Russell Hebets Sept. 1, 2020

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Global leaders are no strangers to criminal charges, with foreign heads of state from Silvio Burlusconi to Slobodon Milosovic being charged with crimes committed while in office. The United States, however, has largely stayed above the criminal fray.  Sure, we had our challenges with Nixon and Clinton, but neither of those presidents were ultimately charged with crimes.  Nixon was pardoned by incoming president Gerald Ford, while Clinton agreed to a 5-year suspension of his law license along with a 25K fine to avoid criminal prosecution.  The closest America has come to a president being charged with criminal offenses was Spiro Agnew, who as vice-president was convicted of tax fraud on the day he resigned.  So how do these cases bear upon the current sitting president, Donald Trump?

The US Supreme Court took up the issue of presidential liability in the civil context in the case of Clinton v. Jones.  The Court held that a president can be civilly liable for actions taken before becoming president.  This holding, while not explicit to criminal law, would presumably apply to civil actions and criminal actions alike.  Spiro Agnew was convicted based on a construction kick-back scheme which began when he was Governor of Maryland.  The unlawful payments did continue after he took office as vice-president, thereby setting the same precedent for crimes committed both before and during executive tenure to be the basis for criminal prosecution. 

What Is President Trump's Criminal Liability?

While there have been no federal indictments, and no state charges filed against Donald Trump, there are plenty of investigations to go around.  Currently there are multiple federal, state, and local investigations of Donald Trump and the Trump organization, ranging from multiple fraud investigations to campaign finance violation and obstruction of justice allegations.  Whether guilty or innocent, the sheer number of investigations are enough to concern even the most law-abiding boy scout in the troop.  

Can Trump Be Prosecuted While in Office?

It’s important to note that Spiro Agnew was convicted the same day that he resigned his office, leaving open the question of whether he could have been convicted while still in office, or whether he would be protected by virtue of holding the office of the vice-presidency.  In federal court, Donald Trump’s lawyer famously argued that Trump could shoot someone on the streets of New York and not be prosecuted due to executive privilege.  While the court did not receive that argument especially warmly, the fact remains that the Department of Justice has a decades old policy of not indicting sitting presidents.  The rationale for this is obvious, as a sitting president would presumably be far too distracted by a personal criminal case to effectively run the country.

This federal law enforcement prohibition is why the Mueller investigation did not take a position on Trump’s criminal exposure.  The same prohibition very likely is why, in the Michael Cohen indictment, Trump remained an unindicted co-conspirator and was referred to as Individual-1 rather than also being indicted as Donald Trump.  While President Trump hasn’t tested this prohibition by opening fire on 5th Avenue, he does seem to be immune from federal prosecution while in office.

What Happens When Trump Leaves Office?

Trump’s exposure to federal charges largely rises and falls with his reelection campaign.  One of the criminal charges that he is exposed to is Obstruction of Justice.  Obstruction of Justice, it turns out, has a 5-year statute of limitations.  If reelected, this timeframe would run while Trump is still protected from federal prosecution, sometime in his second term.  This means that Trump has more at stake in this election than simply serving another 4 years as commander-in-chief.  If he is reelected, he would essentially be free from exposure to these and other federal charges which have a similar statute of limitations.

If Trump loses his reelection, he would have 3 choices if he wanted to protect himself from these federal charges.  One, he could pardon himself for any crimes.  Two, he could pardon everyone in his circle who is a target of any federal crimes.  Three, he could resign and ask then President Pence or incoming President Biden to pardon him.  

The first of these options has no precedent.  No sitting president has attempted to pardon himself, and it is unclear if the courts would uphold his right to do this.  President Nixon was advised by his justice department that he, in fact, could not pardon himself.  The second option, pardoning everyone potentially exposed to federal charges, would take away any leverage from prosecutors to obtain witnesses to testify against Trump.  If nobody is facing any criminal liability, the feds will not be able to make any deals, and will likely not have the evidence to pursue criminal charges.  Again, this strategy has never been tried before.  President Clinton did pardon 140 people before leaving office, but none of those pardons had a direct connection to his personal criminal liability.  This second option would also likely be decided be our courts.  The last option does have precedent, and was the path chosen by President Nixon when he resigned his presidency.  In the event of a Trump resignation or loss this November, Pence or Biden would have the power to pardon Trump for any federal crimes.

Does Trump Have Exposure to State or Local Charges?

As stated earlier, there are multiple state and local investigations into President Trump.  The highest profile case is the investigation being conducted by Cyrus Vance Jr., of the Manhattan District Attorney’s Office.  Mr. Vance has had a series of court victories on his quest to obtain Trump’s tax records for the purpose of criminal investigations, and it appears that he will obtain those returns.  By all indications, Mr. Vance could conclude his investigation and make a charging decision by 2021. 

What makes this investigation different from potential federal charges such as obstruction of justice is the different jurisdiction.  This investigation, and others like it, get their power from local and state authorities. Trump has no power to grant pardons in non-federal criminal proceedings.  He has no power to appoint different prosecutors who might be more friendly to his situation. His only option here is to assert executive privilege, which so far courts have not extended to protect him from crimes such as insurance, banking, or mortgage fraud.  He has been successful in delaying these cases; however, they are still moving forward, albeit at a very slow pace. While the ultimate outcome of any of the cases that expose President Trump to criminal charges remains to be seen, they are clearly something that he will need to navigate in the coming months and probably years.