How Trump May Be Plotting to Stay Out of Jail

He could be planning for the “ultimate deal”—this time, with Joe Biden.

Donald Trump has a serious dilemma. If Joe Biden loses in November, he can go home and settle in as a party elder stateman, as defeated nominees have often done. But if Trump loses, he faces years of intensive investigations by Congress and, assuming he pardons himself, years of investigations by state prosecutors, likely criminal indictments, and possible conviction and imprisonment. The investigations also could expose some of his children to legal peril. And Trump assets—and those of the Trump Organization—will be vulnerable to government seizure if New York state prosecutors and courts find that his past actions were part of an organized enterprise engaged in criminal activity.

Trump is working hard to avoid this scenario at any cost. His challenge is to find a strategy that both makes losing less likely and, if he does lose, provides some leverage to lessen the personal costs to him and his family. His current campaign arguably meets those criteria: His winning strategy increasingly relies on efforts to stack the count in his favor by attacking and partly disabling the mail-in voting process. His attacks on a safe and open voting process also feed into his larger campaign message to his core followers that the election is rigged, and they should be prepared for Trump to reject the result if he loses.

If the strategy ends in victory, Trump’s problems are solved. But if he loses by a healthy margin, he could still try to avoid years of investigations and prosecutions by employing what game theorists call the “ultimatum game.”  In this scenario, Trump’s representatives would privately tell Biden’s team that the sitting president may reject the outcome publicly and send his followers into the streets, unless the president-elect gives him a get-out-of-jail-free card. We don’t know if Biden would play that game. He could well ignore any such proffered quid pro quo and call on Republicans to support a calm transition of power. But the scenario is highly consistent with Trump’s current message and strategy.

Let’s start with what we know about the president’s core message. We know that his website offers no new proposals for his second term on taxes, healthcare, energy, agriculture, education, or even on how to beat the pandemic. When the pandemic, and his mismanagement of it, drove down jobs and growth, his message has shifted to the claims that widespread mail-in voting is part of a rigged election, and the only way he can lose is through mail-in ballot fraud. This new message has become as central to his 2020 campaign as anti-immigration was in 2016.

Trump’s attacks on the electoral process this year started with the suggestion that the election should be delayed, because widespread mail-in balloting based on the pandemic, as he put it, would be a “catastrophic disaster” leading to fraudulent results. Perhaps he thought he could delay the election until a time when he could point to the pandemic receding. Alas for that plan, Republican leaders from Mitch McConnell down rejected the trial balloon out-of-hand. Even so, the controversy generated wide publicity for his claim that a fair election would be impossible with largescale mail-in voting.

To be clear, that claim has no basis in fact. As the Brennan Center for Justice reported recently, extensive research shows that mail-in ballot fraud is very rare; and a National Academy of Sciences study found that universal mail-in voting has no discernible effect on each party’s share of the turnout or the election’s results.  But for Trump’s strategy, the salient fact is that Democrats are much more likely than Republicans to vote by mail, by a margin of 72 percent to 22 percent, according to a recent Monmouth University survey.

The current centerpiece of Trump’s attacks on mail-in voting is his public push to block funding for the U.S. Postal Service and enact new policies that will delay deliveries of mail-in ballots to state election officials.

By normal political standards, this war on mail delivery is remarkable on several counts. First, 91 percent of Americans view the USPS favorably for its prompt reliable delivery of their mail.  Second, his high-profile attacks have given Democrats a strong incentive to organize their voters to request and mail-in their ballots early. Finally, instead of declaring war, his newly installed postmaster general, Louis DeJoy, could have found discrete and hard-to-trace ways to weaken the USPS’s capacity to deliver tens of millions of mail-in ballots on time.

DeJoy may be taking such steps anyway. He announced this week that he would suspend the policy changes until after the election. Whether he really is or not, the headline-grabbing dispute has further publicized and reinforced the president’s core message that any election with high levels of mail-in balloting is rigged.

The third piece of this messaging addresses what Trump may do about a rigged election.: By his own statements, Trump may not accept the election result if he loses—and implicitly, neither should his supporters.  He made the same threat in 2016, near the close of his third debate with Hillary Clinton.  But if Trump had lost in 2016, whatever he said about it would have had little if any consequences. The threat has different implications this time, because now he is the president.

For example, if loses narrowly, he could direct his attorney general to sue to overturn the results in a few states, based on the Justice Department’s findings of mail-in ballot fraud. We do not know what would happen next. Americans typically see a narrow loss as a loss, however, and while Trump’s messaging has prepared his more fervent supporters to protest such an outcome, that type of public pressure usually does not affect judges.

We also cannot know what Trump will do if he loses badly. Based on game theory, he does have one course left that might take the sting out of his defeat: After spending months preparing his supporters for the prospect that Democrats will steal the presidency, Trump’s representatives could tell Biden’s camp that unless the president-elect agrees to some concessions, the sitting president will publicly reject the results as a fraud and call on his followers to take mass action in the streets.

In Trump’s view, this could be his ultimate deal. He agrees to accept the election results and retire peacefully, but only if Biden and Democratic congressional leaders agree to shelve future investigations and forgo federal prosecutions of him and his family and associates—and call on state prosecutors and attorneys general to do the same.

We do not know how a President-elect Biden would respond. If he is highly risk-adverse, he might agree with some conditions—for example, that Trump and his family withdraw from politics on a permanent basis. But it is likely that the agreement would become public and produce a backlash damaging to Biden’s new presidency, which suggests that Biden would reject such a deal, on principle or based on the associated costs.

In the end, we do know that Donald Trump faces terrible consequences if he loses this election, and he is relying on an electoral strategy of excluding millions of voters on the message that the election itself is a fraud. In the past, he has been adept at avoiding most personal costs when his projects collapse, as he did in the serial bankruptcies of his Atlantic City casino hotels. Only real events will tell us if his strategy this time can possibly pull that off again.

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Robert J. Shapiro

Robert J. Shapiro, a Washington Monthly contributing writer, is the chairman of Sonecon and a Senior Fellow at the McDonough School of Business at Georgetown University. He previously served as Under Secretary of Commerce for Economic Affairs under Bill Clinton and advised senior members of the Obama administration on economic policy.