Giuliani Not Discouraged by the Judges, Says 'We Don't Need Courts'
Source: AP Photo/Jacquelyn Martin
Rudy Giuliani says he isn't discouraged by the recent string of federal appeals court losses. The courts rejected lawsuits from the Trump campaign in six key states - Arizona, Georgia, Michigan, Minnesota, Nevada and Wisconsin. Arizona became the most recent setback on Friday when the state court threw out Arizona GOP chairwoman Kelli Ward's lawsuit alleging that ballots were switched from President Trump to Joe Biden. But Giuliani says they have a way to get around all of this.
"The simple fact is, we don't need courts," the Trump lawyer said on Hannity Friday night. "The United States Constitution gives sole power to the state legislature to decide presidential elections."
He added: "In fact, if we go back to the Founding Fathers, they'd tell us we're making a mistake. This should be thrown right to the House of Representatives and to the Senate in each state and they should hold hearings, they should have factual determinations and they should decide what the right voting account is."
— Donald J. Trump (@realDonaldTrump) December 5, 2020
"I wanted to get around the courts," he said, "so the facts could get out."
And the Trump campaign has forged ahead by presenting witnesses who say they saw some shady things going on at polling centers. For instance, the team recently provided video footage of election workers in Fulton County, Georgia hauling out suitcases full of ballots after poll watchers were told to go home. Witnesses rightly wondered why those ballots were separate from all the other ballots.
Video footage from Georgia shows that poll workers were told to stop counting and leave, while 4 people stayed behind to continue counting ballots in private pic.twitter.com/bEYdFMAvsa
— Team Trump (@TeamTrump) December 3, 2020
The above tape, Giuliani said, is "dynamite" and "represents theft of more than enough votes to turn the election around."
President Trump still believes in his team's effort to restore election integrity.
The only thing more RIGGED than the 2020 Presidential Election is the FAKE NEWS SUPPRESSED MEDIA. No matter how big or important the story, if it is even slightly positive for “us”, or negative for “them”, it will not be reported!
— Donald J. Trump (@realDonaldTrump) December 4, 2020
Why
Did Rudy Giuliani Submarine a BCCI Probe?
“His office’s apparent
mishandling of solid BCCI leads is fair criticism of him whether he did or did
not know about it: he missed a golden opportunity to examine the so-called
Bank of Crooks and Criminals”
by WAYNE BARRETT
SEPTEMBER 2, 2020
The Ties
That Blind: Why Did Rudy’s Office Submarine a BCCI Probe?
October 19, 1993
A specter
that haunted Rudy Giuliani’s first run for
mayor in 1989 — the association of his then law firm, White & Case, with
the notorious international drug launderers and terrorist boosters at BCCI —
is coming back to haunt him. The reason it’s returning is that much of what the
former U.S. Attorney said back then to deflect media attacks about the
relationship was flat-out wrong. A Voice reexamination
of the issue raises new conflict-of-interest questions both about Giuliani’s
late 1988–early 1989 job talks with the firm — whose ties to the world’s most
corrupt bank were far more extensive than it has publicly claimed — and his
office’s hitherto unreported, yet simultaneous, submarining of a BCCI probe.
Giuliani
maintained then that he had only asked the firm, which had hired him just a
couple of months before he formally announced his candidacy that May, if it
represented any clients “under investigation by my office when I served as
U.S. Attorney,” not about clients “under investigation by other prosecutors.” Concluding
that the BCCI prosecutions, which then appeared to be limited to the federal
indictments in Tampa, had “nothing to do with my office” and “no connection to
my work,” Giuliani declared the issue “irrelevant.” He was so angered by the
controversy, however, that he stormed off a WNBC-TV set when asked about it,
and, six days after the story surfaced, took a leave of absence from the firm.
