It sure looks like Donald Trump isn’t having any fun. On a couple of occasions, he has sounded downright defeatist. “Joe Biden,” he told Sean Hannity, is “going to be your president because some people don’t love me, maybe. And, you know, all I’m doing is doing my job.”
The Supreme Court doesn’t love him either, Trump has whined. He seems to have lost all sense of electoral strategy, oscillating between tone-deaf rants that further alienate swing voters and mawkish self-pity. Everything he does just digs the hole deeper.
Republican governors who followed his advice to open prematurely are politically screwed. Normal people, including many Republicans, are furious that they were needlessly put at risk of contracting the virus, while the yahoos are furious that the bars are being closed.
Even the people Trump installed to tame the deep state, like Attorney General Bill Barr, are bumping up against the limits of their power. And Republican senators are increasingly worried and pushing back.
Never mind the country and its rising death toll. Poor me!
If Trump senses a blowout defeat well beyond the usual Republican margin of theft, the champ may decide that it’s more dignified to retire undefeated. He can claim that the election was rigged, that he would have won, blah blah blah, and he can have the satisfaction of agitating his base as president-in-exile with no responsibility whatever for the consequences.
Trump may conclude that he has more leverage to cut the best possible deal with all players while the bargain includes a widely wished-for resignation, rather than after he loses.
There is one complication: Trump’s vulnerability to prosecution after he leaves office. Might the great deal-maker be better off cutting a deal now rather than after he is repudiated at the polls?
When Vice President Spiro Agnew was caught in a corruption scandal in 1973 as Watergate was rising around Nixon, Agnew cut a deal where he paid a token $10,000 fine and there would be no further prosecution if he would just please leave. Most Americans, I suspect, would welcome such a deal to get Trump out, as much as they would like to see him do hard time in the slam.
The complication, however, is that the criminal case against Agnew was entirely federal. It involved kickbacks and tax evasion. So federal prosecutors could agree to drop any additional charges, and Agnew was free.
In Trump’s case, he is caught in a byzantine web of federal and state charges, as well as private civil litigation. A blanket pardon by Vice President Pence would doubtless be part of any Trump resignation deal. But even if Pence issued a pardon as sweeping as Gerald Ford’s pardon of Richard Nixon, which covered all offenses he committed or “may have committed” during his presidency, that would still leave Trump vulnerable on several fronts.
Article II of the Constitution is crystal clear. The presidential pardon power covers only “offenses against the United States,” not prosecutions under state law, much less private civil cases. And though a pardon could get Trump off the hook for federal criminal tax fraud, he’d still be vulnerable for back taxes based on a government showing that he cooked his books.
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If Pence followed Ford’s lead and pardoned Trump for all crimes committed while in office, Trump could be prosecuted for crimes committed before 2017 in areas where the statute of limitations had not run out. Even if Pence stretched the Constitution and pardoned Trump for pre-presidential crimes as well, Trump would still not be home free of state and civil cases.
Nonetheless, Trump may conclude that he has more leverage to cut the best possible deal with all players while the bargain includes a widely wished-for resignation, rather than after he loses an election and his term merely ends. At that point, Trump’s opponents have no incentive to make deals, and a pardon only goes so far.
More from Robert Kuttner
Giving up the pleasures of retribution are worth it, if we can get Trump out before he does more damage. And anyone who thinks Pence would be a stronger Republican candidate than Trump has not watched him close-up. I’m not even sure Pence could be nominated.
Indeed, watching the post-Trump Republican free-for-all is another reason to want a resignation. As our prescient colleague Stan Greenberg keeps writing, the unstable Republican Party coalition is on the verge of flying apart, with or without Trump.
The sooner we can get Trump out, the better. Even Napoleon ended up in exile rather than in the guillotine where his enemies wanted him. Mar-a-Lago isn’t Elba, much less Saint Helena, but it sure beats the Oval Office.
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