absolutely clear in the text of the Constitution itself, that became clear in the early experience of the United States under constitutional government. So even when you have say an attorney general who is nominated by the President of the United States, but who must be confirmed by the United States Senate, that same attorney general can be fired by the President of the United States, and that doesn’t require any action by the United States Senate. So very interesting. The Senate’s role is entirely on the front end. After that, it is only the president who may fire. But we also have another reality, which is the modern presidency has in effect its own inner government inside the White House. We’re talking about the senior White House staff. And at the very senior post in the White House staff, you had the White House chief of staff. 

Susie Wiles was appointed almost immediately after the election by President-elect Trump. Susie Wiles is a long-term Republican figure. She’s been instrumental in many election cycles. She is an insider among insiders on the Republican side, and she is likely to be of considerable assistance to President Trump. She has been very involved in the mechanics of government and in the mechanics of campaigning, and she is seen as a very stable personality that’s likely to come in very handy in the White House. 

But as you look at the Cabinet, we understand that every single member of the President’s Cabinet holds an incredibly important position in the most powerful nation on earth. But at the same time, there is a circle within the circle, and this is the big four. The big four Cabinet positions, all the rest are just honestly secondary. The Big four are these, the Secretary of State, the Secretary of the Treasury, the Secretary of Defense, and the Attorney General of the United States. And so as you look at those four roles, they are the inner circle on the Cabinet. They are the Big Four in terms of appointment, and quite frankly, they’re the big four in terms of power.

We often think of the Secretary of State primarily in terms of foreign relations, though the interesting thing about the historic nature, the constitutional history of the Secretary of State position is that this is the officer of state, which is to say when President Richard Nixon was wondering how you resign the office of the presidency, and he did that, of course, under political duress, he is the only President of the United States ever to resign the office. One of the big questions was to whom would he resign? The constitutional answer, which had to be determined was this, he should address his letter of resignation to the United States Secretary of State who, at that time by the way, was Henry Kissinger. The other interesting constitutional fact is that the Secretary of State is in the line of presidential succession, fourth in this line by most counts. The first in this line is the Vice President of the United States. The second is the Speaker of the House, the third is the President Pro Tempore of the Senate, and the fourth is the US Secretary of State.

So you’re looking at different kinds of positions on the Cabinet, but the one that is in the line of presidential succession, let’s just say, it takes first place. Or to put it another way, under the most disastrous of circumstances, you might be looking at a Secretary of State who might one day become President of the United States. That certainly raises the stakes. President Trump has indicated he will nominate Florida Senator Marco Rubio to that role. He has served in the United States Senate since 2011. He is considered someone with a lot of political experience. He is a political heavyweight. He is someone who has been tested on the national scene. He’s also been involved in the international scene. This is the United States Senator who is known for his ideas. He challenged President Trump for the presidential nomination of the Republican Party back in 2016, but you’ll show how he has moved into the Trump orbit by the fact that President Trump is nominating him to be the US Secretary of State. The Secretary of State must work very closely with the President of the United States.

And as you look at the first Trump administration, it was clear that his first Secretary of State, Rex Tillerson, who didn’t have any experience in the government before taking that position, he’d been the CEO of Exxon. The reality is that that was a contentious relationship. That doesn’t work. The president and the Secretary of State must walk together in terms of the coordination of American foreign policy. But there’s another political reality here, and this is something to watch. The United States Senate is under most circumstances, very prone to confirm on a largely bipartisan basis its own members when they are elevated to the Cabinet. Now, that hasn’t always happened. When you had the nomination of Senator John Tower by President George H. W. Bush to the post of Secretary of Defense, he was not confirmed by his colleagues in the Senate, and that was a very radical rejection. It was understood to be so, but it is likely that Senator Marco Rubio will be confirmed by the United States Senate and that is not likely to be a big political struggle. He will then serve President Trump as Secretary of State.

