Let’s make some wobbly assumptions and look to the future. Suppose the country survives the onslaught of lies — or “alternative facts,” as Kellyanne Conway (remember her?) used to call the stream-of-conscious gibberish Donald Trump tweets and screams at rallies — and Joe Biden wins the election.
Then we get past all of Trump’s post-election chicanery or something even more serious and Biden is declared the winner.
At the time of the election, the Trump presidency would have more than two months to go. That is plenty of time for Trump to do a huge amount of damage while still in office.
He could approve any number of malicious policies and corrupt giveaways. He could pardon all of his buddies. There are wars he could start, and there is little that Biden could do about it until he is inaugurated.
Until noon, Jan. 21, 2021, Trump remains POTUS, with enormous power to act against his political enemies or give further leeway to certain special interests — especially his own special interest. Sometime in the afternoon on that Wednesday, new President Biden would have to undo all that outgoing President Trump has done, particularly during the transition period.
But what about the pardons? There is not much Biden can do. You can’t unpardon someone. But what about pardoning Donald Trump?
Biden will have to decide whether to allow federal criminal prosecution to proceed investigating all the crimes that Trump has allegedly perpetrated while in office — or before, when it comes to charges of obstruction, extortion and the tax problems that The New York Times has just alleged, the ones Trump says are “fake news.” By now we have learned that what he calls fake news is actually true.
“Absolutely!” you shout. But do we want to go down the road to a Banana Republic? Is the United States of America going to take that authoritarian step? We already stand accused of criminalizing politics, where independent counsels pop up like whack-a-moles and those on the periphery of any presidency get in legal trouble, even sent to jail, or are bankrupted by attorney fees.
Do we want to make the spectacle of a trial and maybe conviction the price you can expect to pay for leadership?
We need to tread that path very carefully.
Can a president, before he leaves office, pardon himself for any crimes or future accusations of federal law violations? In the Nixon years, a Justice Department memorandum said no because of “the fundamental rule that no one may be a judge in his own case.”
But the Constitution contains no such limitation, except in cases of impeachment. But American tradition is that “no man is above the law.” The conflict is not resolved.
Note that the pardon or commutation power does not cover state or local violations, only “offenses against the United States.” Nor does it involve civil law or, as we are reminded by The Times’ reporting on his tax accounting, being audited. Donald Trump has long experience being sued and audited.
Trump will “not go gentle into that good night.” He attracts the spotlight too much.
Of course, as I mentioned, he must lose the election in November, which is a dicey proposition, since Trump knows that when he leaves the White House he steps into legal jeopardy.
Bob Franken is an Emmy Award-winning reporter who covered Washington for more than 20 years with CNN; opinions are his own.