"Only Americans can hurt America."
DWIGHT D. EISENHOWER
The prospect of fitting the orange man for an orange jumpsuit would create new problems of its own.
Lock Him Up?
For the Republic to survive Trump’s presidency, he must be tried for
his crimes. Even if that sparks a constitutional crisis of its own. JONATHAN
CHAIT
In the end,
the most salient fact about Donald Trump may simply be that he is a crook. He
has been defying the law since at least the early 1970s, when he battled the
Department of Justice over his flagrant refusal to allow Black tenants into his
father’s buildings. He has surrounded himself with mafiosi, money launderers, and assorted
lowlifes. His former attorney, national security adviser, and adviser, and two
of his campaign managers, have been arrested on or convicted of an array of federal crimes ranging from tax fraud to
perjury to threatening witnesses. He employs the lingo of the underworld:
People who cooperate with law enforcement are “flippers” and “rats”;
investigators pursuing his misconduct are “dirty cops.” To him, the distinction
between legal and illegal activity is merely an artificial construct enforced
by sanctimonious hypocrites.
And although
President Trump’s opponents have been warning Americans what will happen to
their 230-year-old constitutional government if our gangster president gets
another four years in office, the truth is much of the damage has already been done.
An electoral defeat in November is, of course, necessary. But Trump has set off
a profound crisis of democratic legitimacy that even a resounding Joe Biden
victory may not completely resolve. It may not take a fully developed fascist
movement to bring down the Republic. All that may be required is one
well-placed criminal.
The prospect of an electorally defeated Trump, though glorious, would immediately set off a conflict
between two fundamental democratic values: the rule of law and mutual
toleration. The rule of law is a banal yet utterly foundational concept that
the law is a set of rights and obligations, established in advance, that apply
equally to everybody. It is an ideal rather than a lived reality. Black America, to take one obvious example,
has never experienced equal treatment from institutions like the police and the
courts. But this serves only to illustrate its essential value. The
civil-rights movement has consisted in large part of fighting to extend the
protection of the rule of law to Black people.
The experience of
Black racial oppression shows that the absence of the rule of law is a
pervasive, terrifying insecurity. A society without the rule of law is one in
which the strong prey upon the weak. The small-scale version is a town where
you need the local warlord or mafia boss to solve any problem or dispute; the
nation-state version is Vladimir Putin’s Russia, where the mafia is the
government and bribery is endemic.
Mutual toleration
means that political opponents must accept the legitimacy and legality of their
opponents. If elected leaders can send their opponents to prison and otherwise
discredit them, then leaders are afraid to relinquish power lest they be
imprisoned themselves. The criminalization of politics is a kind of toxin that
breaks down the cooperation required to sustain a democracy. This, along with
the misogyny, was what made Trump’s embrace of “Lock her up!” so terrifying in
2016. He was already using the threat of imprisoning opponents as a political-campaign tool.
If the government is
run by lawbreakers, though, the state faces a dilemma: Either the principle of
equal treatment under the law or the tradition of a peaceful transition of
power will be sacrificed. It’s hard to imagine any outcome under which the rule
of law survives Trump unscathed.
One of the most
corrosive effects of Trumpism upon the political culture has been to detach the
law from any behavioral definition and to attach it to political identity. As
Trump likes to say, “The other side is where there are crimes.” He has trained
his supporters to understand this statement as a syllogism: If Trump’s
opponents are doing something, it’s a crime; if Trump and his allies are doing
it, it isn’t. The chants, which applied enough pressure to force James Comey to
announce a reinvestigation of Hillary Clinton in October 2016, simply to
protect the FBI from being delegitimized by Republicans after an expected
Clinton victory, showed how the field had been sown for Trump even before he
took office.
