As Soon as Trump Leaves Office, He Faces Greater Risk
of Prosecution
The
president is more vulnerable than ever to an investigation into his business
practices and taxes.
By William K. Rashbaum and Benjamin Weiser
- Nov. 13, 2020Updated 10:41
a.m. ET
President Trump lost more than an
election last week. When he leaves the White House in January, he will also
lose the constitutional protection from prosecution afforded to a sitting
president.
After Jan. 20, Mr. Trump, who has
refused to concede and is fighting to hold onto his office, will be more
vulnerable than ever to a pending grand jury investigation by the Manhattan
district attorney into the president’s family business and its practices, as
well as his taxes.
The two-year inquiry, the only known active
criminal investigation of Mr. Trump, has been stalled since last fall, when the
president sued to block a subpoena for his tax returns and
other records, a bitter dispute that for the second time is before the U.S. Supreme Court. A ruling is expected
soon.
Mr. Trump has
contended that the investigation by the district attorney, Cyrus R. Vance Jr.,
a Democrat, is a politically motivated fishing expedition. But if the Supreme
Court rules that Mr. Vance is entitled to the records, and he uncovers possible
crimes, Mr. Trump could face a reckoning with law enforcement — further
inflaming political tensions and raising the startling specter of a criminal
conviction, or even prison, for a former president.
“He’ll never have more protection from
Vance than he has right now,” said Stephen I. Vladeck, a law professor at the
University of Texas.
“Vance has been the wild card here,”
Professor Vladeck added. “And there is very little that even a new
administration that wants to let bygones be bygones could do formally to stop
him.”
A lawyer for the president, Jay
Sekulow, declined to comment through a spokesman.
The district attorney’s investigation
of a sitting president has taken on even greater significance because Mr.
Trump’s past use of his presidential power — pardoning those close to him charged
with federal crimes — suggests he will make liberal use of the pardon pen on
behalf of associates, family members and possibly even himself, as he claimed
he has the right to do.
But his pardon power does not extend to
state crimes, like the possible violations under investigation by Mr. Vance’s
office.
Mr. Vance’s inquiry
could take on outsized importance if the incoming Biden administration, in
seeking to unify the country and avoid the appearance of retaliation against
Mr. Trump, shies away from new federal investigations.
Such a move would not bind the district
attorney, an independent elected state official.
Mr. Vance’s lawyers acknowledged during
the court fight over the subpoena that the Constitution bars them from
prosecuting a president while in office, but the district attorney has said
nothing about what might happen once Mr. Trump leaves the White House.
Danny Frost, a spokesman for Mr. Vance,
declined to comment. It remains unclear whether the office will determine that
crimes were committed and choose to prosecute Mr. Trump or anyone in his orbit.
Mr. Vance’s actions in the coming
months are likely to put him under increasing political scrutiny. Mr. Trump
will leave the White House amid calls for him to face criminal charges and a
drumbeat of strident criticism from the left that he has evaded any legal
consequences for his conduct over the years.
On the one hand, Mr. Vance could face
pressure to forsake any charges to allow the country to move forward after a
contentious presidential election. On the other, the district attorney was
sharply criticized for his 2012 decision not to seek an indictment against Mr.
Trump’s children, Ivanka Trump and Donald J. Trump Jr., after they were accused
of misleading investors in a condo-hotel project. Mr. Vance has said that after
a two-year investigation, his office could not prove a crime was committed.
Some legal experts said it would send
the wrong message if Mr. Vance had evidence to justify charges but decided to
walk away from a prosecution of Mr. Trump.
“That would put the president above the
law,” said Anne Milgram, a former assistant district attorney in Manhattan and
Democratic attorney general in New Jersey and a frequent critic of Mr. Trump.
And because Mr. Trump
has repeatedly complained that
the investigation was part of a broad partisan witch hunt, any decision to end
it once the president left office could be seen as a tacit acknowledgment that
such criticism was justified.
Few facts have been publicly disclosed
about the course of the district attorney’s investigation or the people or
potential crimes being examined because the inquiry is shielded by grand jury
secrecy.
But during the legal battle over Mr.
Vance’s subpoena, which sought eight years of Mr. Trump’s personal and corporate tax
returns and other records from his accounting firm, prosecutors
suggested in court papers that they were investigating a range of potential financial crimes.