Bill Barr: The “Cover-Up
General”
by FRANK SNEPP
Contrary to
Giuliani’s 1989 claims, however, his office did receive a hand-delivered,
October 31, 1988, criminal referral about BCCI signed by top Federal Reserve
and New York State Banking Department officials, as well as a November 8
follow-up letter listing suspected Panamanian and Colombian drug money deposits
then flowing through BCCI’s New York office. These letters, as well as at
least one November 4 meeting involving high-level Federal Reserve, state
banking, and Giuliani officials, were spurred by the findings of an emergency
joint examination of BCCI’s New York office conducted by both regulatory agencies
immediately after the October 11 Tampa indictment of BCCI (surprising the
bankers at a fake bachelor party orchestrated by Customs agents made the bust
a nationally televised news story). In addition to noting that the joint
examination had uncovered apparent violations of the Bank Secrecy Act, the
referral letter stated that “a money laundering scheme may be in progress” at
the New York branch — about as vivid a declaration as normally staid bank
examiners are likely to make.
Giuliani’s
office was also indirectly involved in the Tampa undercover operation —
indeed one of the prime launderers caught in the BCCI net, Robert “the Jeweler”
Alcaino, had been indicted by Giuliani’s office that September. That is why
the press statement issued by U.S. Customs Commissioner William Von Raab the
day of the Tampa indictments listed his own and Giuliani’s press representatives
as the only media contacts on the story. It is also why one of the Giuliani
assistants who attended the November 4 meeting with the banking regulators,
Steve Robinson, was handling not only the Alcaino case but that of another
launderer, Colombian Pedro Charria, who also was charged with running drug
money through BCCI.
Despite these
many warnings about a bank already charged with $31 million in drug laundering,
Giuliani’s office never got back to the bank regulators and never opened a
grand jury inquiry. Several months later, a congressional investigator
frustrated by Justice Department resistance to any broad-based BCCI
investigation went to Manhattan District Attorney Robert Morgenthau and
convinced him to launch one. With the cooperation of the same state and federal
banking officials mystified by the lack of response from Giuliani’s office, Morgenthau
indicted and convicted a host of BCCI officials in 1991 and 1992.
His case
included counts that flowed from the money-laundering charges described in the
ignored 1988 referral, which was sent to top Giuliani aide Bruce Baird.
Contacted by the Voice,
Baird, a Washington lawyer who contributed to Giuliani’s campaign as recently
as August, said he doesn’t “have a clue” about what happened in response to the
letter, and can’t recall receiving it. Robinson said he was not aware a
referral letter had been sent and was not involved in any action the office
took after the meeting with the regulators.
The 1988
bulletins about BCCI were arriving at Giuliani’s office just as he and his top
aide Denny Young, who remained at the U.S. Attorney’s office until the end of
January 1989 and joined White & Case (W&C) on February 16, were having
their initial discussions about possibly joining the firm. A headhunter long
friendly with Giuliani who was the unofficial go-between in these negotiations,
Wendeen Eolis, first talked to Giuliani about W&C’s interest in
November. The
Manhattan Lawyer reported at the time that formal Giuliani
talks with the firm began in December after a lunch involving Young and a
partner there. Eolis says: “In the fall of 1988, there were lots of law firms
chomping at the bit to talk partnership to Rudy, but White & Case was one
of the select few Rudy and Denny chose to consider.” A source close to the
discussions says the early meetings with W&C preceded by weeks their
consideration of the only other serious bidder, Proskauer, Rose, Goetz and
Mendelsohn.
While W&C
would later claim that its role with BCCI had “never been significant,” figures
obtained by the Voice reveal
that the firm earned at least $4 million in the fiscal year ending September
30, 1987, from a half dozen BCCI-related clients. Two of the partners who met
with Giuliani early in the negotiations and who participated in the four-member
management committee vote to offer Giuliani and Young a combined million-dollar
package ($780,000 for Giuliani and $300,000 for Young, with Giuliani taking
almost twice the draw of the average partner) were directly involved in the
BCCI-related business — W&C chair James Hurlock, and Eugene Goodwillie Jr.
Hurlock became a major Giuliani donor, raising $19,500 while contributing $2000
to the 1989 campaign himself; Goodwillie, the principal partner in charge of
the BCCI work, gave $1000; W&C lawyers gave a total of $48,000.