It is because Trump views the law as a morally empty category, a
weapon for the powerful to use against their enemies, that he has spent his
presidency calling for the prosecution and/or imprisonment of a constantly
growing list of adversaries: Joe Biden and Barack Obama (for “spying” and
“treason”), House Intelligence Committee chairman Adam Schiff (for paraphrasing Trump’s Ukraine phone call in a
speech), John Kerry (for allegedly violating the Logan Act), John Bolton (for writing a tell-all book), Joe Scarborough (for the death of a former staffer), Nancy Pelosi (for tearing up his State of the Union
Address), and social-media firms (for having too many liberals). Trump has alleged a variety
of crimes against at least four former FBI officials and three Obama-era
national-security officials.
Trump has eagerly
seized upon the sporadic riots and looting that followed George Floyd’s murder,
but no actual violence is required for him to equate his opposition in general
with illegal subversion of the state. “You don’t hand matches to an arsonist,
and you don’t give power to an angry, left-wing mob,” he said in 2018. “And
that’s what the Democrats are becoming.” Just as the term fake news used to describe
deliberately false stories written by pseudo-journalists but was repurposed by
Trump as an insult for very real reporting about his administration, crimes has ceased to
denote violations of written law and become instead a catchall description for
any anti-Trump activity.
Even though it is staring us in the face every day — or perhaps
for that reason — we have failed to grasp how profoundly Trump has undermined
the rule of law and how irreversible the damage may be. His contempt for the law
is not merely incidental. He never put himself forward as
a straight arrow. As a first-time major-party candidate, he depicted his
history of dealing with politicians as a sequence of successful bribes. He
spent years railing against the Foreign Corrupt Practices Act, a law
banning bribes of foreign officials, and tried to weaken its enforcement as
president, reportedly complaining, “It’s just so unfair that American companies
aren’t allowed to pay bribes to get business overseas.” When he sought to
collect a portion of the fee for brokering the sale of TikTok, Trump cited the long-standing practice of
tenants paying off landlords to get rent-controlled apartments: “It’s a little
bit like the landlord-tenant. Without a lease, the tenant has nothing. So they
pay what’s called key money, or they pay something.” His vision of the good
society is one in which powerful businessmen grease palms to get things done.
Two years ago, the
New York Times, using documents supplied by his
niece, Mary Trump, proved that the president had engaged in widespread fraud
involving a fake company and falsifying financial information to steal millions
of dollars. Also that year, the federal government said he had ordered a felony
by directing hush money to his former mistresses during his campaign. His
business paid millions for defrauding enrollees in a fake university. And he
admitted using the Trump Foundation, supposedly a charity, to funnel money to
his campaign and business.
At some point, the impunity will end. The law
is coming.
That Trump made it to
2017 without being personally convicted of a crime is itself a testament to the
ineffectiveness of white-collar-criminal-law enforcement. That Trump has not
been charged since taking office is owed to the privileges of being president
of the United States. Because the Justice Department has a policy against
charging the president with crimes, it did not indict him for the same crime
Cohen went to jail for — even though Trump had ordered Cohen to commit it. The
same protection held back Robert Mueller from officially describing the many
actions Trump had taken to obstruct the FBI’s investigation as “obstruction of
justice.” And his standing as president has allowed him to keep his tax returns
out of the hands of New York prosecutors.
But at some point,
the impunity will end. The law is coming.
At the moment, Trump
is reportedly the subject of three investigations. Manhattan district attorney
Cyrus Vance Jr., New York State attorney general Letitia James, and Southern
District of New York acting U.S. Attorney Audrey Strauss are all probing
reported crimes by the Trump administration, ranging from tax fraud to
embezzling funds at his suspiciously expensive inauguration, a large proportion
of which was spent at his own properties. (Strauss took over after William Barr
clumsily attempted to remove her boss, who had clashed with Barr over his
investigations into Trump’s misconduct, but is reputed to be independent.)
Even beyond these
ongoing probes, the potential for criminal liability is vast. Trump was
impeached for leveraging support from Ukraine for an announcement of an
investigation of Joe Biden. But the plot reportedly involved Rudy Giuliani and
his clients hitting up Ukrainians for business deals, even as Giuliani was
representing Trump’s agenda — which is to say, they were apparently seeking a
personal payoff in addition to a political one. The Washington Post has pried loose from the Secret Service just a portion of
the records of its spending at Trump properties, giving evidence of, at
minimum, severe conflicts of interest.
