The Failure to Trump-Proof

Biden’s missed opportunity to reform the presidency.

The president’s salary, per 3 U.S. Code § 102, is $400,000 a year. And yet, according to the New York Times, President Trump is asking for a bit more out of the government piggy bank this year. $230 million more.

Trump’s demand stems from two complaints he filed, while out of office, under the Federal Tort Claims Act, a 1946 law that allows individuals to recover damages when they’ve been injured by a wrongful act of the U.S. government — first by filing an administrative claim and then, if necessary, a lawsuit.

In late 2023, Trump filed such an administrative claim, alleging that the government had violated his rights while investigating ties between his 2016 campaign and Russia. In 2024, after he was indicted for allegedly mishandling classified documents, Trump followed up with a second claim, accusing the Justice Department of malicious prosecution, plus violation of privacy for the raid on Mar-a-Lago.

In total, the two claims added up to $230 million; according to the Times, Trump has not yet received the money but expects the Justice Department to sign off on the settlement.

The main takeaways from this article are (and should be) about Trump: About a budget-slashing president demanding he receive hundreds of millions of dollars in taxpayer funds. About the conflict of interest inherent in the fact that he appointed (and can fire) the two people who will make such a decision — and, not just that, but both of them (Deputy Attorney General Todd Blanche and Associate Attorney General Stanley Woodward) previously represented either Trump or his co-defendants in private practice.

And about Trump’s repeated attempts to use the presidency to line his pockets: the $230 million payout would be added to settlements from corporations he has received this year to the tune of $25 million (Meta), $24.5 million (Google), $16 million (Paramount), $15 million (Disney), and $10 million (X), not to mention $27.7 million in income from merchandise (Trump-branded guitars, watches, Bibles, etc.) listed on his June financial disclosure form, and as much as $5 billion in paper wealth that his family amassed in September when trading started on their crypto token. (Trump also plans to host next year’s Group of 20 Summit at his Trump National Doral golf club. When he tried a similar move in his first term, he reversed course after bipartisan backlash. This year, the announcement barely registered.)

These are all important features of this story. But I also want to briefly direct your attention to one more piece of it, located in the final paragraph of the Times article:

Some former officials have privately expressed misgivings that the department’s leaders did not reject Mr. Trump’s legal claims in the waning days of the Biden administration. It has long been standard practice for civil litigation, including lawsuits against the government, to be paused until any criminal cases around the same facts have been resolved.

I bring this up because it’s related to something I’ve been thinking about lately: the failure on the part of the Biden administration to prepare for the possibility that Donald Trump would return to office.

In some ways, Biden’s entire presidency was premised on preventing the return of Trumpism. But, perhaps (naively) believing that that goal had already been accomplished by his 2020 victory, Biden didn’t always take seriously the fact that his predecessor could become his successor, and grapple with what that suggested for how he should be spending his time in office.

There are a lot of lines of inquiry there, from Biden’s policy moves (on immigration, government spending, and other issues) that helped fuel Trump’s comeback to Biden’s fateful decision to seek re-election, none of which reflect the urgency of a president who believed that someone he described as a “threat to democracy” was potentially returning to office.

But I’m speaking here more narrowly of the steps not taken to “Trump-proof” the presidency in advance of a potential MAGA second term. There are myriad administrative steps Biden could have taken, but didn’t — like not rejecting Trump’s $230 million settlement claim — that suggest he and his administration weren’t actively preparing for the possibility that Trump might earn a comeback.

There were also many pieces of legislation Biden could have championed to implement reforms of the executive branch with Trump’s potential revival in mind. Instead, he ignored — or actively opposed — many of them. Here are two examples: the ARTICLE ONE Act and the Presidential Ethics Reform Act.

The ARTICLE ONE Act stands for the Assuring Robust, Thorough, and Informed Congressional Leadership is Exercised Over National Emergencies Act. It was a bipartisan bill that would have fundamentally changed national emergency law in this country. As it currently stands, a president can declare a national emergency over anything — there are 48 currently in effect, some dating back to 1979 — and Congress can pass a resolution terminating it… but that resolution is subject to a presidential veto, which means it isn’t exactly a very helpful check on presidential power. (This is precisely what happened in 2019, when Trump declared a national emergency in order to redirect Defense Department funds to build his border wall. Bipartisan majorities in both chambers of Congress approved a termination resolution, but Trump simply vetoed it.)

The Brennan Center for Justice has catalogued 123 added powers that can be unlocked by the president when he declares a national emergency, several of which Trump has used in both his first and second terms. (He has declared nine national emergencies since January.)

The ARTICLE ONE Act would have flipped this process: instead of the default being that a national emergency continues indefinitely (unless Congress musters a veto-proof majority to stop it), the bill would have made the default that emergencies sunset after 30 days (unless Congress approves a joint resolution to continue it).

