United States v. TrumpThe Big Legal
Threats Trump Will Face If He Loses the Election
By David Yaffe-Bellany
October 23, 2020
President Trump has more at stake in this election than
whether he remains in the White House. Holding the highest office in the land
grants him effective immunity from federal criminal prosecution and gives him
wide powers to stymie lawsuits against him and his business. That all changes
once he becomes an ordinary citizen again.
“Whatever shelters he has had as an occupant of the White
House would vanish,” says Laurence Tribe, a constitutional law professor at
Harvard and frequent Trump critic. “His ability to throw his weight around in
terms of the deference that judges exercise—all of that is gone.”
A federal prosecution of Trump would be
political dynamite, and a President Joe Biden may choose not to detonate it.
But a new administration could decide to revive Special Counsel Robert Mueller’s investigation into
obstruction of justice by Trump or launch a new probe into the questionable tax deductions the New York
Times revealed in a recent investigative report. Trump is also facing an active
investigation by the Manhattan
district attorney that could result in state criminal charges.
Then
there are the lawsuits. Famously litigious before he took
office, Trump has used the powers of the presidency to swat aside many of the
cases brought against him, often deploying the Justice Department to do so.
Even now, the government is trying to intervene in a defamation suit brought by
a woman he called a liar after she accused him of rape.
The White House didn’t comment on the legal threats facing
Trump. His personal lawyer Jay Sekulow didn’t respond to requests for comment.
Alan Garten, a lawyer for the Trump Organization, also didn’t respond to a
request for comment.
Here are the major
legal threats facing Trump, and how a defeat in November would affect them:
Possible Criminal Charges
Obstruction of
Justice
Where things stand
The Mueller report detailed numerous episodes in which Trump
may have obstructed justice, including his suggestion that former FBI director
James Comey drop an investigation of Michael Flynn, his short-lived national
security advisor, his subsequent firing of Comey, his efforts to fire the
special counsel himself, and his many public comments exhorting witnesses not
to cooperate. But the Mueller team stopped short of recommending criminal
charges, citing in its report the Justice Department’s official position that a
sitting president cannot be indicted. Trump has denied obstructing justice, calling
the whole Mueller investigation a “hoax.”
If Trump loses
The prohibition against indicting the president would no
longer apply, and a Biden Justice Department would theoretically be free to
revive the obstruction investigation and bring charges against Trump. But
prosecuting a former president would cause a political uproar. Trump has also
suggested he could pardon himself, an act that would likely result in years of
additional litigation. Even if federal prosecutors decided to proceed, they
would face practical hurdles. Andrew Weissmann, one of the lead prosecutors on Mueller’s
team, says the probe’s final report laid out “sufficient proof” that Trump
obstructed justice. But he acknowledges a new attorney general would likely
want more. “You could imagine someone saying: ‘Is there more grand jury work to
do? Do we want to lock people in so that we know exactly what they would say,
and we’d know what we’d go to a jury with?’”
Campaign Finance
Violations
Where things stand
Trump’s longtime personal lawyer and fixer Michael Cohen was
sentenced to more than three years in prison in 2018 after pleading guilty to
campaign finance violations. He made hush-money payments just before the 2016
election to adult-film actress Stormy Daniels, who claims she had a sexual
affair with Trump. Cohen said Trump, identified in case filings as “Individual
1,” directed the payments, which prosecutors said constituted an illegal
campaign contribution. National Enquirer publisher American Media Inc. and
David Pecker, its chairman at the time, also admitted working with Cohen and
the Trump campaign to kill damaging stories about the candidate, entering into
a non-prosecution agreement with the government in 2018. Trump wasn't charged,
and he's denied violating any campaign finance laws.
If Trump loses
Although federal prosecutors never explained why they
didn’t charge Trump with the same crime as Cohen, it’s likely the Justice
Department’s policy against prosecuting a sitting president was a factor. That
obstacle would be removed under a President Biden, but the same political
considerations that complicate an obstruction-of-justice case would apply.
Harry Sandick, a former federal prosecutor in New York, says the government
would also have to take a hard look at the witnesses on whom it would be
relying. “If you were the government, would you consider Michael Cohen to be a
sufficiently credible witness to build a case around?” Sandick asks. “That’s
always been a concern.”
Federal Tax Charges
Where things stand
The New York Times on Sept. 27 blew the lid off one
of Trump’s most fiercely guarded secrets: his taxes. In a lengthy investigative
report based on two decades of tax data, the newspaper revealed that Trump
claimed staggering losses that allowed him to pay only $750 in income taxes in
2016 and that the audit he’s long acknowledged relates to a $73 million tax
refund he claimed. Several of the president’s deductions raised eyebrows among
tax experts, who said they could form the basis of a tax fraud prosecution.
