Explainer: Citizen Trump will face legal woes

[aubiefifty 17,492]

Yahoo

Makini Brice and Jan Wolfe

6-8 minutes

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By Makini Brice and Jan Wolfe

WASHINGTON (Reuters) - Since taking office in January 2017, President Donald Trump has been besieged by civil lawsuits and criminal investigations of his inner circle.

With Democrat Joe Biden capturing the presidency on Saturday, according to all major U.S. television networks, Trump's legal woes are likely to deepen because in January he will lose the protections the U.S. legal system affords to a sitting president, former prosecutors said.

Here are some of the lawsuits and criminal probes that may haunt Trump as he leaves office.

A NEW YORK PROSECUTOR

Manhattan District Attorney Cyrus Vance, who enforces New York state laws, has been conducting a criminal investigation into Trump and the Trump Organization for more than two years.

The probe originally focused on hush money payments that Trump's former lawyer and self-described fixer Michael Cohen paid before the 2016 election to two women who said they had sexual encounters with Trump, which the president has denied.

Vance, a Democrat, has suggested in recent court filings that his probe is now broader and could focus on bank, tax and insurance fraud, as well as falsification of business records.

Republican Trump has called Vance's case politically motivated harassment.

The case has drawn attention because of Vance's efforts to obtain eight years of Trump's tax returns. In July, the U.S. Supreme Court, denying Trump's bid to keep the returns under wraps, said the president was not immune from state criminal probes while in office, but could raise other defenses to Vance's subpoena.

Vance will likely ultimately prevail in obtaining Trump's financial records, legal experts said.

The U.S. Justice Department has said a sitting president cannot be indicted. Vance is not bound by that policy because he is not a federal prosecutor, but he may still have been reluctant to charge Trump because of uncertainty over whether the case was constitutional, said Harry Sandick, a former prosecutor in New York.

"Those concerns will disappear when Trump leaves office," Sandick said.

The investigation poses a threat to Trump, said Corey Brettschneider, a professor of political science at Brown University.

“The fact that they have issued the subpoenas and have litigated all the way to the Supreme Court suggests that this is a very serious criminal investigation of the president,” Brettschneider said.

JUSTICE DEPARTMENT PROBE?

Trump could conceivably face a criminal prosecution brought by the U.S. Department of Justice, led by a new U.S. Attorney General.

Some legal experts have said Trump could face federal income tax evasion charges, pointing to a New York Times report that Trump paid $750 in federal income taxes in both 2016 and 2017.

"You've got the stuff that has come out of the New York Times that has all kind of indicia of tax fraud," Nick Akerman, a lawyer at Dorsey & Whitney and a former federal prosecutor.

Akerman cautioned that it is not possible to know for certain until seeing all of the evidence.

Trump has rejected findings from the Times report, tweeting that he had paid many millions of dollars in taxes but was entitled to depreciation and tax credits.

Such a prosecution would be deeply controversial, and the Justice Department could decide charging Trump is not in the public interest even if there is evidence of criminal wrongdoing.

Biden has approached that question very carefully, saying he would not interfere with his Justice Department's judgment.

Biden told National Public Radio in August that pursuing criminal charges against his predecessor would be "a very, very unusual thing and probably not very - how can I say it? - good for democracy."

A lawyer for Trump did not return requests for comment.

NEW YORK CIVIL FRAUD INVESTIGATION

New York's Attorney General, Letitia James, has an active tax fraud investigation into Trump and his family company, the Trump Organization.

The inquiry by James, a Democrat, began after Trump's former lawyer Cohen told Congress the president inflated asset values to save money on loans and insurance and deflated them to reduce real estate taxes.

The Trump Organization has argued the case is politically motivated.

The inquiry is a civil investigation, meaning it could result in financial penalties but not jail time.

Trump's son, Eric Trump, an executive vice president for the firm, was deposed in October because of what the attorney general described as his close involvement in one or more transactions being reviewed.

E. JEAN CARROLL

E. Jean Carroll, a former Elle magazine writer, sued Trump for defamation in 2019 after the president denied Carroll's allegation that he raped her in the 1990s in a New York department store and accused her of lying to drum up sales for a book.

In August, a state judge allowed the case to go forward, meaning Carroll's lawyers could seek a DNA sample from Trump to match against a dress she said she wore at the store.