What about Secretary of Defense? President Trump has indicated that he will nominate to this post Pete Hegseth who is a Fox News anchor, prominent personality online, someone who is known very well as a face, a forward-facing figure in Fox News. That’s an entire communications universe. And of course, it’s been very important to the conservative movement in the United States. Pete Hegseth, however, is not only a media figure. He has had long involvement in national service in uniformed service in the United States Army. In his Army service, he received numerous decorations including two bronze stars along with other commendations. But here’s the interesting thing, it is really clear that Pete Hegseth is known to President Trump and thus has this confidence from President Trump primarily, if not exclusively, for the views he has articulated on Fox News, various programs, most importantly his own. It is really clear that President Trump, listening to Pete Hegseth speak to national security issues and defense issues, there is no doubt he liked what he heard and that explains the nomination that he has announced.

So when it comes to Pete Hegseth’s nomination as Secretary of Defense, the argument coming from President Trump is not going to be that this is someone who has a lot of experience in terms of the leadership, the civilian leadership of the armed services. This is not someone who comes from that kind of background. This is someone who comes from a background on the ground with meritorious service, and this is someone who comes with the background of articulating the issues the way Donald Trump wants them articulated. I think that’s just an honest way of saying this is why President Trump made this decision and this is the central thrust of his argument, and that gets to a political reality. So does the President always get what he wants? No, he does not always get what he wants.

The Democratic Party will be in a minority in the Senate because of the 2024 election, and nothing will underline the importance of that more than just looking at the nominations process here because the nominations process that President Trump will experience in 2024 and 2025 is just remarkably different than what would’ve been the case if the Democrats had maintained control and majority in the Senate. In that case, many of these nominations simply would be unlikely to move forward or to be approved. In the case of President Trump with the Republican leadership of the Senate, it is likely that these nominations will move forward, but the Senate has the responsibility to consider these issues and that constitutional duty also leads to another controversy we will discuss in just a moment.

President Trump has not yet indicated his pick for Treasury secretary, again, one of the big four positions, but he did announce yesterday that he will be nominating Matt Gaetz, congressman from Florida, as the Attorney General of the United States. Now, of all the appointments, the President-elect has announced this one is likely to get the most interesting coverage and frankly, to face the most scrutiny in the United States Senate. Matt Gaetz, let’s just state the obvious, and I think he would take this as a compliment rather than a criticism and that tells you something, he has been one of the most controversial figures in the U.S House of Representatives on the Republican side. That’s a role he has played because it is a role he has chosen. Now in a normal state of affairs in the United States, that would be a disqualifying factor when it comes to serving in the Cabinet in a high presidential appointed position, much less than one of the big four of these positions in the Cabinet.

But President Trump is a disrupter, and this is a disruptive appointment. It is one that is going to bring a great deal of opposition, not just based upon Matt Gaetz and his policies, but based upon all kinds of things, including the fact that he has faced charges of misconduct, although a federal investigation did not move forward, which means he should be presumed innocent just like anyone else, which means in a general sense, he moves forward with the presumption of innocence, but he’s a controversial figure, and he has courted that controversy. And that’s why Donald Trump likes him, but it’s going to be very interesting to see how that fares, how the nomination fares in the United States Senate. And so you look at these big four positions, we’ll take the Treasury secretary and put it in a separate category because President Trump has not yet made that announcement.

But as you look at a proposed Secretary of State Marco Rubio and then a proposed Secretary of Defense Pete Hegseth, and then a proposed Attorney General of the United States Matt Gaetz, we just need to note you are looking at almost sure to be confirmed in Marco Rubio, likely to be confirmed with a little more attention when it comes to Pete Hegseth, and well, likely to be confirmed because of the Republican majority in the Senate and the strength that President Trump support, likely to be confirmed Matt Gaetz, but that one is going to be a lot more colorful. And that’s because this is a political reality, which is to say that even though most Republicans are likely to go along with this, the reality is that the Democrats are going to make as much political hay out of this process as they possibly can.

