30

As a foreign spectator it seems likely to me that Trump won't leave the White House voluntarily. Losing his immunity appears to be a driving factor in why he is clinging to the position of power he currently holds.

That said, I wondered why Trump hasn't been offered immunity, or something amounting to a pardon of the pending litigation against him, in exchange for conceding that Biden won.

Q: Has Biden's campaign or any Democrats so far voiced publicly if they would be willing to consider something like this?

Note: the emphasis in "something like this" is meant to stress that I don't care as much about what kind of legal device would be used. I only care about the effect it would have.


Note: I've seen the idea floated that Trump could pardon himself before leaving office and losing immunity. That's how the above question came to be.

Reasoning of why Biden or the Democrats may consider it (this was asked in the comments a few times): commentators in the media have tirelessly pointed out, not only since this last election, that the peaceful transition of power and a timely concession by whoever loses is important to avoid damaging the democratic process. Given that importance it would seem to me that, perhaps, any options avoiding damage to the democratic may be on the table.

2
  • 1
    Comments are not for extended discussion; this conversation has been moved to chat.
    – Philipp
    Nov 18 '20 at 10:09
  • 2
    I'd argue one of your premises is flawed. It's true that Trump currently enjoys a legal immunity he no doubt would not wish to lose, but I believe that Trump would not be willing to concede even if he could keep that immunity. Trump is currently profiting from people donating money to fund legal challenges to the election. If you read the fine print 60% of these donations go to paying existing campaign debts. More importantly it's simply in Trumps personality to do everything to stay president out of ego and a desire to be president for the sake of being able to say he is president.
    – dsollen
    Nov 19 '20 at 16:22
86

In May of 2020, Biden committed not to pardon Trump or otherwise interfere with any investigations that the Justice Department may or may not carry out:

Democratic candidate Joe Biden said that if he wins the presidency he would not use his power to pardon Donald Trump or stop any investigations of Trump and his associates.

“It is not something the president is entitled to do, to direct a prosecution or decide to drop a case,” Biden said Thursday on MSNBC. “It’s a dereliction of duty.”

The former vice president made his statement in response to a voter who asked him on Lawrence O’Donnell’s show, “The Last Word,” whether he would “commit to not pulling a Gerald Ford in giving Donald Trump a pardon under the pretense of healing the nation.”

Biden responded, “I commit,” before offering a more lengthy explanation of his view that the president must allow the Justice Department to operate without interference.

Biden says he would not pardon Trump or block investigations - AP, May 15, 2020


Recently, though, Biden has expressed more hesitancy about aggressive Federal investigations of Trump. NBC reports that he has told his advisors that he worries that such investigations would be overly divisive and keep the focus on Trump, rather than his own Presidency:

President-elect Joe Biden has privately told advisers that he doesn't want his presidency to be consumed by investigations of his predecessor, according to five people familiar with the discussions, despite pressure from some Democrats who want inquiries into President Donald Trump, his policies and members of his administration.

Biden has raised concerns that investigations would further divide a country he is trying to unite and risk making every day of his presidency about Trump, said the sources, who spoke on background to offer details of private conversations.

Still, least for now, this desire seems to be taking the form of a hands-off approach to the actions of the Justice department:

As Biden tries to balance his own inclinations with pressures from within his party, his advisers stressed that he is seeking to reset the dynamic between the White House and the Justice Department from what it has been under Trump.

Biden wants his Justice Department to function independently from the White House, aides said, and Biden isn't going to tell federal law enforcement officials whom or what to investigate or not to investigate.

"His overarching view is that we need to move the country forward," an adviser said. "But the most important thing on this is that he will not interfere with his Justice Department and not politicize his Justice Department."

"He can set a tone about what he thinks should be done," a Biden adviser said. But, the adviser said, "he's not going to be a president who directs the Justice Department one way or the other."

Biden hopes to avoid divisive Trump investigations, preferring unity - NBC News, Nov 17, 2020

This does not contradict his previous statements, and a pardon would be politically impossible, and wouldn't protect Trump from ongoing State investigations anyway, but it's certainly possible that Biden would prefer to see any investigations of Trump happen at the State level.

