Can Trump pardon himself?

President Trump has only made one brief public appearance since the election was called for Joe Biden, and his Twitter feed is filled with conspiracy theories about widespread voter fraud, which state elections officials have repeatedly rejected. His refusal to concede has complicated President-elect Biden's transition, and senior Republicans have mostly aligned behind Trump or stayed silent as he continues his desperate legal campaign to overturn the election results in several key states that won Biden the presidency. New Yorker staff writer Jane Mayer says Trump has a lot at stake due to the litany of lawsuits and criminal investigations he faces. "He has many reasons to be concerned," she says. "If he leaves the White House, he's going to lose the immunity that goes along with being president."

This is a rush transcript. Copy may not be in its final form.

AMY GOODMAN: This is Democracy Now!, democracynow.org, The Quarantine Report. I'm Amy Goodman.

The number of Americans hospitalized due to COVID-19 has more than a doubled in the past week as infections soar to record numbers across the nation. On Thursday, a staggering 163,000 new cases were reported — a new world-shattering record. The U.S. death toll has topped 242,000. Despite the surge, President Trump is largely ignoring the crisis, letting the virus rip through the country.

Since the election was called for Joe Biden last Saturday, Trump has only made one brief public appearance, and his Twitter feed is filled with conspiracy theories. While Trump has claimed the election was stolen, his campaign has provided no evidence of widespread voter fraud. On Thursday, a wing of the Department of Homeland Security released a statement saying, quote, "The November 3rd election was the most secure in American history. … There is no evidence that any voting system deleted or lost votes, changed votes, or was in any way compromised," they said.

Well, as Trump refuses to concede the race, we begin today's show with longtime investigative journalist Jane Mayer of The New Yorker magazine. Her most recent article is headlined "Why Trump Can't Afford to Lose." It was published just before the election. Jane Mayer writes, "Trump has famously survived one impeachment, two divorces, six bankruptcies, twenty-six accusations of sexual misconduct, and an estimated four thousand lawsuits. Few people have evaded consequences more cunningly. That run of good luck may well end, perhaps brutally, if he loses to Joe Biden."

Well, Jane Mayer, welcome back to Democracy Now! It's great to have you with us. Is President Trump simply concerned of moving from the presidency to private life, or is he concerned about moving from the presidency to prison?

JANE MAYER: Well, I think you can see that he has many reasons to be concerned, at least, that if he leaves the White House, he's going to lose the immunity that goes along with being president, for legal reasons. And I think, from what I understand, he's quite concerned that he may face prosecution in New York, where a pardon from the White House wouldn't be able to reach.

AMY GOODMAN: Well, why don't you go through all of the lawsuits and criminal investigations that he is facing? And then we'll talk about the possibility that as the coronavirus rips through the population, what he's doing right now is figuring out if he can pre-pardon himself.

JANE MAYER: So, there are about two dozen different kinds of legal actions coming at him. By far, I think, the most serious is the investigation underway in New York City by the District Attorney Cyrus Vance Jr., who has picked up the case that originated with the Southern District of New York, the U.S. Attorney's Office. It was a federal case against Michael Cohen, who had been Trump's lawyer. Michael Cohen, as people remember, served a three-year — is still serving a three-year prison sentence. And when he was indicted, the indictment mentioned that there was an unindicted co-conspirator, who happened to have been — he wasn't named by name, but it was clear that it was President Trump. So, that unindicted co-conspirator charge has now been sort of picked up by the District Attorney's Office, which has got an open criminal investigation into President Trump, looking at among all kinds of fraud in his business before he became president — bank fraud, insurance fraud, tax evasion and other kinds of fraud. So, that is ongoing. There is an open investigation, and it's said to be quite a serious one.

AMY GOODMAN: So, you talked about Cy Vance here in New York. What about Letitia James, the attorney general of New York state?