Part II

---

What Exactly Is a Recess Appointment? A Process Meant for Exceptions May Become More of a Rule

And this gets to another political issue, and I said we would get to this, and that is the fact that it is reported that former President Trump, now President-elect Trump is putting pressure on the Republican leadership in the Senate to allow the use of recess appointments. Recess appointments according to the Constitution are allowable until the next election, and that goes around the process of Senate confirmation. That’s a controversial and somewhat problematic process. For one thing, it would eventually require a renomination and a consideration by the Senate. When you look at the entirety of the President’s term, it’s a very politically provocative act, but Donald Trump is someone who enjoys being a political provocateur. The Constitution allows, if this Senate is recessed for a certain number of days, it allows these recess appointments that go around the necessary vote for confirmation, but the Senate has often blocked those kinds of recess appointments by leaving at least one member of the Senate on duty for a particularly invented form of a session.

It’s a constitutional block at least it has been that. What President-elect Trump is clearly seeking to do there is to ask the Republicans not to make that appointment, or at least the Republican majority, to block that kind of appointment so that the White House could move ahead with recess appointments. It would be much stronger for the White House at least in duration and probably in terms of political strength if these nominations did go through the Senate and you had Senate confirmation. But I understand why the President-elect has a big concern here, and that is because given the rules of the Senate, the minority party in this case, the Democratic Party, could at least bog the process down for a very long time. Now, I’m going to argue that would serve the nation very poorly. If the Democrats choose that route, it would serve the nation very poorly. Yet you need to understand it could serve their political fortunes a good deal, or at least they could think it does. It could get them an awful lot of publicity, and they could try to score an awful lot of points with their own base constituency.

So this is a story that is unfolding right before our eyes. It’s a reminder of the fact that when we talk about government, let’s just underline this fact, we’re talking about human beings. We’re talking about human beings invested with a certain kind of responsibility, and it takes all of them together in some sense to make the entirety of the government work, or not. But while we’re thinking about this, we just need to look at the fact there have been other nominations, or at least other announcements of coming nominations that have been made. John Ratcliffe for the director of the CIA. Tulsi Gabbard, former Hawaii member of Congress, as director of National Intelligence. Kristi Noem, the current Republican governor of South Dakota, is likely to be at the head of the Department of Homeland Security. Mike Waltz is expected to serve as the National Security Advisor to the President of the United States. Now, that position doesn’t require Senate confirmation. That is an inside the White House appointment.

You had headline making appointments such as former Arkansas Governor Mike Huckabee, who is going to be put forward as the United States Ambassador to Israel. Representative Elise Stefanik, a congresswoman from New York, is going to be nominated to serve as the United Nations Ambassador. That’s a US ambassador to the United Nations. That’s a crucial role in the world seeing it’s important mostly when it’s important, and it has been of strategic importance in the history of the United States. Most graphically demonstrated at the time that Adlai Stevenson who had lost the presidency repeated times as the Democratic nominee was serving in the Kennedy administration as the UN Ambassador, and in the midst of the Cuban missile crisis, his role turned out to be very important. It was actually the high watermark of his political career, one single speech given before the United Nations Security Council. 

Elise Stefanik is likely to be the kind of UN ambassador who will work well with the former president now the president-elect. And I think the important thing to recognize here is that the president intends to be served by people who share his basic worldview, his understanding of world affairs, and quite frankly, will follow his lead on these issues. Lee Zeldin is nominated or to be nominated as director of the Environmental Protection Agency. Again, that’s going to be a crucial position because the issues of climate change and the Trump administration’s disposition to these issues is likely to be very, very interesting. That also explains the headlines all over the world as to whether or not President Trump will once again pull the United States out of the Paris Accords on climate change. Interesting question to be considered on another edition of The Briefing.

Part III

---

Meanwhile, in the Capitol: The Speaker Continues in the House and There is New Republican Leadership in the Senate

But now we need to shift to the legislative branch. We need to go to the United States Capitol because yesterday two very important decisions were made. First of all, speaking of the presidential line of succession, we have the Republican vote, which makes very clear that Mike Johnson, congressman for Louisiana, is going to continue in his role as Speaker of the House. The Speaker of the House, a very important constitutional role, as I said also in the line of succession. But the Speaker of the House is also extremely important because as the leader of the majority party, and by the way, it’s not stipulated in the Constitution that the speaker has to be the leader of the majority party, I’ll simply say the fact that he or she is the leader of the majority party explains how in the world they get elected as Speaker of the House.

