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As a foreign spectator it seems likely to me that Trump won't leave the White House voluntarily. Losing his immunity appears to be a driving factor in why he is clinging to the position of power he currently holds.

That said, I wondered why Trump hasn't been offered immunity, or something amounting to a pardon of the pending litigation against him, in exchange for conceding that Biden won.

Q: Has Biden's campaign or any Democrats so far voiced publicly if they would be willing to consider something like this?

Note: the emphasis in "something like this" is meant to stress that I don't care as much about what kind of legal device would be used. I only care about the effect it would have.

Note: I've seen the idea floated that Trump could pardon himself before leaving office and losing immunity. That's how the above question came to be.

Reasoning of why Biden or the Democrats may consider it (this was asked in the comments a few times): commentators in the media have tirelessly pointed out, not only since this last election, that the peaceful transition of power and a timely concession by whoever loses is important to avoid damaging the democratic process. Given that importance it would seem to me that, perhaps, any options avoiding damage to the democratic may be on the table.

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0xC0000022L
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    Comments are not for extended discussion; this conversation has been moved to chat. – Philipp Nov 18 '20 at 10:09
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    I'd argue one of your premises is flawed. It's true that Trump currently enjoys a legal immunity he no doubt would not wish to lose, but I believe that Trump would not be willing to concede even if he could keep that immunity. Trump is currently profiting from people donating money to fund legal challenges to the election. If you read the fine print 60% of these donations go to paying existing campaign debts. More importantly it's simply in Trumps personality to do everything to stay president out of ego and a desire to be president for the sake of being able to say he is president. – dsollen Nov 19 '20 at 16:22

5 Answers5

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In May of 2020, Biden committed not to pardon Trump or otherwise interfere with any investigations that the Justice Department may or may not carry out:

Democratic candidate Joe Biden said that if he wins the presidency he would not use his power to pardon Donald Trump or stop any investigations of Trump and his associates.

“It is not something the president is entitled to do, to direct a prosecution or decide to drop a case,” Biden said Thursday on MSNBC. “It’s a dereliction of duty.”

The former vice president made his statement in response to a voter who asked him on Lawrence O’Donnell’s show, “The Last Word,” whether he would “commit to not pulling a Gerald Ford in giving Donald Trump a pardon under the pretense of healing the nation.”

Biden responded, “I commit,” before offering a more lengthy explanation of his view that the president must allow the Justice Department to operate without interference.

Biden says he would not pardon Trump or block investigations - AP, May 15, 2020

Recently, though, Biden has expressed more hesitancy about aggressive Federal investigations of Trump. NBC reports that he has told his advisors that he worries that such investigations would be overly divisive and keep the focus on Trump, rather than his own Presidency:

President-elect Joe Biden has privately told advisers that he doesn't want his presidency to be consumed by investigations of his predecessor, according to five people familiar with the discussions, despite pressure from some Democrats who want inquiries into President Donald Trump, his policies and members of his administration.

Biden has raised concerns that investigations would further divide a country he is trying to unite and risk making every day of his presidency about Trump, said the sources, who spoke on background to offer details of private conversations.

Still, least for now, this desire seems to be taking the form of a hands-off approach to the actions of the Justice department:

As Biden tries to balance his own inclinations with pressures from within his party, his advisers stressed that he is seeking to reset the dynamic between the White House and the Justice Department from what it has been under Trump.

Biden wants his Justice Department to function independently from the White House, aides said, and Biden isn't going to tell federal law enforcement officials whom or what to investigate or not to investigate.

"His overarching view is that we need to move the country forward," an adviser said. "But the most important thing on this is that he will not interfere with his Justice Department and not politicize his Justice Department."

"He can set a tone about what he thinks should be done," a Biden adviser said. But, the adviser said, "he's not going to be a president who directs the Justice Department one way or the other."

