Perspective: The dangerous politics of precedent
Have you ever heard of Gerald Walpin? I doubt it. In fact, I probably wouldn't have heard of him either if I hadn't been a law clerk for Iowa Sen. Chuck Grassley in 2009, when he was investigating Walpin's firing.
Walpin was an inspector general for the Corporation for National and Community Service, which runs programs like 'Teach for America.' He was removed by then-President Barack Obama after he created problems for an ally of Obama's.
Inspectors general are again in the news for the wrong reasons. Shortly after he took office, President Donald Trump fired 17 inspectors general for major agencies like the Department of Defense, the Department of State and the Department of the Interior. He also fired the inspector general for USAID. This is making bigger headlines than Walpin's firing did.
To his credit, Grassley is among those who objected. Inspectors general are charged with rooting out waste, fraud and abuse in government agencies. They are supposed to be insulated from political pressure, removable only for cause and only after 30 days notice to Congress, neither of which was applied to Walpin, or any of Trump's firings.
Walpin never got his job back, and it seems even less likely that Trump's actions will be reversed, despite a lawsuit filed for wrongful termination.
In the bigger picture, this is another example of small abuses leading to much bigger ones — an abuse of precedent.
Take the pardons issued the day Trump took office. Joe Biden's preemptive pardons of family members who had been accused of shady business dealings were an outrage. But just a few hours later, Trump pardoned those convicted in the Jan. 6 attack on the Capitol who marched in his name.
Both outrages were preceded by Bill Clinton's pardon of Marc Rich, a tax cheat whose family also donated to Democratic Party causes, nearly a quarter-century earlier. While it seems almost quaint now, at the time, Rich's pardon raised bipartisan outrage.
In the span of 24 years, we went from a relatively mild abuse of the pardon that caused widespread outrage, to much more concerning ones happening twice in a few hours.
Another example is the tit-for-tat removal of security clearance that we saw with both Biden and Trump.
In 2021, Biden removed Trump's security clearance and intelligence briefings, citing Trump's actions and inactions on that Jan. 6. This hadn't been done to any president before.
Not surprisingly, Trump did the same to Biden. With alarming speed, we went from this never happening to the prospect of it happening every four years. Those who want to do so in the future will find reasons — or excuses. And sometimes, yes, while they might have legitimate cause, if this continues, it's another example of the weaponization of precedent.
The consequences of this spiral can be disastrous. Indeed, they can backfire. In 2010, Barack Obama famously said, 'I'm president, I'm not king,' in explaining why he couldn't unilaterally change immigration policy. Years later, Obama attempted to do so anyway with his Deferred Action for Childhood Arrivals policy, which allowed illegal immigrants who came here as children to stay. This was widely considered to be well beyond his authority without Congress, even according to Obama himself. The litigation has been going on ever since, and it increasingly looks like it's going to be declared unconstitutional for good.
In the meantime, Trump was able to make the Democrats' laxness on illegal immigration the centerpiece of this 2016 and 2024 campaigns. Even those who favor DACA as a policy thought that Obama's method, likely — and deservedly — to be found illegal by the courts, was going to backfire. Congress could have told Obama that an attempted end run-around on this issue would have backfired. They were hearing from their constituents. A compromise that legislated the DACA policy along with meaningful border enforcement? This would likely have had widespread support. But Obama had poisoned the well.
Now, Elon Musk and his Department of Government Efficiency are rampaging around the government, looking for waste. If this sounds familiar, it's probably because in 2009, Obama brought on a series of 'czars' that some congressional Republicans said 'raised serious concerns' since they had 'undetermined powers.'
Increasingly, both parties seem to be locked in a power struggle, with both using authoritarian means to dubious ends, oblivious to the costs. I have my own opinion on which 'side' is worse at the moment — and why — but I think that's secondary to the deeper issue. Both sides need to hold their own accountable, and stop excusing dubious actions with the bad precedents of previous administrations. If we don't, rock bottom is just around the corner.
Cliff Smith is a lawyer and former congressional staffer. He lives in Washington, D.C., where he works on national security related issues. His views are his own.
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