NEW YORK — On Thanksgiving, President Donald Trump finally acknowledged that he’d leave office if the Electoral College votes for President-elect Joe Biden on Dec. 14. That’s all but an absolute certainty.
The president also refused to commit to attending the inauguration, as is customary for outgoing presidents to do. But he’s also got a problem: Potential indictment for alleged crimes committed in office and before he was elected.
Last year, Special Counsel Robert Mueller’s investigation found there was no coordination with Russia by the Trump campaign in Russia’s efforts to interfere in the 2016 presidential race. But Mueller did not exonerate the president for obstruction of justice.
The federal Justice Department policy is not to prosecute a sitting president. But when Trump leaves office, there could be trouble.
So, what can Trump do?
Under the Constitution, the president has almost total pardon power. It’s not clear if Trump could pardon himself, but he could pull a move to get himself off the hook.
Trump could resign shortly before his term ends on Jan. 20. Donald Trump may not be the resigning type, but Vice President Mike Pence would assume office and he could issue a pardon.
“This would certainly be legal, if questionably ethical, especially if there were a prior agreement between Pence and Trump,” Syracuse University presidential historian Margaret Thompson told PIX11. “You’ll recall that Ford pardoned Nixon under similar circumstances, though Ford denied throughout his life that there had been any agreement between him and Nixon.”
From a constitutional and legal perspective, Rutgers Law School constitutional law professor Ronald Chen said there would be no controversy.
Michigan State University law professor Brian Kalt said a Pence pardon would hold more solid ground than Trump pardoning himself.
“The issue is more political. Would Pence wish to do so and assume the onus of such a controversial act if he still has political aspirations for the future?” Kalt added.
Professor Allan Lichtman, a presidential history scholar at American University in Washington, D.C., called such an arrangement “unprecedented and reprehensible.”
However, he also noted it would be of limited help for Trump.
“A presidential pardon would not protect him from civil suits in state or federal court or from state prosecution which is probably his greatest jeopardy,” Lichtman said.
Manhattan District Attorney Cyrus Vance is currently investigating Trump for his business dealings. Tax and fraud charges could be involved, and he could face any number of civil lawsuits.
Among them, two women are suing Trump for defamation for his responses to claims that he sexually assaulted them. Additionally, his former lawyer, Michael Cohen, who is now serving time in home confinement, is seeking about $2 million he claims he’s owed.
Even a deal to resign and be pardoned might not be safe for Trump, according to Michigan State’s Professor Kalt.
“If the pardon were given as part of a deal, some might consider it an illegal bribe/obstruction of justice,” he told PIX11. “That could expose Trump and Pence to legal trouble — legal trouble that the pardon wouldn’t cover.”
However, there may be an alternative, according to Kalt, who is an authority on the 25th Amendment.
“Trump wouldn’t need to resign to give Pence this power,” Kalt said. “He could invoke Section 3 of the 25th Amendment (say, while being sedated for a medical procedure), temporarily transferring power to Pence as acting president.”
Although the vice president doesn’t actually become president and merely assumes presidential powers under this scenario, presumably those powers include the ability to issue pardons.
Could any of this actually come to be? Perhaps the better question is, can it be ruled out?