Sunday cartoon

Before the election, before the Mueller Report, before the impeachment hearings, I wrote an article in this paper on May 22, 2016, expressing hope about the two remaining presidential candidates. I argued that Hillary Clinton had valuable experience within government and Donald Trump valuable experience outside of government, either of which could lead to a successful presidency. Sadly, election winner Donald Trump has proven me wrong.

Back then, I argued that businessman Trump had a good skill set for the presidency. Specifically, I focused on the key traits of people who succeed at business: hiring good people, delegating responsibility, compromising where necessary and employing a cost-benefit analysis to make decisions. I expected Trump to employ those skills as president for the benefit of us all.

Unfortunately, I was mostly (though not entirely) wrong.

We can start with the imperative to hire good people to fulfill critical functions: those with expertise, experience and commitment. Trump made a few great hires, of course: Secretary of Defense James Mattis, for example, had an astonishing level of respect among the people who knew or served with him in his distinguished military career. At a time of transition, he was seen as a steady hand in an important spot. His resignation in December 2018 marked an unfortunate loss.

With too many other slots, though, Trump seemed to pick accomplished people to head agencies entirely outside of their field of accomplishment. To head up Housing and Urban Development, he chose a talented physician, Dr. Ben Carson, who had absolutely no experience in housing policy. In the key role of Secretary of State, he picked an accomplished corporate head, Rex Tillerson, who was inexperienced in diplomacy outside the corporate context. At the Department of Energy, which predominately deals with issues relating to nuclear power and waste, he installed Rick Perry, who had no apparent knowledge of nuclear issues or even the tasks of the Department of Energy. They were all good, talented people who were set to wildly inappropriate tasks.

In other appointments, Trump seemed to turn his motto of “drain the swamp” on its head by choosing wealthy insiders with longstanding D.C. influence, some with deeply personal agendas. Betsy DeVos was from the billionaire Prince family, married into the billionaire DeVos family and came to the job of Secretary of Education mostly from the position of having funded a series of charter-school initiatives. Commerce Secretary Wilbur Ross is a billionaire financier known as the “King of Bankruptcy” who has been accused of insider trading while serving in the Cabinet (an accusation he has denied) and was fined over two million dollars by the SEC for overcharging clients in 2016. Elaine Chao, the Secretary of Transportation, is both the wife of Senate Majority Leader Mitch McConnell and the daughter of a shipping magnate.

Is it “swampy” to fill the cabinet with super-rich people who have a lot at stake in the industries they have been chosen to regulate? Well, yeah. Of course it is.

Other administrations have had their insiders, cronies and abject incompetents, but few have matched the level of the Trump administration which (not surprisingly) has had a high rate of turnover in many key roles. In my own field of federal sentencing, his nomination of two wildly unpopular ideologues to the United States Sentencing Commission has left that important body without a quorum, leaving the sentencing guidelines unable to adapt to changes in the law and society.

What about delegating authority, another key trait I hoped to see from Trump? At best, there have been mixed results. When he has delegated important tasks, it has very often been to the same person: son-in-law Jared Kushner. Kushner seems pretty sharp (I have been a part of two White House meetings on criminal justice that he ran very well, with a good understanding of the subject), but no one can reasonably and simultaneously handle the tasks of creating peace in the Middle East, reforming criminal justice, guiding diplomacy with Mexico, addressing the opioid crisis, reforming care for veterans, handling relations with China and reinventing government to make it more like a business — all of which have been delegated to Kushner by the president in just three years.

Good business people make good compromises to get things done and in 2016 I hoped to see that key trait work to the benefit of President Trump. Sadly, the “us vs. them” approach of both parties has made compromise a rarity in government. While that is not entirely Trump’s fault, his tendency toward personal insults and scorched-earth tactics only exacerbates the problem. Intriguingly, a notable exception is in my own field, where a bipartisan coalition including the Trump administration worked out a compromise bill that emerged as the First Step Act, which created important reforms in sentencing and prisons. The tragedy is the isolation of this success.

Finally, the use of cost-benefit analysis to make decisions does seem to have been a part of the Trump White House. For example, in exacting tariffs the president expressly set out that short-term costs would lead to long-term benefits. At other times, though — as with other administrations — the costs and benefits considered have been political rather than societal, such as the refusal to promote any type of gun legislation, however mild in impact. Certainly, too, choices that have bloated the deficit (such as the 2017 tax cuts) don’t seem to have been made with proper consideration of the deep societal costs the growing debt can inflict.

People can, and have, dismissed the various allegations against the president included in the Mueller Report and the ongoing impeachment hearings as politically motivated. Harder to dismiss for conservatives will be the failure to attract great talent to this administration and the growth in debt. Sadly, those key failings will fade from view as the political world pushes a more finely honed wedge between Americans.

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Mark Osler is the Robert and Marion Short Professor of Law at the University of St. Thomas in Minnesota. He taught at Baylor Law School from 2000-2010.

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