On January 20, 2021, Democrat Joe Biden will be officially invested 46e President of the United States. And on that date, Donald Trump will once again become a “simple” citizen. Thus deprived of the legal shield from which he has benefited since he was elected president, the Republican could become the first federal head of state to be held accountable for some of his acts in court.
While the Constitution of the United States does not specifically state that the incumbent president enjoys immunity, one of the founding fathers of the country, Alexander Hamilton (1757-1804), wrote in the Federalist Papers (collection which is the reference for interpreting the Basic Law) that it could “After his mandate be prosecuted and punished by ordinary law”. In 1973, then in 2000, the Ministry of Justice (Department of justice, DoJ) had also issued recommendations in this direction, considering that indicting a president in office “Harm” the proper functioning of the White House.
In an article titled “The People v. Donald J. Trump ”(“ The people against Donald Trump ”), the New York Magazine lists the charges against the leader, beaten at the ballot box.
“Considering the number of crimes he has committed, the length of time he has committed them and the range of jurisdictions in which they have taken place, his potential legal exposure is staggering. “
More than a dozen investigations concerning him – him or his relatives – are already underway, argues the publication.
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“The Russian investigation”
Among the most sensitive issues is the “Russian investigation”. Started in spring 2017, and entrusted to independent prosecutor Robert Mueller, it focuses on the possible links between the Russian government and Donald Trump’s 2016 presidential campaign.
In the 448 pages of the report, published in April 2019, the prosecutor concluded that the Kremlin attempted to interfere, but he failed to prove voluntary complicity on the American side. On the obstruction of justice accused of the president, he also said he was unable to decide. The Minister of Justice, William Barr, then hastened to dismiss all lawsuits against Donald Trump, for lack of formal evidence.
But, two months after the publication of his report, Robert Mueller broke his silence to reaffirm the reality of “Multiple and systematic efforts” put on feet “To harm a candidate” – Democrat Hillary Clinton. Returning to the suspicion of obstruction of which the President of the United States could have been guilty, he also explained that it is the directives of the DoJ, and not the absence of proof, which prevented him from drawing any conclusion of its work. Robert Mueller endorsed the doctrine that “A president cannot be prosecuted for a federal offense while in office”. This ban in principle will no longer hold as of January 20, 2021.
At the time (in April 2019), one of the possible options would have been the establishment of an impeachment procedure (impeachment) which allows the president to be removed from office in the event of “Treason, corruption or other serious crimes and offenses”. But Democratic officials were reluctant to embark on such an approach, both unpopular and doomed to failure, for lack of a majority in the Senate.
During his tenure, Donald Trump was nevertheless the subject of impeachment proceedings, but in another case: “the Ukrainian affair”. He was then suspected of having suspended major military aid to Ukraine and an official visit to the White House by President Volodymyr Zelensky to force him to open an investigation into the entourage of one of his direct political opponents. : Joe Biden. Donald Trump was unsurprisingly acquitted by the Republican-controlled Upper House. But the case is not completely closed because the case is now in the hands of a prosecutor in Brooklyn (New York), reports the New York Times.
About ten other investigations in progress
The 45e White House tenant could also be held accountable for repeated violations of the Hatch Law (Hatch Act), abounds in the political media Politico. This 1939 law prohibits any federal employee from engaging in partisan activities. “Taxpayers, regardless of their political affiliation, fund the government to work on behalf of all Americans, not to campaign for any party or candidate.”, underlines the non-partisan body monitoring political life, Citizens For Responsibility and Ethics in Washington (CREW), which identified at least fifteen breaches of the said law, just during the holding of the Republican National Convention, this summer.
Bloomberg explains, for his part, that the outgoing president is also threatened by possible violations of campaign financing rules, for which his former counsel, Michael Cohen, pleaded guilty and was sentenced to three years in prison. In question, a large sum of money paid to the former pornographic actress, Stormy Daniels, as part of a confidentiality clause, signed a few days before the presidential election in 2016.
Donald Trump could also potentially be in trouble with the law over his taxes. The businessman paid only $ 750 (633 euros) in federal taxes in the year he was elected four years ago, and furthermore did not pay income tax during ten of the previous fifteen years. Since the publication of revelations from New York Times, many voices are raised, so that this subject is the subject of in-depth investigations, in order to determine whether or not it is a legal maneuver or if the latter has engaged in tax evasion.
Note that the aforementioned cases relate only to federal crimes. However, Donald Trump is also involved in a series of state-wide cases. For two years, he has been facing criminal proceedings for tax fraud and insurance fraud, launched by the attorney of Manhattan (New York), Cyrus Vance.
Pursuing Donald Trump, a perilous exercise
In a strongly divided country – if Democrat Joe Biden recorded a record of votes in popular suffrage, his rival also exceeded the record held in 2008 by Barack Obama -, the attitude of the 46e president against his predecessor will be particularly scrutinized.
The whole stake for Joe Biden will be to ensure that no one is above the law, while avoiding, however, appearing as a vindictive man, eager to ” to punish “ one who has repeatedly attacked him and his relatives. And even though during his four years at the head of the federal state, Donald Trump is accused of having hijacked the judicial institution for the benefit of his administration.
The decision to prosecute Donald Trump will thus have to be left to a special prosecutor, on the model of the mission entrusted to Robert Mueller within the framework of the “Russian affair”. The special counsel, who is appointed by the Minister of Justice, will have to be a career prosecutor, with no connection to the president or his team. Mr. Biden will also have to declare, upon his appointment, that he does not intend to impose restrictions on him and that he will follow his recommendations, summarizes thus Politico.
What if Donald Trump decided to pardon himself?
With the elected president not officially taking office until January 20, Donald Trump is still president in office for a few weeks. And he could use this time to grant himself the presidential pardon.
Especially since in the United States, this power is very extensive: “Presidential pardon is a sort of legal magic wand capable of offering complete immunity against all federal crimes past and present, whether charged or not, depending on the formulation.”, summarizes the CNN channel.
Mr. Trump could therefore pardon his friends – as he has already done with Roger Stone as part of the investigation into Russian interference in the 2016 presidential campaign – or even his family. He also wouldn’t have to wait for the charges to be officially laid. The only downside: this pardon only covers federal crimes. Charges brought by state-wide courts are excluded from its spectrum.
There is no precedent in the history of the United States of a sitting president deciding to pardon himself. The legal validity of such an act would therefore be left to the discretion of a court, or even the Supreme Court – certain legal experts having already pointed out its unconstitutional character, because it violates the idea that no one should act as a judge in his own case, reports the British daily The Independent.
Faced with these uncertainties, another possibility emerges: that Donald Trump passes the hand, for the last weeks of his mandate, to his vice-president, Mike Pence, leaving the latter to grant the presidential pardon. Gerald Ford had pardoned Richard Nixon in this manner in connection with the Watergate scandal in 1974, which sets both a legal and historical precedent.
But the operation will not be without risk for the former governor of Indiana and the Republican Party. The decision of Gerald Ford had provoked the ire of a large part of the public opinion and, this last, was defeated at the ballot box by the democrat Jimmy Carter, in 1976.
