President Donald Trump arrives at the Rose Garden of the White House in Washington on Friday, November 13, 2020. Evan Vucci / AP hide caption
Evan Vucci / AP
Evan Vucci / AP
Of all the benefits of being President, Donald Trump could soon be missing out on the greatest legal protection it offers.
For the past four years, Trump has benefited from the de facto immunity from law enforcement enjoyed by all presidents in office. But that cloak will be passed on to Joe Biden when he is sworn in on Jan. 20, leaving Trump in the legal cold.
“Obviously, the president enjoyed immunity while in office,” said Danya Perry, a former prosecutor in New York. “And it is legally possible that he will be charged on January 21st.”
There is no indication that an indictment is imminent, and it is possible that Trump will show up completely unharmed. But there is also no doubt that after his absence he will face more legal threat than in recent years.
“His legal risks increase immeasurably on January 21, both civil and criminal,” said Perry.
Possible federal liability
The most advanced case that could seduce Trump could be from the southern borough of New York. It comes from the federal prosecution against Michael Cohen, Trump’s former personal attorney and fixer.
Cohen pleaded guilty to a number of crimes, including ordering illegal hush money payments to silence women during the 2016 campaign over extramarital affairs they allegedly had with Trump.
Cohen has said he acted on instructions and in coordination with Trump. The prosecution referred to the president as “Individual 1” in court files.
It is the Justice Department policy that a seated president cannot be charged. While it is possible for a president to break the law before or during his tenure, the prosecution’s inability to effectively bring an indictment means that he cannot be charged, tried, or punished while still in office.
Cohen’s wrongdoing, which the prosecution linked to Trump without naming him, raises the question of whether Trump may be charged himself.
“If the target had not normally been a seated president with immunity, ‘Individual 1,’ as he is called, would most likely have been prosecuted along with his assistant and supervisor Michael Cohen,” said Perry.
However, prosecuting such a case could create significant complications.
For one thing, persecuting a former president would be politically difficult, especially in a country as divided as this one. The decision on whether this should be done at the federal level rests with the new administration.
“It comes down to a political calculation,” said Kim Wehle, a former federal attorney who now teaches at the University of Baltimore School of Law.
“And the understanding is that President-elect Biden has already signaled that he has no appetite for it, which makes sense as he has a lot of political capital that needs to be spent on critical issues like the pandemic like climate change Economy.”
Indeed, Biden has signaled his reluctance to pursue a case against his predecessor. In August, Biden said he would leave the decision to the Justice Department and the Attorney General, but suggested that prosecuting charges could do more harm than good.
“I think it’s a very, very unusual thing, and probably not very, how can I say good for democracy, to talk about the persecution of former presidents,” said Biden.
There is also a chance that Trump will try to apologize to himself before leaving office. The president has claimed he has this power but has said in the past that he doesn’t feel he should use it because he argues he has not broken a law.
An attempt at self-forgiveness would be an unprecedented step and could well face legal challenges.
Manhattan District Attorney Cyrus Vance Jr. speaks at a news conference in New York. His investigation could create legal problems for President Trump in his absence. Craig Ruttle / AP Hide caption
Craig Ruttle / AP
Craig Ruttle / AP
The city and state of New York
What is clear about Trump’s pardon power, however, is that it does not extend to crime at the state level. And that could prove problematic for Trump in his former hometown.
Manhattan District Attorney Cy Vance has an active criminal investigation into Trump and his companies. The exact contours of the probe are not clear, but court records suggest that it is investigating possible insurance or financial fraud.
“It looks like it is the most likely place where he could be held criminally liable for taxes, for example,” said Wehle.
The case has been entangled for months as Trump battles a grand jury summons that Vance issued to Trump’s personal accounting firm. Vance’s office searches for eight years of Trump’s tax return and financial records.
The president fought the subpoena to the Supreme Court last summer and lost, despite the Supreme Court leaving the door open for him, raising other legal challenges.
Trump did so on the grounds that the subpoena was too broad and politically motivated. Vance denied these claims, and the lower courts approved the prosecutor’s office. Trump’s lawyers are now calling on the Supreme Court to block the subpoena.
Wehle said the patience the Vance team showed in conducting the litigation suggests the investigation isn’t just political – a Democratic city official in New York is playing in front of the crowd there.
“It’s hard to imagine that Cyrus Vance would have put that kind of effort into the investigation of Donald Trump when he was president, if he had just closed this investigation and all that could come of it, if he was a private individual like everyone else . “Said Wehle.
The Vance case isn’t the only legal issue with brewing in New York.
New York attorney general Letitia James at a news conference in August. Your office is investigating the practices of the Trump organization. Kathy Willens / AP hide caption
Kathy Willens / AP
Kathy Willens / AP
Attorney General Letitia James is conducting a civil investigation into Trump’s business. James is investigating whether the Trump Organization improperly increased the value of their assets for loan or insurance purposes and then decreased the value for tax purposes.
The President’s son, Eric Trump, was reportedly oath last month as part of the investigation.
While James’ investigation is civil, it could move to the criminal side depending on what the investigators uncover.
According to Perry, the former New York District Attorney, both probes could be relatively simple as they are likely to be heavily document-based.
“For example, if you’re looking at multiple assets and they are assigned different values, one on a tax return and one on a bank loan document, it could be relatively easy,” she said. “They seem very paper-based.”
Cohen alleged in Congress that Trump’s companies were involved in such practices.
However, there are significant challenges in criminal matters, Perry said, as the returns on a sprawling business can be complicated and prosecutors need to prove that the individuals involved have intentionally broken the law.
“It can be difficult to prove that the taxpayer here, Mr. Trump himself, committed premeditated, premeditated tax fraud, and it doesn’t have to disappear from tax returns,” Perry said. “A cooperating witness is always very helpful for this.”
It’s not clear if Cohen or any of Trump’s aides might be able to appear in a criminal case and testify about the boss’s actions or intentions.
And Trump’s legal threat doesn’t end there.
He also faces libel suits from two women who say he sexually assaulted them. While Trump will not face criminal liability in these lawsuits, it can potentially damage his reputation and financial impact.
Overall, the result is a legally dangerous – and possibly expensive – post-presidency.
“It’s a potential avalanche,” said Wehle. “But this is another man who is very used to using the legal system to his advantage.”