Rudy’s Long History of Quashing
Trump Probes
W&C’s 1987
client billings list $624,302 directly from BCCI and another $429,675 from the
booming BCC affiliate in Colombia, which had two branches in MedellĂn, was
closely tied to the drug trade and even became the multimillion-dollar
depository for druglord Jose Gonzalo Rodriguez. It earned a mere $16,000 from
the Republic of Panama that year, but that was a sharp dip from the 1986 total
of $109,000, and was on top of the $300,000 Giuliani associates acknowledged in
1989 that W&C had earned over a period of a few years from the Panamanian
national bank (BCCI and the Panama bank combined to hide $23 million of Noriega
loot). The firm was so deeply involved with Ghaith Pharaon, the now fugitive
Saudi tycoon and BCCI shareholder eventually indicted for illegally fronting
for BCCI in the acquisition of three American banks, that in 1987 it listed
$1.1 million in fees from Pharaon’s holding companies, Redec and Interredec;
$643,000 from his oil company Attock; and $98,000 from the Pharaon Group.
W&C also
reportedly earned substantial fees over the years involving Pharaon’s bank
transactions, including two much-investigated ventures: his sale of the
National Bank of Georgia to Clark Clifford’s First American, and the purchase
of the California-based Independence Bank. Fueled by over $300 million in
sometimes secret loans from BCCI, Pharaon spent years scouting and occasionally
buying American banks as an apparent agent of BCCI, which was effectively
barred by federal regulators from directly taking over one.
A few weeks
after Pharaon’s principal representative here, Amer Lodhi, began cooperating
with investigators in March 1989, he was told by W&C brass that Pharaon had
issued an ultimatum: either it dropped Lodhi, who had recently taken a counsel
position at W&C, or Pharaon would walk away from the firm. Lodhi, who was
first involved with W&C as a young associate back in the ’70s, was shown
the door within weeks of Giuliani’s ironic arrival.
When Clifford,
the legendary Washington lawyer still under indictment with Morgenthau,
appeared before a Senate committee probing BCCI in October 1991, he was asked
about his billings to the bank. Distinguishing it from the mountain of fees
he’d collected from the BCCI-backed First American, Clifford said his direct
work for the bank was “an occasional matter because they used White &
Case.” (Clifford added that BCCI also “sometimes used Sullivan & Cromwell”
as well as one California and Florida firm.) “I think, as a matter of fact,” he
concluded, “they used them a good deal more than they used us.”
The
association was so strong that Assistant U.S. Attorney Thomas Zaccaro says it
was W&C’s actions in the 1985 Independence deal that have become the legal
hook giving federal prosecutors jurisdiction to bring a still-pending $37
million civil claim against Pharaon in New York courts. Zaccaro also says that
W&C is “probably conflicted out” of the ongoing case because of the role
the firm played in the BCCI-connected acquisition. A Federal Reserve affidavit
in the case spells out two aspects of W&C’s involvement — indicating first
that W&C “drafted an investment advisory agreement” naming BCCI as
Pharaon’s investment adviser on the deal (a device that concealed the fact
that BCCI was actually buying the bank); and second, that W&C then
participated in discussions surrounding Pharaon’s repayment of a loan that had
partially financed the “Independence acquisition” (the $12 million Pharaon
used to repay this loan came from BCCI). The Fed document does not say that
W&C had any knowledge of the full scope of BCCI’s hand in this acquisition.
Since W&C
represented both Pharaon and BCCI, as well as other apparent fronts for BCCI
like the First American Bank of New York (FABNY), investigators have also pondered
the question of whether partners in the firm were aware of the bank’s or
Pharaon’s deceptive practices with regulatory agencies. These questions have
involved practices reaching back to the early ’80s when W&C, knowingly or
not, helped pave the way for BCCI’s covert entry in the New York market by
assisting in the sale of over 35 Bankers Trust branches to FABNY — the key to
establishing the new bank as a force in this region (BCCI could only run an
office, not a real branch in New York, and was thus barred by regulators from
taking domestic deposits here in its own name). Bankers Trust was W&C’s
largest and oldest client, and FABNY became a client too, paying the firm over
$330,000 in fees from 1984 through 1986.