JANE MAYER: So, she, too, has any open investigation into Trump's pre-presidential business practices. It has to do with whether or not he took a — whether he fraudulently evaluated the value of one of his real estate holdings in order to take a big tax deduction. And that is under investigation, too. In the course of doing reporting on this, people told me that that's a harder case to make, because evaluations and assessments of real estate are more of a art than a science. So, it may be difficult to argue that it was absolutely fraudulent, whereas the case that the district attorney is looking — I mean, excuse me, that, yeah, the Manhattan DA is looking at is one that is just a much harder sort of — there are many more facts involved that are harder to fight.

AMY GOODMAN: Bloomberg is also — Bloomberg News and ProPublica are also talking about his CFO and the information that is now coming out about the Trump Organization finances.

JANE MAYER: I mean, I think that there's just a bottomless pit, from what I understand. I interviewed Michael Cohen, the former lawyer to Donald Trump, for the story that I did, and he's also written a book. And it's clear that there are so many possible charges that they could bring. And so, this is a serious situation. It's one we really haven't faced in the country before, where a president may be facing serious prosecution for criminal behavior.

AMY GOODMAN: I want to turn to President Trump's former personal attorney and fixer, who you were just talking about, Michael Cohen. He was speaking to MSNBC in September, once he got out of jail.

MICHAEL COHEN: I think what's really bothering him the most, though, is that Trump has over $420 million in outstanding loans that are coming due. Now, in the event that there is a potential tax liability for the time period that they're talking about, I mean, it could be hundreds and hundreds of millions of dollars. If you add those together, I mean, he's very — I mean, very realistically facing a potential bankruptcy. … He'll find some corrupt foreign entity to help him out of the situation.

AMY GOODMAN: So, that's Michael Cohen, President Trump's former personal fixer and lawyer. Talk about this issue of the debt and what's at stake, that he might owe something like $421 million, and how that could — actually, what national security folks are saying across the political spectrum, their deep concern that if President Trump, as president, has access to top-secret information, he could use this to somehow get countries to give him money to pay off that debt.

JANE MAYER: I mean, that's absolutely true that Donald Trump has at least over $300 million of loans coming due in the next four years that he has personally backed, meaning he's on the hook himself for these loans. He's also got an IRS case that he appears to be losing. It's an argument with the IRS about what he owes in taxes. It appears that if he loses it, he's going to have to pay an additional $100 million. So he has tremendous liabilities hanging over his head.

If he had stayed president, he probably would have been — you know, had the clout to renegotiate these loans somehow. If he's out on the street, it's going to be a lot harder. He's going to be very hard up for where to find the cash to pay these things off. He could try to sell some of his assets, but because of the pandemic, some of those assets are worth a good bit less than they were before, because commercial real estate and resorts are in the tank right now. And so, he's in a hard, hard spot, and as he is with facing these criminal investigations. And so, there are a lot of reasons he's fighting so hard to stay inside the White House, according to people who know what's going on inside.

Whether he would turn to foreign backers, I mean, that's certainly one thing that some of the people around him who I interviewed suggested, that he might turn to corrupt foreign oligarchs. You know, he has also clearly flattered a number of the world's richest and most corrupt leaders, including Putin, including Duterte. He may try to call in some chips, people worry. I mean, the situation suggests that it's possible that some of his foreign policy positions were very self-interested. There's certainly been that question raised about his relationship with Turkey.

So, these are all — you know, these would have been huge liabilities going forward also, if he had stayed, if he had gotten himself reelected. As it is — excuse me — these are reasons also why he might be fighting so hard to try to convince people that he won an election that he lost.

AMY GOODMAN: And talk about, among the lawsuits, Trump having to deal with E. Jean Carroll's defamation lawsuit, if you can discuss what that is all about, the woman who charged him with rape back in the 1990s, who recently spoke out.

