Why Trump May Go to Jail
One impeachment, twenty six accusations of sexual assault, four thousand lawsuits, two popular vote defeats, two divorces, and $1 billion in debt coming due. By one estimate, a dozen investigations and civil suits are underway.
The numbers do not paint a particularly flattering view for the soon-to-be former president. Shielded from legal consequences due to an interpretation of a Justice Department memo, Trump is facing a reckoning.
Here are the known investigations or legal problems facing Trump on January 20, 2021:
— Under investigation for insurance fraud, criminal tax evasion, grand larceny, and a scheme to defraud in New York State (which is NYS’s equivalent to “federal bank fraud charges”) according to The New York Times.
— Awaiting probe results for campaign finance violations stemming from hush money payments to adult film star Stormy Daniels. The investigation ended last year, but it is unclear if the prosecutors will file charges once Trump’s presidential immunity vanishes.
— Liable for potential bribery charges for the Ukrainian scandal under Department of Justice § 201 b and c 1–2.
— Personally guaranteeing $421 million in debt, of which over $300 million is coming due within the next four years. The New York Times, when examining the debt, discovered that “Trump might have difficult repaying…the loans without liquidating his assets.”
— Awaiting an IRS decision on a controversial tax credit. Trump claimed a $72.9 million tax refund during the financial crisis. He and the IRS have battled through audits over the legitimacy of the refund, and “an adverse ruling could cost him more than $100 million.”
When taken individually, the potential legal fallout for Trump appears manageable. A self-pardon can shield him from bribery, for example. He is also no stranger to defaulting on creditors.
But perhaps most problematic for Individual One are the financial crimes perpetrated in New York. The New York State Attorney General and the District Attorney for the Southern District of New York would bring state charges, not federal ones. A federal self-pardon would have no effect.
“He knows that if he doesn’t manage to stay in office he’s in serious trouble. I believe he’ll be prosecuted, because it seems almost undeniable how extensive and long his criminality is. If it doesn’t happen at the federal level, it has to happen at the state level,” Trump’s niece told The New Yorker.
Trump has avoided prosecution thus far not because of innocence, but because of the legal immunity that a sitting president enjoys. And with his most recent electoral clobbering, that last protection will soon be gone.
On one hand, no former president has ever been incarcerated after his presidency. On the other hand, Nixon and Clinton came close. So why can’t Trump, whose illegality knows no bounds, be the first?
Trump, for his part, is quite frightened. Wielding power and wealth, he has managed to exploit, shield, bully, evade, and thwart aspects of the criminal justice system for much of his life. As The New York Times notes,
Seldom far from Mr. Trump’s thoughts, however, is the possibility of defeat — and the potential consequences of being ejected from the White House. In unguarded moments, Mr. Trump has for weeks told advisers that he expects to face intensifying scrutiny from prosecutors if he loses. He is concerned not only about existing investigations in New York, but the potential for new federal probes as well, according to people who have spoken with him.
Given that more than a dozen investigations and civil suits involving Trump are currently under way, he could be looking at an endgame even more perilous than the one confronted by Nixon…
Few people have evaded consequences more cunningly…
Two of the investigations into Trump are being led by powerful state and city law-enforcement officials in New York. Cyrus Vance, Jr., the Manhattan District Attorney, and Letitia James, New York’s attorney general, are independently pursuing potential criminal charges related to Trump’s business practices before he became President. Because their jurisdictions lie outside the federal realm, any indictments or convictions resulting from their actions would be beyond the reach of a Presidential pardon.
Or, as Vanity Fair’s headline puts it, “Trump is terrified about going to prison after losing the election, as he should be.”
There is one particular reason why I am optimistic that Trump will face justice, which was perfectly summed up by Jane Mayer:
“Vance and James are unlikely to abandon their investigations if Trump loses on November 3rd, if only because it would send an unwanted message: ‘If you’re Tish James or Cy Vance and you drop the case the moment he’s out of office, you’re admitting it was political.’”
Cohen, Manafort, Papadopolous, Stone, van der Zwaan, Gates, Flynn, Bannon, Lewandowski.
And soon, Trump.