Biden hopes to avoid divisive Trump investigations, preferring unity - NBC News, Nov 17, 2020

This does not contradict his previous statements, and a pardon would be politically impossible, and wouldn't protect Trump from ongoing State investigations anyway, but it's certainly possible that Biden would prefer to see any investigations of Trump happen at the State level.

divibisan
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    Today’s news: https://www.nbcnews.com/politics/justice-department/president-elect-biden-wary-trump-focused-investigations-sources-say-n1247959 – rrauenza Nov 17 '20 at 15:48
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    Trump may not even accept a pardon, since that would be admitting he committed crimes as well as admitting he wouldn't do well in court. With his ego, Trump likely wouldn't take the pardon, and that pardon would only protect him against Federal anyway, not State level lawsuits. There are some people that are investigating him for the same things at the state level the Federal Gov't is, so a pardon still wouldn't 100% protect Trump. https://www.nbcnews.com/think/opinion/why-biden-should-pardon-trump-we-democrats-should-want-him-ncna1247986 – computercarguy Nov 18 '20 at 21:07
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No, because none of the reasons you've given for why it might happen are true

it seems likely to me that Trump won't leave the White House voluntarily.

As JoeW says above, he has no choice. At most he can actively oppose the country being governed over the next couple of months, but that's it. When the time runs out, he can legally be removed, by force if necessary.

in exchange for conceding that Biden won

Biden doesn't need that. It helps to provide a smooth transition of power, by allowing their team to start work before the Electoral College make their decision, but it isn't essential. And once the Electoral College have decided, it's all over.

voiced publicly if they would be willing to consider something like this?

For Democrats who believe Trump has acted criminally, this would be a betrayal of trust. For Republicans who fundamentally don't trust Democrats, they have no reason to accept any such promise since it would not be legally binding.

Trump could pardon himself before leaving office

According to the DoJ, Trump cannot pardon himself. Or rather, he can say the words but they will have no legal effect.