They include insurance fraud and criminal tax evasion, as well as grand larceny
and scheming to defraud — which together are New York State’s equivalent of
federal bank fraud charges.
And prosecutors argued in court that
the documents they had demanded from the accounting firm, Mazars USA,
represented “central evidence” for their investigation.
But they have provided little in the
way of specifics beyond citing multiple news reports that detailed a range of
potential criminal conduct by the president and his associates, including a
series of 2018 New York Times articles that outlined possible tax crimes
committed by Mr. Trump based on a detailed analysis of some of his tax return
data obtained by the newspaper.
Mr. Trump, before and during his presidency, declined to publicly release his tax returns, breaking
with 40 years of White House tradition, and he vigorously fought attempts by
Congress and state lawmakers to obtain them.
The district attorney’s inquiry, which
began in the summer of 2018, was first thought to focus on hush money payments
made on behalf of Mr. Trump just days before the 2016 presidential election to
an adult film star who had claimed she had an affair with him.
But the subpoena for
Mr. Trump’s tax returns underscores an apparent greater focus on potential tax
crimes, which tax experts, former prosecutors and defense lawyers agree can be
among the toughest cases for the government to win at trial.
“The burden of proof is substantial,”
said William J. Comiskey, a former longtime state prosecutor of white-collar
and organized crime cases who later oversaw enforcement at New York’s
Department of Taxation and Finance.
That, in large measure, is because
prosecutors must prove that the defendant actually intended to evade taxes, Mr.
Comiskey said.
And tax cases can be boring for jurors.
“They involve a complicated set of
rules and numbers, and it’s hard for jurors — or anyone — to keep their focus
through days and days of testimony,” said Amy Walsh, who handled tax cases as a
federal prosecutor and later as a defense lawyer at a firm that specialized in
tax matters.
The challenge in presenting such cases
to a jury is compounded without a cooperating witness who can serve as a guide
through complex financial strategies and records, or emails or other statements
containing admissions, experts said.
“They need a smoking gun or they need
someone to flip,” said Daniel J. Horwitz, who brought tax and complex fraud
cases during more than eight years in the Manhattan district attorney’s office
and is now a white-collar defense lawyer.
It is unknown whether Mr. Vance’s
prosecutors have obtained the cooperation of any insiders for their
investigation, but another consequence of Mr. Trump’s departure from office and
loss of the power of the presidency could be that it would be easier for them
to do so.
In addition to Mr.
Vance’s inquiry, Mr. Trump also faces continuing scrutiny by New York State’s
attorney general — who he has also claimed has targeted him out of partisan
rancor.
In his lawsuit seeking to block the
grand jury subpoena, Mr. Trump’s lawyers quoted 2018 campaign statements by the
attorney general, Letitia James, a Democrat, saying they were part of a
“campaign to harass the president.”
They cited one statement, for example,
in which she said Mr. Trump should worry because “we’re all closing in on him.”
Last year, Ms. James’s office opened a civil fraud investigation into Mr. Trump’s businesses.
As recently as last month, Mr. Trump’s son Eric, after months of delays,
was questioned under oath by the office’s lawyers.
Rebecca Roiphe, a former assistant
district attorney in Manhattan who teaches legal ethics and criminal law at New
York Law School, said Ms. James’s earlier statements made it appear there was
some truth to the accusation that people who were investigating Mr. Trump were
“at least capitalizing on that from a political perspective.”
The only way for Mr. Vance to avoid
that perception, Professor Roiphe said, was “to have a rock-solid case with overwhelming
evidence, which will help convince the public that they’re holding the former
president accountable for criminal acts.”
Ms. James, in response to criticism
from Mr. Trump last year, tweeted that her office “will follow the facts of any
case, wherever they lead.” She added: “Make no mistake: No one is above the
law, not even the President.”
One thing seems
likely: Defending against a white-collar investigation, even as a former
president, will be challenging, stressful and disruptive for Mr. Trump, said
Daniel R. Alonso, who was Mr. Vance’s top deputy from 2010 to 2014 and is now
in private practice.
“There are subpoenas
and seizures and documents all over the place, as well as constant meetings
with lawyers,” Mr. Alonso said, adding, “It would certainly not be pleasant for
him.”