These include a $70,000 deduction for Trump’s hairstyling while he was on The
Apprentice and write-offs of some $26 million in vague “consulting fees,”
nearly $750,000 of which appears to have gone to Trump’s daughter Ivanka while
she was a full-time executive of his company. Trump has called the Times report
“fake news” but has also accused the newspaper of illegally obtaining his tax
records.
If Trump loses
Any criminal charges based on the president’s taxes would
depend on whether prosecutors could show that he deliberately set out to
defraud the government. That would be tough to prove. “They’d need to have
memos in the files or email showing that,” says former Internal Revenue Service
auditor Michael Sullivan. “The reality is I don’t know if you can show that.”
Even if he doesn’t face criminal charges, Trump could be sued by the IRS over
any taxes it believes he owes. But Mark Cook, a partner at the accounting firm
SingerLewak, says he thinks the $70,000 hairstyling deduction is probably too
small to interest the agency.
New York State Tax
Charges
Where things stand
Trump fought Manhattan District Attorney Cyrus Vance’s grand
jury subpoena seeking eight years of his taxes and financial records all the
way to the Supreme Court, which in July rejected Trump’s claim of absolute
immunity from state criminal investigations. Trump has continued to fight the
subpoenas on other grounds, but now the spotlight is shifting to what Vance is
actually investigating. At first, the district attorney said he was examining
whether Trump’s company tried to conceal the Stormy Daniels payment, but his
office recently suggested it was conducting a broader probe of possible bank or
tax fraud.
If Trump loses
This investigation would likely gain momentum, with Vance
finding it easier to obtain crucial documents from third parties and arrange depositions
of people in Trump’s orbit, or even the president himself. “My guess is there’d
be more information than they could possibly handle,” says John Moscow, a
former senior prosecutor in the DA’s office. Would that result in a
prosecution? Trump’s pardon power doesn’t apply to state cases, and
Vance, who’s running for reelection next year in a county where Trump barely
won 10% of the vote in 2016, may have different political calculations than a
Biden Justice Department. But many people have a hard time envisioning it
happening. Moscow points out that seating an impartial jury could be tough. “If
you find a juror who has never heard of Donald Trump, that’s probably not a
great juror,” he says.
Trump Inc.
Real-Estate Fraud
Where things stand
New York Attorney General Letitia James is investigating
whether the Trump family’s real-estate company falsely reported property
values to secure loans or tax benefits. Her office this month deposed
Trump’s son Eric, an executive vice president at the Trump Organization. Right
now it’s a civil matter, meaning any penalties would be mainly economic.
But that could change if James thinks there is evidence of criminal misconduct.
Eric Trump has called the investigation politically motivated and said it
represents “the highest level of prosecutorial misconduct.”
If Trump loses
Trump has long been able to argue that he’s too busy as
president to deal with lawsuits, and courts have generally given him broad
deference as head of the federal government’s executive branch. He would not
get that deference as a former president and could be forced to sit for a
deposition. Like Vance, James would probably find it easier to get information
or cooperation from others. “The hesitation on the part of third parties who
are the holders of potentially very incriminating information will evaporate
once he’s no longer president,” Tribe says.
The Emoluments Cases
Where things stand
Allegations that Trump uses the presidency for personal
profit have been among the most consistent criticisms leveled at him during his
time in office. Congressional Democrats and Democratic attorneys general
brought two lawsuits accusing Trump of violating the U.S. Constitution’s
so-called Emoluments Clause, which bars the president from receiving gifts
or things of value from foreign governments, by accepting the money that
representatives of Saudi Arabia and other countries have spent at his company’s
Washington hotel, in particular. A third emoluments case was brought by a
watchdog group. The Trump administration has mainly challenged the rights of
the parties to bring emoluments claims, winning dismissal of the congressional
suit. No court has ruled on the issue of whether the president has in fact
violated the clause. Trump has called the Emoluments Clause “phony” and
suggested other presidents made money on the side.
If Trump loses
Trump will probably not have to worry about these cases.
The goal of the suits was to force him to fully divest himself from his
businesses while in office. But that will no longer be a relevant concern if
Trump loses in November, and violations of the emoluments clauses do not
carry any other financial penalties. “There’s no longer any remedy that
could be issued,” Tribe says. “It’s unfortunate but likely that the emoluments
cases will be dismissed.”
Congressional Tax and
Financial Records Cases
Where things stand
Democrats in Congress are fighting in court to win access to
Trump’s financial records. In one lawsuit, the House Ways and Means Committee
is calling for the Treasury Department to turn over the president’s tax
returns. That case is pending in federal court in Washington. Two other
lawsuits involve Trump’s accountants and bankers. In those cases, the Supreme
Court ruled that Congress could not compel the release of Trump’s financial
records, at least for the time being. The cases were sent back to the lower
courts to assess whether Congress should narrow the scope of the information it
sought. In all three cases, Trump has invoked the powers of the presidency to
argue that he should not have to turn over his financial information.
