Joe Biden and Donald Trump on election day. Photos: AFP / Angela Weiiss and Mandel Ngan

Governments and businesses across Asia are watching for how the Joe Biden administration will address a critical agenda of issues. They may find themselves waiting longer than they would like.

Much has been said about US President Donald Trump’s unilateral approach to foreign policy, his tough approach to China, and how that will impact global affairs long after he leaves office. 

Still in power until Joe Biden swears his oath of office on January 20, Trump will aggressively exercise his full authority until then.

Since election day last month, Trump has done more than refusing to concede defeat by continuing to file baseless lawsuits and claim election fraud. His administration remains active on immigration, China policy, human rights, trade policy and personnel that have global impact.

What we have witnessed these last few weeks offers a preview of what his remaining time in office could bring, including further sanctions on Chinese companies and individuals as well as tariffs being placed on imports from Vietnam.

In his waning days in office, Trump’s actions when it comes to the institution of the presidency could have an ongoing impact on the Biden administration’s ability to deal quickly with the most pressing domestic and international challenges by requiring it to address the Trump administration’s lame-duck actions. 

While it will not keep Biden from becoming president, Trump’s not accepting the election results has been disturbing. As he broke many norms in his term in office, he is set to break another one by refusing to concede.

Even more problematic than breaking a tradition that dates back two centuries will be when he becomes the first president to pardon himself for actions he has taken as president and during his campaigns.

Breaking yet another norm

The United States always witnesses the peaceful transfer of power from one president to the next.

While some supporters of Donald Trump have even called for a coup to keep him in power, the United States’ democratic institutions hold and do not allow for that.

However, nothing requires Trump to accept defeat and concede.

John Adams, the nation’s second president, became the first to lose re-election after one term. As with Trump, Adams bristled at his defeat.

While Adams did not formally concede or attend the inauguration of his successor, Thomas Jefferson, in 1801, he did accept his defeat, referring to himself as “plain John Adams, just an ordinary citizen” when leaving Washington, DC, on his last morning as president.

Since the end of the 19th century, every candidate who lost in the US presidential election formally conceded, some sooner than others. But always in the end.

Donald Trump will not. His personality will not allow it. 

Trump’s lack of concession will keep the country more divided, with many in his base refusing to accept Joe Biden as a legitimate president, thereby continuing to make compromise more difficult in addressing the country’s fundamental problems, including the Covid-19 pandemic, racial justice and income inequality.

Still, Trump issuing himself a blanket pardon could wreak even more havoc on the body politic.

No US president has pardoned himself

“I have the absolute right to PARDON myself,” Trump declared on Twitter in 2018.

At the time of the tweet, investigations were about to be launched by special counsel Robert Mueller and his team. However, the Justice Department maintains that it cannot prosecute a sitting president and thus Mueller could not indict Trump.

A former US president does not have immunity, including for actions taken while in office. With the end of Trump’s presidency nigh and soon subject to possible criminal indictment, the need for a presidential pardon moves from theoretical to immediate.

Charges ranging from obstruction of justice regarding his conduct during Mueller’s investigation to campaign finance violations for directing that his personal lawyer pay a mistress hush money to avoid the news surfacing during a campaign would be obvious areas for federal investigation once President Trump becomes “plain” Donald Trump.

If Trump receives a pardon for those actions, no federal prosecution can take place.

Can he just give himself one before his term ends? No one knows for sure because no answer to that question has ever been needed before.

“The president … shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment,” the US constitution states.

The explicit limitations are that pardons may be only granted for federal crimes (“offenses against the United States”) and not state ones, and that a person cannot be pardoned for impeachment. 

Constitutional and legal scholars have argued both ways on whether the president’s authority to grant a pardon extends to giving one to himself. The debate to this point has been theoretical.

Trump could temporarily hand the powers of the presidency to Vice-President Mike Pence, who could then issue the pardon and avoid the constitutional question at hand. But it’s hard to imagine Trump going down that path.

Expect Trump to pardon himself, along with his whole family and a slew of others whom he favors or could harm him with testimony if brought up on charges. 

The real drama begins in what comes next.

Not immediately challengeable

President Trump pardoning himself would result in howls of protest across the US, as such an action goes against the fundamental precept that no one can be a judge in his own case as well as in violating the premise that no one is above the law. 

The legal test of whether Trump could lawfully do so would play out only if the Department of Justice were to take criminal action against then-former president Trump.

If Trump ever faces federal criminal charges, his lawyers will pull out his “get out of jail free card” and assert the pardon as a bar to federal prosecution.  

Once Trump’s lawyers claimed exemption from prosecution based on his self-pardon, the prosecutor would call the legal equivalent of BS and ask the trial judge to proceed. The defense would counter by trying to enjoin any further action at the trial level. Likely, this would be granted.  

Then, an initial decision would be reached on whether the constitution permits the president to pardon himself, with this ruling undoubtedly being appealed by the loser, ultimately finding its way to the Supreme Court for the final decision on whether the constitution grants a president such power.

President-elect Biden has said he would not interfere with Department of Justice decisions regarding prosecutions. He will be focusing on Covid mitigation, vaccine dissemination and economic recovery.  

Many of Trump’s actions could be investigated for felonies, including violations of campaign finance law and obstruction of justice.

If the new attorney general were to bring legal action, the spotlight would be firmly on Trump, as he would certainly claim it all a witch-hunt, forcing Republicans to choose sides, thereby limiting the sense of bipartisanship needed to address the country’s challenges.

On the other hand, if the attorney general decides not to bring a federal action against Trump, that will be met with protests by those wanting to uphold the rule of law and finally to hold Trump to account.

The new attorney general will be stuck between the proverbial rock and a hard place if Trump pardons himself.

Either decision will likely result in the US losing more bandwidth to deal with critical foreign and domestic issues while the Trump era extends beyond its one term. It would also keep the Trump brand front and center as he maneuvers for another run for the presidency.

Inauguration Day cliffhanger awaits

American tradition dictates that the outgoing president welcome his successor to the White House, ride with him to the Capitol and attend the swearing-in, just as Barack Obama did for Donald Trump in 2017. 

Recent reports have Trump not at the Capitol witnessing Biden’s swearing-in but instead holding his own rally in Florida.

When asked recently if he would attend the inauguration, Trump refused to answer. “We’ll see,” he said.

For a president so disdainful of democratic principles and respect for the norms of the United States, that comes as no surprise.

But Trump never relinquishes the spotlight when given the chance.

To do that, he must be at the Capitol to witness the swearing-in.

If he goes, maybe he will tweet out his self-pardon just before Biden takes his oath. 

We have learned to expect the unexpected when it comes to Donald Trump; pardoning himself at the last minute, walking out of the inauguration, or both, would be as fitting an end to his term as any other. 

While addressing Covid-19 in and of itself will force a more inward focus than normal, the actions Trump takes in the remaining days of his presidency may further delay the new administration’s ability to focus on developing and implementing its foreign policy even in that context.

For those hoping the Biden team hits the ground running and addresses the many critical issues facing the country and the world, disappointment and delay may await.

Steven R Okun

Steven R Okun served in the Clinton administration as deputy general counsel at the US Department of Transportation. Okun is senior adviser for global strategic consultancy McLarty Associates and is also a governor of the American Chamber of Commerce in Singapore. The views expressed here are his own.

Thurgood Marshall Jr

Thurgood Marshall Jr served in the Clinton administration as White House cabinet secretary. Marshall practices law in Washington. The views expressed here are his own.