Trump has fired and
intimidated the inspectors general who monitor the executive branch for
misconduct and has virtually halted all cooperation with congressional
oversight. It stands to reason that turning over more rocks will reveal even
more crimes. Upholding the rule of law is going to lead straight to the kind of
grisly spectacle Americans associate with banana republics: the former
president leaving office and going on trial.
“Usually, these
kleptocracies are the ones that hang on to power most bitterly,” says Daniel
Ziblatt, a professor of government at Harvard and the co-author of How Democracies Die. Trump is particularly dependent
on his incumbency. His various legal appeals to keep his financial information
from prosecutors have relied on his status as president, and he has used
campaign funds to finance his legal defenses. Most important, he has bluntly
wielded his power either to pardon his allies or to get the Justice Department
to withdraw its charges as a signal of the benefit of remaining loyal.
The political climate
will not easily permit a peaceful, straightforward prosecution. The maniacal
Republican response to the past two Democratic administrations shows that the
prospect of any real Republican cooperation is a fantasy. The fever is not
going to break. So what is a post-Trump administration to do?
Biden’s position on this problem is easy enough: He will leave it up to the prosecutors. But
what will the prosecutors do? The prospect of fitting the orange man for an
orange jumpsuit, delicious as it may seem for MSNBC viewers (or readers of this
magazine), would create new problems of its own. To begin with, it would be
essential that any prosecution of Trump not only be fair and free of any
political interference but be seen as
fair. A prosecution that appears vindictive would serve only to confirm the
politicization of the law that Trump has done so much to advance. Prosecutors
in New York and the Justice Department can make every effort to apply the law
neutrally, not singling out Trump for punishment, but it will be difficult to
avoid the impression of banana-republicanism formed by the sequence of a Trump
criminal trial following an election defeat — especially when his supporters
have been primed to fight “witch hunts” for years. Want to lock up the “Lock
her up!” guy? Good luck avoiding the appearance of turnabout, however legally
legitimate the process.
An incoming Biden
administration is going to need a peaceful transition — not least because the
federal government will probably be either distributing or in the final stages
of approving vaccines and treatments for a pandemic that has killed nearly
200,000 Americans and is crippling the economy. Biden will require months of
some form of broad social cooperation with measures like mask wearing and
vaccine uptake, all of which could easily and legally be sabotaged by a cornered
Trump.
The prospect of fitting the orange man for an
orange jumpsuit would create new problems of its own.
Biden has emphasized
some measure of social peace as a campaign message and will be
tempted to offer a pardon as a gesture of magnanimity — why not use all his
partisan chits on substantive policy goals?
Perhaps the closest
American analogue is Richard Nixon, whose fate was sealed by Gerald Ford’s
decision to pardon. After an immediate backlash, Ford came to be seen in later
decades as a statesman and was given the Profile in Courage Award by the John
F. Kennedy Library a quarter-century later in recognition of what became a bipartisan
consensus about the greater need for mutual toleration than the rule of law.
From the standpoint
of 2020, that decision has a different cast. The president has emulated Nixon,
borrowing everything from his slogan (even Nixon and his vice-president Spiro
Agnew resigning in disgrace somehow did not prevent their “Law and Order”
slogan from surviving them in unironic form) to his position that if the
president does something, it’s not illegal. The reforms put in place after
Nixon, such as establishing the offices of inspector general and walling off
the attorney general from political prosecutions, are in ruins. Trump adviser
Roger Stone has a massive tattoo with Nixon’s likeness on his back and revels
in crookedness. Stone gave Trump a campaign back channel to the stolen Clinton
emails, then openly promised not to “roll” on the boss and was duly pardoned.
Had Nixon faced
prison, rather than walking away a statesman, would Stone have set out to help
elect a crook to the highest office in the land? And would that president have
gleefully mimicked so many of his crimes? If Trump isn’t prosecuted, what will
his successors do?