A federal judge in Manhattan rejected a bid by the U.S. Justice Department to substitute the federal government for Trump as defendant in the case. U.S. District Judge Lewis Kaplan in Manhattan said that Trump did not make his statements about Carroll in the scope of his employment as president.

Barbara McQuade, a law professor at the University of Michigan, said she expected Biden's Justice Department to abandon the effort to shield Trump from the case.

"It would seem unlikely for DOJ to continue to pursue what I see as a frivolous argument in a new administration," said McQuade, a former federal prosecutor.

SUMMER ZERVOS

Trump also faces a lawsuit by Summer Zervos, a 2005 contestant on Trump’s reality television show “The Apprentice,” who says Trump kissed her against her will at a 2007 meeting and later groped her at a hotel.

After Trump called Zervos a liar, she sued him for defamation.

Trump said he is immune from the lawsuit because he is president.

The case https://de.reuters.com/article/usa-trump-zervos/trump-fails-to-end-apprentice-contestants-lawsuit-idINL1N21115J has been on hold while a New York state appeals court reviewed a March 2019 decision that Trump had to face the case while he is in office. Trump's immunity argument would no longer apply once he is out of office.

(This story was refiled to insert first reference to New York department store, paragraph 32)

(Reporting by Makini Brice and Jan Wolfe; Editing by Noeleen Walder and Grant McCool)

[McLoofus 35,182]

30 minutes ago, aubiefifty said:

Trump could conceivably face a criminal prosecution brought by the U.S. Department of Justice, led by a new U.S. Attorney General.

If Doug Jones puts Donald Trump (and Bill Barr?) in prison, my schadenfreude orgasm will register on the Richter scale. 

[aubiefifty 17,492]

1 minute ago, McLoofus said:

If Doug Jones puts Donald Trump (and Bill Barr?) in prison, my schadenfreude orgasm will register on the Richter scale. 

i agree. barr has done a lot of harm in this country. maybe we get to see the unredacted mueller report now? barr put trump above the country and he should pay for turning his back on his country.

[homersapien 11,812]

Trump can still make it very hard for the FBI to investigate him next year

From a self-pardon to ordering Justice Department memos, the president has the power to protect himself

By

Asha Rangappa

Asha Rangappa is a senior lecturer at the Jackson Institute for Global Affairs at Yale University and a former FBI agent. She is a legal and national security analyst for CNN.

 

November 9, 2020

 

The final votes from Pennsylvania and Nevada not only changed President Trump’s political future — they changed his legal prospects, too. When Trump leaves the Oval Office for the last time, he will face potential liability for any criminal acts he committed while in office, and even before. Between now and Jan. 20, though, Trump has a lot of power to make it harder for the Justice Department and FBI to follow through on any investigations once he is no longer president.

Until now, the office of the presidency has largely shielded Trump from the prospect of criminal prosecution. Some of this is because of Justice Department policy: Despite finding substantial evidence of obstruction of justice in the Russia investigation, for example, special counsel Robert S. Mueller III declined to charge Trump, citing a 1973 Justice Department policy memo precluding it. Attorney General William P. Barr has further protected Trump, defending the president’s actions in public and pressuring prosecutors who might harm the president’s interests in private. But without the immunity offered by his position, and with a new attorney general in charge under Joe Biden’s administration, Trump will be accountable to the law like any other citizen.

A rap sheet for a former president

Trump reportedly planned to fire FBI Director Christopher A. Wray once the election ended. While that might be emotionally satisfying for the president, we saw when he fired former director James B. Comey that simply deposing the head of the FBI doesn’t actually stop any ongoing investigations. Nevertheless, Trump can take much more concrete steps to protect himself and his family than the simple symbolic one of throwing out an appointee he has decided was disloyal.

The strongest, and broadest, immunity from federal prosecution for Trump would come from a presidential pardon. President Gerald Ford offered Richard Nixon a blanket pardon for any crimes committed while in office, and President George H.W. Bush — with help from Barr, then also the attorney general — pardoned six people involved in the Iran-contra affair in 1992, stopping two ongoing prosecutions dating back to the Reagan administration dead in their tracks. However, since President-elect Biden has categorically stated that he will not pardon Trump, Trump would have to engineer that during the transition.

