The 3 Norms Trump Could Still Break

He can’t and won’t overturn the election result, but he can cause plenty more havoc on his way out.

A black-and-white photo of President Donald Trump shows him waving as he stands behind a podium.
Ralph Freso / Getty

America has seen little of Donald Trump since the election. Speaking to the nation largely through Twitter, he’s barely strayed outside the White House as he absorbs a defeat that shattered the myth he created of his own invincibility. Still, he’s been busy—firing officials he deems disloyal and plotting ways to stay in power. He can’t and won’t overturn the election result, but he can cause plenty more havoc on his way out. Some of the ways would be immediately evident; others, hidden.

“We’re going to have to be very vigilant in the next two months for abuse of the pardon power, awarding of contracts to friends and family, and destruction of records, as well as policy decisions to box in the incoming administration,” Representative Adam Schiff, the chairman of the House Intelligence Committee, who helped prosecute the case against Trump in the Senate impeachment trial earlier this year, told me.

Trump, too, may feel boxed in, and for that reason he may be more prone to acting out. Congressional investigators still want to see his tax records. Prosecutors in New York are scrutinizing his business practices. The Biden administration will face intense public pressure to examine the money that flowed to Trump’s hotels and golf clubs over the past four years.

Soon enough, Trump will be stripped of the leverage that arms presidents looking to protect their interests. As he confronts an uncertain future, he could stretch or smash the boundaries of presidential power in ways no one else has tried. He could damage the basic notion that presidents are accountable for their actions and answerable to the law. All of which makes the interregnum before Joe Biden’s swearing-in an especially precarious time. Here’s what he could do.

Trump could try to pardon himself (and his compatriots).

No president has ever done it, but Trump could be the first to try. He’s even explicitly claimed in the past that he has the “absolute right” to pardon himself. A pardon could insulate him in the event that prosecutors charge him with any federal crimes down the road. (It wouldn’t protect him from an ongoing Manhattan investigation into his business practices, or any other city- or state-level probes that may arise.)

It’s not entirely clear what sort of jeopardy Trump might face at the federal level, though prosecutors could revive Special Counsel Robert Mueller’s investigation into whether Trump obstructed justice by trying to derail the Russia inquiry. Mueller’s final report explicitly mentions that while Justice Department guidelines forbid prosecution of sitting presidents, once they leave office they have no such immunity. That means Biden’s attorney general potentially could resurrect the case. (Trump has denied that he obstructed justice.)

A self-pardon wouldn’t be easy to pull off. One Justice Department analysis written days before Richard Nixon resigned in 1974 concluded that a president cannot exonerate himself, on the theory that no one can be judge and jury in his own case. Some academics who have studied the issue believe the same. “One thing that’s clear is [the Framers of the Constitution] did not intend to create a monarch,” Frank Bowman, a University of Missouri law professor who wrote a paper on the topic, told me. “If a president has the power of self-pardon, he’s immune to criminal liability and thus becomes kinglike, and the Framers plainly did not intend to create a creature of that order.”

Still, because no president has ever tested a self-pardon, no one knows for certain if it would pass constitutional muster. “The law is just not clear,” Alan Dershowitz, who defended Trump in the impeachment trial, told me.

Trump seems to think it is. Earlier in his term, he quizzed aides about pardons and whether a president is free to grant one to himself, a former Trump White House official told me, speaking on condition of anonymity to talk freely about internal conversations. Trump apparently came away convinced. Would he use the power? One reason to avoid a pardon is that Trump, a self-proclaimed victim of multiple “witch hunts,” might not want to give the impression that he’s hiding something. But the ex-official said the president could spin a counterargument: He’s a ripe target for Democrats and is merely taking a precautionary step to ward off any politically motivated prosecution.

“I would be surprised if [Trump] doesn’t try it,” Andrew Weissmann, one of the lead attorneys in the Mueller investigation, told me.

There’s another, more labyrinthine path to a pardon: He can try to wrangle one from Mike Pence. Trump could temporarily make Pence the president by invoking the Twenty-Fifth Amendment. After Pence grants the pardon, Trump could demote him and reclaim the presidency. (The gambit wouldn’t necessarily survive a legal challenge. The amendment envisages a president who is incapacitated, not one who is scheming to evade punishment.)

Alternatively, Trump could resign in the hours before his term expires at noon on January 20, making Pence president just long enough to pardon him. Would Pence go along? If he wants to be president in his own right—for more than a few hours—he might balk at a plan that could spoil any thought of a comeback in 2024. President Gerald Ford lost reelection in 1976 in part because of the uproar over the pardon he gave Nixon. “The question is, does Mike Pence want a future or not?” Margaret Love, a Justice Department pardon attorney in George H. W. Bush’s and Bill Clinton’s administrations, told me.

