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The 3 Norms Trump Could Still Break

“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.”

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