11 Nov 2020

What powers does Trump still have? US law expert explains

From Checkpoint, 5:44 pm on 11 November 2020

US President-elect Joe Biden will not be sworn in until January, but President Donald Trump is still refusing to accept the outcome of the US election.

Trump has already "terminated" his secretary of defence.

In the US there is speculation he could use his presidential powers to pardon himself, as he faces accusations of tax fraud.

University of Wisconsin-Madison law school professor Robert Yablon told Checkpoint that Trump has the same power he always has had as president and can do what he wants, "within the standard bounds of the US Constitution and the law".

"... but in terms of running the government, issuing executive orders, issuing pardons, any of that kind of thing. He can do the day after the election what he could do the day before the election.

"Executive orders can be fairly significant. The president has quite a bit of leeway to act unilaterally. When we're creating law in the United States, Congress needs to be involved. But the president, in the interstices of the law, can do a lot to direct how the government functions.

"He is the head of the executive branch, which employs hundreds of thousands of individuals, and he can direct policy within that branch through executive orders.

"By law in the United States, there is a presidential transition process. Now, the current president has to facilitate that process and so far President Trump has refused to do so.

"But normally as soon as the election is over the incoming president will form a transition team. That transition team will have access to the existing government and this is meant to facilitate a smooth transfer of power, so we do have that legal device.

"And then there are informal norms, about what you would expect the president to do or not do in the final weeks of his presidency. So you wouldn't expect the president to engage in any large scale policy changes, you wouldn't expect the President to engage in, say, a significant hiring or firing activity.

"But we already are seeing some of that on the part of President Trump. He fired his defence secretary, and I suspect that we will see more. Those norms are non-binding and he has been a norm-breaking president."

Yalbon said Trump was acting outside what has been typical in previous administrations.

"It would be unprecedented for him to pardon himself because it's unprecedented - you can't point to the law that prevents it from happening.

"The answer is he could try, and then we would have to see whether that would stick. There are limits to his pardon power.

"The pardon power is a power to pardon for federal criminal activity, so he wouldn't be allowed to pardon himself or anyone else, and prevent them from being prosecuted by state-level prosecutors in the US, and he wouldn't be able to pardon anyone, and protect them from civil liability. So he himself would remain subject to civil liability after he leaves office."

Yalbon told Checkpoint the Biden team could attempt to go to court and suggest the president is not following the terms of this federal statute - the Presidential Transition Act.

"I assume the president's response would be, 'we haven't had you formally certified yet as the winner'.

"What President-elect Biden is already doing is he is trying to form a transition team. He's conducting transition activities, even if he's going to be hamstrung by some extent by the Trump administration and maybe not allowed direct access to existing governmental operations.

"There are opportunities as from day one when Biden takes office, he can attempt to undo executive orders that [Trump] has issued and he does have the power to do that, to the extent that the president has fired someone that he wants to rehire, [Biden] can attempt to do that.

"But the existing outgoing president, if that president is a sore loser, can be quite disruptive, and it does appear that this President is not going to do much to help facilitate a smooth transfer of power.

"I hate to contemplate the worst-case scenario, but the president could engage in mischief overseas, foreign policy actions, that sort of thing. Again, there would be nothing legally to stop the president and foreign policy is an area where the president does have quite broad powers."