What
Trump faces on Jan. 20, 2021
As soon as
he becomes a private citizen, Trump will be stripped of the legal armor that
has protected him from pending cases both civil and criminal.
Nov. 22, 2020,
5:00 AM CST
By Tom Winter
On
Jan. 20, 2021, around noon, Joe Biden will take the oath of
office as president and Donald Trump will lose both his job and
one of its most important perks.
Trump
has faced investigations involving his campaign, his business and his personal
behavior since he took the oath of office himself four years ago. As soon as he
becomes a private citizen, however, he will be stripped of the legal armor that
has protected him from a host of pending court cases both civil and criminal.
He
will no longer be able to argue in court that his position as the nation's
chief executive makes him immune to prosecution or protects him from turning
over documents and other evidence. He will also lose the help of the Justice
Department in making those arguments.P. 9, 202002:18
While
it's possible he could go to jail as a result of some of the investigations of
his business affairs, the soon-to-be-former president is more likely to face
financial punishment in the form of civil fines, law enforcement observers
believe. He may also be embarrassed by financial and other secrets that will be
exposed in court. Nearly all his legal troubles are in his hometown, New York,
where he once basked in the tabloid limelight as a young mogul and where he
rode a golden escalator into an unlikely political career.
Here
are some of the most perilous cases that await Trump when he's no longer
president — and here's how he could yet use the powers of the nation's highest
office to escape punishment:
The Manhattan
district attorney's case
Former
Trump lawyer Michael Cohen pleaded guilty in 2018 to campaign finance violations
for paying adult film star Stormy Daniels to keep silent about an affair she
alleges she had with Trump. The indictment alleged that Cohen had paid Daniels
$130,000 before the 2016 election for the benefit of "Individual-1,"
an unindicted co-conspirator described as an "ultimately successful
candidate for president." But federal prosecutors in the Southern District
of New York didn't seek charges against Trump, who would have been immune from
prosecution regardless while he was president.
Two
prosecutors in New York seem to have picked up where federal prosecutors left
off in examining Trump's finances.
Manhattan
District Attorney Cy Vance is looking
into a variety of allegations of financial improprieties. Court documents show
that Vance is investigating "possibly extensive and protracted criminal
conduct at the Trump Organization," Trump's family business, which could
include falsifying business records, insurance fraud and tax fraud.
While
the campaign finance violation of Individual-1 isn't a federal case, New York
state law says falsifying business records in furtherance of an illegal act is
a felony. Cohen has also alleged that Trump effectively uses two sets of
numbers in his business, one with higher values to secure loans and a second
with lower values to minimize taxes, according to his congressional testimony
and published interviews. While Trump has declined to release his tax returns,
saying he is under audit, The New York Times obtained many years of his tax
records and determined that he had paid no federal income tax for 10 of the
years and $750 in each of two other years.
Vance's
office has subpoenaed eight years of the president's tax documents from his tax
preparer, Mazars USA LLC, a subpoena the president fought all the way to the
Supreme Court, which ruled in October 2019 that Trump wasn't immune from having
to provide the documents while president and could fight the subpoena only on
the same grounds any other person could, on the merits.
Since
the ruling, Trump's legal team has fought the subpoena on its merits, but it
has lost in the district and appeals courts. The Supreme Court must now decide
whether to accept Trump's emergency request for a stay of the lower courts'
rulings and possibly hear the case again or deny the stay. It's unknown when
the Supreme Court could announce a decision, which would be made by a high
court that now includes three Trump appointees.
If
the stay request is denied, Vance gets the documents as soon as Mazars can
transfer the files. This is the only known criminal investigation involving
Trump, and if he is convicted, the penalties could be solely or largely
financial.
NBC
News legal analyst Danny Cevallos said he expects Vance to pick the
"lowest hanging fruit" of crimes to charge, which would likely be tax
evasion or falsifying business records.
The
penalty for falsifying business records can be up to a year in prison with
fines or probation with fines.
