Can Trump Be Prosecuted?

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 (here) and is quite unlikely to be able to (here). 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 (here) or the offense can be cast as one involving a continuing course of conduct (here). 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 (here).

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 (here), 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 (here).  

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.” (here)

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.

8 thoughts on “Can Trump Be Prosecuted?

  1. Thanks for this post! This is certainly a hot-button issue for the incoming Biden administration. You also present a compelling case of why, even if Trump did self-pardon, we might not even get an answer from the Supreme Court anytime soon. Trump would have to issue the self-pardon, be prosecuted under federal law (practically and politically unlikely), and use the pardon defense. Even if the case reached the Supreme Court, the textualist treatment could still fall in Trump’s favor, given the lack of limiting language in Art. 2, §2 (except impeachment). I wonder how/if this would affect Biden’s calculus on what to do if the situation arises.

  2. Yes, the question of pardoning Trump and the possibility of a self-pardon are hot-button issues — to say the least. A challenge to a self-pardon could move faster than you might think. Assuming it covered past tax offenses and the ongoing audit of Trump’s personal taxes was thus halted, upon taking office the Biden-Administration could immediately restart the audit. Trump would then move to halt it relying on the self-pardon. That action would produce an initial decisions quickly, and whoever is on the losing side would ask for an expedited review.

    Yes, the court’s textualist crowd might say the bare text of the pardon power permits self-pardons, but I would have to think even the hardest of the hard-core group members would have to think twice before okaying them. .

    I doubt a supercomputer could reproduce the calculus that will go into the new president’s decision-making on dealing with Trump, pardon or no pardon.

  3. President-elect Biden certainly has a lot to think about regarding the prosecution of President Trump. Ford’s pardon of Nixon contributed in no small part to Ford’s tenure as a one-term president– the question that you rightly identify here is if prosecution of Trump assists American unity or not.
    I’m also wondering if the same political logic can extend to Trump and his family/associates. Though there’s certainly no legal barrier to Trump’s issuing of pardons (even midnight pardons during this lame-duck period), one has to assume that these pardons could be imputed as admission of wrongdoing and echo back on state investigations. If Biden signals that his Department of Justice will take on the Trump machine, I imagine that a self pardon will come along with an entire slew of “get out of jail” cards for other members of the Trump administration.

    • One school of thought would welcome a self pardon. The thinking is that nothing a third party could say or show would in any discredit Trump to his diehard supporters. A self pardon might might be such an abuse as to do so, especially if the Supreme Court then unanimously invalidated it.

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  6. The statute of limitations issues mentioned in your post caught my attention. First, the New York bill to toll the statute of limitations while the defendant is serving as president initially seems to face a constitutional hurdle before it can be applied to Trump. Passing a bill intending for it to apply to past crimes and, at this point, a past presidency seems to run afoul of the prohibition against ex post facto application of laws. In August 2019, New York’s new Child Victims Act extending the statute of limitations for certain sex crimes against child victims went into effect. There is sure to be constitutional challenges to its retroactive application although it is still too early to get guidance from the courts as to how those challenges will be overcome. However, it is likely that both the Child Victims Act and the bill extending the statute of limitations for presidents will pass constitutional muster.
    The US Supreme Court draws a distinction between passing legislation to extend the statute of limitation before it expires and after it expires, and the Court allows an extension of the statute of limitations prior to expiration. In Stogner v. California, 539 U.S. 607 (2003), California passed a law that allowed the revival of cases previously barred by the statute of limitations in sexual abuse cases with child victims. SCOTUS held in that case that a law allowing for the revival of time-barred cases was unconstitutional and distinguished this determination from legislation that extends an unexpired statute of limitations. The Court discusses the purpose of the ex post facto clause to prevent legislative abuses changing the nature of crimes and to prevent a defendant’s need to perpetually preserve exculpatory evidence. Further, the Court discusses the application of a statute of limitations as an evidentiary rule where the legislature has said that no quantum of evidence will be sufficient after a certain time. However, if that time determined by the legislature has not yet passed, then no real change is occurring. The memories are preserved, the exculpatory evidence is still preserved, and the defendant remains in apprehension of prosecution.
    While the Court is likely to uphold a prosecution of Trump under the new legislation, it would be better for New York to extend the statute of limitations for prosecuting Trump by relying on a current provision that provides for tolling the statute of limitations when a defendant is continuously outside of the state. NY CRIM PRO § 30.10(4)(a)(i). This can apply to Trump because he has been continuously out of New York during his presidency. Furthermore, this approach does not require the New York legislature to create special legislation to apply to Trump and could allow for expansion to his accomplices. In relying on a statute of limitations extension that is currently available, there is no room to argue ex post facto legislating or to argue that the legislature was writing bills solely to prosecute Trump for political reasons.
    New York will already have to contend with questioning by the public regarding why they waited until after Trump became president to seek out charges for crimes that occurred before his presidency. Ideally, New York can keep their prosecution of Trump as “clean” as possible to minimize the chance of the current Supreme Court having the opportunity to overturn a conviction.
    Overall, I find it unlikely that the federal government will pursue charges if New York continues to march towards prosecution. In his victory speech, Biden said that he wants to re-unify Americans. I think we can all agree that this country has become increasingly divided in the past four-years. I expect that Biden, like Ford, knows that prosecuting a former president, particularly one that has garnered a degree of “cult of personality,” would not help to bring Americans together again. The best bet for a Trump prosecution and conviction is likely to be in New York state court, with little involvement from the federal government, but they are going to have to do it right at every turn.

  7. Thanks for the thoughtful comment. Another way around the statute of limitations under both federal and New York law is if the government can show a return was fraudulently filed “with the intent to evade taxes.” IRC sec. 6501; NY Tax L § 1083. It’s up to the government to prove intent by clear and convincing evidence (2013 Second Circuit case discussing it, but it is still possible to defeat the limitation that way.

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