Editor's Note:
Elie Honig is a CNN legal analyst and a former federal and state prosecutor.
The opinions expressed in this comment are yours.
See more opinion columns on CNN en Español.
(CNN) -
President Donald Trump is leaving the White House, but he's not done yet.
After nearly four years of relentless inflection of laws and rule-breaking, Trump is now entering his last two months or more in office with no restrictions.
You won't have to face the voters again, so you can satisfy your most basic instincts for revenge and self-preservation.
Prepare for a constitutional stress test like we've never seen it before.
Here are three main areas in which Trump could still wreak havoc on the law before leaving office:
Pardons:
It will be nothing new for Trump to issue a series of pardons in his final weeks in office, even to his final day.
Past presidents have commonly issued pardons during their final days in office, including some historically dubious.
On his last day as president, for example, President Bill Clinton pardoned his half-brother Roger Clinton and fugitive billionaire financier Marc Rich (prompting a federal criminal investigation, but ultimately without charge).
Who could Trump forgive?
Michael Flynn could be first in line.
Flynn continues to fight in federal court (along with William Barr's Justice Department) to have his case dismissed.
Flynn's attorney reportedly briefed Trump directly on the case, underscoring how politically charged it has become, and asked Trump not to issue a clemency, apparently hoping to win in court first.
However, with Trump about to leave, Flynn may want to rethink that strategy.
If the federal judge in Flynn's case were to reject the option to dismiss him, it would expose him to possible jail time.
A pardon from Trump is Flynn's only sure protection.
Trump could also forgive others who were convicted by Robert Mueller's team, including Paul Manafort and George Papadopoulos.
Both have already served time, but Trump could try to symbolically undermine Mueller's work by pardoning them.
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Trump could also preemptively pardon his family members and others in the Trump Organization.
New York state prosecutors are reportedly investigating the Trump Organization for various possible fraud, but a presidential pardon only covers federal crimes, not state crimes.
Nonetheless, Trump could issue federal pardons to his family members should a future Justice Department determine that the federal charges are appropriate: investigations that begin at the state level sometimes end up being indicted by federal prosecutors.
The biggest question: Will Trump try to forgive himself?
We don't know conclusively if a presidential self-pardon is legal, mainly because no one has tried it before.
The Constitution does not impose any explicit limitation on the power of pardon, and legal scholars differ on this.
(My own opinion is that the framers of the Constitution abhorred selfishness and did not intend to allow presidential self-forgiveness.)
If Trump forgives himself, the federal courts could eventually give us a definitive answer.
Layoffs:
While most administration officials will follow Trump to the door, some will survive him.
FBI Director Chris Wray is likely first on Trump's target list.
Trump nominated Wray as director of the FBI, a position that has a ten-year term under federal law, and the Senate confirmed it in August 2017. However, Trump could shorten it if he fires Wray upon leaving the White House. .
Trump has publicly criticized Wray, who has undermined Trump's false political narratives about widespread voter fraud and the danger posed by antifa.
Note that if Trump fires Wray, President-elect Joe Biden may choose to re-nominate him when he takes office in January 2021.
Trump could also try to crack down on Inspectors General (IG), the internal watchdogs within each federal agency.
While each president has the ability to nominate and remove IGs, many of those who were appointed by previous presidents remain in office.
Trump has not hesitated to fire those who have not supported his political agenda, including former Intelligence Community IG Michael Atkinson, whom Trump himself had appointed, in retaliation for the disclosure of Atkinson information that led to impeachment. of Trump.
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Trump's most likely target could be IG Michael Horowitz of the Justice Department, who was appointed by Obama in 2012. Horowitz issued a report in 2019 that concluded that while the FBI made many mistakes related to opening the investigation of Russia, the investigation was warranted and the evidence did not establish that the FBI officials acted on political grounds.
Decrees:
Throughout his tenure, Trump has attempted to implement his policy and political agendas through the decrees.
At times it has been successful (the Supreme Court finally upheld his overseas travel ban, after the administration reviewed it multiple times) and at others it has failed (the Supreme Court rejected Trump's effort to dismantle the Deferred Action program to Childhood Arrivals).
Trump may well try again to dismantle DACA when he leaves office: the Supreme Court left the door open for the administration to issue a new executive order, using proper administrative procedures, or to enact other policy goals related to the Health Care Act Low Price, environmental protection or immigration policy.
Biden could try to overturn any such measure upon taking office, but, as the DACA ruling showed, it is not a given that one administration can automatically reverse the decrees made by another.
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Trump has followed his own rules throughout his time in the White House.
Now you have nothing left to lose.
If you think Trump's disregard for the rule of law over the past 46 months has been alarming, wait for what could happen between now and January 20.
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