A Ripple, Not a Wave
Joe Biden's Almost Impossible Task
Even if Joe Biden emerges victorious, the peaceful
transfer of power still isn't yet a foregone conclusion. And as president,
Biden would face the almost impossible task of reuniting a deeply divided
nation.
By Matthias
Gebauer, Roland Nelles, René Pfister, Ralf Neukirch und Alexander Sarovic
06.11.2020,
18.19 Uhr
He is, on
this Thursday, just as he has been so often in his almost four years as
president: huffy and cynical. More than anything, though, he is front and
center, demanding attention. Donald Trump walks up to the lectern in the press
briefing room at the White House and begins spewing invented accusations of
voter fraud. "If you count the legal votes, I easily win," he said, "if
you count the illegal votes, they can try to steal the election from us."
He claimed to have won the election with "historic numbers."
His message
was clear: I'm not going anywhere. And essentially, he's not wrong. He isn't
going to simply disappear -- indeed, there is little in the election results to
indicate that he should.
In this
nerve-wracking, at times chaotic election, Trump received 5 million more votes
than he did in 2016, with around 48 percent of the American electorate casting
their ballots for him - and many of them are loyal fans who worship him as a
demigod.
Even if he
ends up losing this election to his Democratic challenger Joe Biden – and there
are certainly strong indications, if not proof, that he will – one thing is
certain. Donald Trump will remain an important figure on the American political
landscape.
Trump has
almost 90 million followers on Twitter. There are conservative media outlets
that will continually invite him in for interviews and commentary. He has a
following that is more loyal than that of any of his predecessors. Leading
Republicans, to be sure, have begun jumping ship, with both of his sons, Donald
Junior and Eric complaining on Twitter of insufficient support from the GOP.
And even Fox News, the president's personal propaganda outlet, is carefully
moving away from him. But his core voters remain largely devoted to him and his
ideas, with his approval ratings among Republicans still extremely high. Even
if loses this election, he will be able to continue playing an outsized role in
American politics – as the leader of a furious opposition that doesn't
recognize his successor. A squatter who settles into the people's
consciousness. It can't even be ruled out that he will run again in 2024 at the
age of 78.
And maybe
he'll just stay.
The Battle
Will Continue
Those
hoping that the election on Nov. 3 would result in a rapid return to something
approaching normality are likely bitterly disappointed. The battle for the most
important office in the world's most powerful democracy will continue to be
fought, including in court.
And as this
grueling election week comes to an end, the only thing clear is that much is
unclear. Biden, to be sure, appears to have a slim lead in important states
like Arizona and Nevada, which would be enough for a victory, and by Friday
afternoon, media reports suggested he had also taken over the lead in
Pennsylvania and Georgia. But Donald Trump and his Republicans aren't ready to
accept defeat. Many of them still believe that the tide can be turned. And the
margins are razor thin in a number of key states, even if the trend seems to be
in Biden's favor as the final votes are counted.
The
president and his allies have thus launched a slew of legal challenges in an
effort to reverse that trend and to prevent purported election fraud, for which
there is thus far no evidence whatsoever. In Wisconsin, for example,
Republicans want the votes to be recounted. And the struggle could occupy
various courts for several weeks.
In the
worst-case scenario, it could be up to the Supreme Court to decide who won the
election. During his term, however, Trump was able to install three
conservative justices on the court, bringing the total of conservatives to six,
against just three liberal justices. On Thursday, Trump pledged on Twitter that
his team would mount legal challenges to the results in important states that
have been declared for Biden. And he tweeted: "STOP THE COUNT!"
Neither
Trump nor many of his supporters are apparently concerned about the fact that
his behavior is a direct attack on the democratic norms of the United States.
Never before has a U.S. president proclaimed himself the victor before all the
votes have been counted and branded the continued counting of legally cast
votes as "fraud."
The
election has highlighted once again the deep divide in American society -
indeed, it looks as though that divide has now grown deeper and wider. Trump
fans and Democrats are irreconcilable. There is hardly any nuance anymore in
the shrill political debate in the country, hardly any self-reflection and
virtually no listening. There is only anger, hate and mutual contempt.
