DONALD TRUMP’S LEGAL TROUBLES: CLOSING IN?

In late May news broke that Manhattan District Attorney Cyrus Vance, Jr. had impaneled a special

grand jury in his investigation of former President Donald Trump’s business activities. Since then, it has become increasingly likely Trump and/or his top executives could soon face criminal indictments. Reporting

indicates prosecutors have several Trump confidants in their sights, including his main money man, Alan Weisselberg.  Reportedly, Vance has targeted tuition payments the Trump organization made for Weisselberg relatives as potential tax evasion.

On May 20, New York Attorney General Leticia

James announced her office would also  investigate Trump. A Vance-James combination could spell real trouble for Trump. She has a reputation for aggressively prosecuting political figures.  

The prospect of indictments against Trump’s closest business associates, and even the former president himself, raised the prospect of what a criminal trial of a former chief executive would look and feel like. That inspired differing responses from the three of us.

 

Woodson: Action and the Matter of Process

Throughout his presidency Trump demonstrated 

repeatedly that he aspired to be an autocrat.

Congress refused to act. 

                         

Losing the presidential election Trump incited an 

insurrection. Congress refused to act. 

Trump is a clear and present danger to democracy. But Republicans continue to follow him. It now appears that someone will act.

                                      

Donald Trump’s criminal misdeeds may finally undo him. Prosecutors in New York seem to think they have enough evidence to criminally indict and convict him. 

In prosecuting their cases, they must be careful  not

to deny Trump – or even appear to deny him - due process of law and the presumption of innocence until proven guilty.

Due process and the presumption of innocence  are

fundamental rules of law in our democracy. Trump and his supporters will surely holler “foul” at the slightest provocation. The criminal proceedings must be meticulous, solid, and above reproach.

The prosecutors must demonstrate that they believe in the rule of law and not violate it in their eagerness to secure a conviction. If Trump behaved in any way in his business life as he has in public life, there will be plenty of evidence with which to criminally convict.

The prosecutors might want to take a page out  of

the playbook of Jerry Blackwell and Steve Schleicher, prosecutors in the Derek Chauvin trial. Let meticulous preparation and the rule of law be the order of the day.

 

Henry: Smoke and Fire

How does the American justice system handle a criminal defendant with 70 million loyal followers

who believe everything he says? That’s  the key question for me in contemplating the criminal probe of the former president now proceeding in New York. Since Trump’s 2016 campaign began a plethora of potentially criminal allegations swirled

around him – possible tax evasion, corruption in his foundation, alleged payoffs to porn stars with whom he supposedly had affairs, and

more. The list grows through the reporting on the current criminal probe. With as much smoke wafting in the air, isn’t there fire in the vicinity?

Then there’s the matter of Trump’s associates. The names have become familiar – Michael Cohen, Paul Manafort, Roger Stone, Michael Flynn, et al.  All have incurred the wrath of the law because of things that involve Trump. Could the boss have been innocent in each and every one of their cases?  

But, Trump was president and that makes this situation unique. Yes, Richard Nixon had a collection of criminals around him, but Gerald Ford pardoned Nixon. He was never prosecuted for his crimes. Many of his associates went to jail, but Nixon went about his business.  Joe Biden certainly isn’t giving Trump a pardon, so the system must deal with him, with the backdrop of his widespread public support. That’s new for America.    

                       

Rob: A Meaningful Moment?

As much as my Democratic heart flutters at the

thought of Donald Trump in an orange jump suit and the Secret Service figuring out the logistics of protecting a former president in the Big House, that prospect isn’t what intrigues

me most about Trump’s legal troubles. Whatever possibility exists he might be called to account for the crimes he may have committed is one of the best things that could happen to the United States.

As a lawyer, I agree about letting the process play out, trusting in the rule of law, and all that business. Trump enjoys the same presumption of innocence as any criminal defendant.  Having said that, the country’s legal system would benefit from tangible evidence that the law applies to everyone. Trump

avoided indictment in connection with the Mueller probe into Russian interference in the 2016 election because of the Justice Department prohibition on prosecuting a sitting president. We were told Trump remained subject to the law once he left office. Now, apparently, we’ll find out if that’s really true. It would do the country good to know that it is.

Politically, Trump has caused all kinds of mischief since he left office. He controls congressional Republicans who have taken unfortunate actions at

his behest, like blocking a commission that would have investigated the January 6 insurrection. Trump recently claimed he’ll soon be “reinstated” into the presidency, a ludicrous proposition. If nothing else, criminal indictments should occupy Trump’s attention, leaving him less time for such nonsense. Our politics will benefit greatly from such a respite.        

THE TRUMP PRESIDENCY END GAME: DOES HE STAY? DOES HE LEAVE? HOW DOES HE LEAVE?

We aren’t there yet. In Robert Frost’s words, we have miles to go before we sleep. But, we are headed for the Trump presidency end game. We’ve been thinking about what that might look like. We see rough sledding and hard choices ahead – for Trump and for American Democracy.  

