Garrett M. Graff
So, imagine what might happen in a post-election period when Trump — a president who has spent four years demonstrating his lack of interest in norms and practices of a democracy — retains all the powers and authority of the presidency and officially has nothing left to lose?
Conversations with presidential legal experts, Constitutional scholars and national security officials identified six areas where Trump could do real damage to the country, his successor or presidential traditions — a list informed both by his past executive actions as well as the considerations he’d face as he considered a life outside the White House for him and his family. From a last-minute resignation to guarantee himself legal immunity to destroying historic records to launching a war, there’s reason to wonder if a Trump transition might actually be the start of the wildest chapter of an already controversial presidency.
Here’s what a Trump transition could include:
1) A pardon-a-palooza: If Trump loses, nearly everyone expects an unprecedented flurry of presidential pardons in his last 77 days — a way both to reward friends, protect his family, tweak his opponents and curry favor with those who may help him when he is back in private life. “The pardon power operates in the way he imagines the presidency to operate — you wave your hand and it’s done,” says Quinta Jurecic, the managing editor of the blog Lawfare. “I’m absolutely expecting him to do something weird.”
“The pardon power is the easiest to exercise,” says law professor Jack Goldsmith, who used to head the Justice Department’s Office of Legal Counsel.
Presidential clemency, which Trump seems to remember from time to time and then issue a flurry of pardons in short order, has already proven to be one of his most controversial areas of executive action. And given his willingness to self-servingly commute the sentence of associate Roger Stone even while his reelection hung in the balance this summer, it’s clear that loosed from any political restraints, he might hand out pardons far and wide.
Experts expect a few different buckets of post-election pardons: First, presidential get-out-of-jail-free cards for those already caught up in the Russia investigation — people like Michael Flynn, Roger Stone and perhaps including Paul Manafort, who has repeatedly obstructed and stymied efforts to pierce what really transpired during the 2016 campaign. The one exception who might be left out in the cold? His former lawyer Michael Cohen, who Trump believes betrayed him by cooperating with investigators and speaking publicly.
Second, look for the possibility of blanket, preemptive pardons for the president’s own family, close friends and campaign associates. Presidential pardons — as Gerald Ford demonstrated in pardoning Nixon — don’t require existing criminal charges; they can also be used to block attempts to bring federal charges in the future. Trump’s application in this category could include both people already under criminal indictment — like Steve Bannon — those who appear to be under federal investigation, like Brad Parscale and Rudy Giuliani, as well as perhaps even family members like Jared Kushner, Ivanka, Don Jr., and Eric who may face investigation and charges after Trump leaves office. As president, he’s repeatedly offered pardons to officials involved in some of his controversial policies, like immigration enforcement and child separation, and he could also issue blanket pardons to cabinet secretaries, agency heads and other loyal government officials that would allow them to skirt any post-Trump investigations into their actions in office. Any actions along these lines would surely ignite political firestorms — and might lead to Congress attempting to legislate limits on presidential pardon authority going forward — but for now there’s not much that can be done to appeal or fight a presidential pardon.
The third type of presidential pardons or commutations that might emerge from the White House post-election is what might be called the “Fox & Friends and Friends of Fox” category. Throughout his presidency, Trump has seemed uniquely susceptible to being lobbied for presidential clemency directly through his friends or on-air through his favorite TV programs. He has pardoned Sheriff Joe Arpaio, Dinesh D’Souza, Scooter Libby, Rod Blagojevich, Bernard Kerik, Conrad Black and the Hammond family — and he also intervened in the case of Navy SEAL Eddie Gallagher’s war-crimes courts-martial — causes championed by Fox hosts, guests or others with the president’s ear outside the normal clemency process run by the Justice Department Office of the Pardon Attorney. He pardoned one Tennessee woman at the request of Kim Kardashian West, who lobbied Trump to grant her a pardon through his son-in-law, Jared Kushner.
He’s also shown an odd flair for “historic” pardons, including suffragette Susan B. Anthony and boxer Jack Johnson. While he’s talked publicly about pardoning Martha Stewart, the most controversial pardon that might be on Trump’s mind appears to be whistleblower Edward Snowden, a move so stunningly explosive that even attorney general Bill Barr opposes it. “I’m going to take a very good look at it,” Trump said this summer.
Most experts don’t think Trump would pursue more sweeping actions aimed at bolstering his historical legacy, like, say, pardoning everyone in federal prison convicted of a marijuana-related offense or every police officer convicted of murder — or further tweaking his foes, as in pardoning everyone ever prosecuted by Jim Comey. Trump, our experts suggested, is simply too transactional for such grand gestures — and it’s not clear how such moves would play nor what benefit would accrue to him for doing them. Moreover, the more complicated and sweeping the legal action, the less easy it is to execute quickly or cleanly — and the Trump administration has demonstrated time and again that attention-to-detail is not its strength.
Regardless of who ends up getting clemency in the closing days of a Trump presidency, his pardons aren’t all-powerful and wouldn’t necessarily allow anyone to escape criminal sanctions entirely: Presidential pardons only wipe away federal charges, and there’s plenty of reason to believe that state and local prosecutors — particularly in New York — are pursuing separate investigations of his family and other associates. New York actually tried just that tack with Manafort, indicting him on state fraud charges, but a judge dismissed the charges after deciding that it overlapped with his federal case too much.