In a number
of states, the two candidates are only separated by a few thousand votes.
America, it seems, is divided almost exactly in two halves that having nothing
in common except for the same nationality. Those who support Donald Trump tend
to do so unconditionally, loyal and ardent. On the other side, Trump's
opponents are hardly any less passionate in their hate for him.
Should
Biden emerge victorious, he will have managed to drive Donald Trump out of
office after just a single term. He will have managed to free the U.S. and the
entire world from this president, one that Biden has frequently referred to as
an "aberration."
That is no
small achievement. The last president to only serve a single term was George H.
W. Bush, the 41st president. He was defeated by Bill Clinton in 1992.
Should
Biden be inaugurated as the 46th president of the United States on Jan. 20,
there are high hopes that normalcy might return following the delirium of the
Trump years. Without a doubt, Biden would stand for an end to the nepotism that
has characterized Washington under Trump.
Biden has
been in politics for over 40 years, but in all that time, nobody has seriously
accused him of abusing his political office to enrich himself. For decades, he
has lived off a senator's salary, which currently stands at $170,000 per year.
He has released his tax returns every year since 1998. He only began amassing
more wealth after his tenure as vice president came to an end and he wrote his
memoirs and began giving paid speeches. Compared to Trump, Biden's finances are
as clear as a glacial lake, which is likely one of the reasons that the GOP's
unfounded claims - that Biden was involved in dubious business deals in China –
never gained much traction.
The
Anti-Trump
In contrast
to the leftist Senator Bernie Sanders, Biden's campaign for the White House was
not rooted in a vast reform project. From the very beginning, his message was
that of ridding the country of Donald Trump. Biden offers the wounded country a
kind of group therapy session to cleanse itself of the hate and discord. As
president, he wants to be the anti-Trump.
Biden has
promised to introduce a minimum wage of $15 per hour, he wants to offer public
health insurance to low-wage earners who can’t afford a private policy. His
plan also calls for the children of parents who earn less than $125,000 per
year to be able to attend college tuition for free.
But all of
these plans will remain just that if the Senate remains majority Republican.
That, too, remains up in the air. It currently looks as though there will be a
run-off election in January between the Republican David Perdue and the
Democrat Jon Ossoff in Georgia. In the other Senate race in the state, a
run-off has already been assured. The results of these two races will determine
whether the Democrats have the say in the Senate.
If the
Republicans do manage to cling to their majority, Biden will have a hard time
getting any laws through Congress, says Julian Zelizer, a historian at
Princeton University. He'll have no other choice than to govern by executive
order.
Trump has
shown how that might look. In the first 100 days of his term, he issued more
executive orders than all other post-World War II presidents. Some of them were
enormously significant.
Biden, too,
would be able to push through some of his plans via executive order, such as
reversing Trump's extremely restrictive immigration policies. The more
far-reaching reforms that the country so badly needs, however, are not possible
without Senate approval – things such as expanding health insurance coverage,
educational reform and an aggressive climate change strategy. Without the
Senate, Biden would be a less effective president.
It would,
of course, be nothing new in U.S. history for a president to face a hostile
Senate or House of Representatives. Still, until deep into the 1990s, it was
still possible to build bipartisan majorities. Biden himself has negotiated
countless deals with the Republicans. But that was a different era. Republican
Senate majority leader Mitch McConnell was resoundingly re-elected in Kentucky
– and even before the election, McConnell committed his troops to vote against
a coronavirus aid package because passing such a bill could help Biden if he in
fact wins the election.
If Biden
does move into the White House, he would be 78 years old at inauguration, by
far the oldest president in U.S. history. Biden has hinted that he would likely
only stay in office for a single term, which would mean that the race to
succeed him would begin from day one.
