“Trump Keeps Hinting He May Reject the Election Results. Is His True Goal an Immunity Deal?”
USA Today, October 1, 2020
Donald Trump has spent the past few months delegitimizing the November election any way he can. "This is going to be a fraud like you’ve never seen," he told tens of millions of Americans this week during the first presidential debate. "It’s a rigged election."
Is he giving us fair warning of how far he will go to hold onto the presidency? Perhaps. But it is also possible that Trump’s goal is to gain leverage in negotiating an exit deal that includes post-presidential immunity for himself — and maybe even his immediate family.
Though the race has tightened slightly since midsummer polls showed Democratic presidential nominee Joe Biden with a nearly unprecedented lead over a presidential incumbent, it is still likely that Trump will lose in November. That will open him to prosecution for potential crimes committed before and during his tenure in office. By putting his peaceful departure from the White House into question, Trump could succeed in making it a bargaining chip he can trade in for protection from prosecution.
Trading power for immunity
For autocratic heads of state in other countries, holding on to power has put them in a position to negotiate an exit that doesn't include trials or prison. The wave of protests and revolutions that erupted in the Arab Spring in 2011 showed this starkly. Ousted from power in Egypt, Hosni Mubarak was put on trial. In Libya, Moammar Gadhafi held on to the bitter end as some diplomats floated incentives like immunity from war crimes prosecution and safe passage to another country. In Yemen, longtime president Ali Abdullah Saleh agreed to give up power after being granted immunity from prosecution. In 2017, Zimbabwe strongman Robert Mugabe stepped down in exchange for immunity and a $10 million payout, according to The Guardian.
Former special counsel Robert Mueller detailed 10 examples of possible obstruction of justice in his 2019 report and noted that while Trump had temporary protection under a Justice Department policy against indicting sitting presidents, others could follow the evidence — and legal experts say there was plenty. In addition, subsequent developments suggest Trump may have lied to Mueller's investigators. His primary interest in holding on to office might be to allow for the expiration of the five-year statute of limitations in obstruction of justice cases.
The Mueller report is far from all Trump would have to fear from a legal standpoint. As an ex-president, he could be exposed to prosecution in the coordination of hush money payments to porn actress Stormy Daniels with his former lawyer Michael Cohen, another offense with a five-year statute of limitations. And New York authorities are investigating his real estate business for bank, tax and insurance fraud.
While Trump may pine for the opportunity to turn loose his well-armed legion of fans against political opponents in order to stay in office, the mere threat of being able to do so — which he reiterated in Tuesday's debate, when he told the violent far-right Proud Boys group to "stand by" — might be enough to get him what he wants. It's hard to believe that Trump seriously cares about appointing conservative judges to federal courts or revoking regulations to protect the environment and consumers. Those are the causes of his friends, enablers and fundraisers. What Trump cares about is making money, not feeling himself to be a “loser” and not going to jail.
Piling up capital to spend on pardons
It is possible that by threatening not to leave office even if defeated in November, the president is simply trying to stock up on “capital” that he can then spend in justifying to political allies a pardon for himself and his family, or a deal in which he resigns and Vice President Mike Pence, acceding to the presidency only for a few weeks or even days, issues the pardon on a firmer legal basis. In each case, the pardons would only cover federal crimes, not state crimes. A separate deal might be required with Gov. Andrew Cuomo of New York to shield Trump from prosecution in his (former) home state. Might that consummate pragmatist, amid political unrest unseen in generations, agree to do so?
Imagine the worst case, that the days after Nov. 3 are as chaotic as we are already being warned they are likely to be: In-person voting on Election Day seems to show Trump the winner, but the tabulation of mail-in votes soon gives Biden the lead. Both sides mass in the streets, while law enforcement agencies at every level of government are deployed to keep order. Lawyers for both sides battle it out in state and federal courts while Trump further muddies the already troubled waters through late-night tweets even more inflammatory than usual. After months of warning he would not go quietly, it’s not hard to imagine Trump trying to leverage his ability to stoke turmoil with a few keystrokes into a deal for himself and his family.
Would Democrats play along? Should they? After divisive elections and transitions, public officials often call on voters to look toward the future and leave the past in the past. That is why President Gerald Ford pardoned Richard Nixon. He called the Watergate scandal "an American tragedy" and added: "It could go on and on and on, or someone must write the end to it. I have concluded that only I can do that, and if I can, I must."
If the 2020 election does turn chaotic, even violent, and the dispute lasts weeks into winter, there will be an enormous amount of pressure for some sort of compromise, a way out of the stalemate. One form that could take is Trump’s concession and departure in exchange for immunity from prosecution after he leaves the presidency. It is worth considering whether that would be a price worth paying to leave the Trump era behind us.