2
  • 4
    Today’s news: nbcnews.com/politics/justice-department/…
    – rrauenza
    Nov 17 '20 at 15:48
  • 8
    Trump may not even accept a pardon, since that would be admitting he committed crimes as well as admitting he wouldn't do well in court. With his ego, Trump likely wouldn't take the pardon, and that pardon would only protect him against Federal anyway, not State level lawsuits. There are some people that are investigating him for the same things at the state level the Federal Gov't is, so a pardon still wouldn't 100% protect Trump. nbcnews.com/think/opinion/… Nov 18 '20 at 21:07
38

No, because none of the reasons you've given for why it might happen are true

it seems likely to me that Trump won't leave the White House voluntarily.

As JoeW says above, he has no choice. At most he can actively oppose the country being governed over the next couple of months, but that's it. When the time runs out, he can legally be removed, by force if necessary.

in exchange for conceding that Biden won

Biden doesn't need that. It helps to provide a smooth transition of power, by allowing their team to start work before the Electoral College make their decision, but it isn't essential. And once the Electoral College have decided, it's all over.

voiced publicly if they would be willing to consider something like this?

For Democrats who believe Trump has acted criminally, this would be a betrayal of trust. For Republicans who fundamentally don't trust Democrats, they have no reason to accept any such promise since it would not be legally binding.

Trump could pardon himself before leaving office

According to the DoJ, Trump cannot pardon himself. Or rather, he can say the words but they will have no legal effect.

32
  • 6
    About pardoning himself - I've been wondering about that one; the president can pardon a convicted criminal, I know, but since he hasn't been convicted of a crime (yet), how can he be pardoned? That sounds like buying indulgences.
    – j4nd3r53n
    Nov 17 '20 at 14:32
  • 8
    The USSC have ruled that the presidential pardoning power extends to offering amnesties too (jstor.org/stable/27551729). This is, in effect, a pre-emptive pardon, providing "forgiveness" for crimes not yet tried.
    – Dancrumb
    Nov 17 '20 at 15:10
  • 22
    @0xC0000022L What you’re missing here is that most of the “importance” comes from the respect for and adherence to democratic norms. Making what should be automatic into a transaction doesn’t respect those norms any more than refusing to do it does—if anything, it taints the process further. If someone is attacking the democracy of the country, then that person needs to face consequences for doing so in order to maintain and defend them. Offering a deal allows Trump to benefit from his behavior and potentially incentivizes future copy-cats, encouraging more such damage.
    – KRyan
    Nov 17 '20 at 15:20
  • 4
    @0xC0000022L There are other important issues—planning around the coronavirus, ensuring no gaps in our national defense strategy, etc.—but at least so far Biden has assured everyone that the situation is not causing too many problems along those lines, and indeed it really shouldn’t. Trump’s claims are specious, but it’s very plausible for an election to truly be contentious (cf. 2000), and the country needs to be able to deal with that.
    – KRyan
    Nov 17 '20 at 15:22
  • 12
    @0xC0000022L The issue for Trump not conceding is that he is fundamentally challenging the concept that America should be a democracy. That is what is damaging the democratic process. As for the transition starting earlier, it certainly makes life a little easier, but one of the reasons for such a long lame-duck period is to give time for the transition process to take place after the Electoral College vote.
    – Graham
    Nov 17 '20 at 20:17
6

He doesn't have a choice on January 20th at Noon Trump will no longer be president and will have no choice about leaving.

https://www.constituteproject.org/constitution/United_States_of_America_1992

AMENDMENT XX

The terms of the President and Vice President shall end at noon on the 20th day of January, and the terms of Senators and Representatives at noon on the 3d day of January, of the years in which such terms would have ended if this article had not been ratified; and the terms of their successors shall then begin.

1
  • Comments are not for extended discussion; this conversation has been moved to chat.
    – JJJ
    Nov 18 '20 at 22:26
6

Granting such pardon would create really dangerous precedent for any future wannabe autocrat: try to gain unrestricted power, and in the case of the failure, next president will grant you pardon to avoid divisiveness.

Instead, Biden is doing exactly right thing: let investigators to follow the law without any political interference, as Trump should have done.

1
  • Comments are not for extended discussion; this conversation has been moved to chat.
    – CDJB
    Nov 26 '20 at 11:53
2

That said, I wondered why Trump hasn't been offered immunity, or something amounting to a pardon of the pending litigation against him, in exchange for conceding that Biden won.

There is a flaw in this part of the premise: Biden can only issue a pardon for Federal offenses, not state offenses.

Trump is facing 12 Congressional, 10 Federal, and 8 state investigations. Even with a presidential pardon and Congress laying off, Trump, his family, and his businesses still face investigations in New York, New Jersey, and Washington D.C.

You must log in to answer this question.

Not the answer you're looking for? Browse other questions tagged .