When President Trump leaves office in January, he is no longer safe from legal prosecution.
Before Joe Biden was declared the president-elect, chief Washington correspondent at The New Yorker Jane Mayer penned the article “Why Trump Can't Afford To Lose.” Mayer spoke to people close to Trump, legal scholars and historians to paint a picture of what could lie ahead in Trump's post-White House future.
"Trump has famously survived one impeachment, two divorces, six bankruptcies, 26 accusations of sexual misconduct and an estimated 4,000 lawsuits,” she writes. “Few people have evaded consequences more cunningly. That run of good luck may well end, perhaps brutally, if he loses to Joe Biden."
Trump could face a more perilous endgame than former President Richard Nixon did, she writes, and the trouble stems from an ongoing, serious criminal investigation by the District Attorney’s Office in Manhattan.
The investigation started during Trump’s 2016 campaign when he was accused of paying off adult film actress Stormy Daniels to conceal an affair between them and avoid public embarrassment. Now, the investigation is also looking at Trump’s business practices, tax fraud, bank fraud and insurance fraud, Mayer says.
Trump’s former lawyer Michael Cohen is accused of setting up a shell company that paid out money to Daniels. The company was listed as legal campaign expenses, which is considered an illegal contribution. Cohen went to prison but was released to home confinement and is now cooperating with the DA’s office, while Trump couldn’t face prosecution during his presidency.
“The reason that I write about the peril he's in now is if he's no longer president, he can be prosecuted,” she says. “I'm not trying to say that he will be prosecuted, but I am trying to say it's an actually very serious investigation. And in this case, he can't pardon himself.”
Following his impeachment, Nixon considered pardoning himself but his advisers warned against it. He was later pardoned by his successor Gerald Ford.
Legal experts such as Harvard University law professor Jack Goldsmith say it’s not clear whether a president can pardon himself, Mayer says. The broad powers of the presidential pardon were quickly addressed in one Justice Department opinion from the Nixon era that said the president cannot pardon himself because a person can’t judge their own case, she says.
“But it really hasn't been tested. Nixon thought about it, but he thought it would disgrace himself if he tried it,” she says. “Many people think that Trump may try it, including Jon Meacham, the historian who said he's always imagined that for a narcissistic president, it might be the perfect final act.”
The Justice Department memo also lays out that a president can cede power to the vice president, who can then issue a pardon. The president could take back power after receiving the pardon, she says, but these are “uncharted waters.”
As of now, no American president has ever been charged with a criminal offense. But some speculate that Trump could end up leaving the U.S. — which seems “unfathomable in this country,” Mayer says.
Corrupt leaders in other countries have fled in the past. People who study authoritarianism such as Yale University professor Timothy Snyder suggest that Trump could do the same, she says. Trump has businesses set up around the world.
“There are those possibilities, but Tony Schwartz, [Trump’s] former co-author of ‘The Art of the Deal,’ the book that really made Trump famous in the first place, says, where would he go?” she says. “Who would want him?”
Trump could also run for another term in 2024, an idea former aide Steve Bannon predicted if Biden won. Most people didn’t take Bannon seriously, but now another Trump run could serve multiple purposes, Mayer says.
“It presents Trump — even if he has to leave the White House this time — as someone who's still viable, still a political power,” she says. “And people around him say he sees it also as potentially a shield against prosecution because it would look political if someone went after him.”
There's also speculation that Trump may become a talk show host, a competitor with Fox News or a replacement for Rush Limbaugh, who's fighting terminal lung cancer. The idea of giving Trump his own media platform started in 2016 with aide Roger Ailes, who left Fox, she says.
Home Depot co-founder Bernie Marcus supports the idea of investing in a Trump network, Mayer reports. Despite backing from his supporters and potential investors, Mayer says people who know Trump aren’t sure he’s the man for the job.
“Whatever you think of his show, [Limbaugh] really has put a lot of effort into it,” she says. “And people who know Trump say it might be too much work for what he wants to do.”
This segment aired on November 10, 2020.