It was
difficult for any observer not to notice the stark signs of BCCI’s involvement
with FABNY since it was BCCI officials, not First American, who initiated the
Bankers Trust purchase, and BCCI that ran a yearly average of $10.6 million
through FABNY (more than any other American bank), with 47 BCCI affiliates
maintaining accounts there. FABNY was even headquartered virtually next door
to the BCCI agency on Park Avenue and took its top executives from BCCI ranks
and recommendations.
No proof of
any W&C misconduct in all of these dealings, however, has ever been
alleged, and the firm has never even been legally targeted. When The American Lawyer reported
in 1991 that Morgenthau and the Fed had subpoenaed documents related to Pharaon
from W&C, a W&C spokesman said: “None of the services we have rendered
to Dr. Pharaon have been called into question, nor do we expect them to be.” He
has so far been proven correct. (As some measure of the depth of W&C
involvement with FABNY, the firm billed the First American trustee $30,000 for
gathering its extensive files related to Morgenthau’s subpoena, with Hurlock
and Goodwillie’s names appearing on the bill.)
But, in view
of Pharaon’s still-pending New York and federal indictments, Federal Reserve
orders permanently barring him from participating in the banking business in
the U.S., and the continuing civil proceedings that involve W&C, it is
certainly possible that the firm was concerned in 1989, when it hired Giuliani,
that the already spreading BCCI scandal might turn in Pharaon’s direction.
Since Hurlock, Goodwillie, the firm’s spokesman, and the Giuliani campaign
declined to answer Voice questions
about these issues, it is unclear whether any of W&C’s attraction to
Giuliani might’ve been connected to concerns about the expanding BCCI case.
It’s also
unclear if Giuliani himself knew about the 1988 BCCI referral, follow-up
letter, meeting, and other discussions that involved his office. The then
deputy attorney general at Justice in Washington, Robert Mueller, did a
retrospective review in August 1991, though he could not recall how his review
began (“I know we had some allegation that a referral wasn’t followed through
on,” he said). The Mueller review came on the heels of several events that
presumably embarrassed the Justice Department into trying to come up with some
explanation for how it managed to miss the biggest international bank robbery
in history. The U.S. Attorney for the Southern District of New York — under
Giuliani or in the years after his departure — was hardly the only federal law
enforcement agency in the Reagan/Bush era to look the other way when BCCI
appeared on its radar screen.
One event that
may have prodded Mueller’s review was Morgenthau’s sweeping indictments,
virtually all of which have led to convictions, on July 29, 1991, and the
D.A.’s press statement at the time, which pointedly thanked the Federal Reserve
and state banking officials who’d met with Giuliani’s staff but never said a
word about any cooperation from Justice. Another was the August 1, 1991,
hearing of Senator John Kerry’s Subcommittee on Terrorism, Narcotics, and International
Operations, when Customs chief Von Rabb and Kerry counsel Jack Blum took turns
blasting the Justice stonewall on BCCI, and when Federal Reserve counsel Virgil
Mattingly mentioned for the first time that the 1988 New York referral had
been sent.
Newly assigned
to oversee Justice’s BCCI investigations, Mueller may have been pushed as well
by two House probes. On September 5, New York congressman Charles Schumer
released a report that, after several discussions with Mueller, faulted
federal efforts, concluding “more could and should have been done to put BCCI
out of business, sooner rather than later.” (A year later Schumer issued a much
tougher review, saying law enforcement secrecy made it impossible to determine
if the reason for what he described as pervasive governmental inaction on BCCI
was a lack of coordination “or something more ominous, such as the possibility
that criminal prosecutions may have been deflected or interfered with for
illegal or nonlegitimate purposes.”)
RELATED
What’s Wrong With Rudy
Giuliani?
by DAN COLLINS
On September
11, when Clifford testified for the first time in a much-ballyhooed public
appearance, House Banking Committee staff distributed a Federal Reserve
chronology that spelled out the details of the 1988 referral, as well as a
committee minority report that revealed that Fed officials had “briefed
Assistant U.S. Attorneys, FBI agents and IRS agents in the Southern District of
New York concerning BCCI money laundering” in November of 1988.