The bipartisan bill was unanimously approved by a House committee in September 2024, the same month that a nearly identical measure was approved by a Senate committee, 13-1. Importantly, there is also good reason to believe that the bill would have commanded filibuster-proof support in the Senate: in 2019, during a previous push when the ARTICLE ONE Act was also approved by Senate committee, 19 Republican senators signed on as backers, enough of whom were still in the Senate in 2024 that the bill could have overcome the 60-vote threshold.

However, the chamber’s Democratic leaders never put it up for a vote on the eve of Trump’s re-election, nor is there any record of the Biden administration pushing for the measure — perhaps because Biden also made frequent use of his emergency powers, citing a Covid emergency declaration in an attempt to cancel student loan debt, prioritizing the preservation of his own power over preparations for a Trump return.

The Presidential Ethics Reform Act tells a similar story. That bill was introduced by Reps. James Comer (R-KY) and Katie Porter (D-CA) in 2024; it would have required that presidents disclose payments they receive from foreign sources, gifts they receive valued at $10,000 or more, any conflicts of interest that spring up during their time in office, and their tax returns for two years before, two years after, and during their term.

Notably, the bill also would have covered presidential family members, meaning we would currently have a full picture of the foreign business dealings of Eric Trump and Jared Kushner — and we also would have had a sense of the business dealings of Hunter Biden. Perhaps that’s why, according to Porter, the Biden White House reached out to Democratic lawmakers she had lined up to back the bill and bullied them into withdrawing their support.

The Presidential Ethics Reform Act never advanced as far as the ARTICLE ONE Act. But it had the support of the relevant committee chairman, Comer. One imagines that if it had received White House support (instead of active White House opposition), it could have advanced through the House Oversight Committee and then through both chambers of Congress.

Instead it languished, resulting in limited visibility into Trump’s efforts I outlined above to enrich himself during his presidency.

There are plenty of other legislative efforts like these two. Another one relevant to the story I led off with is the Inspector General Access Act. Inspectors general are independent watchdogs who investigate wrongdoing within their agencies; the Justice Department’s inspector general is the only one whose jurisdiction is limited. Per 5 U.S. Code § 413(b)(3), any “allegations of misconduct involving Department attorneys, investigators, or law enforcement personnel, where the allegations relate to the exercise of the authority of an attorney to investigate, litigate, or provide legal advice” are referred to the DOJ’s Office of Professional Responsibility, not the Inspector General.

As you can imagine, a lot of the work that goes on at the Justice Department involves attorneys investigating or litigating, so this is no small loophole! The head of the Office of Professional Responsibility is much more easily removable than the inspector general (though IGs can be removed, too, and Trump has fired several of them — although, notably, the Justice Department IG remains a career official).

The bipartisan Inspector General Access Act would have removed this loophole, allowing the IG to investigate all wrongdoing at the Justice Department. Perhaps that would have given the inspector general more power to investigate potential conflicts of interest inherent in the president receiving a settlement payment from his own Justice Department, which is led by his own former defense lawyers.

But then-Attorney General Merrick Garland came out against the bill, and it never advanced after that.

There’s a lot more where these came from. The Biden administration could have tried to promote tariff reform, supporting bills for Congress to take back tariff power from the president (except that means Biden wouldn’t have been able to impose his tariffs against China). Or it could have pushed for a constitutional amendment to restrict the presidential pardon power (except that means Biden wouldn’t have been able to pardon his son).

The idea that these proposals could pass in such a polarized climate might sound far-fetched — but many of them boasted bipartisan support: the ARTICLE ONE Act was approved in committee with overwhelming support across the aisle; the Presidential Ethics Reform Act had Democratic and Republican backers; the Inspector General Access Act received a bipartisan push to be added to a larger package.

In addition, on the few occasions when the Biden administration did champion Trump-minded reforms, such as the Electoral Count Reform Act, they were supported by both parties.

Especially if Biden had taken on a push like this right after taking office — when he was at the zenith of his popularity, and Trump was at his valley, abandoned by many Republicans who were looking for a fresh start — there’s a good chance legitimate executive branch reforms could have been implemented.

If he had done so, Trump’s second term — and the overgrown institution of the presidency — might look very different now. Instead, Biden’s refusal to surrender short-term power for long-term patriotic interests means the presidency looked roughly the same (if not larger) when he left it than when he entered, a dynamic that Trump has taken advantage of again and again.

When both parties move to prepare their post-Trump plans, Biden’s failure to look through every nook and cranny of the government to stem potential abuses — from Justice Department settlements to national emergency powers — will serve as a cautionary tale. The next president’s instinct will likely be to continue cloistering power for themselves. There is no doubt both parties will propose ambitious plans to mimic Trump’s example and expand the executive branch to their own ends.

But, they should remember, the shoe will eventually be on the other foot. Perhaps some of these Project 2029s should look in the other direction, considering some of the bipartisan reform efforts that were introduced in Congress during the Trump interregnum but failed to take hold in time.