Will Vance give us what Mueller couldn't/wouldn't?
Trump’s biggest problem may be closer to home
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Federal criminal prosecution of an ex-president is highly problematic. Even when justified on the merits, it opens the door to retribution by the other side and the criminalization of politics. Moreover, when the country is as polarized as the United States is now, a criminal trial would surely inflame emotions and make the country practically ungovernable. And, as we learned during the Mueller investigation and impeachment, it can be difficult to assemble evidence for actions the president took in office because of executive privilege (the qualified one as opposed to the bogus “absolute” privilege the Supreme Court shot down in July).
However, state prosecution for actions that precede a presidency avoids these pitfalls. And that may well be where we are headed with President Trump.
The New York Times reports: “The Manhattan district attorney’s office suggested on Monday that it has been investigating President Trump and his company for possible bank and insurance fraud, a significantly broader inquiry than the prosecutors have acknowledged in the past.” This is the same investigation which Trump unsuccessfully attempted to thwart by invocation of absolute immunity.
District Attorney Cyrus R. Vance Jr., in a filing to justify the broad scope of the subpoena, let on that the scope of the investigation is correspondingly broad. This is not merely about hush-money payments to adult-film actress Stormy Daniels and to Karen McDougal, a former Playboy model, to keep them quiet about alleged affairs with Trump; the matter could potentially cover years of financial dealings. The Times explains that prosecutors “cited newspaper investigations that concluded the president may have illegally inflated his net worth and the value of his properties to lenders and insurers. . . [and] an article on the congressional testimony of his former lawyer and fixer, Michael D. Cohen, who told lawmakers last year that the president had committed insurance fraud.” Trump denies all wrongdoing (and has assiduously hidden his taxes from view), but a grand jury continues to investigate.
The filing should send panic rushing through the Trump empire. “The serious state crimes by Donald Trump and his enterprises that Cyrus Vance has indicated he is pursuing as Manhattan DA cannot be shielded from prosecution by any invocation of presidential immunity, nor are they beyond the reach of prosecution and punishment by virtue of time,” constitutional scholar Laurence Tribe tells me. “The ongoing pattern of financial fraud and deception quite plausibly establishes an inseparable criminal scheme that prevents the statute of limitations from taking even the earliest instances of felonious conduct by Trump and his co-conspirators off the table.”
On the issue of the statute of limitations, former House impeachment counsel Norman Eisen says, “Statutes of limitation can be held open by a variety of circumstances, such as ongoing conspiracies, concealment and other equitable considerations, although that is not easy to do.” He adds, “Still, if the evidence, for example, demonstrates a single continuous fraud by Trump, it might or might not overcome the normal time limits for prosecution.”
As of now, of course, no indictment has come, and Trump enjoys the presumption of innocence. The grand jury’s work is secret, so we do not know if it is at its beginning, middle or the end. “The question of whether to indict before Election Day — if it is even logistically possible — is an agonizing one. It will be viewed as politicizing the prosecution and criminalizing the election,” cautions Eisen. “If the prosecutors are in fact ready to go, better to do so after the election is settled.” He adds: “Whatever they do, the good news is that if they decide to prosecute, a presidential self-pardon won’t work both because it is unconstitutional and because federal pardons don’t apply to state offenses like these.”
A few points deserve emphasis: First, this news undercuts the notion perpetrated after the Supreme Court’s ruling that it was a partial victory for Trump. Vance will almost certainly get his evidence, and the timeline may be far shorter than some commentators fear. Second, we do not need nor should we want this to be the decisive issue in the election; Trump likely faces a broad repudiation by voters, which is highly preferable to an indictment before the election that Trump could blame for his loss. Finally, the genius of a federal system and an independent judiciary as a block against an executive seeking authoritarian powers has never been more evident — or appreciated.