Trump could more easily pardon old allies, because there’s nothing to stop him from doing so. Two potential recipients are Paul Manafort, his former campaign chairman who was convicted in 2018 of tax and bank fraud in Mueller’s investigation, and Roger Stone, a longtime friend who was convicted of obstructing the House inquiry into Russian election interference. Trump has already commuted Stone’s sentence, keeping him out of prison.

“I do think that he’s going to hand out a lot of pardons—especially to those who are close to him,” John Brennan, a former CIA director in the Obama administration and the author of the new book Undaunted, told me.

Trump could try to ditch important records.

There are plenty of records stored at the White House that Trump may not want his successor, Congress, or the public to ever see: Emails involving his impeachment. Memos about officials he’s fired. Transcripts of conversations with Vladimir Putin or Kim Jong Un.

Before he leaves, he could ask that records be destroyed or hidden so that the incoming Biden administration won’t know where to find them, some lawmakers and good-government groups worry. Trump has already refused to grant Biden the intelligence briefings that a president-elect normally receives during the transition period.

“This is an administration that shows nothing but disdain for the rule of law,” Schiff said. “You have to be deeply concerned about whether they will abide by” federal records laws. “I can only hope that the career civil servants understand it’s their legal and moral obligation not to destroy documents and not to make themselves a party to it even if asked to do so by political appointees.”

Trump seems to have little use for paper trails. He has snapped at officials taking notes at Oval Office meetings, as I’ve written. He has kept his conversations with Putin in particular secret, going so far as to collect the translator’s notes after one face-to-face meeting. When he arrived at the White House, Trump brought with him a habit of dispensing with unwanted papers by tearing them up. “When he was done with something, he would rip it in half and toss it on the floor. That almost seemed to be his filing system,” the former White House official told me. “He would keep something intact and on the table if he wanted to save it and deal with it.”

The Presidential Records Act, passed in 1978, holds that these records are not the president’s personal property, and that a sitting president must “obtain the views in writing” of the United States archivist before getting rid of any. Trying to comply with the law, government aides would tape Trump’s torn pages back together, the former official told me.

The Biden administration will need to see White House records as it sets policy. Officials will need to know the status of Trump’s trade talks with China, for instance, and of defense arrangements with allies. But congressional investigators may want them too. They may want correspondence dealing with Russian election interference or the president’s efforts to unearth dirt on the Biden family. “There are some very real, significant ongoing investigations that if the Democrats continue to pursue, these records will be key to that,” Brian Greer, a former CIA attorney in the Obama and Trump administrations, told me.

Destroying the material isn’t as simple as it may sound: Aides often make duplicates, and may store them on different servers. But the White House could try another tactic that doesn’t require a shredder. It could give records misleading labels that make them impossible to find.

“I’m worried that, faced with the prospect of real oversight for the first time that they cannot obstruct, they will destroy documents or hide them—mislabel them, obscure them under odd filing systems, classify them improperly—essentially creating the scene from the Indiana Jones movie,” Austin Evers, the executive director of American Oversight, which has filed scores of public-records lawsuits against the Trump administration, told me, referring to the final scene in Raiders of the Lost Ark.

Trump could spout state secrets.

Either out of spite or general carelessness, Trump could blurt out secrets unearthed by a U.S. intelligence community he’s long disparaged. He has the power to do it; presidents can declassify anything they choose. In Trump’s case, though, he may be driven more by a need to vindicate himself in his final days in power than to advance the country’s interests. An obsession of his is his unfounded claim that the Obama administration spied on his 2016 campaign. One example of information he could selectively release is anything that purportedly shores up that allegation.

Or he might look to settle old scores. He sparred throughout his term with intelligence officials, who have stood firm on what for him is the inconvenient reality that Russia interfered in the 2016 election in hopes that he’d win. The career officials who gather secrets from foreign lands embody the “deep state” forces that he believes want to see him fail.

“It’s absolutely a concern” that Trump might want to reveal government secrets “because of his different approach to summarily declassifying intelligence while president,” David Preiss, a former CIA officer, told me. Last year, for instance, Trump tweeted what was believed to be a classified image of a rocket launchpad in Iran. Early in his term, he met privately with Russian officials in the Oval Office and reportedly shared with them classified intelligence about an Islamic State plot that had come from an American ally, Israel.

One reason to be hopeful that Trump won’t reveal much is that he may not know as much as past predecessors did. The president who once told his intelligence chiefs to “go back to school” doesn’t seem to have been that great a student.

When intelligence officials would brief him, he’d listen for a few minutes—and then start talking, said another former White House official, who also spoke with me on condition of anonymity to talk freely. “He doesn’t have a lot in his head, just because he doesn’t listen and pay attention and read the memos,” this person told me. “The only thing that would catch his attention was anything and everything that had to do with Putin and compromising the [2016] election.”