He has two options. First, he could try to pardon himself. This is a risky move, as whether a self-pardon would be constitutionally valid is an unsettled legal question because no previous president has tried it. Most legal scholars agree that it’s not permissible, though, and if a Trump pardon of himself were later challenged and invalidated, he would be back to square one. Alternatively, Trump could resign at some point before his term ends at noon on Jan. 20, 2021, leaving Vice President Pence to assume the presidency, however briefly — giving him the plenary power to pardon Trump. Thanks to the precedent that Ford set with Nixon, such a pardon, which Pence could also extend to members of Trump’s family, would probably be constitutionally secure if it covered uncharged crimes committed while Trump was in office.

Trump also has a couple of quieter options he could pursue behind the scenes to protect himself. For one, he could get Barr to provide “legal cover” for anything that future prosecutors might want to examine in the form of internal memos written by the Office of Legal Counsel. We already know that Barr has expressed, before taking his current position, legal theories supporting an expansive view of presidential power — including the idea that the president cannot, as a matter of law, obstruct justice.

Barr also determined (without investigation) that Trump’s solicitation last year of Ukrainian President Volodymyr Zelensky to investigate Biden was not a “thing of value” that would have constituted a criminal finance violation. The Office of Legal Counsel could incorporate arguments like these into official legal positions of the Justice Department. While they wouldn’t be binding on a future attorney general, they would undermine future investigations and prosecutions by giving Trump a basis to argue that his actions were legally justified and sanctioned by his own legal advisers.

Trump has a bigger problem with investigations that have already taken place or that may be actively underway. For example, the indictment by federal prosecutors in New York of Trump’s former attorney Michael Cohen for campaign finance violations stemming from the concealed payment before the 2016 election to a porn actress alleging an affair with the president lists “Individual-1” — who appears to be Trump — as a co-conspirator. It is also possible that federal law enforcement officials there or in other jurisdictions might be actively investigating Trump for tax or bank fraud, given the series of reporting based on Trump’s tax returns.

Barr can’t make these investigations literally disappear: The investigative documentation that has been gathered is protected from tampering at this stage. However, he can “paper over” the files, adding memos justifying closing the case(s) or calling into doubt the evidence or the assessment of investigators or prosecutors who have worked on them. We have seen him do this already in his attempt to reverse the sentencing recommendation of Trump’s campaign adviser Roger Stone and in the Justice Department’s current attempt to drop the charges against Trump’s former national security adviser Michael Flynn.

By “poisoning” the cases in this way, Barr can effectively plant exculpatory material into the record (prosecutors would be legally required to provide these memos to Trump’s defense team) and set up future prosecutions to seem as though they are pursuing legally baseless cases because of political bias.

Of course, none of these actions would protect Trump from being prosecuted for state crimes — a very real possibility, given that the New York attorney general and the Manhattan district attorney are actively investigating Trump’s finances and those of the Trump Organization. They also wouldn’t cover any crimes that might be uncovered later (it’s hard to imagine that even a blanket, retroactive pardon would legally cover crimes that were unknown at the time it was granted), and a pardon extending to uncharged crimes before Trump took office might be open to legal challenges.

And, of course, it’s hard to know what Trump might do during the transition itself, if he feels panicked and decides to get rid of anything he thinks might incriminate him. Any records relating to Trump’s official duties as president, even if contained on personal devices or servers, are officially presidential records, and attempts to destroy them would constitute a new host of federal crimes.

The U.S. has no rules for when the president is a national security threat

In short, Trump won’t be in the clear, no matter what he does, once he no longer has the protection of the presidency. This is especially true when we consider that the FBI’s counterintelligence interest in Trump will continue even after he leaves office: He’ll still know highly classified information, so it will be more important than ever for the intelligence community to know whether foreign countries have any leverage they can exploit over the former president. This would provide grounds for further investigation into Trump’s, and the Trump Organization’s, financial entanglements abroad.

Still, before Trump leaves office, he has the power to muck up any cases that could be made against him by a future Justice Department — enough to set up Biden to continue as the villain in the same “witch hunt” narrative Trump has been talking about for the past four years.

 

https://www.washingtonpost.com/outlook/2020/11/09/trump-justice-department-pardon/