President Donald Trump speaks to reporters in the Diplomatic Reception Room of the White House in Washington, on Nov. 26, 2020.ERIN SCHAFF/NYTNS
Having lost the presidential election, Donald Trump now faces the possibility of a defeat more ruinous. No American president has ever been charged, let alone convicted, of a criminal offence. But that’s a torment that potentially awaits him.
Though he has rung up many outlandish firsts as an Oval Office occupant, Mr. Trump’s donning of a jumpsuit the colour of his face would top them all.
On departing the White House on Jan. 20, he leaves prosecutorial immunity behind and is open to indictments. Should he issue himself a presidential pardon – which may not even be legally allowed – that pardon would apply only to federal, not state convictions.
In New York, Manhattan District Attorney Cyrus Vance Jr.’s two-year investigation into Mr. Trump on charges reportedly involving bank and tax fraud could result in indictments shortly after he leaves office.
Danya Perry, a former deputy attorney-general for the State of New York who headed a commission into public corruption, said in an interview that indictments were likely. “The money is on some set of charges.”
While some suggest the criminal prosecution of a president would be too wrenching for an already bitterly divided country, she said that having spent so much time on the probe, it is unlikely Mr. Vance will succumb to any pressure to abandon it.
“He could have a sealed indictment already,” she said.
However, Mr. Vance is not, as Ms. Perry noted, reputed to be an aggressive district attorney. He was criticized for ordering his prosecutors to drop a criminal-fraud investigation against Ivanka Trump and Donald Trump Jr. in 2012 and for being cautious in the pursuit of Harvey Weinstein on sexual-assault charges. Taking down a president would readily see that reputation upended.
Mr. Trump is fortunate in that he is likely to escape any prosecutorial action at the federal level. President-elect Joe Biden has indicated it would be too disruptive to prosecute a former president.
It would indeed “suck up too much of Biden’s political capital,” said Kimberly Wehle, a law professor and former federal prosecutor. It’s better that a prosecution of Mr. Trump is done at the state level, she added. From what she sees of the state’s case, Mr. Trump is “absolutely vulnerable.”
Given Mr. Biden’s lenient position, Mr. Trump doesn’t really need to try pardoning himself but Ms. Perry and Prof. Wehle believe he will do so anyway – the action being in keeping with his wrecking-ball approach.
The New York case against him stems from ties to his long-time lawyer and fixer Michael Cohen, who pleaded guilty to several crimes, including hush money payments in 2016 to women with whom Mr. Trump had affairs. Because sitting presidents cannot be indicted, Mr. Trump could not be charged in Washington. But New York took over and the investigation of him expanded beyond the hush money intrigue.
In an August court filing, Mr. Vance sought to subpoena Mr. Trump’s tax records and financial records. The President is fighting their release in the courts. Ms. Perry said she would be very surprised if Mr. Vance did not have some of his state and local tax records already.
In addition to the Vance probe, New York Attorney-General Letitia James is investigating whether the Trump Organization inflated the value of its assets in seeking loans and insurance and then deflated the value in order to reduce tax liability. It’s a civil case but could evolve into a criminal one, depending on the findings.
Proving a charge against Mr. Trump will not be easy because, as Michael Cohen has revealed, he is careful not to leave paper trails or other records.
One leader convicted of tax fraud was former Italian prime minister Silvio Berlusconi. He was sentenced in 2012 to four years in jail but ended up doing just one year of community service at a home for the elderly.
Some, such as the President’s niece, Mary Trump, and Barbara Rees, his long-time work associate, say that rather than face weighty charges, Mr. Trump would flee to a foreign haven with no extradition treaty with the United States.
But he has an extraordinary track record for extricating himself from legal and financial infernos and may be able to pull off yet another great escape this time.
Judging from what those in the know are saying, it would be surprising if the cases against him were dropped but equally surprising if Mr. Trump ended up behind bars.
More likely is something in-between. Lesser charges perhaps that come with a community-service sentence. Something like, say, a year’s janitorial work cleaning public lavatories in Manhattan.
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