The last time progressives were this alarmed about a presidential transition, there were just two Star Wars movies, “Dallas” was the most-watched show on TV, and Ronald Reagan, dismissed by many as an actor and an extremist, was about to become commander-in-chief.
At the time, I was a young lawyer in the Department of Justice, fortunate enough to witness important aspects of Reagan’s first year up close. Reagan and his team did two exceedingly smart things early on, providing a remarkably stable foundation for the first term of his transformative presidency.
First, they reassured an anxious civil service. Within the Justice Department, for example, no one doubted that important policies were going to shift, sometimes in dramatic ways. But William French Smith, Reagan’s incoming attorney general, made it clear to career staffers that he deeply admired their traditions and their professionalism. Far from giving federal employees a sense of opposition and suspicion, he said (and demonstrated every day) that he liked and respected them.
Theodore Olson, the new head of the Office of Legal Counsel, where I worked, did the same thing — and more. Charming and warm, he offered an immediate sense of humility, emphasizing how much he had to learn.
Within a month, lawyers who had faithfully served a Democratic administration had become fiercely loyal to Smith and Olson, and were proud to work for them. That was critical for the new president, because he had to depend on thousands of career staff for both information and execution.
Second, Reagan and his team sent unambiguous signals about the primacy of law. Many of Reagan’s supporters wanted him to venture some pretty dramatic changes — for example, overruling Roe v. Wade (which protects the right to abortion) by congressional enactment; stripping the federal courts of jurisdiction in controversial areas; getting federal judges out of the business of school desegregation; and restoring school prayer.
Early on, however, the White House made it clear to the government’s lawyers that it wanted objective legal advice. Even more important, the ultimate authorities (including the president) bowed to that advice, even if it turned out to be a firm “no.” If the Department of Justice said that a particular course of action was legally unauthorized, the White House wouldn’t pursue it.
Aside from Smith and Olson, one White House official was especially important here: Edwin Meese. Feared by the left, deeply conservative, and an architect of the Reagan Revolution, Meese had been a law professor at the University of San Diego. He didn’t (and doesn’t) much like the rulings of left-wing judges. But he was (and is) committed to the rule of law — and to legal limits on the president’s authority. He played a central role in affirming those limits, even when conservatives thought Reagan should be far more aggressive.
None of this is meant to idealize the Reagan administration, or to suggest that it was always faithful to the law. The Iran-Contra controversy, involving the apparently unlawful sale of arms to Iran, is the most prominent counterexample. But in its all-important first year, the White House and cabinet made one thing clear: The Reagan Revolution would occur within conventional legal constraints, even if those constraints imposed obstacles to what the revolutionaries sought to do.
The lessons for the Trump administration are obvious enough. To date, the nation’s civil service hasn’t exactly been reassured. That’s a problem: More than most, his administration will need those career staff if it wants to succeed. His cabinet and senior officials would be well-advised to do what Smith and Olson did.
The Trump team will also have to resolve an assortment of legal questions. Which environmental regulations can be eliminated, and how? What exactly is required by federal conflicts-of-interest laws? What kind of authority can the president exercise over the supposedly independent agencies, such as the Federal Communications Commission and the Securities and Exchange Commission?
These questions, and many more, will put immediate pressure on three people: Trump’s attorney general (Senator Jeff Sessions, supposing he gets confirmed), White House Counsel Donald McGahn and Chief of Staff Reince Priebus. A large lesson of Reagan’s first year is that while it’s always tempting to say yes to your boss, the most helpful answer, and the one that best protects him, is often the one he doesn’t want to hear.
Complying with legal constraints and showing respect for career staff are ways of avoiding serious trouble — and both are indispensable if you want to turn the nation in new directions.
Sunstein is the author of “The World According to Star Wars” and a co-author of “Nudge: Improving Decisions About Health, Wealth and Happiness.”