To think about a society in which
Trump’s gangster-state logic prevails, consider Russia. Putin is one of the
richest people in the world, having amassed a net worth believed to range up to
$200 billion. Obviously, one doesn’t make that kind of money honestly while
spending decades in public service. Putin’s political network is honeycombed
with criminals, whose impunity is a direct function of their ties to him. The
way you can tell whether wealthy Russians have fallen out of favor with the
regime is that they’re charged with crimes. While Americans tend to think of
Putin as an autocrat, it’s more accurate to see him as the boss of a criminal
syndicate that gained control of a failing state. Even in a second Trump term,
America would be many steps removed from an oligarchy like Russia’s but still
several steps closer than it had been a short while before.
Trump deeply admires
Putin. (This is, in fact, the most innocuous explanation for the submissive
devotion he gives the Russian president.) Using the tools available to him,
Trump has tried to replicate a version of the Putin approach to criminal
justice. He has lavishly used the pardon power to exonerate a wide array of
criminals loyal to him or his party: Joe Arpaio, Scooter Libby, Dinesh D’Souza,
Rod Blagojevich (who, not coincidentally, is the highest-ranking Democrat to
endorse the president), and Stone. Trump promised pardons to officials who
would violate the law on his behalf.
Legal scholar and
Social Democrat Ernst Fraenkel fled Germany in 1938 and three years later published The Dual State: A Contribution to the Theory of Dictatorship. The
“dual state” describes the way in which Nazi Germany continued to operate under
the formal, democratic legal apparatus that had predated Hitler, while running
a parallel state that violated its own laws. Legal impunity for the ruling
party is the key pillar in a system that can destroy the rule of law even while
retaining laws, judges, and other formal trappings of a working system.
Trump hasn’t created
a dual state, but he has laid the groundwork for it, not only in his rhetorical
provocations but also as a kind of legal manifesto. In a series of letters,
Trump’s lawyers have argued that he enjoys almost complete immunity from
investigation by law enforcement or Congress. “The President not only has
unfettered statutory and Constitutional authority to terminate the FBI
Director, he also has Constitutional authority to direct the Justice Department
to open or close an investigation, and, of course, the power to pardon any
person before, during, or after an investigation and/or conviction,” they wrote
in 2017. Last year, the president and his lawyers described impeachment as
“illegal,” “unconstitutional efforts to overturn the democratic process,” and
“no more legitimate than the Executive Branch charging members of Congress with
crimes for the lawful exercise of legislative power.” One of his lawyers, Alan Dershowitz, wrote that Trump
could not be impeached even if he handed over Alaska to Russia.
Trump’s incredible
claim to be both the sole arbiter of the law and beyond its reach was on vivid
display at his nominating convention, a festival of televised lawbreaking. The
Hatch Act, passed in 1939, prohibits using government property to promote any
candidate for office. It has been observed continuously, often in exacting
detail. Political scientist Matt Glassman recalled working as a staffer at the
lowly Congressional Research Service, where he had to remove old political
memorabilia, like a 1960 Kennedy poster and an 1884 Blaine-Logan handkerchief,
lest those items be mistaken by passersby as endorsements for a living
candidate.
Trump has smashed the Hatch Act to bits, to the point where he turned the White House into a stage
for his party convention. It isn’t that he was simply willing to pay the price
of breaking the law in order to get the best backdrop. Trump’s aides told the
New York Times he
“enjoyed the frustration and anger he caused by holding a political event on
the South Lawn of the White House, shattering conventional norms and raising
questions about ethics-law violations,” and “relished the fact that no one
could do anything to stop him.” Unashamed legal impunity was itself the
message.
A democracy is not
only a collection of laws, and norms of behavior by political elites. It is a
set of beliefs by the people. The conviction that crime pays, and that the law
is a weapon of the powerful, is a poison endemic to states that have struggled
to establish or to maintain democracies. If the post-election period descends
into a political crisis, having all the relevant prosecutors promise immunity
for Trump would be the most tempting escape valve. Yet the price of escaping
the November crisis, and simply moving past Trump’s criminality by allowing him
to ease off to Mar-a-Lago, is simply too high for our country to bear.
