Can Trump Be Prosecuted?
Posted on November 11, 2020 by Richard Messick
President Trump and diehard supporters continue to maintain on Twitter, in interviews, and at press conferences that tens of thousands of votes at the November 3rd election were fraudulently cast and that once these ballots are excluded, he will be declared the winner. But under American law only a judge can invalidate a vote, and unlike Trump sympathizers, judges demand clear and convincing evidence of voter fraud — something Trump has yet to produce and is quite unlikely to be able to. So Joe Biden will indeed take office January 20.
While President Trump’s term in office ends at noon that day, his legal problems will not. Indeed, they are likely to accelerate. For whatever immunity he enjoyed from prosecution as a sitting president ends too.
By far the greatest threat Trump faces are the investigations led by Manhattan District Attorney Cyrus Vance, Jr. and Letitia James, New York’s attorney general. Both are independently investigating criminal charges related to Trump’s dealings while a New York businessman. James may also be continuing her investigation of abuses involving Trump’s now defunct New York charity. The charges both are pursuing involve violations of New York state law, meaning a presidential pardon would do him no good. It excuses only violations of federal law.
In her November 1 story on Trump’s criminal exposure, New Yorker writer Jane Mayer writes that the Vance investigation appears “to be particularly strong.” He is reportedly looking into possible violations of state tax and insurance laws and bank fraud. One charge seems almost irrefutable. New York law makes it a crime to falsify business records, and the evidence presented in the criminal case against former Trump lawyer Michael Cohen shows the $130,000 hush money Trump allegedly paid a porn star was recorded as a business expense.
On the other hand, New York prosecutors face two obstacles to bringing charges against Trump. There is first the statute of limitations. The possible offenses all appear to pre-date Trump’s four years as president, and in New York felonies must be prosecuted within five years of their commission and misdemeanors, like falsifying business records, two (here). Exceptions apply, however, if prosecutors can show Trump took steps to hide his wrongdoing or the offense can be cast as one involving a continuing course of conduct . Moreover, the New York legislature is considering a bill that would toll (stop the running) of any applicable state statute of limitations while the defendant was serving as president of the United States.
Even if statute of limitations problems can be overcome, the challenge of proving beyond a reasonable doubt that Trump himself actively engaged in fraud remains. Ex-Trump lawyer Cohen told Mayer that Trump writes down little, does not send e-mails or texts, and often speaks indirectly. Argument is heard to this day whether Henry II was complicit in the murder of Thomas Becket for asking: “Will no one rid me of this turbulent priest?” Was that a wish or a disguised order? Think how much harder it would be for New York prosecutors to make a case on the basis of a vague Trump comment like “do what needs to be done”? Especially if the jury were to contain even a single Trump supporter.
Federal charges are possible too. While conflict of interest laws do not apply to presidents, and hence Trump’s many schemes to monetize his presidency, tracked on this blog, are legal if unseemly, his conduct in office is subject to federal criminal law. Even if one accepts the view presidents cannot be charged with a federal crime while in offense.
Lawfare’s Quinta Jurecic’s analysis of the Mueller report on the Russia investigation finds one federal law Trump has repeatedly broken: the obstruction of justice statute. Tax fraud is another a possibility. As Trump has admitted on numerous occasions, his federal tax returns are being audited. If the evidence were to show he took deductions for which he knew there was no legal basis, he would be guilty of criminal tax fraud.
Hanging over any possible federal investigation is the pardon power, and President Gerald Ford’s exercise of it to pardon Richard Nixon for Watergate-related crimes. Ford granted Nixon “a full, free, and absolute pardon” for any crime Nixon “committed or may have committed or taken part in” while president. Although Ford’s pardon did not reach offenses Nixon might have committed before he became president, there is no reason why a Trump pardon could not. It could excuse him not only for tax fraud but for any other federal crime he may have committed or taken part in no matter when. Scholars agree a president’s power to issue pardons for federal offenses reaches broadly.
Where they disagree is whether a sitting president can pardon himself. Mayer cites a Justice Department memo issued when Nixon was said to be considering pardoning himself. It concluded that, “under the fundamental rule that no one may be a judge in his own case, it would seem that the question should be answered in the negative.” Nixon did not pardon himself. According to Mayer, it was because he believed he would disgrace himself if he did.