Kamala
Harris, Biden's running mate, would be the most obvious candidate, and she is
22 years younger than Biden. The daughter of a doctor from India and an
economics professor from Jamaica, Harris was still in elementary school when
Biden was first elected to the Senate. In Trump's narrative, Harris is a
radical leftist who would control the elderly Biden like a puppet on a string.
In reality,
though, there is plenty of evidence that Biden and Harris will make a good
team. They are on the same wavelength politically, with both representing the
moderate Democratic mainstream. Furthermore, as a former public prosecutor, she
doesn't exactly support an anti-police agenda.
No Free
Pass for Germany
On foreign
policy, at least, Biden would have a fair amount of flexibility. As president,
he would do what he could to win back the trust of America's allies that Trump
has destroyed. He has already said that he intends to rejoin the Paris Climate
Agreement and revive the Iran nuclear deal. Furthermore, Antony Blinken, a
former deputy secretary of state and the favorite to become Biden's National
Security Adviser should Biden win, has joined Biden's Europe expert Julianne
Smith in publicly announcing that a Biden administration would likely reverse
Trump's plan to withdraw U.S. troops from Germany.
Of all the
people on Biden's team, Smith knows Germany the best. She spent one-and-a-half
years as his deputy security adviser when he was vice president before then
moving to Berlin for a year as a fellow of the Robert Bosch Stiftung. During
her stay in the German capital, she developed a critical view of the
shortcomings of Chancellor Angela Merkel, who she believes has intentionally
maneuvered Germany to the global political sidelines. "Merkel has the
power to initiate something big," she told DER SPIEGEL in an interview
last year. "But what we're experiencing is a paralyzed Germany, and that's
bad for Europe and bad for the U.S."
Indeed,
even a Biden presidency wouldn't be particularly comfortable for Germany, that
much already appears to be clear. Should he move into the White House, he
wouldn't sow doubts about the U.S. commitment to NATO, but he would also have
little patience for European allies trying to shirk responsibility. His adviser
Michèle Flournoy reacted with significant anger when Rolf Mützenich, floor
leader for the Social Democrats (SPD), which is Merkel's junior government
coalition partner, demanded that Germany withdraw from NATO's nuclear sharing,
a system that could, in the worst-case scenario, see U.S. nuclear weapons being
dropped by German warplanes.
A former
undersecretary of defense in the Obama administration, Flournoy's voice carries
weight. If the Democrats win, the 59-year-old could become the first female
secretary of defense in U.S. history. In that position, she would likely seek
to pursue a more resolute course against Russia and China and invest more money
in deterrence. She has little patience for the fact that Germany still doesn't
spend 2 percent of its gross domestic product on defense and she will insist on
Berlin fulfilling that promise just as much as Trump has. That is a goal that
we have all agreed to, Flournoy told DER SPIEGEL, and it's not going to change.
Berlin
would also be misguided in hoping that a Biden administration will show more
understanding for the natural gas pipeline from Russia to Germany under the
Baltic Sea, an almost completed project known as Nord Stream 2. One of the few
things that Congressional Democrats and Republicans agree on is that the
pipeline is a completely unnecessary gift to Russian President Vladimir Putin.
Even leftist senators like Bernie Sanders have little understanding for why
Germany should shower money on Putin, who is doing everything in his power to
weaken American democracy. "There are both environmental and geopolitical
objections to Nord Stream 2, and they are shared by the left wing of our
party," says Matt Duss, Sanders' foreign policy adviser.
Domestically,
though, this election has made the political map of the United States even more
complicated. Trump didn't just attract support from a large share of his base
in the white working and middle classes. He was also able to convince new
voters who had traditionally been seen as belonging to the Democratic camp,
including Black men and Latinos.
Joe Biden,
meanwhile, was able to make advances into traditionally Republican strongholds,
including among white voters. In the Atlanta suburbs in the state of Georgia,
for example, and in Arizona. He was able to win over conservative voters who
weren't impressed by Trump's political style.
A Hopeless
Divide
It is
difficult to see how the U.S. might begin shrinking the divide that currently
runs through the country. A second Trump term would doubtlessly lead to a large
share of the population no longer feeling at home politically in the country.
