The legal calculation Trump could face if he loses the election


If things don’t go in Donald Trump’s way on election day, the US president could face more serious issues than how to pack the West Wing.

Without some of the protections given to him by the presidency, Trump will become vulnerable to multiple investigations into possible fraud in his financial transactions as a private citizen – both as an individual and through his company. He faces defamation lawsuits sparked by his denials of accusations by women who claimed to have assaulted them, including E. Jean Carroll, the former columnist for the magazine who accused him of rape. And then there are allegations that he bribed the presidency for his personal gain.

As president, Trump has been able to block and delay several of these investigations and prosecutions – including a year-long struggle for a subpoena for his tax returns – in part because of his official position. Many of these cases have gone through the courts and will be successful whether or not he is re-elected.

But with polls showing Democratic rival Joe Biden leading the race, the stakes get much higher for Trump if he loses the election. A range of legal issues, including a criminal investigation by New York prosecutors, will be finalized in the weeks following election day.

“In all respects, his departure makes it easier for prosecutors and civil plaintiffs to pursue their cases against him,” said Harry Sandick, former federal prosecutor in the Manhattan office of the Attorney General.

Play fast and freely with the value of company assets

The New York Attorney General is also conducting a separate civil investigation into the Trump organization and whether it unduly inflated the value of some assets in some cases and downgraded them in others, in the purpose of obtaining loans and obtaining economic and fiscal advantages.

Investigators are examining tax breaks for the Trump Seven Springs property in Bedford, New York, and the Trump National Golf Club in Los Angeles. They are also investigating the valuation of a Trump office tower on Wall Street and the delivery of a loan of more than $ 100 million on the Trump International Hotel and Tower in Chicago.

Eric Trump, executive vice president of the Trump organization, sat remotely for testimony with civilian investigators last week. Lawyers are seeking additional depositions from Sheri Dillon, Trump’s longtime tax lawyer.

Lawyers for the Trump organization have said in court documents that they believe New York Attorney General Letitia James was politically motivated and that they initially attempted to postpone Eric Trump’s testimony until the polling day ended, but a judge rejected that request. State attorneys, who said they were not coordinating with any criminal law enforcement agency, said their investigation was civilian in nature. But they could make a criminal referral if they feel there is enough evidence.

“With a high-profile executive, when they do these multiple transactions or hundreds of millions of dollars, they’re always advised by lawyers and accountants,” said Dan Alonso, former attorney with the Manhattan District Attorney’s Office. . “There are a lot of layers between the confusion of tax treatment and the president’s criminal liability, it’s a big leap. “

Open the floodgates to prosecution

If Trump is not re-elected, he will lose the deference the courts have bestowed on sitting presidents, opening the floodgates to many lawsuits.

Washington, DC and Maryland state attorneys general sued the president in 2017, alleging he profited from his position in a corrupt fashion by putting his financial interests above those of American citizens.

State investigators have prepared more than 30 subpoenas, including to the Trump organization, and others regarding Trump’s activities. Trump has filed a lawsuit to block the lawsuit, which alleges he violated the Constitution’s emoluments clause by virtue of the hundreds of thousands of dollars foreign governments and others have spent on his properties. Trump has appealed the ruling to the Supreme Court, which has yet to decide whether to hear the case. A second lawsuit for emoluments brought by hoteliers and restaurateurs in New York is also underway.

In August, after a state court judge denied Trump’s effort to delay a libel lawsuit, the president deployed the Justice Department to try to insert itself into the litigation that has been dragging on since almost a year. The Justice Department has asked a federal judge to step in for Trump in a libel lawsuit brought by Carroll, a former advice columnist for Elle magazine, who accused the president of raping her in a locker room at a major store in the mid-1990s. Trump denied the allegation.

The ruling, if granted, could effectively kill the lawsuit, which has been before the courts since last November, as the Justice Department cannot be sued for defamation. A judge has scheduled a hearing in the case for Wednesday. Carroll has indicated that she is seeking to take the President under oath and compare with a sample of male genetic material that she says is on the dress she wore on the day of the alleged rape.

Other prosecutions were also stayed under Trump’s status as president.

Another pending case is a libel suit filed in New York State court by former “The Apprentice” competitor Summer Zervos, who claims Trump sexually assaulted her in 2007. Zervos has said Trump kissed her on the lips during a lunch meeting at his New York office and alleged he kissed her aggressively and touched her chest during another meeting in Beverly Hills. She filed a lawsuit after receiving harassment and threats following her denial of her allegations, according to documents filed by the court.

After a New York state court judge denied Trump’s effort to dismiss Zervos’ trial, the president appealed the ruling, arguing that the Constitution’s supremacy clause prohibits a state court to hear an action against a sitting president. The Zervos case is now awaiting a ruling from the New York State Court of Appeals on whether the state courts have jurisdiction over him while he occupies the White House.

The president’s niece, Mary Trump, is also suing Trump, her sister, and their deceased brother’s estate for fraud, alleging they deprived her of her interest in the family real estate empire built by Fred Trump Sr.

In those civil cases, where in some instances Trump has sought to avoid testifying or providing DNA evidence, Sandick said Trump would lose the ability to claim he had certain protections from the White House if he ended up. leave the Oval Office. “If he’s not president, it all goes away. “

Less influence over potential witnesses

A wild card is what would happen to a decade-long civil tax audit conducted by the IRS, which reports to the Treasury Department, and whether it could be forwarded under a Biden administration to the Department of Justice for review. According to the New York Times, the IRS is considering a tax credit of $ 72.9 million claimed by Trump.

Lawyers say a less obvious factor that could change if Biden wins is the influence Trump has had over accountants, bankers and those around him who could be crucial witnesses for authorities.

“They’ll be a lot less afraid to talk about someone who’s no longer the president,” Rodgers said. She added that a case involving allegations of misrepresentation to banks or tax evasion would likely be heavily documented, which, once the subpoena for tax returns is filed, could facilitate the investigation.

Of course, if Trump is re-elected, he may be able to expire the statute of limitations, which for some crimes in New York State law is five to six years; push these lawsuits four more years; or simply continue to take advantage of the opinion of the Office of the Legal Counsel of the Department of Justice that a sitting president cannot be indicted.

The Legal Adviser’s Office memo has already isolated Trump from possible arraignment in two cases: the special counsel investigation led by Robert Mueller, which found evidence that Trump obstructed justice but failed to do so. has not charged, and the US prosecutor’s investigation. New York’s Southern District Office, which cited Trump as “Individual 1” for accusing his former lawyer Michael Cohen of campaign finance crimes for facilitating covert payments to two women who alleged affairs with Trump. Trump has denied the business. Cohen pleaded guilty and declared under oath that Trump ordered him to break the law. Cohen was reimbursed for these payments from the Trump organization until 2017, which could extend the statute of limitations for this crime until 2022. Some lawyers have speculated that it is possible that Trump is trying to forgive himself for federal crimes before leaving office.

Whether or not to relaunch those investigations would rest with a Biden administration and senior law enforcement officials running the Department of Justice and the Manhattan U.S. Attorney’s Office.

In testimony before Congress, Republican Ken Buck of Colorado asked Mueller, “Could you accuse the president of a crime after leaving office?”

“Yes,” Mueller replied.

“Do you think he committed – you could charge the President of the United States with obstruction of justice after he left office?” Buck asked.

Mueller replied, “Yes. “


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