The Gathering Storm

On November 6, Americans resoundingly gave Democrats control of the United States House of Representatives. This poses potentially dire consequences for the Trump presidency. House Democrats can, and will, investigate Trump’s misdeeds as the current Republican majority wouldn’t. Most important, the new majority can initiate impeachment proceedings. The likelihood Democrats will conclude they have no other choice has recently increased exponentially.

After keeping quiet while the election unfolded, Special Counsel Robert Mueller re-emerged with a bang. Mueller’s recent actions, and others we might see soon, put Trump squarely in danger of facing impeachment in 2019. First, Mueller obtained a guilty plea from former Trump lawyer and fixer Michael Cohen for lying to Congress about the Trump organization’s plans for a hotel in Russia in 2016 while Trump claimed he had no business activities in Russia. Second, in sentencing memos for former Trump National Security Advisor Michael Flynn, Cohen, and former Trump campaign chairman Paul Manafort, Mueller hinted he and other federal prosecutors continue investigating additional potential Trump crimes. Meanwhile, Southern District of New York prosecutors squarely accused Trump of directing Cohen in committing federal campaign finance felonies.   

Left Photo: Cohen/Right Photo: Manafort - PhotoCred: Business Insider

 

Eventually, it seems likely Mueller will tell Congress what he knows, if he follows the generally, though not universally, accepted

principle he can’t indict a sitting President. Assuming Mueller goes with this procedure, and believing as we do his report will contain significant evidence of Trump’s “high crimes and misdemeanors,” the House Judiciary Committee will report out articles of impeachment and the full House will vote for impeachment. That requires only a simple majority. What then?

In search of 20 Republican senators

Under the U.S. Constitution, once the House impeaches a President, conviction and removal from office require a two-thirds vote in the Senate. The new Senate includes 53 Republicans and 47 Democrats. If all 47 Democrats vote for conviction, removing Trump from office could occur only if 20 Republican senators agree. Where would those votes come from and why? 

By the time the Senate votes—probably 2019 or early 2020 – election year politics will have intervened. How much political strength will Trump retain? How will that figure in the calculations of Republican senators soon facing the electorate? Richard Nixon’s experience provides clues.

In the summer of 1974, the House Judiciary Committee, after

Nixon family boarding Air Force One for last time Aug. 9, 1974

riveting televised hearings, voted out three impeachment articles. The outcome in the full House was clear, given the Democratic majority. Attention shifted to the Senate, even before the House vote. Nixon’s approval rating had fallen to about 25 percent. Republicans faced catastrophic losses in the upcoming mid-terms if Nixon remained in office. A delegation of “wise men” – senior Republican senators led by Arizona’s conservative icon Barry Goldwater and Pennsylvania’s moderate Hugh Scott -- trekked to the White House and told Nixon his Senate support had fallen below the Mendoza line. He couldn’t survive because Republicans couldn’t survive. Nixon resigned. 

For three reasons, we see the odds against this happening again. First, Trump probably wouldn’t listen. Second, no “wise men” with the stature of Goldwater and Scott remain in the GOP senatorial ranks. Who’d do that job now? Lindsey Graham? Mitch McConnell? Marco Rubio? With all due respect, we doubt it in each case. If he were here and if he were a Republican, Lloyd Bentsen might tell each one, “I knew Barry Goldwater. Barry Goldwater was a friend of mine. Senator, you’re no Barry Goldwater.”

Third, we question whether Trump’s approval rating ever falls into the 20s. He probably got it right when he said he could get away with shooting someone on Fifth Avenue in New York. We haven’t seen signs of Trump’s hard core 35-38 percent deserting him. That makes identifying 20 GOP senators who’d bail a stretch, especially since we see only two (Maine’s Susan Collins and Colorado’s Cory Gardner) facing re-election in 2020 in states Hillary Clinton carried in 2016.

The old fashioned way

Once upon a time, the brokerage firm Smith Barney ran a television campaign using the distinguished, if crusty, actor John Houseman as its spokesperson. Houseman ended the ads asserting Smith Barney made money for its clients, “the old fashioned way – they earn it.” Looking at the political realities, and the numbers, we conclude the United States probably can rid itself of the debilitating, destructive Trump presidency only in the old fashioned way – voting him out in 2020.   

Mueller’s probe now suggests Trump and his associates (1) colluded or conspired with Russia in interfering in the 2016 election, (2) obstructed justice by impeding the investigation into that collusion, (3) lied to the American people, and perhaps to investigators, about business dealings with foreign countries, and (4) committed numerous other still undisclosed crimes. Once Muller makes known the details of Trump’s “high crimes and misdemeanors,” we believe the evidence will demand conviction and removal from office. Republican senators and their Trump supporters will have to decide on making the ultimate bargain with the devil: leaving Trump as President, despite his assaults on the rule of law and possible destruction of NATO, all in exchange for more conservative Supreme Court appointees and retaining tax cuts for the rich.  As we’ve said, we doubt enough Republican senators vote for conviction. That leaves doing it the old fashioned way.