In the weeks since Donald Trump was elected president, Barack Obama has publicly committed to a thoughtful, measured course of mostly harmonious White House transition. He has — to a point — praised Trump’s character and conviction, spoken with him regularly to offer guidance, and downplayed the new administration’s potential threat to many of the policies Obama has enacted over the past eight years. This makes sense: By keeping channels of communication open with the president-elect, he may be able to influence Trump’s policies and help protect his own legacy.
But let’s say, hypothetically, that Obama has had enough. Let’s say he’s done defending a man he once called “unfit” and “woefully unprepared” for the presidency, and that he’s done watching Trump respond to recent olive branches by appointing outright opponents of everything for which he has worked. Let’s imagine that No-Drama Obama is indeed ready for some drama and, with 30 days remaining until he leaves the White House, chooses to use every last power afforded to him to do whatever he can to defend his policies and generally make life more difficult for Trump.
Let’s picture, basically, a world in which President Obama, our ever-patient explainer-in-chief, breaks bad. What could he do? He could, as he did this week, take executive action to set certain policies in stone: Tuesday’s ban on drilling in parts of the Atlantic and Arctic oceans came with the assurance that it would endure “indefinitely.” And he — or those around him, anyway — could literally set things in stone, as Michelle Obama’s vegetable garden was in October.
But Barry, buddy — you’re doing that thing where you’re just very reasonable, where they go low and you go high, where you’re … boring. With his term coming to an end, let’s envision a scenario in which our 44th president opts for some ill-advised fireworks. Obama is a former professor of constitutional law, so it’s safe to say he knows a bit about what the American president has the power to do. If he wanted to tear up norms, set horrific precedents, and operate on the outer reaches of lame-duck executivedom, here are some things that he could legally accomplish.
Issue More Pardons
One of the customary acts by outgoing presidents is to issue a final wave of pardons, and not always to poster children of innocence: George H.W. Bush pardoned six of the Iran-Contra defendants in 1992; Bill Clinton’s 140 pardons on the final day of his presidency, a group that included his half brother Roger Clinton, Patty Hearst, and the financier Marc Rich, generated so much controversy that it became known as Pardongate and triggered a congressional investigation. On Monday, Obama granted his largest round of clemencies, issuing 153 commutations and 78 pardons. He will likely issue more before he leaves office.
So let’s get creative. Obama could offer preemptive pardons, as Gerald Ford did for Richard Nixon in 1974, so let’s say he tosses Hillary Clinton a bone and ends the conversation about emails for good. He could also theoretically pardon himself, perhaps for crimes that have yet to be committed. I’m not saying that Obama should show himself advance mercy for robbing 10 as-yet-to-be-specified banks and then spend the next four years stalking the country, legally untouchable, and rappelling into vaults, but I wouldn’t not watch that movie. Give a preemptive pardon to Joe Biden, too. Buddy comedy of the century.
Now, as we contemplate a more typical line of unsavory clemency, let’s throw queasiness about overruling the U.S. justice system out the window and imagine that the pull of pandemonium is greater than that of justice/fairness/the protection of large-walleted babes in the woods. Prominent political donors sometimes crack the list of pardonees, so let’s say Obama has a go there: someone like Norman Hsu, maybe, who raised more than $850,000 for Hillary Clinton before he was convicted in 2009 on charges of violating campaign finance laws and operating a Ponzi scheme, and was sentenced to more than 24 years in prison. Or perhaps Raj Rajaratnam, the billionaire founder of the hedge fund Galleon Group who was sentenced in 2011 to 11 years in prison for insider-trading violations, and who gave at least $119,000 to various Democratic causes before his arrest. Obama might also throw a couple of preemptive pardons toward a Boston law firm whose partners gave millions to Democrats in a fishy arrangement that is now the subject of a grand jury investigation. Hell, veritable caricature of evil Bernie Madoff and the Ponzi scheme extraordinaires under his employ spent hundreds of thousands of (ahem, other people’s) dollars on Democratic causes.
Is wiping clean the slate of convicted financial criminals — many of whom caused serious harm, monetary and otherwise, to their clients and other associates — a good idea? Of course not. Is real-world Obama going to do it? Nope. Would it cause chaos? Absolutely.
