Even if President Donald Trump loses on November 3, it’s hard to imagine that he’ll ever be convicted of any crime, much less serve time in prison.
That’s because, first and foremost, no former U.S. president has ever seen the inside of a cell — and not because all presidents have faithfully followed the law. Presidents accumulate huge favors owed, favors that they cash in, figuratively and literally, when they become former presidents. On the modest end of the spectrum, 20 wealthy friends of Ronald Reagan bought a mansion in Bel-Air, Los Angeles, for him and Nancy to live in when he left office. More significantly, ex-presidents receive political protection from their allies, as when Gerald Ford pardoned Richard Nixon for anything whatsoever he’d done in office.
Presidents accumulate huge favors owed, favors that they cash in, when they become former presidents.
And beyond anything concrete that a president does for the factions that back him, those factions also strenuously oppose any consequences for their president’s actions for reasons of basic class solidarity. If an ex-president can face consequences, that would suggest that people one step down the power ladder could too. And the people at the top of U.S. society see consequences like Leona Helmsley saw taxes: They’re for the little people.
That said, stranger things than the prosecution of Trump have happened: for instance, Trump being elected president in the first place.
Trump is more vulnerable to prosecution than other presidents because he’s engaged in so many potential nontraditional presidential crimes. With the invasion of Iraq, George W. Bush committed what the Nuremberg trials referred to as “the supreme international crime” of initiating a war of aggression. But there was never any chance that he’d be punished for this, because the entire U.S. power structure agrees that American presidents have the right to do it. Same for conducting thousands of drone strikes or torturing people around the globe. By contrast, Trump has engaged in many comparatively small, shabby, possible criminal activities outside of his presidential duties.
Right now, Trump is protected from indictment under all federal laws because he’s president. For decades, the Justice Department has held that it cannot prosecute sitting presidents; former special counsel Robert Mueller agreed and explained that he never had the option to charge Trump because it would be unconstitutional. And, whether or not this perspective is correct, Attorney General William Barr is a loyal hatchet man who would never take action against his patron.
It does seem, according to a recent Supreme Court ruling, that Trump could theoretically be indicted for violating state laws while in office. In practice, however, that is extremely unlikely.
But if Trump is defeated and extracted from the Oval Office, much of his presidential shield will disintegrate. He could try to pardon himself on the way out the door for all crimes he’s ever committed. But no one knows whether presidents can do this, since none have ever tried; in any case, it would only apply to violations of the federal code.
So let’s assume that Trump loses, he doesn’t pardon himself, and the state and federal justice systems suddenly become enthused like never before about treating the ultra-powerful like the powerless. Trump would then become vulnerable to prosecution in the below ways we already know about — plus, in all likelihood, many, many others we don’t know about yet.
Trump has gone to extraordinary lengths not to release his taxes. He also declared that any probing of his finances by Mueller would cross a “red line.” We now know that there’s a reason for his anxiety. The U.S. tax code provides so many ways for billionaires — especially real estate developers — to legally avoid taxes that it takes real effort to illegally evade them. But Trump appears to have been up to the challenge.
Tax fraud seems to be a family tradition for Trump.
Tax fraud seems to be a family tradition for Trump. The Trumps set up a company in 1992 owned by Trump, his siblings, and a cousin who apparently did nothing except siphon money from the real estate empire of Donald’s father, Fred Trump, into the company’s pockets. This allowed Fred to shower his children with millions of dollars in gifts without having to pay any gift tax.
The statute of limitations has run out on any potential crimes in that situation. But the recent New York Times investigation of Trump’s taxes revealed that he appears to have set up similar gambits to pass money along to his children tax-free. His company deducted $747,622 in “consulting fees” for Vancouver and Hawaii hotel projects. Meanwhile, a consulting company co-owned by Ivanka Trump paid her exactly the same amount, even as she was an employee of Trump’s company. Millions more in consulting fees flowed to unknown persons. If Ivanka and her siblings were indeed the recipients of this money, it should be close to a slam dunk case of tax fraud: It is against the law to get consulting fees from a company you are employed by.
The Times also uncovered potential criminal conduct in Trump’s treatment of a huge estate he owns in Westchester County, New York, outside the city. Trump claimed that it is an investment property rather than a personal residence, allowing him to write off property taxes as a business expense. But there is little evidence that Trump has operated the estate as a business.