Graham
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    About pardoning himself - I've been wondering about that one; the president can pardon a convicted criminal, I know, but since he hasn't been convicted of a crime (yet), how can he be pardoned? That sounds like buying indulgences. – j4nd3r53n Nov 17 '20 at 14:32
  • Fascinating, you write yourself It helps to provide a smooth transition of power, by allowing their team to start work before the Electoral College make their decision, but it isn't essential. and yet everything I write is somehow untrue (whatever this means in the context of asking if there have been public statements i that regard). And yet commentator in the media stress how important that smooth transition is and how important it is to concede in a timely manner to not damage "the democratic process". So why do you deem it so far-fetched to ask if this was voiced to protect said process? – 0xC0000022L Nov 17 '20 at 15:02
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    The USSC have ruled that the presidential pardoning power extends to offering amnesties too (https://www.jstor.org/stable/27551729). This is, in effect, a pre-emptive pardon, providing "forgiveness" for crimes not yet tried. – Dancrumb Nov 17 '20 at 15:10
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    @0xC0000022L What you’re missing here is that most of the “importance” comes from the respect for and adherence to democratic norms. Making what should be automatic into a transaction doesn’t respect those norms any more than refusing to do it does—if anything, it taints the process further. If someone is attacking the democracy of the country, then that person needs to face consequences for doing so in order to maintain and defend them. Offering a deal allows Trump to benefit from his behavior and potentially incentivizes future copy-cats, encouraging more such damage. – KRyan Nov 17 '20 at 15:20
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    @0xC0000022L There are other important issues—planning around the coronavirus, ensuring no gaps in our national defense strategy, etc.—but at least so far Biden has assured everyone that the situation is not causing too many problems along those lines, and indeed it really shouldn’t. Trump’s claims are specious, but it’s very plausible for an election to truly be contentious (cf. 2000), and the country needs to be able to deal with that. – KRyan Nov 17 '20 at 15:22
  • @KRyan agreed, it would set a precedent. And yet the whole topic must have come up, as the accepted answer provides evidence it was pondered (no matter where you stand on Trump or any of the details of this question or the answers). – 0xC0000022L Nov 17 '20 at 15:51
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    Technically, it's not over when the Electoral College votes. It's over when Congress certifies the votes received from the Electoral College. – Brian Nov 17 '20 at 16:02
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    @0xC0000022L Of course it’s come up—Trump himself, or perhaps his campaign/staff, has allegedly floated the idea themselves, and even if not it’s entirely in keeping with Trump’s brand of transactional politics (and certainly in line with Democrats’ dim perception of Trump’s behavior). But that doesn’t mean that it’s even remotely a good idea to consider actually doing so. – KRyan Nov 17 '20 at 16:02
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    @Dancrumb Do you mean the United States Sentencing Commission (USSC) or the Supreme Court of the United States (SCOTUS)? The USSC has no authority to determine the Constitutionality of a pre-emptive pardon (or of any action); that authority lies with the judicial branch. To that point, SCOTUS has not issued any ruling that I'm aware of on the Constitutionality of a pre-emptive or open pardon. If you have a specific SCOTUS case that covers this, specifically, please do share that case. – TylerH Nov 17 '20 at 16:20
  • Trump may not be able to pardon himself, but he could resign at 11:58AM on January 20 and be pardoned by Pence at 11:59. – Ryan_L Nov 17 '20 at 18:35
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    @j4nd3r53n it is not necessary for someone to be convicted of a crime in order to be pardoned. Pres. Nixon, for example, was never convicted of a crime, but was still pardoned by Pres. Ford. The pardon did prevent formal charges from being brought against Nixon. – Seth R Nov 17 '20 at 19:32
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    @KRyan and where did I give the impression to you that - if such a thing can even be gauged objectively (!) - I deem that a good idea? Perhaps I am missing something as non-native speaker of English here? After my first post this site feels more like meta where one gets downvotes as indicator of dissent rather than for asking a bad question (e.g. one that elicits opinions; which I didn't do). – 0xC0000022L Nov 17 '20 at 19:58
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    @0xC0000022L I haven’t voted on the question at all; I see nothing wrong with it. I was responding to your comment, not your question. I commented explaining why commentators are talking about the “importance” of this situation does not mean that a deal should be considered. Your response was to say “And yet,” and indicate the accepted answer. It reads as though the existence of the accepted answer (and the reality it describes) contradicts my case, which is to say, because of that maybe a deal should be considered. My response was to reject that premise. – KRyan Nov 17 '20 at 20:04
  • @KRyan: understood. Then it came across the wrong way. I see the accepted answer as proof that the whole idea must have been pondered at least. – 0xC0000022L Nov 17 '20 at 20:09
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    @0xC0000022L The issue for Trump not conceding is that he is fundamentally challenging the concept that America should be a democracy. That is what is damaging the democratic process. As for the transition starting earlier, it certainly makes life a little easier, but one of the reasons for such a long lame-duck period is to give time for the transition process to take place after the Electoral College vote. – Graham Nov 17 '20 at 20:17
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    @0xC0000022L The thing that has been pondered is pardoning Trump's alleged crimes to prevent increasing the divide between republicans and democrats, but the prevailing impression is that this wouldn't work due to the strong backlash it would create from the democratic side. – David Mulder Nov 17 '20 at 23:07