In response to
Mueller’s 1991 questions, the two Giuliani assistants, Robinson and Mary Lee
Warren, who attended the 1988 meeting with the regulators began to put together
their own explanation of what happened. Both of them, to varying degrees,
tried to minimize what the Fed and state officials told them. Robinson prepared
a letter contending that the meeting was a getting-to-know-you session in which
general information was exchanged, with BCCI discussed only intermittently and
without apparent purpose. “They clearly thought there were irregularities at
the bank,” Robinson told the Voice,
“but they did not suggest we open an investigation.” Unaware of the referral
letter to Baird, Robinson could not quite figure out what the Fed wanted his
office to do, though he says they did make it clear that they could not legally
provide the prosecutors with detailed information on suspect BCCI accounts
unless the Southern District “opened a formal investigation” and “issued a
grand jury subpoena for the documents.” He said maybe that was a “cryptic
suggestion” Giuliani’s office should’ve taken. Insisting that the meeting and
the bank were “no big deal” to him at the time, Robinson says that the whole
issue just “fell off my map” after the session. He wrote the memo about it at
the request of Warren, who was the narcotics chief in Giuliani’s office in 1988
but had become the head of the narcotics division in Washington, working under
Mueller, by the time she called Robinson in 1991.
Warren, who is
still at Justice and who also talked to Mueller, dismissed the meeting as a
“hospitality session,” adding that the regulators “might have mentioned a bank”
and that it “might have been BCCI” (though she could not recall what, if anything
was said about any bank, she did remember that the group “ate cold cuts” and
that she and Robinson had “a hard time finding” the Federal Reserve office).
Angrily declaring that there “absolutely was not” any referral letter sent to
Giuliani’s office, and refusing to listen to the three references to it in
congressional documents, Warren also claimed to have “no recollection” of the
follow-up memo sent to her by the Fed four days after the meeting, which
sources say listed specific bank customers who may have committed criminal
violations.
While a Fed
participant indicated later that the session was arranged at the request of
Giuliani’s office, Warren says it “certainly wasn’t us who asked for it” and
that the meeting “came out of the blue” — coincidentally, just five days after
the referral letter. Robinson suggested that the meeting occurred because their
Charria and Alcaino probes had resulted in subpoenas for BCCI records that the
regulators were aware of, though Warren says she knew nothing at the time about
either drug launderers’ use of the bank.
The only
aspect of this disputed meeting that both sides agree on is that “nothing ever
came of it,” as Warren puts it. Fed officials later told Morgenthau’s office
they could not explain why the Southern District never followed through, but
Mueller did not question the regulators, nor did he review their detailed
notes of the meeting. Indeed, he has no recollection of ever seeing the Fed
referral letter or Robinson’s memo. “I can’t tell you I did a thorough
investigation,” says Mueller, who nonetheless says he was “satisifed” that
whatever was done was appropriate. “I do recall the question coming up
generally why Morgenthau was doing such a good, aggressive job and yet there
was no Southern District involvement. Ultimately the answer was that the case
was being driven by the Federal Reserve and I don’t know why they weren’t
working more closely with the Southern District.” He added that he knew none of
the details of the Fed’s early efforts to enlist the Southern District in the
probe, but said that he vaguely recalled that whatever was referred to
Giuliani’s office “fell within the ambit of the Tampa money laundering probe”
and “perhaps” wound up passed along to Florida officials. There is no evidence,
in fact, that it ever was.
Baird’s memory
lapse, Warren’s statement that she doesn’t know if she discussed the Fed
meeting with any superiors, and Robinson’s fleeting acquaintance with the case
leave no one who was associated with it who can answer questions about Giuliani’s
knowledge. Giuliani won’t get on the phone either, but it is hard to imagine
that this hands-on prosecutor, with his own press officer listed as fielding
questions about BCCI defendants associated with the Tampa operation, had no
idea that these BCCI red flags were being waved in his direction. His simple
disavowal of any knowledge about the actions of his own top investigator —
revealed in last week’s Voice —
seemed to be enough to silence any further assessment or exploration in the
media.