Gulag, Anne Applebaum’s 2003 history of Soviet concentration camps,
argues in its conclusion that the failure to come fully to terms with the
crimes of the old regime had “consequences for the formation of Russian civil
society, and for the development of the rule of law … To most Russians, it now
seems as if the more you collaborated in the past, the wiser you were.” This
observation, written in the early years of Putin’s regime, captures a cynicism
that pervades Putin’s now-almost-unchallenged autarky.
Ziblatt likewise
suggested to me that Spain’s handling of the post-Franco era has soured in
retrospect. In the immediate wake of Spanish democratization, letting many of
Franco’s fascist collaborators walk away scot-free seemed like a masterstroke.
But over time, a “growing resentment of a collusive bargain between elites”
discredited the system and fueled the growth of extremism.
Before 1945, the
international norm held that deposed rulers, however crooked or abusive, should
be allowed exile. Kathryn Sikkink’s The
Justice Cascade: How Human-Rights Prosecutions Are Changing World Politics captures
the modern norm, which emphasizes the social value of transparent and fair
prosecutions as a deterrent. These cases apply most often, though, to states
transitioning from dictatorship to democracy. There is less precedent for what
to do when a reasonably healthy democracy elevates a career criminal to the
presidency.
Trump’s unique
contribution to the decay of the rule of law has been to define criminality in
political terms, but he has also joined a very old project in which the
political right has long been engaged: associating criminality with a category
of people, so that knocking over a 7-Eleven makes you a “criminal” but looting
a pension fund does not. Trump’s unusual level of personal crookedness
dovetails with a familiar reactionary agenda of combining permissive
enforcement of white-collar crime with a crackdown on street crime — or, as
Trump calls it, simply “crime.” The implicit meaning of “Law and Order” is that
order is distinct from lawfulness and that some crimes create disorder while
others do not.
Trump’s reversals of
Obama-era police reforms and his open contempt for the law send a signal about
whom the law constrains and whom it protects. The fashioning of a more equal
society means sending a different message: The rule of law must bind everyone,
just as it protects everyone. A world where the power of the state can be
brought to bear against a person who was once its most famous symbol of wealth
is one where every American will more easily imagine a future in which we are
all truly equal before the law.
*This article appears
in the September 14, 2020, issue of New York Magazine. Subscribe Now!
POLITICS 5:30 A.M.
The People v. Donald J. Trump
The criminal case against
him is already in the works — and it could go to trial sooner than you think.
The defendant
looked uncomfortable as he stood to testify in the shabby courtroom. Dressed in
a dark suit and somber tie, he seemed aged, dimmed, his posture noticeably
stooped. The past year had been a massive comedown for the 76-year-old former
world leader. For decades, the bombastic onetime showman had danced his way
past scores of lawsuits and blustered through a sprawl of scandals. Then he
left office and was indicted for tax fraud. As a packed courtroom looked on, he
read from a curled sheaf of papers. It seemed as though the once inconceivable
was on the verge of coming to pass: The country’s former leader would be
convicted and sent to a concrete cell.
The date was October
19, 2012. The man was Silvio Berlusconi, the longtime prime minister of Italy.
Here in the United
States, we have never yet witnessed such an event. No commander-in-chief has
been charged with a criminal offense, let alone faced prison time. But if
Donald Trump loses the election in November, he will forfeit not only a sitting
president’s presumptive immunity from prosecution but also the levers of power
he has aggressively co-opted for his own protection. Considering the number of
crimes he has committed, the time span over which he has committed them, and
the range of jurisdictions in which his crimes have taken place, his potential
legal exposure is breathtaking. More than a dozen investigations are already
under way against him and his associates. Even if only one or two of them
result in criminal charges, the proceedings that follow will make the O. J. Simpson trial look like an afternoon in traffic
court.