Cevallos
said a person can be found guilty of falsifying business records in the second
degree in New York "when he has the specific intent to defraud."
"That
means that he intends to cheat or deprive another person of property or a thing
of value," Cevallos said.
He
said a lower-level employee could claim that he or she didn't personally
benefit from the crime or merely executed orders on someone else's behalf. That
affirmative defense likely wouldn't apply to Trump.
The New York
attorney general's case
The
office of New York Attorney General Letitia James, meanwhile, is investigating
four different Trump Organization real estate projects and his failed attempt
to buy the NFL's Buffalo Bills. In March 2019, the office subpoenaed records
from Deutsche Bank and Investors Bank. The fraud inquiry was reported to have been prompted by
Cohen's testimony before Congress that Trump had inflated his financial assets.
The
attorney general's investigation is civil, not criminal, but the office would
be allowed to refer any allegedly criminal elements to local prosecutors like
Vance.
The
Trump properties that James' office is investigating, according to court
filings, include Seven Springs Estate, a 212-acre property just north of New
York City that the company is seeking to develop; 40 Wall Street, a heavily
leveraged building the company owns in Lower Manhattan; Trump International Hotel
and Tower Chicago; and Trump National Golf Club Los Angeles.
Trump
has blasted the Vance and James investigations as politically motivated.
Multiple
women have accused Trump of inappropriate sexual behavior in incidents alleged
to date as far back as the 1970s. Trump has denied the allegations. A few of
the women have taken legal action, and in the case with the most serious
potential implications, Trump enlisted the Justice Department as his attorney
to prevent submitting evidence.
Advice
columnist E. Jean Carroll alleged in a 2019 book that more than 20 years
earlier, Trump raped her in a department store dressing room. Trump denied the
allegation, saying that Carroll wasn't his type and that the claim was meant to
spur publicity for her book of "fiction." Carroll sued, saying Trump
had defamed her by accusing her of lying.
The
Justice Department moved the case from state to federal court and filed a
motion to act as Trump's defense attorney, saying his denial of her rape
allegation was a presidential act.
A
judge denied the Justice Department's motion in late October. As a private
citizen and a defendant in a civil suit, Trump may now be compelled to provide
evidence — meaning testimony and, potentially, a DNA sample.
Summer
Zervos, a former contestant on "The Apprentice," has also filed a
defamation suit against Trump for denying her accusations of sexual assault. In
a suit filed in early 2017, Zervos said he grabbed her breast and kissed her
without permission. Trump agreed to testify, but his attorneys were able to
postpone his testimony pending a decision from the New York State Court of
Appeals, which isn't expected until next year.
Could Trump pardon
himself before Jan. 20?
Legal
experts said that the president could pardon himself before leaving office but
that it's unlikely that such an action would survive a challenge in court.
"Could
I say that I'm the starting center fielder for the Washington Nationals? You
bet I can," said NBC News legal analyst Chuck Rosenberg, a former FBI
official and U.S. attorney. "Does it make a damn bit of difference to the
Washington Nationals? No."
The
Justice Department tackled this very issue on Aug. 5, 1974 — four days before
Richard Nixon resigned as president.
In
a memo written by an acting assistant attorney general, the Justice Department
determined that "under the fundamental rule that no one may be a judge in
his own case, the President cannot pardon himself."NOV.
12, 202002:03
The
Justice Department opinion has never been tested in court. After he succeeded
Nixon as president, Gerald Ford gave him a "full, free and absolute
pardon" for any crimes he may have committed.
The 1974 memo does lay out a scenario for
a self-pardon that experts have described as far-fetched and worthy of
Hollywood. Says the memo: "If under the Twenty-Fifth Amendment the
president declared that he was temporarily unable to perform the duties of the
office, the vice president would become acting president and as such could
pardon the president.
"Thereafter
the president could either resign or resume the duties of his office."
Any
presidential pardon, whether bestowed by acting President Mike Pence or by
Trump himself, would cover only federal crimes, which wouldn't help Trump in
his New York state cases.