RELATED
Rudy Guiliani: The Friend
Within
Curiously, the
press had no such response in 1989, continuing a drumbeat of stories about
W&C clients and internal practices even when Giuliani adamantly denied any
knowledge of them. Giuliani was particularly tarred with a Noriega brush in
that campaign, though he insisted he had no way to know the firm represented
the druglord dictator prior to press revelations. However, the Voice has obtained
a W&C prospectus then used to attract new lawyers that specifically said
the firm represented “foreign sovereigns” on an array of banking issues and
listed Panama as one of 10 such clients. (Indeed the press had no such
tolerance in the Liz Holtzman affair this year, hammering away at her though
she swore under oath she had no idea her office had selected Fleet Bank as an
underwriter, and all that countered her denial were reasonable inferences.)
With
Giuliani’s extraordinary record as one of the country’s most effective federal
prosecutors, he is certainly due the benefit of the doubt on issues involving
his old office. But his service as U.S. attorney is all the public has to
evaluate when it considers Giuliani, and, if he is running on that record, it
is the press’s job to take a look at its possible underside. His office’s
apparent mishandling of solid BCCI leads is fair criticism of him whether he
did or did not know about it; he missed a golden opportunity to examine the
so-called Bank of Crooks and Criminals that even loaned $9.5 million to the
most ruthless Arab terrorist, Abu Nidal, who maintained a $60 million account
at BCCI’s fashionable Sloane Street branch in London.
It cannot be
emphasized too strongly that no one knew in 1988 when Giuliani’s top staff
passed on these BCCI leads that Morgenthau would manage to put the BCCI pieces
together inch by inch over a period of years, ultimately bringing this corrupt
colossus down. The congressional investigator who came to Morgenthau — just
six months after the federal referral to Giuliani — convinced him to take on
this hunt by pointing to all the allegations in his own backyard, from the Fed
laundering to the possible false filings involving FABNY. Had Morgenthau not
responded, the Southern District stonewall could very well have resulted
in protecting BCCI from the deathblow it deserved, leaving the investigation
in the hands of the Justice officials elsewhere who had stopped short.
RELATED
Giuliani is
also responsible for his choice of a law firm. His deal with W&C was widely
assailed in the legal press at the time, which found its price tag
inexplicable, especially for a lawyer who was hired to run for mayor by a firm
that did no real municipal work (The
American Lawyer‘s Steve Brill said Giuliani was using the firm as
“a meal ticket and a mail drop”).
It hardly
looks now like this potential mayor did the requisite due diligence before
going there, and though no one in the media has reminded the public, he went
back to the firm — despite all the hard questions — when he lost. He stayed
there for half a year, finally drifting away in 1990. All those W&C
partners who believed so deeply in his 1989 candidacy that they dug in their
pockets for dough have stopped contributing, adding to the curiosity of this
temporary marriage.
As Erwin
Cherovsky notes in his “Guide to New York Law Firms,” W&C “scarcely
resembles the prototypically white shoe law firm which went by that name 15
years ago,” with “business connections and a gentlemen’s club atmosphere”
having given way “to the hustle and bustle of a firm on the cutting edge.”
Cherovsky concluded that while the firm has been on the upswing in recent
years, “it still has not regained the standing it once enjoyed.” The collection
of clients detailed here for the first time does little to enrich that
reputation; and the vigilant Giuliani should’ve noticed.
David Dinkins
has a four-year record as mayor to defend; it merits much of the criticism
Giuliani has leveled. All Giuliani has is his legal practice — as a public and
private advocate. Before we make him mayor, we are entitled to know as much as
possible about that record. ■
Research: Jon Bowles, David Carnoy, and Adam Macy
No, It
Wasn’t a Coup Attempt. It Was Another Trump Money Scam.
The president
knew he couldn’t prevail in the courts but he understands how to make money by
failing. He did it with casinos and he’s doing it again.