And if Biden ends up with the most votes, but loses in the Electoral College,
more than half of Americans will be frustrated and angry. According to the
current count, Biden has received more than 4 million more votes than Trump. It
isn't difficult to imagine protests and unrest should Trump emerge victorious
anyway.
In states
like California, Oregon and Washington, the debate over secession could even
receive new impetus. The conflict between Republicans and Democrats in
Washington, D.C., would get even worse and the Congressional stalemate would
deepen right in the middle of the coronavirus pandemic and a deep economic
crisis.
Should
Biden win with a slim majority, by contrast, millions of Trump voters would be
unwilling to be governed by a man who Trump has spent months branding as the
leader of a dangerous socialist movement. It is uncertain whether deep red
states will ever accept a Biden presidency, even if the Democrat wins with a
decent margin.
Among
Democrats, there is significant concern that right-wing, potentially violent
organizations like the Proud Boys could launch a revolt against Washington.
Under such conditions, it seems almost impossible for Biden to be the president
of "all Americans," as he promised on Wednesday evening. Many of
those Americans want nothing less.
It became
clear long before the election that Donald Trump wouldn't simply walk away. His
comments left little doubt that he would do everything in his power to cling on
to the presidency - at all costs.
Phase one
of this operation has been underway for months, with Trump having repeatedly
cast doubt on the legitimacy of the election. Over and over again, he has
insisted that mail-in voting – which proved a particularly popular way to vote,
given the coronavirus pandemic – is extremely vulnerable to fraud.
At the same
time, he consistently urged his followers on Twitter and at his rallies to cast
their ballots in person. And that is what they did. Republicans streamed in
huge numbers to their polling stations on Tuesday – with a huge number of
Democrats, by contrast, preferring to vote by mail in important states like
Pennsylvania and Michigan.
The result was
that in states where the votes cast on Election Day were counted first, Trump
initially enjoyed a significant lead. But that was before the several hundred
thousand votes cast by mail were included, which have tended to be
overwhelmingly in favor of Biden. The difference was particularly extreme in
Pennsylvania. On Wednesday morning, Trump had a lead in the state of 600,000
votes, but that was before counting of the almost 2 million mail-in ballots had
begun. By late Friday afternoon (European time), Biden had moved into the lead
in the state by nearly 7,000 votes, with ballots still left to be counted.
The unequal
distribution of the mail-in ballots was key to phase two of Trump's plan, which
he sought to implement on the night of the election. In a bizarre appearance
before followers at the White House at 2:30 a.m., he claimed that his opponents
were doing all they could to steal the election from him and that the mail-in
ballots were fraudulent. Yet vote counting was continuing completely normally in
many states and Trump could offer up no evidence for his claims. In three of
the last five elections, wrote prominent U.S. historian Michael Beschloss on
Twitter last Sunday, the winner hasn't been known until after midnight. That
was also the case in 1960, 1968 and 1976. "No one should pretend that
there would be anything historically unusual if that happens again in
2020."
A Flurry of
Legal Challenges
Trump's
move to prematurely claim victory has been joined by a string of legal
challenges. The legal battle between the Republicans and the Democrats began
several months ago, with more than 200 cases underway in almost all states of
the union. Since Wednesday, they have been joined by additional lawsuits. In
Michigan, Wisconsin and Pennsylvania – everywhere the election could be decided
– Trump's lawyers are now active. The hope is that if a court ruling means that
Biden loses a few tens of thousands of votes, Trump might emerge victorious
after all.
Trump and
the Republicans are focusing on trivialities: Were the correct envelopes used
in accordance with the instructions? What about the stamps? And the voter's
signature: Did he or she sign on the correct line or is the signature in the
spot where the date belongs? The army of Republican lawyers has plenty of money
and is extremely well-organized. And they are challenging every single
formality, no matter how small.