  • He could resign and have the Vice President pardon him. I'm amazed no one has mentioned that possibility, given that it's already happened before (Nixon) – BlueRaja - Danny Pflughoeft Nov 17 '20 at 23:17
  • @BlueRaja-DannyPflughoeft True, but it does tend to form an admission that there was some wrongdoing. It's also not quite on topic for the OP's question. – Graham Nov 18 '20 at 02:59
  • @DavidMulder sounds logical, do you have any sources for that? – 0xC0000022L Nov 18 '20 at 08:53
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    @0xC0000022L See the accepted answer ("whether he would “commit to not pulling a Gerald Ford in giving Donald Trump a pardon under the pretense of healing the nation.”"). As for the 'not worth it'-part, see Biden being eager to commit to such a request from a voter. – David Mulder Nov 18 '20 at 09:06
  • "removed, by force if necessary." Isn't that the opposite of "leave voluntarily"? – Barmar Nov 18 '20 at 17:14
  • @Barmar No, the opposite (which he is trying to achieve) is "remain". When Biden takes power, Trump can either leave voluntarily or involuntarily, and it's basically immaterial to Biden which one he chooses. – Graham Nov 18 '20 at 18:18
  • Yes, that's what he'd like. But you argued against "it seems likely to me that Trump won't leave the White House voluntarily." We both believe he'll leave, but involuntarily. – Barmar Nov 18 '20 at 19:20
  • The question of whether #45 would keep any such bargain is paradoxical; had his character been such that he could be trusted to keep such a bargain, it seems unlikely to me that he would have put himself in a position of needing a pardon. – Technophile Nov 18 '20 at 22:57
  • @Graham: I can't agree that he's in any way fundamentally challenging American democracy. All he is doing is demonstrating beyond any doubt that he is not in touch with reality. If there is a challenge, it's presented by the brown-nose Republicans who go along with him, rather than invoking the 25th Amendment. – jamesqf Nov 19 '20 at 16:51
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    @Graham "The issue for Trump not conceding is that he is fundamentally challenging the concept that America should be a democracy." Trumps challenge about fraud isn't challenging the concept that America SHOULD be a democracy (or, more accurately, a constitutional republic)... it's challenging the fact that is still is. Not much different from the charges by the Democrats saying they can't trust the election because of "Russian Interference" or "collusion". Trump presumably wants an honest election - IE Democracy... not the farce that it's become via fraud. – WernerCD Nov 19 '20 at 23:36
  • @WernerCD If he could demonstrate that fraud has happened, that would be different. He started his unfounded claims of postal vote fraud well before the election though, and in the absence of any evidence. He still has zero evidence. In fact the Georgia Republicans think he even cost himself the election there by dissuading Republicans from postal voting. – Graham Nov 20 '20 at 08:42
  • @WernerCD The difference for "Russian interference" is that we do have concrete evidence that it happened and continues to happen. We don't have evidence of how much effect it has, of course, and I'm equally inclined to call them sore losers on that count. But any democrat (lower-case d) should be concerned about totalitarian dictatorships attempting to influence democratic elections. – Graham Nov 20 '20 at 14:23
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    @Graham "unfounded" Just because CNN says it's unfounded and because proof hasn't been made public yet doesn't make it unfounded. Lawyers aren't going to lay all their proof into the public eye on day one and CNN/Facebook/etc are going to - as they've proven - suppress "conspiracies" they disagree with even as they allow conspiracies they agree with to propagate without recourse. – WernerCD Nov 20 '20 at 14:34
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    "Russian interference" "concrete evidence" yet there's not enough evidence to charge RI - and in our country that means innocent until proven guilty. Any American should be concerned about Tech and News pushing slanted information - all pro Biden (IE: hiding The Laptop From Hell) and all anti Trump (IE: "we have no proof" of allegations meanwhile pushing allegations with no proof that are anti trump). We don't want "Russian Interference" yet it's okay for CNN/Twitt/FB/etc to hide information and decide without proof what is "true" and "false"? Very orwelian. – WernerCD Nov 20 '20 at 14:35
  • @WernerCD His allegations (no independent monitors, and so on) were unfounded because the election hadn't happened. The procedures for running an election were well documented. and every one of his allegations could be disproven simply by reading how elections were actually to be run, and showing that his statements were false. – Graham Nov 20 '20 at 14:49
  • Let us continue this discussion in chat. – Graham Nov 20 '20 at 14:49
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He doesn't have a choice on January 20th at Noon Trump will no longer be president and will have no choice about leaving.

https://www.constituteproject.org/constitution/United_States_of_America_1992

AMENDMENT XX

The terms of the President and Vice President shall end at noon on the 20th day of January, and the terms of Senators and Representatives at noon on the 3d day of January, of the years in which such terms would have ended if this article had not been ratified; and the terms of their successors shall then begin.

Joe W
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Granting such pardon would create really dangerous precedent for any future wannabe autocrat: try to gain unrestricted power, and in the case of the failure, next president will grant you pardon to avoid divisiveness.

Instead, Biden is doing exactly right thing: let investigators to follow the law without any political interference, as Trump should have done.

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That said, I wondered why Trump hasn't been offered immunity, or something amounting to a pardon of the pending litigation against him, in exchange for conceding that Biden won.

There is a flaw in this part of the premise: Biden can only issue a pardon for Federal offenses, not state offenses.

Trump is facing 12 Congressional, 10 Federal, and 8 state investigations. Even with a presidential pardon and Congress laying off, Trump, his family, and his businesses still face investigations in New York, New Jersey, and Washington D.C.

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