If Trump loses
Before Trump took office, it was widely accepted that
congressional tax committees could request any taxpayer’s returns, including
the president’s. But Trump' Treasury Secretary, Steve Mnuchin, defied the House
Ways and Means Committee, and the administration has continued the fight in
court. A Biden administration could put an end to that drama by quickly handing
over Trump’s taxes to Congress. How courts would rule on the Democrats’
requests for Trump’s other financial records, which were sent to his bankers
and accountants, is harder to predict, though Trump would lose his argument
that the litigation interferes with his duties as president. “I don’t know
who’s going to win,” said Andy Grewal, an expert on tax law at the
University of Iowa. “But it would be odd if Congress could threaten a president
by saying the moment you leave office we can subpoena you for anything you
have.”
Multi-Level Marketing
Fraud Suit
Where things stand
Trump and three of his children were sued for fraud in 2018
over their endorsement on Celebrity Apprentice of ACN Opportunity LLC, a
troubled multilevel marketing company that later went bust. The plaintiffs said
the Trumps persuaded them to invest hundreds of thousands of dollars in ACN’s
desktop video phone service, which was quickly eclipsed with the advent of
smartphones. A federal judge in New York rejected the Trumps’ move to force
the dispute into private arbitration, but the president and his children
are now appealing that ruling. Trump has called the lawsuit politically
motivated and argued that he was simply offering his opinion when he endorsed
ACN.
If Trump loses
It would become easier for the investors’ lawyers to request
documents from Trump or even force him to testify at a potential trial. Judges
would be less likely to defer to Trump’s wishes, and Trump would be unable to
cite his responsibilities as president as an excuse for not complying.
Personal Conduct
Mary Trump’s Fraud
Suit
Where things stand
The president’s niece Mary Trump last month sued him for conspiring
with his brother and sister to defraud her of millions of dollars from her
grandfather’s estate using false documents and bogus loans. The president
has yet to submit a reply. Mary Trump in July published a bestselling tell-all
that painted a harsh portrait of the president as a narcissistic liar. She
claims in the book that, when she agreed to settle a dispute over her
grandfather’s will, she was told the estate was worth $30 million, but that she
learned later it was worth closer to $1 billion. Donald Trump called his
niece’s book “a lie” in a Fox News interview but has also accused her of
violating a non-disclosure agreement she signed as part of the estate
settlement.
If Trump loses
It would become easier for Mary Trump’s lawyers to request documents from Trump or force him to
sit for depositions. As in the other
civil cases, he would lose the ability to cite his responsibilities as
president as an excuse for not complying.
E. Jean Carroll’s
Defamation Suit
Where things stand
Advice columnist Carroll went public in June 2019 with a
claim that Trump raped her in a Manhattan department store dressing room in the
1990s. Trump soon responded that Carroll was lying, adding that she was “not my
type.” Carroll sued Trump for defamation in New York later that year. Last
month, as Trump faced deadlines to provide a DNA sample and submit to a
deposition, the Justice Department stepped in, claiming that the president’s
statements about Carroll were part of his official duties and that the
government should therefore substitute for Trump as the defendant in the
case. A substitution would effectively force the dismissal of the lawsuit,
since the government cannot be sued for defamation. A federal judge is due to
rule on whether such a substitution is legal.
If Trump loses
The judge, a Clinton appointee, could deny the substitution
request before a new administration takes office. If not, a Biden Justice
Department would likely abandon any defense of Trump, though some experts note
that Obama’s Justice Department defended certain George W. Bush officials in
lawsuits over their sanctioning of torture. Most likely, Trump will again
face the prospect of providing a DNA sample and sitting for a deposition.
Summer Zervos’s
Defamation Suit
Where things stand
A former contestant on The Apprentice, Zervos issued
a statement a few weeks before the 2016 election saying Trump groped and
kissed her in a hotel room in 2007. He denied the assault and called Zervos
a liar, leading her to sue him for defamation in 2017. Trump has argued that
he’s immune from suits filed in state court while he is the president, with New
York’s Court of Appeals expected to decide the issue early next year.
If Trump loses
He would lose his presidential immunity argument—already a
longshot since the U.S. Supreme Court ruled in 1997 that President Clinton
could be sued in federal court. That means Trump could be forced to sit for
a deposition and possibly turn over other evidence related to Zervos’
allegation, win or lose.
With assistance from
Laura Davison and Jordan Fabian
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