Daniel DePetris

Will Trump spend his retirement in court?

Will Trump spend his retirement in court?
An anti-Trump protester in Florida (Getty Images)
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When U.S. presidents leave office they usually take a step back to work on pet projects or write their memoirs. Jimmy Carter, one of the most active former presidents in U.S. history, began the widely-acclaimed Carter Center to monitor elections around the world. He also continued to serve as an unofficial U.S. government representative. Bill Clinton and Barack Obama began foundations of their own, with both remaining involved in hot-button political topics. George W. Bush decided to go back to his ranch in Texas and take up painting.

But Donald Trump may be spending his first few months in retirement fending off criminal investigations against his business. And therein lies the obvious question: is it possible that Trump could be charged with a crime?

This is not an altogether unprecedented situation. When Richard Nixon resigned the presidency in disgrace after more than two years of depositions, prosecutions, and public hearings over the Watergate scandal, there was a possibility that he could be charged with obstruction of justice. Nixon, after all, was named as an unindicted co-conspirator in the attempt to cover-up the break-in of the Democratic National Committee headquarters by operatives working for his re-election campaign. There was an open question that Nixon could have become the first president in the country’s history to end up in the wrong seat in a courtroom. According to a Pew poll taken more than a week after his resignation, 56 per cent of Americans believed Nixon should be tried. Fortunately for him, Gerald Ford, Nixon’s vice president and successor, pardoned him for any and all crimes he may have committed.

While president-elect Joe Biden has promised that he won’t ask the Justice Department to launch an investigation against Trump for possible malfeasance while in office, it’s also highly unlikely he will be following Ford’s footsteps and issuing a similar pardon to his predecessor. 

Protecting Trump from prosecution would be sacrilegious in the eyes of Democrats nationwide. The progressive grassroots, not exactly big fans of Biden to begin with, would light up with rage to the point of backing a primary challenge in 2024 (this, of course, assumes Biden would run again; he will be 82 years old when it is time to campaign for re-election).

Trump is therefore more exposed to the long arm of the legal process than Richard Nixon ever was. There are several ongoing investigations in relation to Trump’s actions, including a state-led inquiry on whether the Trump Organization illegally obtained tax breaks and loans the company wasn’t qualified to receive. The Southern District of New York, which investigated and prosecuted former fixer Michael Cohen over payments to porn star Stormy Daniels, has been probing Trump’s lead attorney, Rudy Giuliani. And Manhattan District Attorney Cyrus Vance Junior continues to scour Trump’s tax records, despite the president’s unsuccessful attempt to block him. The U.S. Supreme Court unanimously rejected Trump’s claim of absolute immunity over the summer, ruling that Vance’s request for tax documents was an ordinary investigative tactic.

As long as he was in the Oval Office, Trump was largely immune to federal investigations. The Justice Department continues to operate on the guidance that presidents can’t be charged while serving the duties of the office. FBI Director and special counsel Robert Mueller cited that long-standing opinion to justify his decision to not indict Trump for obstruction of justice in the Russia investigation.

But now that Donald Trump is leaving the safety of the Oval Office, immunity is no longer an option. What this means for Trump’s personal legal exposure is difficult to say. But what can be said is that Trump’s post-presidency could be quite similar to his presidency, where fighting lawsuits and subpoenas is just part of the daily grind.