Trump will not go quietly, and is unlikely to fade from public view
While the outgoing president may be free to peddle the baseless theory the election was ‘rigged’, he will not be able to escape legal scrutiny
Outgoing US president Donald Trump: there is much speculation that he could embark on some kind of media venture. Photograph: Getty Images
As the sun sets on Donald Trump’s presidency, the United States continues to reel from one of the most divisive presidential terms in its history. The inauguration of Joe Biden on January 20th promises to usher in a calmer period in American politics, with the incoming president pledging to work with US allies, restore government trust in the intelligence services and move away from Trump’s policy-by-tweet strategy.
But even as the 45th president prepares to leave the White House, the Trump era will not be over.
As indicated by the president’s extraordinary attempt to subvert the result of the November 3rd election, Trump will not go quietly.
Even as plans proceed for Biden’s swearing-in next month, there are indications that Trump sees a final opportunity to overturn the election. On January 6th, the new Congress – following last month’s House and Senate elections – will meet in joint session to tabulate the Electoral College votes for the presidency that were finalised on December 14th.
According to the rules set out in the US constitution, vice-president Mike Pence, in his capacity as president of the Senate, will distribute certificates with the results from each state to four tellers. They will read the results and if one of the candidates has received a majority of 270 electoral votes – as Joe Biden has – then Pence will declare the election of the new president and vice-president.
However, there is an opportunity for members of Congress to object to the returns from any state. In that scenario two hours of debate will take place in each chamber. But if the results are contested in this way both the House of Representatives and the Senate would have to vote to reject a state’s electoral votes for the result in that state to be overturned.
Trump simply does not have the numbers to change the outcome. The Democratically-controlled House of Representatives will vote against any move to overturn a state result, while in the Senate several Republicans, including majority leader Mitch McConnell, have already congratulated Biden as the incoming president.
Nonetheless, this will not stop Trump from using any objections to legitimise his attacks on the electoral process. Some Republicans in the House of Representatives – many of whom signed on to a dubious lawsuit brought by Texas to the US supreme court – have already indicated that they will object to the results from some of the swing states.
This will allow the president to argue, against all the evidence, that the election was “rigged” – a position that conservative news channels in the United States are continuing to push.
Polls in December showed that up to three-quarters of Republican voters believe that widespread voter fraud occurred in the election.
It is quite possible that Trump will break with tradition by refusing to attend Biden’s inauguration on January 20th. Biden himself attended Trump’s swearing-in as the outgoing vice-president, while even Hillary Clinton, who had lost the election to Trump, was in attendance in her capacity as a former first lady.
By keeping the false narrative of a fraudulent election alive, Trump will be able to leave Washington making audacious allegations of a rigged election and claiming that Biden’s presidency is illegitimate – a claim that may be accepted by tens of millions of Americans.
But while Trump may be free to peddle the baseless conspiracy theory that the election was stolen from him, he will not be able to escape the scrutiny of the legal system.
Once he leaves office he loses the protections afforded to him as president. During his four years at the White House he was the subject of a special counsel investigation into possible collusion between his campaign team and Russia, several of his associates were indicted and sent to prison, and he became only the third president in US history to be impeached.
State prosecutors in New York are also investigating his tax affairs. His former lawyer Michael Cohen, who was sentenced to three years in prison, testified that his boss undervalued his assets as a way of avoiding tax, and inflated property values at other points to secure bank loans.
Similarly, Cohen’s evidence that he was instructed to pay hush money to adult film star Stormy Daniels during the 2016 presidential campaign has also caught the eye of prosecutors as it could be a breach of campaign finance laws.
It is also possible that a federal, as well as state, investigation into his finances could also be opened once he leaves office.
The department of justice could use special counsel Robert Mueller’s findings into Trump’s behaviour during the 2016 election to litigate a case of obstruction of justice by the president.
Incoming president Biden has played down any possibility of an investigation into Trump after he leaves office, insisting that this would be a matter for the justice department and attorney general, which he has stressed are independent from the presidency.
Biden has his own worries when it comes to federal oversight. The department of justice is investigating his son Hunter for tax matters, so the new president will be keen to keep a professional and political distance from whoever he picks as attorney general, the head of that department.
One possibility in the coming weeks is that Trump could grant his family members, or even himself, a pardon while he remains president. Legal opinion is divided on the question of whether a sitting president can pardon himself. While there is no precedent and the issue has never been tested in court, it is arguable that the president does constitutionally have those powers.
Even if Trump did pardon himself – or chose to resign and pressurised Mike Pence to do so – this would give him protections only from federal crimes, not state-level inquiries.
It is perhaps more likely that Trump could pardon some of his children. His daughter, Ivanka, was recently questioned for five hours by federal prosecutors about her role in organising the Trump hotel in Washington as a venue for inauguration events in late 2016 after her father’s election.
As for Trump’s plan post-presidency, he is expected to move to Florida when he finishes his four-year term in January. Trump and his wife, Melania, moved their official residence to the state last year. Ivanka and her husband Jared Kushner also reportedly bought a $30 million dollar site in Miami since the election, though they are also expected to maintain their home in Manhattan.
There is much speculation that Trump could embark on some kind of media venture. Since the election he has clashed with Fox News, reportedly phoning Rupert Murdoch personally on election night after Fox called Arizona for Biden days before other networks did so (Biden ultimately did win the state)
While many Fox News personalities such as Sean Hannity and Tucker Carlson have promulgated Trump’s theories of election fraud on air, Trump has praised the much smaller and more right-wing networks like Newsmax and OANN (One America Network News), and it appears that this has driven some Fox News viewers to the niche channels.
Given Trump’s success in cultivating a following of almost 90 million people on Twitter, the outgoing president is likely to want to channel his huge fan base in some way to generate some financial gain. The recent New York Times investigation into his tax affairs was a reminder of how financially lucrative the reality TV show The Apprentice was for him, at a time when his other business and property ventures were losing money.
One possibility is that Trump could establish his own news channel, or team up with a smaller player such as Newsmax or OANN. Regulatory issues mean that the financial outlay to start a new network would be prohibitive, so the latter option, particularly with Newsmax, might be more likely. Rather than break into the world of conservative news media, it could be more simple, and financially advantageous, for him to present shows on an established channel.
Trump’s election defeat also frees him to mount a second bid for the White House. He has publicly hinted – and reportedly told allies – that he intends to run in 2024, a pledge that puts other possible candidates such as former UN ambassador Nikki Haley and even vice-president Mike Pence in a difficult position as they consider possible runs of their own.
The Trump campaign has already amassed hundreds of millions of dollars in support of legal challenges to the election outcome, much of which is being diverted into a new political action committee set up in mid-November.
While all signs are that Trump is seriously considering a second run at the White House, the prospect of legal action against the president once he leaves his office, and his advancing years – he will be 78 in 2024, the same age as Biden is now – places such aspirations in doubt.
Whatever the next step for the president, however, he is unlikely to fade from public view and settle into retirement. Trump is likely to remain a visible presence in American public life for many years to come.