Fuck Guantánamo Bay, Seriously
Who’s got two thumbs, swore up and down that he’d close America’s favorite ethically dubious military prison, and has not? This gu — wait, sorry, Barack Obama. Obama vowed over and over that he would shutter Gitmo; two days after taking office, he signed an executive order calling for its closure within one year. That didn’t happen. He’s gotten close: He reduced the number of detainees held there by 76 percent. At present, 59 remain, and that number will likely decrease in the coming weeks; 22 are eligible for transfer out of the facility, and Obama has informed Congress of his intention to move some of them in the next month. But the failure to close the prison has nagged at the president: In a November press conference, he said, “With respect to Guantánamo, it is true that I have not been able to close the darn thing because of the congressional restrictions that have been placed on us.”
The trouble is just that: For Guantánamo Bay to close, Congress would have to give its approval. Drama Obama might go looking for something to tie the closure to — say, by threatening to veto the 2017 defense authorization bill, which sets the budget for the Department of Defense and which Obama has yet to sign; he vetoed a version of last year’s in part because it would make it more difficult for him to close the detention center (though he ultimately signed a version that had those measures in place). Does he have time for a back-and-forth with Congress? No. Might poking Congress in the eyeball yield some results? Ehhh, probably not, but … maybe? Chaos, though. Definitely chaos.
Or else he could cut the crap entirely. Guantánamo Bay has always existed in a legal gray area, which is why Congress has gradually placed it more and more under its own control. But Obama could, in theory, wake up one morning and decide that his constitutional powers as commander-in-chief superseded the law restricting him.
Go All Chartreuse Everything
There is a room at George Washington’s restored Virginia estate, Mount Vernon, that is painted a shade of green so bright that it’s hard to look at the walls for more than a few seconds (the hue was, the docents insist, quite fashionable at the time). It’s unclear how much of the Obamas’ discretionary decoration and maintenance budget — the allotment that every First Family gets each term to make the White House their own, within reason — remains, but they might consider swinging by The Home Depot and remaking the residence the way Washington would have liked it. Obama could also play some tried-and-true senior pranks on Trump, a notorious germaphobe. Or else just leave him a crawling, seething reminder of the wonders of late capitalism.
APPOINT SUPREME COURT JUSTICE MERRICK BRIAN GARLAND, SUCKERS
Recess appointments: They get a bad rap. But 10 months after the mysterious death of Supreme Court justice Antonin Scalia and nine months after Obama tapped Garland, the chief judge of the U.S. Court of Appeals for the D.C. Circuit, to fill Scalia’s spot, the Senate has yet to hold a confirmation hearing, in effect handing the choice over to Obama’s successor. This delay is unprecedented!
So how about that gap in January between two sessions of Congress? Obama could, in theory, name Garland to the Supreme Court as a recess appointment during that time. This would not go over well — it would be a year, tops, before Garland got kicked to the curb, and probably far less, as it would almost certainly be ruled unconstitutional — but look at this face:
Doesn’t he look like he should gaze out from between some marble pillars, however briefly?
Burn the DACA Lists
Some 800,000 undocumented immigrants have qualified for protection under Obama’s Deferred Action for Childhood Arrivals policy, which he initiated via executive action in 2012. To qualify, these individuals had to provide detailed information about themselves and their families with the provision that the data would be kept private. Trump has singled out DACA for elimination, leading some — including many DACA beneficiaries — to wonder if he might fail to honor Obama’s guarantees of privacy, not only revoking their status under the policy, but also specifically targeting them for deportation. Asked about this in a November press conference, Obama demurred: “I will urge the president-elect and the incoming administration to think long and hard before they are endangering the status of what for all practical purposes are American kids.”
DACA beneficiaries and several lawmakers have urged Obama to destroy the database before leaving office, something that would damage his relationship with the president-elect but ensure that one of his marquee policies not be turned against the very people it was designed to protect.
Remove the White House’s J’s
Just as the Clinton administration was rumored to have rid White House keyboards of their W keys before handing the place over to George W. Bush, some have suggested that Obama should get rid of those pesky J keys. Don unior does have a nice ring to it.
Barack Obama is almost certainly not going to do these things, because to do most of them would be many things that Obama is not: petty, unstatesmanlike, wrathful. Being publicly chivalrous to Trump and easing his transition into the White House is both the right thing to do and a clever strategy for future legacy-protecting, even if it doesn’t always make for fiery press conferences. At the end of the day, there is little to be gained from burning bridges except the lizard-brain delight of standing in the glow of the flames, which — well, now that you mention it, actually sounds pretty good.