South Florida Sun-Sentinel (Sunday)
Leaving Oval could box Trump in
Once out of office, risk of prosecution becomes greater
President Donald Trump lost more than an election this month. When he leaves the White House, he will also lose the constitutional protection from prosecution afforded to a sitting president.
AfterJan. 20, Trump, who has refused to concede and is fighting to hold onto his office, will be more vulnerable than ever to a pending grand jury investigation by theManhattan district attorney into the president’s family business and its practices, aswell as his taxes.
The two-year inquiry, the only known active criminal investigation of Trump, has been stalled since last fall, when the president sued to block a subpoena for his tax returns and other records, a bitter dispute that for the second time is before the U.S. Supreme Court. A ruling is expected soon.
Trump has contended that the investigation by the district attorney, Cyrus Vance Jr., a Democrat, is politically motivated. But if the Supreme Court rules that Vance is entitled to the records, and he uncovers possible crimes, Trump could face a reckoning with law enforcement — further inflaming political tensions and raising the specter of a criminal conviction, or even prison, for a former president.
“He’ll never have more protection from Vance than he has right now,” said Stephen Vladeck, a law professor at the University of Texas.
“Vance has been the wild card here,” Vladeck added. “And there is very little that even a new administration that wants to let bygones be bygones coulddoformally to stop him.”
A lawyer for the president, Jay Sekulow, declined to comment through a spokesman.
The district attorney’s investigation of a sitting president has taken on even greater significance because Trump’s past use of his presidential power — pardoning those close to him charged with federal crimes — suggests he will make liberal use of the pardon pen on behalf of associates, family members and possibly even himself, as he claimed he has the right to do.
But his pardon power does not extend to state crimes, like the possible violations under investigation byVance’s office.
Vance’s inquiry could take on outsized importance if the incoming Biden administration, in seeking to unify the country and avoid the appearance of retaliation against Trump, shies away from new federal investigations.
Such a move would not bind the district attorney, an independent elected state official.
Vance’s lawyers acknowledged during the court fight over the subpoena that the Constitution bars them from prosecuting a president while in office, but the district attorney has said nothing about what might happen once Trump leaves the WhiteHouse.
Danny Frost, a spokesman for Vance, declined to comment. It remains unclear whether the office will determine that crimes were committed and choose to prosecute Trump or anyone in his orbit.
Some legal experts said it would send the wrong message if Vance had evidence to justify charges but decided to walk away from a prosecution ofTrump.
“Thatwould put the president above the law,” said Anne Milgram, a former assistant district attorney in
Manhattan and Democratic attorney general in New Jersey and a frequent critic ofTrump.
And because Trump has repeatedly complained that the investigationwas part of a broad partisan witch hunt, any decision to end it once the president left office could be seen as a tacit acknowledgment that such criticismwas justified.
Trump, before and during his presidency, declined to publicly release his tax returns, breaking with 40 years of White House tradition, and he vigorously fought attempts by Congress and state lawmakers to obtain them.
The district attorney’s inquiry, which began in the summer of 2018, was first thought to focus on hush money payments made on behalf of Trump just days before the 2016 presidential election to an adult film star who had claimed she had an affairwith him.
But the subpoena for Trump’s tax returns underscores an apparent greater focus on potential tax crimes, which tax experts, former prosecutors and defense lawyers agree can be among the toughest cases for the government to win at trial.
“The burden of proof is substantial,” said William Comiskey, a former longtime state prosecutor of white-collar and organized crime cases who later oversaw enforcement at New York’s Department of Taxation and Finance.
That, in large measure, is because prosecutors must prove that the defendant actually intended to evade taxes, Comiskey said.
The challenge in presenting suchcases to a jury is compounded without a cooperating witness who can serve as a guide through complex financial strategies and records, or emails or other statements containing admissions, experts said.
“They need a smoking gunor theyneedsomeoneto flip,” said Daniel Horwitz, who brought tax and complex fraud cases during more than eight years in the Manhattan district attorney’s office and is now a white-collar defense lawyer.
In addition to Vance’s inquiry, Trump also faces continuing scrutiny by New York state’s attorney general — who he has also claimed has targeted him out of partisan rancor.
In his lawsuit seeking to block the grand jury subpoena, Trump’s lawyers quoted 2018 campaign statements by Attorney General Letitia James, a Democrat, saying they were part of a “campaign to harass the president.”
They cited one statement, for example, in which she said Trump should worry because “we’re all closing in on him.”
Last year, James’ office opened a civil fraud investigation into Trump’s businesses. As recently as last month, Trump’s son Eric, after months of delays, was questioned under oath by the office’s lawyers.
Rebecca Roiphe, a former assistant district attorney in Manhattan who teaches legal ethicsandcriminal lawat New York Law School, said James’ earlier statements made it appear there was some truth to the accusation that people whowere investigating Trump were “at least capitalizing on that froma political perspective.”
The onlyway forVance to avoid that perception, Roiphe said, was “to have a rock-solid case with overwhelming evidence, which willhelp convince thepublic that they’re holding the former president accountable for criminal acts.”
James, in response to criticism from Trump last year, tweeted that her office “will follow the facts of any case, wherever they lead.” She added: “Make no mistake: Nooneisabove the law, not even the President.”