Most
recently, the Republicans failed dramatically in their attempt to get almost
127,000 votes thrown out in Harris County, Texas, because they were cast in
drive-thru polling stations. The state supreme court, despite all of its
justices having been chosen by Republicans, rejected the effort, with a federal
judge affirming the verdict on appeal.
The
Electoral College
But it
could be that the legal challenges are just a delay tactic to perpetuate doubts
about the election results until the next opportunity to undermine the wishes
of the electorate. That opportunity comes on Dec. 8, in accordance with the
Constitution. By then, all 538 electors of the Electoral College must have been
chosen - who will then go on to elect the next president. Should the legal
challenges from Trump and his allies succeed in delaying the final results in
important swing states until then, the GOP could then invoke Article 2 of the
Constitution.
According
to that article, state parliaments are responsible for determining the system
by which electors are chosen. In recent history, that system was essentially
appointing electors in accordance with the outcome of the popular vote. But in
the Constitution, there is nothing prohibiting state legislatures from
appointing electors directly.
Trump could
try to force Republican-dominated legislatures in important swing states to do
exactly that. The GOP hold the majority in both chambers of state congress in
six of the states where the outcome of the presidential election has been
closest. In Arizona and Florida, the governor is also a Republican, while
Michigan, North Carolina, Pennsylvania and Wisconsin have Democratic governors.
According
to a report in the magazine The Atlantic, the Republican leadership in
Pennsylvania has already explored the possibility of appointing the electors
themselves. The danger would be that one or more of the electors might ignore
the result of the popular vote in the state and cast their vote for Trump, even
if Biden ends up with a majority in the state.
Edward
Foley, an expert in election law, has examined precisely this scenario. He
believes that in such a situation, the Democratic governors would move to
certify the official vote count. They could then declare the selection of
electors by the legislature was illegal. The consequence would be that on Dec.
14 - the day on which the electors in the Electoral College come together in
their respective state to elect the president – there could be two competing
groups of electors in Pennsylvania.
Then, the
focus would shift to Congress in Washington. According to the Constitution, the
electors must send their votes "to the President of the Senate," who
is Vice President Mike Pence.
In a
situation where both Trump and Biden claim the presidency, much will depend on
who has control of Congress. The newly elected representatives and senators
gather for the first time on Jan. 6. What then happens is only vaguely outlined
in the 12 Amendment: "The President of the Senate shall, in the presence
of the Senate and House of Representatives, open all the certificates and the
votes shall then be counted."
It isn't
entirely clear who should count the votes, nor is it clear what happens if
there is a conflict over who the legitimate electors are. The 133-year-old Electoral
Count Act, which was intended to provide clarity, is considered particularly
ineffective and unclear.
"The
Constitution is clear on only one point," says Edward Foley. "The
president's term comes to an end at noon on Jan. 20." In theory, even the
speaker of the house, the third person in the hierarchy according to the
Constitution, could claim the presidency on an interim basis. At the moment,
the position is held by Nancy Pelosi, a passionate Trump detractor.
The
"What If" Scenario
If Trump
were to manage to stay in office, he would likely use his second term to
continue foisting his "America First" doctrine on the world. And that
would mean a number of difficult years ahead, particularly for Europeans. In
the last four years, the president has made it more than clear just how little
he cares about established relationships and about allies who can rely on each
other. When a senior German diplomat visited Trump's son-in-law and adviser
Jared Kushner in the White House and raved about of the durability of the
German-American friendship, Kushner's response was: We don't have friends, just
business partners.
At the
time, the Germans discounted it as a comment born of inexperience, but soon it
became apparent that Kushner really meant it. Trump levied punitive tariffs on
European steel and French wine, he called the European Union "a foe,"
and if Trump were to only slap tariffs on German cars, that would be tantamount
to escaping relatively unscathed for most German states.
There is,
after all, much more at stake than just a few billion euros in trans-Atlantic
trade. Should he end up leveraging a second term, Trump could completely
destroy the entire postwar order. Even at the July 2018 NATO summit in
Brussels, Trump's advisers say he had wanted to threaten America's departure
from the alliance if not every member state immediately began spending the
equivalent of 2 percent of GDP on defense. John Bolton, Trump's national
security adviser at the time, had his hands full with convincing the president
not to issue such a threat.
