On his way out of office, Donald Trump has decided to weaken environmental protections, workers’ rights, immigration, sabotage diplomacy with China and Iran, and more. Of course, this is fantastically depraved and given that he’s damaging the nation, it’s traitorous too. Luckily, however, legal recourse isn’t impossible, even with a self-pardon or pardon from a 10-minute Pence “presidency.”
Let’s assume Trump has been legally pardoned, one way or the other. Assuming it were a blanket pardon, which I think is a fair assumption, Trump would then be immune from federal charges. So far, bad news for justice. As you probably know, a presidential pardon does not shield recipients from state-level charges, hence Trump’s New York AG and Manhattan DA bugbears. But here’s where it gets good: Trump could, in theory, be charged at the state level for criminal charges that stem from his official and unofficial acts as president once out of office.
The US Supreme Court case Nixon v. Fitzgerald is instructive here. The Court states that the president isn’t immune from legal liability concerning acts outside his official duties, but it also states that presidential immunity, something that the president enjoys while in office, does not include “protection from criminal prosecution” (recall that the Office of Legal Counsel only has a memo the position that sitting presidents shouldn’t be charged or indicted, which is a far cry from what the Supreme Court or Constitution say can be done). The president’s protections drop off considerably once he’s out of office.
So yes, it’s possible that Trump’s end-of-office treason spree can end up biting him in the orange ass. Will he be held liable for his actions? I don’t know. It’s hard to say right now, but I do think it might be difficult for states to show they have legal standing in some cases (a whole other legal issue), which could stop any cases from even starting in the first place. But I do think that at least some state-level cases for Trump’s sabotage are possible. Let’s just hope state AGs figure out how to make them happen.
Democracy thrives in snarkiness