It may seem unlikely
that Trump will ever wind up in a criminal court. His entire life, after all,
is one long testament to the power of getting away with things, a master class
in criminality without consequences, even before he added presidentiality and all
its privileges to his arsenal of defenses. As he himself once said, “When
you’re a star, they let you do it.” But for all his advantages and all his
enablers, including loyalists in the Justice Department and the federal
judiciary, Trump now faces a level of legal risk unlike anything in his
notoriously checkered past — and well beyond anything faced by any previous
president leaving office. To assess the odds that he will end up on trial, and
how the proceedings would unfold, I spoke with some of the country’s top
prosecutors, defense attorneys, and legal scholars. For the past four years,
they have been weighing the case against Trump: the evidence already gathered,
the witnesses prepared to testify, the political and constitutional issues
involved in prosecuting an ex-president. Once he leaves office, they agree,
there is good reason to think Trump will face criminal charges. “It’s going to
head toward prosecution, and the litigation is going to be fierce,” says
Bennett Gershman, a professor of constitutional law at Pace Law School who
served for a decade as a New York State prosecutor.
Here, according to
the legal experts, is how Trump could become the first former president in
American history to find himself on trial — and perhaps even behind bars.
You might think,
given all the crimes Trump has bragged about committing during his time in
office, that the primary path to prosecuting him would involve the U.S. Justice
Department. If Joe Biden is sworn in as president in January, his attorney
general will inherit a mountain of criminal evidence against Trump accumulated
by Robert Mueller and a host of inspectors general and congressional oversight
committees. After the DOJ’s incoming leadership is briefed on any sensitive
matters contained in the evidence, federal prosecutors will move forward with
their investigations of Trump “at the fastest pace they can,” says Mary McCord,
the former acting assistant attorney general for national security.
They’ll have plenty
of potential charges to choose from. Both Mueller and the Senate Intelligence
Committee — a Republican-led panel — have extensively documented how Trump
committed obstruction of justice (18 U.S. Code § 73), lied to
investigators (18 U.S. Code § 1001), and conspired with
Russian intelligence to commit an offense against the United States (18 U.S. Code §
371). All three crimes carry a maximum sentence of five years in
prison — per charge. According to legal experts, federal prosecutors could be
ready to indict Trump on one or more of these felonies as early as the first
quarter of 2021.
But prosecuting Trump
for any crimes he committed as president would face two significant and perhaps
fatal hurdles. First, on his way out of office, Trump could decide to
preemptively pardon himself. “I wouldn’t be surprised if he issues a broad,
sweeping pardon for any U.S. citizen who was a subject, a target, or a person
of interest of the Mueller investigation,” says Norm Eisen,
who served as counsel to House Democrats during Trump’s impeachment. Since
scholars are divided on whether a self-pardon would be constitutional, what
happens next would depend almost entirely on which judge ruled on the issue.
“One judge might say, ‘Sorry, presidential pardons is something the
Constitution grants exclusively to the president, so I’m going to dismiss
this,’ ” says Gershman. “Another judge might say, ‘No, the president can’t pardon himself.’ ” Either way, the case
would almost certainly wind up getting litigated all the way to the Supreme
Court, perhaps more than once, causing a long delay.
Even if the courts
ultimately ruled a self-pardon unconstitutional, another big hurdle would
remain: Trump’s claims that “executive privilege” bars prosecutors from
obtaining evidence of presidential misconduct. The provision has traditionally
been limited to shielding discussions between presidents and their advisers
from external scrutiny. But Trump has attempted to expand the protection to
include pretty much anything that he or anyone in the executive branch has ever
done. William Consovoy, one of Trump’s lawyers, famously argued in federal
court that even if Trump gunned someone down in the street while he was
president, he could not be prosecuted for it while in office. Although the
courts have repeatedly ruled against such sweeping arguments, Trump will
continue to claim immunity from the judicial process after he leaves office — a
surefire delaying tactic. “If federal charges were ever brought, it is unlikely
that a trial would be scheduled or start anytime in the foreseeable future,”
says Timothy W. Hoover, president of the New York State Association of Criminal
Defense Lawyers. By the time any federal charges come to trial, Trump is likely
to be either senile or dead. Even if he broke the law as president, the experts
agree, he may well get away with it.