November 24, 2020
irraa is licensed under CC BY-NC 2.0
Picture of
Donald Trump at at the Trump Taj Mahal, 2007
President Trump’s post-election machinations are not a
bungled coup attempt; they add up to a scam to enrich himself. A coup would
require broad collaboration from the courts and, failing that, from the
military. The evidence suggests that Trump may not even be serious about
election fraud. If he were, he would have recruited serious election law
experts in the states he has contested. Instead, Rudy Giuliani and Sidney
Powell blanketed the country with a blizzard of lawsuits, offering fever dreams
from the dark web as their legal justification and evidence.
The president’s post-election campaign
demonstrates his singular talent for taking care of himself even when he loses. It is a momentous historic attack on the democratic
process, on the order of Reconstruction. But for Trump, as Michael Corleone put
it, “it’s just business.” Ultimately, Trump’s goals are to remain a star, make
money, and solidify his clout. The corrosive effects on democracy are
collateral damage.
Donald Trump has always craved fame, a drive common to
national politicians. But he alone honed his approach to politics through his
stint as a reality TV star. That’s where he learned how he could weave a
narrative around his personality that tapped into the fantasies of a national
audience. His quixotic claim to have won an election that he knows he lost
rests entirely on his curated public persona. And as long as he pursues his
claims, he is the center of attention instead of an ignored, sad, lame duck.
Trump’s intrigues embody his drive to come out ahead
whether he succeeds or fails. His campaign hardly touched on the pandemic, the
economy, or even his signature complaints about immigrants. Instead, he offered
a narrative about systemic voter fraud and a stolen election. The strategy was
smarter than Trump’s consultants and most media understood. It strengthened his
connection to Americans who feel vulnerable to powerful shadowy forces beyond
their reach, sufficient to drive nearly enough of them to reelect him.
This approach also laid a foundation for Trump to come
out on top again, albeit not as president, and monetize the loss. Soon after
the polls closed, his campaign announced an “Official
Election Defense Fund” to help pay for his election challenges – with much
of the proceeds diverted to his personal PAC, Save America.
And by mobilizing his millions of true believers around a false narrative that
his enemies have cost them their leader, Trump secured an enormous fan base for
whatever he does as an ex-president. Millions will pay to attend more rallies
or perhaps subscribe to a new Trump streaming service or cable network.
The strategy will give Trump a global
stage to spotlight
his inevitable grievances with President
Joe Biden. It
could become a means to mobilize public
pressure
against ongoing criminal investigations
and possible
indictments. Even from Mar-a-Lago, he
could keep
officeholders aligned with his
interests, even as an ex-
president.
Ensuring that Trump benefits even when he loses—and so
never appears to fail – is an approach he has honed over his career. It nearly
always involves making himself richer. He
forged the strategy in Atlantic City. When he issued $100 million in junk bonds
to bail out the failing Trump Plaza casino in 1993 temporarily, he
used half of those proceeds to cover his personal debts. When his three casino hotels went bankrupt, he collected $160 million in management fees from the
time the hotels declared Chapter 11 to the inevitable moment, years later, when
he had to surrender them to his creditors.
Trump had figured out how to win while
losing other people’s money. The final collapse of his Atlantic City
properties also became personal paydays: He walked away with $916 million in
tax losses based on $3.4 billion in defaulted debts owed to the banks and junk
bondholders that actually put up the capital. To make it legal, Trump had assumed personal liability
for the loans. But that was at the heart of the scam: Since he had not put up
his own money, he couldn’t claim the losses without putting himself technically
“at-risk” for the loans.
As president, Trump continues to profit
from losing other people’s money. He
owns 16 golf courses, all financed by accommodating lenders who put up the
money to buy and operate them. As any real estate operator knows, golf courses are notorious money losers. Here too, Trump
is personally “at-risk” for those loans – because otherwise, he couldn’t write
off their annual losses. Based on the tax returns described in the New York Times, he claimed $15.3 million in those
tax losses in 2017, his first year in the White House. For that year, he also
reported personal income of nearly $14.8 million from branding deals, income
tied to his old reality TV show, and revenues from favor seekers joining
Mar-A-Lago and taking suites at his hotels. The losses Trump claimed for
ventures paid for with other people’s money enabled him, even as president, to
avoid paying personal income tax on all of his $14.8 million income.
