Trump's executive order on policing looks like a setup

The executive order on policing President Trump signed Tuesday afternoon is not entirely symbolic. Nor, however, is it anything remotely close to being a "pretty comprehensive" reform, as Trump claimed.

Perhaps that phrase is simply typical Trumpian hyperbole. But the choice to label the order "comprehensive" strikes me as suspect, particularly when more thorough reform packages are being developed in Congress. "Certainly we can add on to what we do [in the executive order] by the work that's being done in the House and in the Senate," Trump said Monday — but by falsely declaring his own order "comprehensive," he has already suggested no addition is needed. Thus the Trump order could serve as a foundation for further reform, but it could also serve as a setup: a ready-made excuse for Trump to veto any significant congressional changes to American policing.

The more hopeful interpretation of what Trump is doing with this order is that advanced by civil rights attorney S. Lee Merritt, who is representing the families of George Floyd and Ahmaud Arbery. Merritt told PBS the order is "not a cure" and is "too incremental" to effect "sweeping" change, but he nevertheless characterized it as a "step in the right direction."

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Trump's order has five sections, two of which have no direct policy outcome. One of those two is a request that Congress pass policing-related legislation, and the other is a tepid acknowledgement that police brutality has occurred.

Of the remaining three items, the most likely to do any real good is the creation of a national database to track police misconduct. Many police officers who are fired for abuse of their power are simply rehired by other police departments. In Florida, a recent study published in the Yale Law Journal showed, a shocking 3 percent of working cops were previously fired by a Florida law enforcement agency other than their current employer.

These fired cops "tend to move to smaller agencies with fewer resources and slightly larger communities of color," one of the study's authors, Ben Grunwald, told The Washington Post. After they're rehired, he added, "they tend to get fired about twice as often as other officers and are more likely to receive 'moral character violations,' both in general and for physical and sexual misconduct." Florida is not unique in this regard, and a lack of transparency in police disciplinary procedure means the rehiring department may not know about a fired cop's history of misconduct. If done right — and that's a big "if" — the national database Trump's order creates could help get abusive cops out of policing altogether.

The final two items of the order are of even more dubious value. One directs the secretary of Health and Human Services (HHS) to push police departments to improve officers' handling of mental health crises. Using police officers with little or no training in mental health care as our mental health first responders is absolutely dangerous, but it's not clear how this directive will work in practice. (The HHS secretary is supposed to produce recommendations within 90 days.)

Lastly, the order will give the Department of Justice grant funding to pay police departments to enroll officers in federally-approved training programs. The money has strings attached, most notably that it will go only to departments which prohibit the use of chokeholds, like the neck restraints police used to kill Floyd in Minneapolis and Eric Garner in New York, "except in those situations where the use of deadly force is allowed by law." That is a loophole so large as to make the chokehold ban meaningless, as officers are generally allowed to use deadly force any time they believe — or are willing to say they believe — their lives are in danger. Like the mental health element, improved training is not a bad idea. But getting police out of bad trainings is at least as important as getting them into good ones, and use-of-force "best practices" from the president who says "please don't be too nice [to suspects]" don't exactly inspire confidence.

What these measures do accomplish, however, is provide that same president with an excuse to veto any more substantive federal policing reforms — and anything likely to come out of Congress will be more substantive than this executive order. That is certainly true of the House Democrats' proposal, which is extensive and won't pass the Republican-controlled Senate. Yet even the as-yet unreleased Senate GOP plan seems poised to go further than Trump's order, if only in its willingness to incentivize reform by withdrawing federal funds instead of padding police budgets with new federal grants. Trump has already indicated he will not sign any bill eliminating qualified immunity, and despite his occasional lip service to criminal justice reform, he has repeatedly revealed he does not object to — indeed, perhaps even enjoys — police brutality.

Maybe he will, as he suggested, "add on to" Tuesday's order by approving a reform package from Congress. I hope that incrementalist reading is correct. But it seems more likely to me that Trump will play this like he did the immigration debate of late 2017 and early 2018, loudly touting his commitment to reform before rejecting everything Congress offers.

It's a handy little arrangement, if indeed it is the setup it seems. With this order on the books, Trump can claim he wanted something from Congress, but those Do-Nothing Democrats just couldn't get it together. Ah well, he'll tweet, good thing that executive order was so comprehensive. Good thing we've made American policing great again.

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