Will Trump be Prosecuted?
The talk in Washington is about revenge against Trump. It is not pretty.
AOC said “Trump sycophants” should be held accountable for their “complicity in the future” and wants their Tweets archived as evidence. There’s a Trump Accountability Project. A WaPo columnist wrote that the people helping Trump now should “never serve in office, join a corporate board, find a faculty position or be accepted into polite society. We have a list.” Some suggest truth-and-reconciliation commissions.
But the real blood people want spilled would occur in the judicial system. Release the DOJ hounds. Nuremberg Trials. The goal is vengeance: in the minds of the werewolves, Trump and his extended family belong in jail—for something—and then they should be driven into poverty.
Keeping in mind that Trump was not responsible for the Holocaust, gulags, secret police disappearances, genocide, apartheid, a torture regime, offshore penal colonies or gassing his own people, the calls seem a bit extreme. But in many ways we live in extreme times, so what are the chances President Biden would release the full force of the American system against his former rival?
The simplest explanation is that persecuting, humiliating or prosecuting political opponents after they lose is third world stuff. Biden won. There is no political value in dancing on Trump’s grave or in the criminalization of policy differences.
Nobody tried it with Nixon. Bush I pardoned, not prosecuted, six Reagan White House officials who were involved in the Iran-contra affair. Bush II didn’t prosecute Lyin’ Bill Clinton, and Obama didn’t do it with George “The Torturer” Bush. Despite leading frequent chants of “lock her up,” Trump did nothing when he had the power to try. The last thing Biden wants is for a prosecution to ensure all wounds are kept open. Nope, Joe isn’t throwing Baby Political Advantage out with the Trump bathwater.
Biden also knows he can’t unring the bell. If he goes after his predecessor, he’s next when the sides inevitably switch again. Mindful of the failures of Russiagate and impeachment, Biden also doesn’t want to start with a non-win. Any prosecution of Trump will be endlessly tied up in questions of privileged conversations, sealed records, and evidence fights, followed by loyalist hearings into Hunter and His Most Excellent China Deal. You think Biden and his DOJ want to have that stink on their shoes heading into the 2022 midterms? (And yes, they are already thinking ahead.)
So the real dreams for revenge rest with the Southern District of New York (SDNY; led by Manhattan District Attorney Cy Vance but ultimately controlled by Biden’s Department of Justice) and failing that, New York State Attorney General Letitia James. The former already failed in 2012 to indict Trump’s children after they were accused of misleading investors, and faced judicial rebukes in the past for sloppy work and political motivations. The latter is beloved by progressives as an angry woman of color.
The narrative runs like this: both offices have been compiling nasty stuff against Trump, held back only by quaint custom which prevents them from indicting him as long as he’s president. As of January 20 he is open game. In addition, if they can press New York state-level charges, those are exempt from any federal pardon Trump might get from himself or from Mike Pence through some president-for-a-day 25th Amendment witchcraft.
Leaving aside the untested law surrounding self-pardons, as well as double jeopardy concerns (NY’s laws there are among the strictest in the country; SDNY already failed in its prosecution of Paul Manafort based on double jeopardy) related to anything to do with impeachment or something under IRS audit, and the questions of jurisdiction and extradition (Trump is a Florida citizen) the forces of vengeance have got to have something they can actually prosecute Trump for.
Like an actual crime. Being an evil president or making mean decisions on immigration do not count in actual courts (and good luck finding an impartial jury). The biggest problem with all this desired vengeance is the same thing that failed Russiagate; it is based on an assumption Trump must have done something wrong. The creation of a “crime” such as what drove the impeachment only worked because of a partisan House willing to play along.
The New York state system is no such kangaroo court, and affords defendants far more protections than federal courts. There are strict rules governing evidence presented to a grand jury, and even minor procedural errors can result in indictments being thrown out. “If you’re a white-collar defendant, you’d rather be in New York State court than in federal court any day of the week,” said SDNY’s former top deputy.
That said, a politically minded prosecutor can always find some way to file charges for the show value, even while knowing the case will disappear on motions after the headlines fade (as with Manafort). But the hope is that beyond a media event like that, somewhere in the complex finances of the Trump Organization lies a smoking gun. The problem with that for anything tax/finance related: one must remember the IRS and the New York Department of Revenue have had Trump’s taxes for decades. Whatever the SDNY hopes they show, the IRS, Treasury, FBI, NY state, NJ Gaming Commission and who knows who else already has seen them, or could have if they had suspicions, and for decades have not found cause to prosecute Trump.
The current IRS audit of Trump has been ongoing since 2010 and there is nothing to indicate it will finish anytime soon. The IRS also tends to conclude cases by asking for money, as fraud is very difficult to prove. In tax-fraud cases, prosecutors are required to prove misconduct was intentional, a high bar. A jury might wonder if Trump’s daughter’s consulting services were worth $740,000, but if Trump argued he valued them at that level, that could constitute a viable defense against fraud even if the deduction was ultimately disallowed. Trump’s teams of accountants also gives him personal cover for many potentially fraudulent claims. One of the reasons Mueller could not indict Trump on Russiagate-era obstruction was because it was not possible to determine that Trump had showed the legally required corrupt intent.
Another idea is that Trump misvalued some New York real estate to obtain loans, a civil offense at worst usually settled with new assessments or a fine. The city of New York assigns a value to each property for tax purposes. Nearly every property owner in NYC believes his assessed value is too high and pushes back, to the point where this is not even handled by a court but through a tax commission grievance process.
Owners want a lower value to pay less tax, except when they approach a bank for the equivalent of a refi loan, when they want their property to seem more expensive to secure a bigger loan. It is the bank who then decides what a property is worth to them as collateral, via their own due diligence. It is as much art as science; beyond the usual valuation factors of location, location, location, some buildings in New York are iconic, or famous for their brand name (cough, cough, Trump Tower), what history they represent, etc. Some just have nicer views, or are stuck with subway construction outside their doors for the next five years. Sometimes the bank is generous in valuation because in return for the loan they’ll secure some other business of value to them.
Overvaluing/undervaluing real estate in New York City may be sport, but as a crime it is not going to send anyone to jail. Imagine the yawns as a grand jury listens to accountants explain Trump’s tiered exemptions, and how their value is subtracted from the DOF assessed figure to calculate a taxable value which is then multiplied by the current tax rate for the specific assigned property class. And tomorrow we’ll talk about complex easements going back to 1979!
That leaves Stormy. At his 2019 televised Congressional hearing Michael Cohen displayed a check for $35,000 from Trump to him, which was supposedly part of $130k paid to Stormy Daniels (there is also at least one other woman, Karen McDougal) under a nondisclosure agreement (NDA) to keep quiet about her affair with Trump. Cohen says it was illegal hush money.
A case built around some events predating the Trump presidency dependent on the testimony of a gold-digging porn star violating her NDA for profit and a disbarred felon trying to sing his way out of jail? As they say, it’s complicated. Complicated enough that it deserves its own article, next week.
Peter Van Buren is the author of We Meant Well: How I Helped Lose the Battle for the Hearts and Minds of the Iraqi People, Hooper’s War: A Novel of WWII Japan, and Ghosts of Tom Joad: A Story of the 99 Percent.