President Trump arrives to speak last week at the White House Rose Garden. He has benefited from the de facto immunity from prosecution enjoyed by all presidents during their tenure. Evan Vucci / AP .
rocking legend Evan Vucci / AP
Evan Vucci / AP
Updated at 4:23 p.m. ET
Of all the perks of being president, Donald Trump is soon likely to miss out on most of the legal protection it offers.
For four years, Trump has enjoyed the de facto immunity from prosecution that all presidents enjoy during their tenure. But that cape will pass to Joe Biden when he is sworn in on January 20, leaving Trump in legal cold.
“It is clear that the president enjoyed immunity while in office,” said Danya Perry, former state and federal prosecutor in New York. “And it is possible, in law, that he could be indicted on January 21.”
There is no indication that an indictment is imminent, and it is possible that Trump will come out unscathed. But there is no doubt that once he is removed from his post, he will face a higher level of legal risk than he has in years.
“His legal risks increase immeasurably on January 21, both on the civil and criminal side,” Perry said.
Potential federal liability
The most developed case that could trap Trump could be that of the Southern District of New York. This stems from the federal lawsuit against Michael Cohen, Trump’s former personal lawyer and restorative.
Cohen has pleaded guilty to a series of crimes, including organizing illegal money payments silent to keep women silent during the 2016 campaign over extramarital affairs they say they had with Trump before he either president. Trump has denied the allegations.
Cohen said he acted under the direction and coordination with Trump. Prosecutors, meanwhile, called the president in court documents “individual 1”.
According to the policy of the Department of Justice, a sitting president cannot be indicted. So while it is possible for a president to break the law before or during his tenure, the inability of prosecutors to seek an indictment effectively means that he cannot be charged, tried or punished while he is in office. he is still in office.
Cohen’s wrongdoing, which prosecutors have linked to Trump without naming him, begs the question of whether Trump could face his own charges.
“Normally, if the target hadn’t been a sitting president with immunity, I think ‘Individual 1’, as he mentioned, would most likely have been prosecuted along with his assistant and cheering Michael Cohen “said Perry.
However, pursuing such a case could lead to significant complications.
On the one hand, prosecuting a former president would be politically charged, especially in a country as divided as this. The decision to do so at the federal level will rest with the new administration.
“It comes down to a political calculation,” said Kim Wehle, a former federal prosecutor who now teaches at the University of Baltimore law school.
“And the understanding is that President-elect Biden has already signaled that he has no appetite for it, which makes sense given that he has a lot of political capital that needs to be used on critical issues like pandemic, like climate change, like the economy. ”
Biden has indeed signaled his reluctance to pursue a case against his predecessor. In August, Biden said he would leave the decision to the Department of Justice and the attorney general, but suggested that a lawsuit could do more harm than good.
“I think it’s a very, very unusual thing and probably not very how can I say it? It’s okay for democracy to talk about the prosecution of former presidents,” Biden said.
It is also possible that Trump is trying to forgive himself before he leaves office. The president has claimed he has this power, but has said in the past that he doesn’t feel he needs to use it because he claims he hasn’t broken any laws.
An attempt at self-forgiveness would be an unprecedented move and could very well face legal challenges.
Manhattan District Attorney Cyrus Vance Jr. speaks at a press conference in February in New York City. His investigation could lead to legal problems for Trump following the president’s resignation. Craig Ruttle / AP .
switch legend Craig Ruttle / AP
Craig Ruttle / AP
New York City and State
What is clear about Trump’s clemency power, however, is that it does not extend to state-level crimes. And that could prove problematic for Trump in his former hometown.
Manhattan District Attorney Cyrus Vance Jr. is leading an active criminal investigation into Trump and his companies. The exact outlines of the investigation are unclear, but court documents suggest it is investigating possible insurance or financial fraud.
“This seems to be the most likely place where he could have criminal liability for taxes, for example,” Wehle said.
The case has been on hold for months as Trump fights a subpoena to a grand jury that Vance issued to the president’s personal accountancy firm. Vance’s office is looking for eight years of Trump’s tax returns and financial records.
The president fought the subpoena all the way to the Supreme Court last summer and lost, though the High Court left the door open for him to raise further legal challenges.
Trump did so, arguing the subpoena was too broad and politically motivated. Vance dismissed these requests and the lower courts agreed with the district attorney’s office. Trump’s lawyers are now asking the Supreme Court to block the subpoena.
Wehle said the patience Vance’s team had shown in complaining about their subpoena case suggested the investigation was not just a Democratic New York City politician playing with the crowd there.
“It’s hard to imagine that Cyrus Vance would have put in this kind of effort to investigate Donald Trump while he was President if he was just to drop this investigation and whatever comes out of it when he’s a private citizen like anyone else, “Wehle said.
The Vance case is not the only legal issue brewing in New York.
New York State Attorney General Letitia James at a press conference in August. His office is investigating the practices of the Trump organization. Kathy Willens / AP .
rocker legend Kathy Willens / AP
Kathy Willens / AP
State Attorney General Letitia James is leading a civilian investigation into Trump’s businesses. James is investigating whether the Trump organization inappropriately inflated the value of its assets for loan or insurance purposes and then deflated the value for tax purposes.
The president’s son, Eric Trump, was allegedly sworn in last month as part of the investigation.
Although James’ investigation is civil, it could shift to the criminal side depending on what investigators find out.
According to Perry, the former New York prosecutor, the two investigations could be relatively straightforward as they likely rely heavily on documents.
“If you look at multiple assets, for example, and have different values assigned to them, one in an income tax return and another in a bank loan document, it can be relatively straightforward,” she said. “They seem to be very paper-based.”
Cohen alleged in congressional testimony that Trump’s companies engaged in such practices.
But there are significant challenges in criminal tax cases, Perry said, as the returns of a sprawling company can be complicated and prosecutors must prove that those involved have willfully broken the law.
“Proving that the taxpayer here, Mr. Trump himself, has committed intentional and willful tax evasion can be difficult, and it doesn’t necessarily come off the pages of tax returns,” Perry said. “A cooperative witness is always very helpful for this.”
It is not clear whether Cohen or other Trump aides might be able to appear in a criminal case and testify to the boss’s actions or intentions.
And Trump’s legal jeopardy does not end there.
He also faces defamation lawsuits from two women who say they sexually assaulted them, claims he denies. While Trump has no criminal responsibility in these lawsuits, he risks damaging his reputation and financial repercussions.
All in all, this adds up to a legally perilous and potentially costly post-presidency.
“It’s a potential avalanche,” Wehle said. “But he is, again, a man who is very accustomed to using the legal system to his advantage.”
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