Winning by failing has been Donald Trump’s signature
business strategy, and now it is his political strategy. Since he
couldn’t force the Justice Department to arrest Biden or coerce the courts to
overturn the election results, he is left to enrich himself and maintain his
influence with his fans and GOP elected officials. Thankfully for democracy,
Americans now face not a coup d’Ă©tat but yet another scam from Donald Trump –
and probably not his last.
Robert Shapiro
Robert Shapiro is the chairman of Sonecon and a senior
fellow at the McDonough School of Business at Georgetown University. He served
as undersecretary of commerce for economic affairs under Bill Clinton.
Chris Christie: Trump’s Legal Team Has Been a ‘National
Embarrassment’
22 Nov 2020606
2:11
Former Gov. Chris Christie
(R-NJ) said Sunday on ABC’s “This Week” that President Donald Trump’s legal
team has been a “national embarrassment.”
Anchor George Stephanopoulos
said, “Last night we saw Pat Toomey, the Senator for Pennsylvania say it’s time
for the president to enable this transition. It’s time for the president to
concede. The president’s response was to attack Pat Toomey on Twitter. Is it
finally time for this to end?
Christie said, “Yes, and here’s
the reason why. The president has had an opportunity to access the courts, and
I said to you starting at 2:30 a.m. on Thursday, if you have got the evidence
of fraud, present it. What’s happened here, quite frankly, the conduct of the
president’s legal team has been a national embarrassment. Sidney Powell
accusing Brian Kemp of a crime on television, yet being unwilling to go on TV
and defend and lay out the evidence that she supposedly has. This is outrageous
by any lawyer and notice, George. They won’t do it inside the courtroom. They
allege fraud outside the courtroom, but when they go inside the courtroom, they
don’t plead fraud, and they don’t argue fraud. This is what I was concerned
about at 2:30 in the morning on Wednesday night.”
He added, “Listen, I have been
a supporter of the president. I voted for him twice, but elections have
consequences, and we cannot continue to act as if something happened here that
didn’t happen. You have an obligation to present the evidence. The evidence has
not been presented, and you must conclude. As Tucker Carlson even concluded the
other night, that if you are unwilling to come forward and present the
evidence, it must mean the evidence doesn’t exist. That’s what I was concerned
about on election night, and I remain concerned today. I think it’s wrong. I
think what you have heard a lot of Republicans start to say this. I said it on
election night. I hope more say it going forward because the country is what
has to matter the most. As much as I’m a strong Republican and I love my party,
it’s the country that has to come first.”
Follow Pam Key on Twitter @pamkeyNEN
De Niro: ‘Nuts’ Giuliani Used to Prosecute the Mob — Now He
Represents the Trump ‘Mob Family’
20 Nov 202061
1:35
Actor Robert De Niro said
Friday on ABC’s “The View” it was “nuts” that former New York City Mayor Rudy
Giuliani as the United States Attorney for the Southern District of New York
prosecuted the mob and now he works for the Trump’s which De Niro called a
“mob family.”
Co-host Sunny Hostin said, “I
wanted to ask you about Giuliani because Rudy Giuliani is still trying to fight
the results in court with ridiculous claims. Yesterday he quoted “My Cousin Vinny”
in a press conference. Earlier this week, he claimed the mafia of Democrats
rigged the votes for Biden. Giuliani used to prosecute actual mob bosses in the
’80s in federal court. What happened to him?”
De Niro said, “I know. I know.
He’s the one who was prosecuting under the RICO Act the way I understand it,
and now he’s representing a mob family. It’s crazy. It’s crazy.”
He continued, “I don’t know
what happened to him. I feel bad for him.”
Hostin said, “Why do you think
he would do this?”
De Niro said, “I think just for
the attention, maybe desperation, maybe whatever else. That’s the only way. I
can’t understand because it’s just as easy to say, ‘Look. I can’t buy into
this. I can’t go along with this. It’s over. I’m out.’ He would have so much
respect, and people would hire him and want to hire him, and he’s gone this
other way. It’s just nuts.”
Follow Pam Key on Twitter @pamkeyNEN
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!