Then there’s the issue of Trump’s peculiar $50 million loan to himself, and whether Trump wrote off hush money payments as business expenses, and much more that’s already in the public domain. A thorough state or federal investigation would almost certainly uncover even more dicey tax behavior.
All this is why Michael Cohen, Trump’s former fixer who himself has pleaded guilty to multiple counts of tax evasion, recently said that Trump “may soon be the first sitting president to go from the White House straight to prison.”
Cyrus Vance Jr., the district attorney for Manhattan, is currently investigating what his office calls “possibly extensive and protracted criminal conduct at the Trump Organization.” Beyond Trump’s taxes, Vance appears to be probing whether Trump provided insurers and banks with false statements about his financial position in order to receive lower premiums and interest rates on loans. In certain circumstances, this would be illegal.
Campaign finance law is complex and confusing in the best of times but especially when it involves paying off your mistresses to keep quiet (allegedly). The $130,000 received by Stormy Daniels almost certainly counts as a contribution to Trump’s campaign. But it was also totally legal for Trump to donate as much money as he wanted to his 2016 candidacy, thanks to a 1976 Supreme Court decision. The Daniels hush money should have been kosher if Trump had sent her lawyer the money himself directly and disclosed the purpose of the payment in FEC filings. (He probably could have gotten away with classifying it as something like “legal expenses.”)
Campaign finance law is complex and confusing in the best of times but especially when it involves paying off your mistresses to keep quiet (allegedly).
Instead, Trump used Michael Cohen as a conduit, and Cohen could not legally give the Trump campaign more than $5,400. Causing Cohen to do so, together with potential related offenses, could plausibly create legal jeopardy for Trump.
Even more serious is the issue of Trump’s $10 million donation to his campaign on October 28, 2016, in the campaign’s final days. Trump was then surprisingly low on cash, and around this time he received an unusual payment of $21 million from a Las Vegas hotel he co-owns with a friend and political supporter. If this was not a legitimate payout, it could constitute an illegal campaign contribution. In addition, according to a new CNN report, Mueller and others at the Justice Department investigated for years whether the $10 million may have been provided by an Egyptian bank — but the probe was closed this July without subpoenaing Trump’s financial records.
Trump famously does business around the world, including in countries where real estate is an even more sleazy business than in the U.S., and bribes are routinely expected and paid. However, thanks to the Foreign Corrupt Practices Act, it is illegal for Americans to participate in this, which leads to complaints from U.S. businesspeople that they are at a disadvantage. Andrew Weissmann, one of Mueller’s senior prosecutors, notes in a new book that, because the Mueller investigation did not dig into Trump’s finances, “we do not know whether he paid bribes to foreign officials to secure favorable treatment for his business interests.”
Glenn Kirschner, a former federal prosecutor, argues that Trump can and should be prosecuted for negligent homicide for his handling of the Covid-19 pandemic. This would be controversial, to say the least. But Kirschner is a serious person who served in the U.S. Attorney’s Office for the District of Columbia for 24 years, eventually becoming chief of the homicide section.
While Mueller believed that presidents cannot be charged while in office, his final report emphasized that “a President does not have immunity after he leaves office.” It was for this reason, he wrote, that “we conducted a thorough factual investigation in order to preserve the evidence when memories were fresh and documentary materials were available.”
After Mueller’s report was released, over 1,000 former federal prosecutors stated that if Trump were not president, his conduct as described by Mueller would “result in multiple felony charges for obstruction of justice.” It’s hard to imagine a Biden administration deciding to prosecute a former president. But, on the other hand, Kamala Harris said in 2019 that if she were elected president, “I believe that [the Justice Department] would have no choice and that they should” pursue obstruction of justice charges against Trump.
Last and perhaps most importantly, Trump could be impeached — again. While impeachment is a political rather than a criminal process, it should be mentioned here because, if Trump were successfully convicted in the criminal justice system, it would make it far easier for him to be impeached again in the House and then, unlike last time, convicted in the Senate.
And, oddly, there’s nothing in the U.S. Constitution that says presidents can’t be impeached after leaving office. This would not be a pointless exercise in revenge with Trump but a wise prophylactic precaution. The punishment prescribed by the Constitution for impeachment and conviction includes “disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States.” In other words, an impeached and convicted Trump could never run for president again.
Correction: October 20, 2020
Due to an editing error, an earlier version of this story mistakenly referred to Cyrus Vance Jr. as a federal prosecutor. The story has been updated to reflect that he is the district attorney for Manhattan.