JANE MAYER: Right. She charged him with rape. She met him in a department store in New York and said that he tried to rape her in one of the changing rooms there. She's a writer and a relatively well-known figure. And so, when she made this charge and told what had happened to her, Trump called her a liar, as he has with most of the other people who — as you mentioned at the start of this, that there are 26 claims against him of sexual assault and other kinds of sexual misbehavior. And he called her a liar, and she turned around and then sued him for defamation for that. And her lawyer, Roberta Kaplan, and she are so far being upheld in the courts as they move forward against — with their case against Trump for defamation. It may come down to them trying to get a DNA sample to — she's still got, I guess, the outfit that she wore, and they're hoping to be able to test it against Trump's DNA.

AMY GOODMAN: So, that, though, is not a rape case. It is a defamation case for him saying —

JANE MAYER: Correct.

AMY GOODMAN: — she lied about her. So, if you then, Jane, can talk about these civil versus criminal cases, and what would happen, for example, if when Trump leaves, if he leaves the White House, he goes to Florida instead of New York, what does that mean for these cases? And also you talking about possibly he's using this time to negotiate deals of protection?

JANE MAYER: Well, so, as we all know, there is a very broad pardon power in the Constitution that the president has. He can issue pardons almost without any kind of guidelines to whomever he wishes. And one of the questions that people, legal experts, have, and historians, watching all of this, this incredible spectacle, is whether Trump might try to pardon himself. It has not been done before in our history. An earlier corrupt president, Richard Nixon, thought about it and thought that he had the power to do it. The Justice Department at the time looked into it. And there's just a sort of a relatively flimsy, quick opinion that suggests that the Justice Department found at that time that they didn't think it could be done, because just it's illogical, as the paper says. The opinion just says no man can stand in judgment of his own trial. But it's never really been tested before. And a number of experts who I interview suggest that they think it's possible that Trump could try to pardon himself, and might even get away with it if he did.

But what's interesting is that the pardon power he has is to be able to pardon himself against federal charges. And that might be able to wipe the slate clean for himself of many, many possible criminal charges, but it would not reach the New York state charges that he may be facing from the DA's Office or from the Attorney General's Office in New York, because those are state charges. So he might still have to go ahead with some kind of process there, and he wouldn't be able to get himself off the hook.

What people are suggesting is it's possible that maybe there would be some sort of global settlement offered him on the way out the door, that in exchange for some kind of concession that he might give saying that he had — he was guilty or a fine or something like that, that there might be some kind of, you know, just general settlement. It's a very ticklish, difficult problem of what to do with a president. We don't want to look like a new president prosecutes the former president. It sort of has a kind of a tinpot dictatorship feel to it. At the same time, there's a sense that you need to hold everybody accountable, and nobody is above the law, and that includes presidents of the United States. So, this is really complicated, fraught subject. And, anyway, this is all what's going on in terms of why, again, Trump may be fighting so hard not to leave that White House.

AMY GOODMAN: And, of course, then there are some who speculate maybe he'll hand over power to Pence for a few minutes, either now or in the last hour of the presidency, so that he could do the pardoning.

JANE MAYER: That's actually a scenario that is laid out as a possibility in this Justice Department memo that dates back to the Watergate era, where the Justice Department suggested a president shouldn't probably pardon himself. It suggested a president might be able to temporarily step down, under the 25th Amendment, have the vice president become president temporarily, pardon the president, and then have the president step back up and take over the powers of the office again. I mean, it would be an outrage, in many ways, because it's such a charade. But then, look at the charade we're looking at right now.

AMY GOODMAN: And what about pardoning other members of his family or his allies, the significance of a possible pre-pardon, as there are all sorts of discussions coming out, like maybe the next senatorial race in New York will be AOC versus Ivanka Trump? But what about that possibility of pre-pardoning family members?

JANE MAYER: The president's pardon powers are very broad. He can probably pardon anybody in his circle, anybody he wants to. It's not even clear whether it's prohibited to sell pardons, practically. I mean, he's got very, very broad powers. The question is whether you can give prospective pardons. Can you say — could the president say, "I hereby pardon Ivanka Trump for anything she might do from here until the end of her life"? He can't do that, but he could wipe the slate clean for her for any possible prosecution that might come out from, say, you know, the years of his time in office. And that's definitely within his powers.

