Four baskets of things to watch out for.
The Situation persists into the new year.
In 18 days, the dais will be mounted. The oath of office will be administered. A speech will be delivered. Formally dressed people will attend gala balls. The White House will exchange occupants.
And the Situation-elect will become the incumbent Situation.
A great deal of noise will accompany this change. The Situation on its own generates a huge amount of noise. And the furious response to the Situation generates a great deal more. An entire industry has grown up around commenting on the Situation—kind of like Taylor Swift only angry. Really angry.
Isolating the signals amidst this noise can be a tough business.
And I am here to help.
Here’s the trick to it: You only really need to focus on four baskets of activity over the next few weeks. All the rest is noise. And you can ignore it.
The first and least important of these baskets are the things Joe Biden does on his way out the door. Call it, in honor of John Adams, the Midnight Judges Basket. This may include pardons or other clemency actions. It may include certain regulatory actions and policy shifts designed to make it harder for the new administration to make its own changes. It may include delivery of aid to Ukraine before the new administration decides to shift gears. As a general rule, these actions tend to get more dramatic and more controversial the closer to Inauguration Day we get, though pardoning one’s son after promising not to is already leaning in.
I say this is the least important basket because it is the expression of power on the wane, which is always less important—and more temporary—than power on the rise. Still, these actions can be significant in any number of ways. They are not mere noise.
The second basket is the Nominations Basket. This subject presents an eventful space in any transition. In the Situation, however, it is particularly fraught, because President-elect Trump has proposed a series of cabinet officers who pose—individually and collectively—remarkable challenges both to the agencies they are supposed to head and to the Senate, which is charged with reviewing them. How Pam Bondi (attorney general), Kash Patel (FBI director), Robert F. Kennedy Jr. (secretary of health and human services), Tulsi Gabbard (director of national intelligence), and Pete Hegseth (secretary of defense) comport themselves before the Senate, what questions they face, what answers they give, and how the Senate reacts to them is not mere noise. It will define whether the leadership of key agencies with major security responsibilities are, in a minimal sense, qualified to do their jobs and how they understand those jobs in relation to the public at large and the president individually.
It will also define whether it is in any sense reasonable to rely on the Senate to behave like a real check against the Trump presidency. And it will define whether any elected body at all is going to push back against Trump’s inclination to make instruments of federal power into means of wielding might against his enemies.
Not all nominations are created equal. It is arguably merely an insult to the people of France that Trump proposes to send to Paris as this country’s ambassador a man who pled guilty (and whom Trump earlier pardoned) for, as the Justice Department put it, devising “a scheme to retaliate against a cooperating witness—his sister—and her husband by having a prostitute seduce the husband and covertly filming them having sex.” It is possible, after all, to have an ambassador to France who commits such crimes without damaging Franco-American relations.
But it is not merely insulting to the men and women of the FBI to have Patel as their leader. And it is not merely insulting to the men and women of the intelligence community to have as DNI a woman whom bipartisan congressional staffers feared would blow the identity of a Syrian dissident testifying before a congressional committee. Tolerating these latter proposals is profoundly dangerous.
So the Senate’s posture here is not a light-switch but a rheostat. The chamber that flatters itself as the world’s greatest deliberative body could send a signal of defiant opposition (but don’t hold your breath for that) and reject a wide swathe of nominees. It could send a signal of careful line-drawing—accepting this one but rejecting that one. And there are dozens of possible lines to draw. Or it could send a signal of rolling over supine.
The point is that the signal it sends matters, both as to each individual nominee and as to the nominees as a group.
Then there is the Day One Basket. The first day—and here I really mean the first several days—of a new administration is always a bit of shock and awe. In the Situation, however, the shock and awe takes steroids. Remember last time? There were fights about crowd sizes, “alternative facts,” and whether the clouds parted at the moment of inauguration. There were fights with the press. Blot all that out.
With respect to the Day One Basket, there is policy change and there is the stuff that doesn’t matter.
And there will be significant policy changes in the Day One Basket. These will likely include some kind of immigration and border control efforts, along with some kind of roundup of undocumented immigrants in the country’s interior. It may also include some kind of tariffs. It may also include some foreign policy shifts with regard to Ukraine and Russia. It will likely include pardons for Jan. 6 offenders, at least if Trump is to be believed about his own intentions.
The key to understanding and evaluating the Day One Basket is, first, identifying precisely what is in it and what is stuff that doesn’t matter. An executive order declaring that we are only doing America First trade now may be dressed up as policy, but it may not actually do anything. Conversely a low key action directing the secretary of yadayada to do X and Y actually does direct an executive branch official to do X and to do Y. And that needs to be examined. Are X and Y desirable things for the government to do? Does the secretary of yadayada have the authority to do them?
The Situation makes it hard sometimes, amidst the noise, to tell if anything has really happened—and if so, what. The challenge of the first day is that everything that is or is not happening is taking place all at the same time and very fast.
My advice? Don’t consume any television or radio. Read only. And don’t rely on Trump’s Twitter feed for information about what his administration is doing.
Preferably read primary sources (which will all be on the Federal Register)—or explanations of primary sources from outlets you already trust. When the president issues an executive order, read it—instead of breathless news stories about it. And read the actual document, not the title, which will always overstate what the document does. The question you should have your eye on is simple: What actually is different as a result of this statement or executive order or directive?
Finally, there is the Longer Term Basket. There are a set of issues that Trump and the cadres around him have promised to bring up that won’t happen on day one. They just take too long. These include things like Schedule F, the attempt to politicize the civil service. They also include executive power grabs like gutting the Impoundment Control Act. And they include, should Trump decide to go this way, eviscerating NATO or other international alliances.
A president can begin such projects right at the outset, but for one reason or another, they take a while, and some of them would be subject to significant court challenges. So think of this basket as the major disruptions that will take a year or more to mature.
So while a major immigration round-up will affect a large number of people and generate a lot of news headlines in the first few weeks of the administration. Changes to civil service rules will not. They will develop incrementally. They will be the niche province of nerds and administrative law folks. Ditto regulatory changes to drug and vaccine approvals. The tectonic plates of American overseas relations with allies and foes will develop in a thousand meetings of suits in European capitals—and will be spoken of in platitudes.
This final basket is also the most contingent of the baskets. It matters in those thousand meetings, for example, who the secretary of defense is and whether his word is taken seriously by the Europeans mouthing those platitudes about trans-Atlantic relations. And it matters in those civil service reform discussions whether the attorney general is a pushover for the president or a woman who has made serious commitments to the Senate about what she will and will not defend.
Yet this Longer Term Basket, in terms of the real impact of the Situation, is probably the most important one. Ten years from now, after all, few people will remember—and fewer still will care—who the secretary of defense was when the Situation began or how many people got deported. (Do you remember how many people the Obama administration deported in his first term or who his first secretary of defense was?) They will know whether the United States is still part of NATO and whether Russia has overrun previously free countries. They will know whether the IRS is conducting enforcement actions against critics of the administration and whether FBI anti-corruption efforts are directed chiefly at people who have run afoul of power. They will know whether the president answers meaningfully to Congress on matters of budget.
So amidst all the noise, keep an eye out especially on this Longer Term Basket. It’s the one that will ultimately determine what kind of a country we’ll all be living in.
The Situation continues tomorrow.
– Benjamin Wittes is editor in chief of Lawfare and a Senior Fellow in Governance Studies at the Brookings Institution. He is the author of several books. Published courtesy of Lawfare.