Trump thinks he can pardon himself; whether Nixon-like qualms would stay his hand remains to be seen. If he did, it would be up to a Biden Administration to challenge it and the Supreme Court to decide the validity of a self-pardon (here). How it would rule is another unknown. Jack Goldsmith, a former assistant attorney general and now Matthew’s Harvard Law School colleague, told Mayer “scholars are all over the map” on whether a self-pardon is valid. (Were the court to hear the case, justices committed to textualism would likely have to exercise judgment in ruling on the pardon’s validity, rather than, as they often claim, simply mechanically applying rules of statutory construction.)
Although the author of the Justice Department memo opined that a self-pardon was likely invalid, she offered Nixon a way around the prohibition. He could declare he was unable to perform his presidential duties of the office, have the vice-president take over and as acting president issue a pardon. Nixon’s vice-president was Gerald Ford, a strait-laced Midwesterner with an unvarnished reputation for probity. Nixon almost certainly never approached Ford with such a proposal. Vice-President Pence is cut from the same mold as Ford, making it equally unlikely he would go along with the work-around.
In pardoning Nixon, Ford hoped to end the discord and recriminations the Watergate scandal had churned up. A trial of Nixon’s Watergate crimes would take a year or more to prepare he explained.
“In the meantime, the tranquility to which this nation has been restored by the events of recent weeks could be irreparably lost by the prospects of bringing to trial a former President of the United States. The prospects of such trial will cause prolonged and divisive debate over the propriety of exposing to further punishment and degradation a man who has already paid the unprecedented penalty of relinquishing the highest elective office of the United States.”
Ford did not demand Nixon admit wrongdoing in return for the pardon. That, Mayer writes, allowed Nixon in his later years to create a counter-history of Watergate, to say he had done nothing others had not, that he was a “victim, hounded by the liberal media.” Ford did not believe that, and he must have regretted that his unconditioned pardon gave Nixon an opening to claim victimization for he began carrying a card with the Supreme Court’s statement that a pardon “carries an imputation of guilt; acceptance a confession of it.”
At some point Biden will have to decide how to address the allegations swirling around Trump. Trump may even force the issue by pardoning himself on his way out of office. That would put an immediate end to the current audit of Trump’s federal tax returns. Would the incoming Biden Administration accept the validity of the self-pardon by not reviving the audit?
Even if Trump does not attempt self-exoneration, the pardon question will dog the Biden presidency. Demands Trump be held accountable will not fade, and already some argue accountability should include criminal prosecution (here). Others suggest that Biden can duck the issue by pointing to the New York investigations. But will those incensed by Trump policies and Trump’s apparent wrongdoing be content to wait on the outcome of uncertain state law investigations? How long? What if statute of limitations issues or problems of proof foreclose state prosecution?
The best solution seems to be the one suggested by the experience with the Nixon pardon. Biden pardons Trump in return for Trump admitting wrongdoing. The obstacles to such a resolution, however, are many. They start with the fact that nothing about Trump suggests he has it in him to admit he made a mistake, let alone that he committed a crime. They continue with how to handle the state cases. Would Vance and James agree to drop their investigations if Trump admitted wrongdoing? Would they insist he admit to violations of state law as the price? What about the civil penalties Trump would face if he is found to have underpaid his federal taxes?
President-elect Biden has rightly made bringing Americans together his highest priority. His greatest challenge will be whether he can lead the nation into a reckoning with the Trump years without further inflaming passions.
Richard E. Messick consults for international organizations, development agencies, and non-governmental organizations on legal development and anticorruption issues. As an attorney in the United States he advised political parties, office holders, corporations, and political committees on campaign finance and ethics issues and represented individuals and corporations in state and federal matters involving fraud and corruption. After serving as Chief Counsel of the Senate Committee on Foreign Relations, he joined the World Bank where he worked until his retirement on legal and judicial reform and anticorruption projects. His writings have appeared in scholarly and popular publications including the American Political Science Review, the World Bank Research Observer, the Wall Street Journal, and the Washington Post
Edward and Auriol Greene Directors, GOFAD.