Trump
already went much further in his first term than most of his predecessors: He
fired five independent auditors in government ministries in addition to asking
his Attorney General to open an investigation into his challenger Joe Biden -
as though William Barr were his personal servant instead of a crucial official
in charge of upholding the rule of law.
If Trump
were to manage to stay in office, it would mean a number of difficult years
ahead, particularly for Europeans.
He awarded
Rush Limbaugh, one of the worst rabble-rousers on American radio, the highest
civilian honor and declined to distance himself from QAnon followers, who
believe that the Democrats are part of a demonic cult that kidnaps children and
drinks their blood.
It seemed
impossible to go any lower than all that, but in the final days of the
campaign, Trump showed that it was. On Sunday, he praised those of his
followers who had tried to force a Biden campaign bus off the road. And he
announced that if he won re-election, he intended to fire Anthony Fauci, the
widely respected head of the National Institute of Allergy and Infectious
Diseases.
It was just
the latest indication that Trump has no qualms about transforming the U.S. into
an autocracy. From his very first day in the White House, he demonstrated an
extreme aversion to accepting the democratic ground rules of the office he
held. Instead, his admiration was reserved for autocrats like Russian President
Vladimir Putin and Chinese leader Xi Jinping, who had managed to secure a
life-long hold on power. The authority of the president is
"absolute," Trump insisted at the beginning of the coronavirus
pandemic, ignoring the fact that the Constitution said otherwise.
Little
Aptitude for Strategy
Trump
didn't get particularly far in transforming the U.S. into an autocracy during
his first term because he has very little aptitude for strategy. He never had
enough patience to focus on technicalities, despite their importance when it
comes to securing power. And at the beginning of his tenure, he appointed
business and military leaders like Rex Tillerson and James Mattis to his
cabinet - people who tried to save the country from Trump's most dangerous
propensities.
Before
long, though, Trump had managed to eliminate almost all of the independent
thinkers from his team. The only one remaining is Defense Secretary Mark Esper,
whose fate has been sealed ever since he publicly countered Trump's suggestion
that the military be used to quell the protests in American cities. Richard
Grenell was seen as his possible successor, a Trump lackey who gave up his
position as ambassador to Germany to campaign for his boss.
The
president learned that political appointments have a direct effect on his
power. He managed to establish a stable conservative majority in the Supreme
Court, and though Republicans didn't offer Trump much resistance in his first
term, they would no doubt fall completely silent in a second. GOP leadership
said nothing when Trump sought to blackmail Ukraine into producing dirt on Joe
Biden. And they said nothing when Trump referred to North Korean President Kim
Jong Un, one of the cruelest dictators in the world, as a personal
"friend."
The U.S.
does, at least, have newspapers that are critical of the government, such as
the New York Times and the Washington Post, but the pro-Trump channel Fox News
is so mired in propaganda that it makes Chinese state TV almost look serious by
comparison. With the help of Fox, Trump was able to convince a significant
number of his followers that truth no longer exists. Echoing Trump, Fox News
tells its viewers night after night that the "mainstream media"
consistently lies.
If everyone
is pulled down into the filth, Trump seems to hope, then the most scrupulous
among them will emerge on top. It is a strategy that brought him a long way.
Trump was the first to posit that Barack Obama was a completely illegitimate
president because he allegedly was not born in the United States. He claimed
that his predecessor had not, in fact, been successful in killing Osama bin
Laden. Most recently, he said that every American could receive the same COVID
medications that he did at no extra cost - even though the drug cocktail hasn't
even been approved and would likely cost several thousand dollars per dosage.
The central
question, though, is whether a president who has lost his re-election bid can
pardon himself.