But federal charges aren’t the likeliest way that The
People v. Donald
J. Trump will play out. State laws aren’t subject to
presidential pardons, and they cover a host of crimes beyond those committed in
the White House. When it comes to charging a former president, state attorneys
general and county prosecutors can go places a U.S. Attorney can’t.
According to legal
experts, the man most likely to drag Trump into court is the district attorney
for Manhattan, Cyrus Vance Jr. It’s a surprising scenario, given Vance’s well-deserved reputation as someone who has gone
easy on the rich and famous. After taking office in 2010, he sought to reduce
Jeffrey Epstein’s status as a sex offender, dropped an investigation into whether
Ivanka Trump and Donald Trump Jr. had committed fraud in the marketing of the Trump Soho, and
initially decided not to prosecute Harvey Weinstein despite solid evidence of
his sex crimes. “He has a reputation for being particularly cautious when it comes
to going after rich people, because he knows that those are the ones who can
afford the really formidable law firms,” says Victoria Bassetti, a fellow at
the Brennan Center for Justice who served on the team of lawyers that oversaw
the Senate impeachment trial of Bill Clinton. “And like most prosecutors, Vance
is exceptionally protective of his win-loss rate.”
But it was Vance who
stepped up when the federal case against Trump faltered. “He’s a politician,”
observes Martin Sheil, a former IRS criminal investigator. “He’s got his finger
up. He knows which way the wind’s blowing, and he knows the wind in New York is
blowing against Trump. It’s in his political interest to join that bandwagon.”
Last year, after U.S.
Attorneys in the Southern District dropped their investigation into the hush
money that Trump had paid Stormy Daniels, Vance took up the case. Suspecting
that l’affaire Stormy might
prove to be part of a larger pattern of shady dealings, his office started
digging into Trump’s finances. What Vance is investigating, according to court
filings, is evidence of “extensive and protracted criminal conduct at the Trump
Organization,” potentially involving bank fraud, tax fraud, and insurance
fraud. The New York Times has detailed how Trump and his family have long falsified
records to avoid taxes, and during testimony before Congress in 2019, Trump’s
longtime fixer Michael Cohen stated that Trump had inflated the value of his
assets to obtain a bank loan.
Crucially, all of
these alleged crimes occurred before Trump
took office. That means no claims of executive privilege would apply to any
charges Vance might bring, and no presidential pardon could make them go away.
A whole slew of potential objections and delays would be ruled out right off
the bat. What’s more, the alleged offenses took place less than six years ago,
within the statute of limitation for fraud in New York. Vance, in other words,
is free to go after Trump not as a crooked president but as a common crook who
happened to get elected president. And the fact that he has been pursuing these
cases while Trump is president is a sign that he won’t be intimidated by the
stature of the office after Trump leaves it.
In writing up an
indictment against Trump, Vance’s team could try to string together a laundry
list of offenses in hopes of presenting an overwhelming wall of guilt. But that
approach, experts warn, can become confusing. “A two- or three-count indictment
is easier to explain to a jury,” says Ilene Jaroslaw, a former assistant U.S.
Attorney. “If they think the person had criminal intent, it doesn’t matter if it’s
two counts or 20 counts, in most cases, because the sentence will be the same.”
There are two main
charges that Vance is likely to pursue. The first is falsifying business
records (N.Y. Penal Law § 175.10). During Cohen’s
trial, federal prosecutors filed a sentencing memorandum that explained how the
Trump Organization had mischaracterized hush-money payments as “legal expenses”
in its bookkeeping. Under New York law, falsifying records by itself is only a
misdemeanor, but if it results in the commission of another crime, it becomes a
felony. And false business records frequently lead to another offense: tax
fraud (N.Y. Tax Law § 1806).
