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38 ¦ DECEMBER 21, 2020 EXPERT OPINION

Scorched-Earth Policy Makes for an
Unnecessarily Messy Presidential Transition

By Eugene R. Fidell

Recently I’ve found myself thinking about a
British case I read when I was a law student.
Burmah Oil Co. (Burma Trading) Ltd. v. Lord
Advocate was decided in 1964 by the Appellate
Committee of the House of Lords, which was at
the time the highest court of the United Kingdom.
The case became famous because, after the court
ruled that the government had a duty to pay a cer-
tain judgment, Parliament nullified the judgment
by retroactive legislation. I’m thinking about it
now not for that reason, but because of the under-
lying facts. Burmah Oil had sued because British
troops had destroyed its refinery in 1942 to pre-
vent it from falling into the hands of approaching
Japanese forces. It was a classic case of scorched
earth.
Scorched earth is what a nation’s military forc- U.S. President Donald Trump walks across the South
Lawn of the White House to board Marine One in
es do in combat operations against an invader’s Washington, D.C. Photo by Stefani Reynolds

forces. It is not what an elected government in a • Issue as many regulations as possible, know-
democratic country does when it is voted from ing they will have to be unraveled, and the
office. Yet that is what we are witnessing in the rescissions explained to a skeptical Supreme
increasingly messy and unsatisfactory transition Court that will demand explanations
from the Trump administration to the Biden ad- • Auction off offshore drilling leases in the
ministration. This is a far cry from the vandalism waning weeks of the presidential term
a few Clinton staffers committed when they re- • Work to fill every possible judicial vacancy
moved the “w” keys from White House computer with partisan and often unqualified individu-
keyboards in the hours before the 2001 Inaugura- als so as to influence legal rulings and thwart
tion. future administrations long after President
Trump leaves office
Today’s scorched earth is taking a variety of • Plant unqualified or tarnished White House
forms. A few examples: officials in sensitive positions in government,
• Hobble the incoming team by slow-rolling from which it may be cumbersome to remove
GSA acknowledgment that former Vice Presi- them
dent Biden has beaten President Trump at the • Continue to spend defense funds on the bor-
polls, and refusing to afford President-Elect der wall
Biden’s advisors full access to needed national • Belatedly modify the status of a political-ap-
security information pointee U.S. Attorney who was handpicked

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