The biggest open question would be if Trump could engineer a way to ensure that he himself isn’t charged: The Mueller Report accepted that a president has federal legal immunity while in office, but currently there’s nothing to stop a federal prosecutor from picking up post-January 20 where Mueller left off. Trump has previously asserted he has the “absolute right to PARDON myself,” but legal experts doubt whether a president could successfully “self-pardon,” and the legal battle over such an attempt would unfold only after criminal charges were brought against the former president and he sought to offer as a defense the fact that he’d pardoned himself.
The cleanest — and legally bulletproof — way for Trump to escape any further federal investigation post-presidency would be for him to resign early, even just minutes before noon on January 20, and have a newly sworn-in President Mike Pence grant him a full and complete pardon. However, such a move would seem to be un-Trump — he seems unlikely to be willing to leave the presidency a minute early — and would be incredibly dicey politically for Pence, who clearly has own presidential ambitions for 2024.
2) Revenge on the Deep State: The area where a defeated Trump’s transition might look most normal is in its rush and whirl of actions to codify and cement various policies and practices before the clock expires on his presidency — but it’s clear that Trump’s reserving his biggest battles for the imagined forces that have held him back in office, as well as perhaps one final stab at cementing a decade-long tilt to the GOP in Congress. As is often the case as a presidential term winds down, government agencies already appear to be racing to unveil major actions, from the long-awaited filing of an antitrust case against Google to the settlement of a long-running lawsuit against Purdue Pharma for its role in opioids.
But, experts say, Trump could go farther than his predecessors in trying to unravel the way the federal government operates. In recent weeks, there have been a flurry of actions that appear aimed at exacting lasting change on the government — particularly if Trump wins reelection. In particular came a surprise, sweeping executive order last week that would undo decades of civil service protections and allow the president to reach deep into the bureaucracy to fire federal employees he disliked. The move — met with shock, an immediate lawsuit and at least one protest resignation from a Trump official — had been in the works for years.
While the executive order changes might be short-lived if Biden takes office, the carefully laid groundwork suggests that Trump will continue to wage war on his imagined “Deep State” until the final hours of his presidency. “They’ve actually given some thought to this already — it’s a little bit surprising. I’m even a little taken aback by the institutional-type things that have unfolded just in the last week,” says one legal observer.
Another particular area of concern for lame duck mischief is the U.S. Census, which the Trump administration has spent all year handicapping and undermining. Just weeks after the election, the Supreme Court is likely to rule on the Trump administration’s hope to exclude noncitizens from its population counts for the purposes of congressional apportionment — a move with potentially dramatic consequences for federal funding and congressional representation in states that have large numbers of undocumented immigrants; the move would likely help largely homogeneous states at the expense of diverse states. One think tank’s analysis suggests that the Trump approach would cost California, Florida and Texas each one congressional seat (and thus, one electoral vote), while delivering an extra congressional district (and electoral vote) to Ohio, Alabama and Minnesota.
Census watchers, already alarmed at the Trump administration’s battle to cut short the count mid-pandemic, fear that the White House — rather than acting an honest broker pass-through to Congress for apportionment purposes by the December 31st deadline — might instead doctor the decennial numbers itself.
There is a limit to what Trump will be able to pull off. Push-back from the more process-oriented bureaucracy — and the normal checks and balances on executive action — would likely hinder his ability to deploy the powers of the government at whim. And any broadly controversial unilateral executive actions — like say, ordering ICE to embark on a mass deportation campaign in Trump’s final weeks or expanding the administration’s Muslim travel ban — would immediately run into the same problems such programs already have earlier in the Trump administration: Court injunctions, prolonged legal fights and limits imposed by congressional appropriation procedures. But that’s not to say that a defeated Trump might not try some wilder actions anyway.
“Early in the administration they threw just a lot of stuff at the wall. ‘We’ve got 100 ideas, let’s just try it all and see what sticks,’ and they weren’t really paying attention to what the odds were whether it got through,” says one legal observer. “It seems like they might try to do the same here — even if it just ties up the Biden administration for a while undoing it.”
3) The mass firing of top officials: Trump’s already widely telegraphing that he has a list of people to fire ready in the event of a win. The list includes officials who have rankled him through the year — including FBI Director Christopher Wray, Defense Secretary Mark Esper and CIA Director Gina Haspel — and presumably might include an even wider housecleaning of people viewed insufficiently loyal to Team Trump.
Even if Trump loses, though, he may move to fire some officials, simply symbolically or for pure pettiness. It’s unlikely that the Senate in its own lame duck session could move quickly enough to confirm replacements for them, which means the firings of Wray and Haspel in particular would almost certainly be a gift to an incoming Biden administration: No president has ever had the opportunity to immediately select a new FBI director.
Other career government officials, like American heartthrob Dr. Anthony Fauci, who serves as the head of the National Institute of Allergy and Infectious Diseases, would be more isolated from presidential umbrage. Trump, in theory, could order Health and Human Services Secretary Alex Azar or the head of the National Institutes of Health, Francis Collins, to fire Fauci — and fire them if they refuse — but the current civil service protections would mean that Fauci could likely appeal and successfully run out the clock on the Trump administration before he would be forced to leave his office.