The prospect of fitting the orange man
for an orange jumpsuit would create
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.
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.
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!
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.
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!
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