The Speaker of the House has enormous authority over the business of the House, what happens or doesn’t happen on the floor of the house, it is almost unilateral authority. It’s one of the most powerful positions in the United States government. On the other side of the Capitol, the election by Republicans who will be in the majority in the Senate, their selection of John Thune, senator from South Dakota, currently serving as the second ranking Republican leader, he’s going to move to the top post upon the retirement of Kentucky Senator Mitch McConnell. And that means that John Thune is now going to have an analogous but not exactly the same power when you look at the workings of the United States Senate, but it’s also absolutely important that we recognize that the role of the majority leader in the United States Senate. For that matter, both leaders, the minority party leader and the majority party leader, these are hugely consequential roles.

When it comes to the election of the Republican leader, who again will be the majority leader, very important, under President Trump’s first term in these first two years, it’s important to recognize that the Republicans are looking at three different choices. They were looking at Texas Senator John Cornyn, at South Dakota Senator John Thune, and they were looking at Florida Senator Rick Scott. Now, in one sense, Thune and Cornyn are relatively analogous. They follow a similar kind of type. They are insider Republicans, they are conservative Republicans. John Cornyn has been a titanic figure in Texas Republican politics. John Thune has been a very important figure, not only in South Dakota politics, but in national politics. He has been in the second-ranking position. John Cornyn had previously served in that second-ranking position. So the choice between John Cornyn and John Thune, the choice between the two Johns, as it was said, was not a choice between two different kinds. It was really a choice between two different personalities, two different sets of experience.

And the political calculation that goes into this, has to do with how good a job these figures have done in raising money for Republican senatorial candidates. Frankly, both of them have done pretty well. It also has to do with the fact that the calculation undoubtedly included the fact that John Cornyn is going to be up for election once again to the United States Senate in Texas in 2026, and that’s going to require some of his attention as well, to say the very least. But as I say, the two Johns, John Cornyn, John Thune, very much alike in this sense. The third Senator, Senator Rick Scott of Florida, very different than the other two in temperament and experience in background. And he was the figure of disruption proposed with the endorsement, if not of the president-elect himself, at least of people close to him in the MAGA land, the Make America Great Again, M-A-G-A Trump land.

And there were those who were more Trumpian in spirit who wanted to see Rick Scott elected as majority leader, and that would take the largest number of votes among the Republicans in the Senate being for Rick Scott, that did not happen. As a matter of fact, he came in third and that meant that there had to be another vote. And in that vote, it was John Thune who won election as the Republican leader rather than John Cornyn. So it was an interesting day among the Republicans in the United States Senate, and it just points to the fact that when you look at the real power in Washington, and you look at the fact that Republican control will pertain not only in the White House, but also in the House and in the Senate, the role of John Thune as majority leader in the Senate, the role of Mike Johnson as the Speaker of the House, they are enormously important and will have a great deal to do with the success or the failure of President Trump’s legislative initiatives in years ahead.

In conclusion, I hope it’s been helpful to try to think through these things. It’s a complicated picture. It’s a map that is being filled in day by day, if not hour by hour. It also points to something else. When you look at some of these positions, they require Senate confirmation and others do not. That doesn’t mean that the ones that don’t require Senate confirmation inside the White House are less powerful. Proximity in politics is power. And proximity to the Oval Office is in some sense the essence of power. But the second key insight we need to keep in mind here is that there are positions, some called for in the US Constitution, such as Speaker of the House, some not even envisioned in the US Constitution, such as the Republican Party leader who will serve as the majority leader in the United States Senate going forward, that’s not a constitutionally defined position, but it is a politically essential position in our current government, and boy, is at a powerful position.

So the framers of the Constitution foresaw some of this, but not all of this. And all of this right now is a matter of politics and politics that matters.