The Whimsical Presidency

Government by whim not only violates all notions of equal justice. It prevents resources from being targeted effectively and in line with the missions Congress legislates. What is also unique about today’s whimsical presidency is how it extends downward to unelected officials, who believe that they, too, can act on whim to gain the attention and publicity that are unavailable through well-established procedures, whose violation would formerly have been grounds for dismissal.

For example, consider how the President has abandoned many procedural safeguards that were developed over the years to protect citizens from selective enforcement and punishment.

Many years ago, when I became a Deputy Assistant Secretary of the Treasury, a Harvard professor I admired—who still had political ambitions—continued his past attacks on the office I led. The accusation was that we were providing estimates for the costs of some tax cuts that were higher than favored by some politicians. Because members of my staff could disprove his claims, some wanted to respond publicly. I said, “No.” It wasn’t appropriate. Elected officials can engage in public debates, and we can publish studies and explanations to inform the public. We do not use taxpayer money to engage in personal attacks, however justified, on any individual.

Call me naïve compared to today’s politically ambitious government officials, who seem to have no standards for what they can justifiably do.

Consider the decision by the Director of the Federal Housing Finance Agency (FHFA), William J. Pulte, to arbitrarily select specific Democratic officials for investigation over mortgage fraud. He has sent recommendations to the Justice Department for prosecution against Federal Reserve Board member Lisa Cook, New York Attorney General Letitia James, and Senator Adam Schiff from California for claiming two homes as primary residences or engaging in other “mortgage fraud.” On Saturday, September 20, the President demanded that Attorney General Pam Bondi start prosecuting these three individuals, as well as James B. Comey, the former F.B.I. director, claiming he had read that they were “all guilty as hell, but nothing is going to be done.” A prosecutor who investigated allegations against two individuals and found no grounds to charge them felt pressured to resign.

This kind of behavior violates nearly every legal procedural rule meant to ensure equal justice under the law: (1) do not prosecute someone without substantial evidence; (2) especially with limited resources, use fair, non-political standards to decide who to investigate and prosecute; (3) avoid public condemnation until guilt is proven.

Regardless of guilt, the arbitrary nature of these mortgage fraud prosecutions by itself would likely lead to their dismissal in court. But does that really matter? The goal seems to be to undermine the credibility of those being targeted, force some to resign, maintain control over the press’s attention, and for bureaucratic subordinates to boost their credentials as loyalists who have no qualms about using your tax dollars to support the President’s attacks on people he wants out of the way. That’s persecution, not prosecution.

That previous presidents might have abused their power provides no justification. Consider efforts to engage in selective law enforcement by the IRS. Procedural safeguards have evolved to prevent continuation of both proven and unproven attempts by presidents—such as Franklin Roosevelt, John F. Kennedy, and Richard Nixon—to misuse that agency’s data. “Someone else did what I want to do” is not an excuse to go backward.

Equal justice is a powerful principle that crosses partisan boundaries. No courthouse has signs proclaiming “unequal justice.” Additionally, applying this principle often makes government more efficient because arbitrary discrimination results in a misallocation of resources. Think about all the criminals who go unprosecuted when officials waste time and money on politically motivated efforts.

For those who argue that this is merely acceptable collateral damage in pursuit of a larger goal, I encourage you to consider what the precedent set by a whimsical government could mean for future presidents, whether they are Democratic or Republican. Who and what will they target, and based on what whim?

• Will they also try to manage stage productions at the Kennedy Center and influence how the Smithsonian Institution rewrites history—ultimately impacting who is employed there and who isn’t?

• Will they decide to cancel medical research just because a university or research institution does other things they dislike?

• How far will they go in choosing which laws set by Congress they decide not to enforce?

• Will they rely on their own computer algorithms to identify words other than “equity” that, when linked to a civil servant’s job, serve as the grounds for firing them?

• Will they assess and remove tariffs every few years on different countries and violate treaties impulsively?

• Will they personally decide which drug is effective for autism and other diseases, even as scientists continue to assess uncertain evidence?

More importantly, how can whimsical government not lead to cycles of retrenchment, if not one of the President’s favorite words, “retribution”? Suppose a large number of government employees achieve promotion by saying and doing what is politically convenient rather than demonstrating their professional competence. Won’t that lead future presidents to dismiss a large number for inefficiency and incompetence? And won’t those presidents be criticized as being capricious, whether it’s true or not, and might our government start to go through endless cycles of chaos and limited expertise at the top of government agencies?

Or perhaps this is an intended outcome? After all, there are players at home and abroad who benefit from growing distrust of government, science, and typically reliable sources of knowledge.

***

For those interested in tracking how well the government functions, I highly recommend subscribing to Don Moynihan’s Substack, “Can We Still Govern.” It’s better than anything I read in the press.