If Trump cooked his
books, observes Sheil, that false information would essentially “flow into the
tax returns.” The first crime begets the second, making both the bookkeeper and
the tax accountant liable. “Since you have several folks involved,” Sheil says,
“you could either bring a conspiracy charge, maximum sentence five years, or
you could charge each individual with aiding and abetting the preparation of a
false tax return, with a max sentence of three years.”
To build a fraud case
against Trump, Vance subpoenaed his financial records. But those records alone
won’t be enough: To secure a conviction, Vance will need to convince a jury not
only that Trump cheated on his taxes but that he intended to do so. “If you
just have the documents, the defense will say that defendant didn’t have
criminal intent,” Jaroslaw explains. “I call it the ‘I’m an idiot’ defense: ‘I
made a mistake. I didn’t mean to do anything.’ ” Unfortunately for
Trump, both Cohen and his longtime accountant, Allen Weisselberg, have already
signaled their willingness to cooperate with prosecutors. “What’s great about
having an accountant in the witness stand is that they can tell you about the
conversation they had with the client,” Jaroslaw says.
Through appeals, Trump has managed to drag out the battle over his tax returns. The case has
gone all the way to the Supreme Court, back down to the district court, and
back up to the appeals court. But Trump has lost at every stage, and it appears
that his appeals could be exhausted this fall. Once Vance gets the tax returns,
Eisen estimates, he could be ready to indict Trump as early as the second
quarter of 2021.
Sheil, for one,
believes Vance may already have Trump’s financial records. It’s routine
procedure, he notes, for criminal tax investigators working with the Manhattan
DA to obtain personal and business tax returns that are material to their
inquiry. But issuing a subpoena to Trump’s accountants may have been a way to
signal to them that they could face criminal charges themselves unless they
cooperate in the investigation.
Once indicted, Trump
would be arraigned at New York Criminal Court, a towering Art Deco building at
100 Centre Street. Since a former president with a Secret Service detail can
hardly slip away unnoticed, he would likely not be required to post bail or
forfeit his passport while awaiting trial. His legal team, of course, would do
everything it could to draw out the proceedings. Filing appeals has always been
just another day at the office for Trump, who, by some estimates, has faced
more than 4,000 lawsuits during the course of his career. But this time, his
legal liability would extend to numerous other state and local jurisdictions,
which will also be building cases against him. “There’s like 1,037 other things
where, if anybody put what he did under a microscope, they would probably find
an enormous amount of financial improprieties,” says Scott Shapiro, director of
the Center for Law and Philosophy at Yale University.
Even accounting for
legal delays, many experts predict that Trump would go to trial in Manhattan by
2023. The proceedings would take place at the New York State Supreme Court
Building. Assuming that the judge was prepared for an endless barrage of
motions and objections from Trump’s defense team, the trial might move quite
quickly — no longer than a few months, according to some legal observers. And
given the convictions that have been handed down against many of Trump’s top
advisers, there’s reason to believe that even pro-Trump jurors can be persuaded
to convict him. “The evidence was overwhelming,” concluded one MAGA supporter
who served on the jury that convicted Paul Manafort, Trump’s former campaign
chairman. “I did not want [him] to be guilty. But he was, and no one is above
the law.”
Trump’s conviction
would seal the greatest downfall in American politics since Richard Nixon.
Unlike his associates who were sentenced to prison on federal charges, Trump
would not be eligible for a presidential pardon or commutation, even from
himself. And while his lawyers would file every appeal they can think of, none
of it would spare Trump the indignity of imprisonment. Unlike the federal court
system, which often allows prisoners to remain free during the appeals process,
state courts tend to waste no time in carrying out punishment. After someone is
sentenced in New York City, their next stop is Rikers Island. Once there, as
Trump awaited transfer to a state prison, the man who’d treated the presidency
like a piggy bank would receive yet another handout at the public expense: a
toothbrush and toothpaste, bedding, a towel, and a green plastic cup.
*This article appears
in the September 14, 2020, issue of New York Magazine. Subscribe Now!
"Only Americans can hurt America."
DWIGHT D. EISENHOWER
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