AMY GOODMAN: Jane, before you go, I wanted to ask you about the previous piece you wrote, "The Secret History of Kimberly Guilfoyle's Departure from Fox." And the reason I ask you about this now is this latest information out of CNN Politics about Donald Trump Jr. and Kimberly Guilfoyle, his partner, the former wife of Gavin Newsom, the current California governor, about Trump Jr. and Kimberly Guilfoyle making moves to expand their RNC influence — the Republican National Committee — and possibly take it over. If you can talk about who Kimberly Guilfoyle is and what the charges were, that you laid out, around her departure from Fox?

JANE MAYER: So, she was a talk show host at Fox. She's a former prosecutor herself. And she left Fox under kind of mysterious circumstances. She has claimed she did nothing wrong. Her lawyers have claimed she did nothing wrong. But, in fact, what I discovered was that there was a whopping legal settlement involving her. A former assistant of hers accused her of sexual harassment. The details were just mind-boggling. And Fox paid out over $4 million to the former assistant of Kimberly Guilfoyle to settle the claim, which suggests that they felt it had a lot of merit. Guilfoyle left, started dating Don Jr. and has become one of the top officials in Trump's reelection campaign. She's the co-finance chair of the campaign. And, anyway, there's quite a lurid backstory to her, if anybody wants to go back and take a look at this piece.

AMY GOODMAN: What was most significant to you? What most shocked you about the work conditions for the people who worked for her, who were forced to be at her house? Talk about the conditions there and what they alleged she forced them to do.

JANE MAYER: Well, her assistant claimed that Guilfoyle required her to work at her apartment in New York City and that Guilfoyle often was completely naked and that she paraded around with no clothes on and required the assistant to look at photographs she had on her phone of the genitals of the various guys that she had had sex with, that she talked incessantly about sex. It was really weird, to tell you the truth. It was a completely bizarre and sort of obsessively sex-oriented behavior that very much upset her assistant over the course of several years.

AMY GOODMAN: I wanted to go to the Republican National Convention, several speakers warning of chaos if Trump loses the race. This was one of — we wanted to play — we think we have a clip here of the former Fox News host Kimberly Guilfoyle, who addressed the Republican convention.

KIMBERLY GUILFOYLE: They want to destroy this country and everything that we have fought for and hold dear. They want to steal your liberty, your freedom. They want to control what you see and think and believe, so that they can control how you live. They want to enslave you to the weak, dependent, liberal, victim ideology, to the point that you will not recognize this country or yourself.

AMY GOODMAN: Jane Mayer, your response? But also, as we wrap up, what has most surprised you this week? Your piece that you wrote, "Why Trump Can't Afford to Lose," was just before the announcement that Joe Biden had won, and I'm wondering what's most surprised you in this last week.

JANE MAYER: Well, so, to tell you the truth, all of Trump's behavior was not only predictable, it literally was predicted in this piece by all the people who knew him best. Everybody said he will not concede. And they called it.

But what has surprised me has been the behavior of the leaders of the Republican Party. And I guess they've surprised me over and over again, the extent to which they have enabled Trump, the extent to which Mitch McConnell has yet to say one word suggesting that the false claims that Trump won the election are in fact false — you know, he's saying, "Oh, he's entitled to play it out," or whatever — and that Lindsey Graham is saying that he should never concede, and he needs to fight, fight, fight. I mean, this behavior is what makes Trump possible. It's the difference between Trump being seen as pathetic by the country and Trump being seen as powerful by the country. And so that's what surprises me over and over again.

AMY GOODMAN: Jane Mayer, we want to thank you for being with us, and we'll link to your pieces in The New Yorker, "Why Trump Can't Afford to Lose" and "The Secret History of Kimberly Guilfoyle's Departure from Fox."

When we come back, Desmond Meade votes for the first time for president in 30 years. Stay with us.