When Donald Trump lost the 2020 presidential election on November 7, he didn’t just lose the vote. When he leaves the White House in January, he will also be stripped of the constitutional protection from prosecution that is afforded to a sitting United States (US) president. This means that, after Inauguration Day on January 20, Trump, whose presidency has been marred by accusations of election interference, tax fraud, illegal business practices, and adultery against him, his family, and his campaign, will be more vulnerable than ever to pending investigations into these claims.
With this in mind, the President has already begun using the clemency powers of his office as a get-out-of-jail-free card for his close aides and associates, most recently pardoning former national security advisor Michael Flynn, who pleaded guilty in 2017 to lying to the FBI about his contacts with Russia. Given Trump’s affinity for using executive powers for his own personal benefit, it is now considered inevitable that his last official act in office, will be to issue himself (and his companies and family members) a presidential pardon.
Whether he can do such a thing, though, remains unclear. While some have insisted that self-pardons are impossible—under the basic principle that no man can serve as a judge in his own case—analysts claim that that is more of an intense hope than a legal certainty, because the Constitution’s language appears to allow it. However, the issue has never come up before, because no president has ever resorted to pre-emptively pardoning himself, and so the country’s courts have never had a chance to deliberate on the question.
Regardless, if Trump does manage to secure a pardon for himself before leaving office, while it will lead to significant public outrage, it may also actually work in President-elect Joe Biden’s favour by removing pressure on the incoming administration to entangle itself in a bitter and divisive legal pursuit of the former president.
Of course, this was always going to be a dilemma for Trump’s successor. After four years of a Commander-in-Chief who consistently and blatantly twisted and bent the fundamental principles of democracy for his own gain, the biggest priority for Biden’s government will be to repair and strengthen the country’s democratic institutions and restore the public’s faith in them. According to data collected by the Pew Research Center earlier this year on American peoples’ trust in the government in Washington and its institutions, only 20% of respondents said that they trusted it to “do the right thing” just about always or most of the time. Such despondent numbers highlight the urgent need for the American public to see that no one is above the law and that there will be consequences for anyone who violates the rules and reaps benefits at the expense of the nation or abuses his power.
Unfortunately, however, regardless of how much the former president deserves punishment, going after him after beating him in the election will surely draw criticism from Trump’s supporters (from both the general public and the Senate), further polarizing an already deeply divided nation. More than 70 million Americans voted for Donald Trump this election—the highest-ever total for a losing candidate—and an aggressive onslaught against him from the government will alienate a huge part of the population, and the all-consuming debacle that will follow will only limit Biden’s ability to pass legislation and implement his agenda. It will also run contradictory to Biden’s campaign messaging, in which he promised to be a President for all Americans — Republicans and Democrats alike — and called for national unity to end the “grim era of demonization in America.” Biden is also reportedly vetting GOP leaders for Cabinet positions to bridge the divide between the two parties and pave the way for greater cooperation or at least guard against excessive gridlock. Therefore, while it is pertinent for Biden to pursue justice when it comes to Trump, he will have to tread carefully in ensuring that prosecutorial decisions about Trump are made in a manner that encourages people to trust the US Department of Justice (DOJ), rather than viewing it as a political arm of the White House.
Luckily for the President-elect, a self-pardon may help address this challenge. Pardons are technically irreversible, and if the government decides to pursue the matter at a federal level, the issue will ultimately reach the 6-3 conservative majority Supreme Court, which is unlikely to help. However, pardons only cover federal offences and do not extend to crimes at the state level, which means that even if Biden avoids taking a prosecutorial decision on the matter, it will provide no respite to Trump in his former home state of New York, where there are multiple legal battles awaiting him.
Manhattan District Attorney Cyrus Vance Jr. has an active criminal investigation looking into Trump and his businesses on allegations of bank and insurance fraud, while state Attorney General Letitia James is conducting a civil probe into whether Trump claimed improper deductions on state tax returns, and it is unlikely that either of them will drop the charges once Trump becomes a private citizen.
And his woes don’t end there. The president is also facing multiple defamation lawsuits filed by women who say he sexually assaulted them; he has an ongoing tax audit battle that is sure to be an expensive endeavour (estimates suggest ~$100 million), and he has more than $400 million in debt that will be due in the next four years. Therefore, it’s safe to assume that Trump’s life post-presidency is unlikely to be cosy and overly comfortable, even in the absence of a federal indictment. In such a scenario, Biden can freely focus on delivering on his promises of building and healing America, because the courts will find their way to Trump, one way or another.
Why Trump’s Self-Pardon May Work in Biden’s Favour
The president’s clemency powers do not extend to crimes at the state level, which means that Trump is sure to face legal jeopardy regardless of a federal indictment.
December 9, 2020
SOURCE: AXIOS