For Donald
Trump, a Biden victory wouldn't just represent the greatest defeat of his life,
but perhaps also a reason to use what remains of his time in the White House to
sow chaos and commotion. He has around two-and-a-half months left as the most
powerful man in the world, and he has a free hand with every decision that does
not have to be approved by Congress.
In the
past, even presidents who respected the traditions and conventions of the
office they held have used the last days of their tenure to push through
controversial decisions, not least when it comes to presidential pardons.
George Bush senior pardoned six officials mired in the Iran-Contra scandal,
Bill Clinton did the same for the financier Marc Rich, who was wanted by the
FBI. Barack Obama released whistleblower Chelsea Manning from prison.
What might
Trump do? Particularly given that he could be facing legal troubles once his is
no longer protected by presidential immunity.
Will Trump
Seek Pardon?
In the
history of the U.S., no president has ever moved from the White House into
prison. But after four years of Trump, that scenario is not completely
implausible.
"The
possibility that Trump will face criminal prosecution is quite high," says
Bennett Gershman, a legal professor at Pace University and a former New York
state prosecutor.
In recent
years, numerous Trump loyalists have faced legal difficulties. His former
campaign chief Paul Manafort was handed a lengthy prison sentence and Trump's
personal lawyer Michael Cohen was also locked away. New York state prosecutors
have charged former chief strategist Steve Bannon with fraud and he is now out
on bail.
During the
investigation into Russian influence on the 2016 election, Special Counsel
Robert Mueller and his team looked into 10 different incidents where Trump
himself may have obstructed justice. Because Trump was a sitting president,
Mueller did not pursue prosecution. But with the end of his tenure, Trump would
lose such protection. Federal prosecutors and a new attorney general could
revisit the work of Mueller and of various Congressional committees.
All of that
raises the question as to how Trump might use his pardoning powers as his
tenure approaches its end. He has already issued 44 pardons, including
controversial ones such as the pardon of Roger Stone, who was facing three
years behind bars.
The central
question, though, is whether a president who has lost his re-election bid can
pardon himself. "That is absurd," says Philip Bobbitt, a
Constitutional lawyer at Columbia University in New York. The issue has never
been decided by the courts, but Bobbitt cites the established legal principle
that nobody can act as judge in their own case and also refers to the position
taken by Richard Nixon's Justice Department. In the 1970s, Nixon had asked the
judiciary to explore the question. The answer was a resounding no.
Nixon
managed to avoid prosecution by a different path. After his resignation
following the Watergate Scandal, Vice President Gerald Ford took over, and then
pardoned him in September 1974 for all crimes he had been accused of committing
while in office.
In
Washington, that past has triggered intense speculation this week if something
similar could be repeated. The idea is that Trump would resign prior to the end
of his term so that Mike Pence could be president for a few days, or maybe just
a few hours, so that he could pardon his former boss.
According
to Bobbitt, who worked as a legal advisor to Ford's successor, Jimmy Carter, in
the White House, it is unclear if such a move would be legal. In the case of
Nixon, there was no pre-arranged agreement, he says. Ford decided on his own to
pardon his predecessor in order to preclude harm to the office of the
presidency and to put Watergate in the rearview mirror. A "corrupt
deal" between Trump and Pence, though, he says, could likely be challenged
legally.
But the
greatest danger for the president could be lurking in his home state of New
York and not in Washington. New York Attorney General Letitia James and
Manhattan District Attorney Cyrus Vance are investigating Trump for business
deals Trump engaged in prior to becoming president.
Vance could
prove to be the greatest threat to Trump. He is investigating hush money
payments allegedly made to porn star Stormy Daniels and one other woman, both
of whom say they had affairs with Trump years ago. The investigations have
recently been expanded to include possible banking and insurance fraud
committed by the Trump Organization, the holding company for Trump's business
empire.
Joe Biden's
team has apparently prepared for the eventuality that the transfer of power may
not adhere to past norms. According to media reports, his advisers believe that
the normal meetings between the outgoing White House team and the incoming
administration won't take place this time around. It would likely be his final
effort at taking revenge against the man who forced him out.
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