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 Transition of Power 

A new blog post by USRESIST Reporters on the transition of Presidential Power from the Trump to the Biden administration

Brief # 5  The Criminal Liabilities of Our President Once He Leaves Office

By Sean Gray 

December 7, 2020

If all is equal and the courts are on the level, Donald Trump’s chickens should come home to roost sometime after noon on January 20th. In running for president, Trump shined the brightest light imaginable on a career of shady business dealings. Failing to secure a second term ensured  the statute of limitations will not expire on many of the related charges before his presidential immunity does. Trump’s conduct in his time as president also consistently ran afoul of the law. A Justice Department policy dating back to Watergate ensured that he, nor any other sitting president, could be charged with a crime while in office. Following Biden’s upcoming inauguration, those protections are void and Trump becomes fair game for prosecutors in federal and state courts.

Trump’s impeachment saw him acquitted by a feckless, Republican-led Senate, unwilling to hold him to account for his misdeeds. The federal statute for extortion is defined as ‘’extracting a thing of value from another person them in fear of injury.” Trump’s attempt to strong-arm Ukrainian president Volodymr Zelensky into investigating Joe Biden (a thing of value) whilst withholding $400 million in Congressionally approved military aid (which placed Ukraine in a precarious war-time position with hostile neighbor, Russia) seems to easily meet that standard. Through all phases of the process, Trump ignored lawful subpoenas to produce evidence related to the inquiry. Refusal of witnesses to testify or produce documents is also a criminal offense under federal law, punishable by up to a year in prison. Given the partisan acrimony that accompanied the impeachment, it is unlikely to be rehashed in the form of a criminal trial, but serves as an excellent example of Trump’s abnormal lawlessness and ‘’what are you gonna do about it’’? reflex.

Robert Mueller was unable to establish a criminal conspiracy between the 2016 Trump campaign and the Russian government. He was however able to uncover a host of overarching contacts between the two. More significantly, he outlined 10 instances where the president may have committed obstruction of justice in his attempts to thwart and/or shutdown the Special Counsel’s investigation altogether. Mueller was caught between a rock and a hard place, being neither able to indict a sitting president and therefore not wanting to formally accuse him without the chance to adjudicate the case in court. Come January 20th, Trump is eligible to be charged with any or all instances in which he attempted to shutdown the investigation into his team’s collaboration with a hostile foreign government.

Trump committed numerous violations of the law his during tenure that don’t necessarily entail criminal penalties. In destroying documents relevant to his administration, he has violated the Presidential Records Act. In the run-up to the election, his hand-picked stooge, Louis DeJoy, attempted to sabotage the USPS in a contest where a record number of voters were expected to cast ballots through the mail. He regularly flouted the separations of powers and threatened war crimes against Iran on Twitter. California Representative Eric Swalwell has called for a Presidential Crimes Commission once Trump leaves office to investigate the full scope of his malfeasance.

All of these scenarios are powder kegs of political backlash. The country finds itself dangerously divided politically, and taking up any of these cases may be seen as doing more harm than good. President-elect Biden has demonstrated little appetite for pursuing what may be viewed as politically motivated investigations against an ex-president. He has said he would leave the decision to his chosen Attorney General, but it is unfathomable that the subject of prosecuting Trump would not be discussed during the vetting process for the person who becomes Biden’s AG.

All charges at the federal level could be rendered moot by the president himself. Trump’s pardon powers are near absolute and he has not been shy about issuing them to allies in his own self-interest. Already, the idea of preemptive pardons for himself and his family members have reportedly been discussed behind closed doors. No precedent exists for a president attempting to pardon himself, but no language in the Constitution explicitly forbids it. Trump’s former fixer and confidante, Michael Cohen, has predicted that before he is scheduled to leave office, Trump will sign in order for Mike Pence to take the mantle of president and issue him a pardon free and clear. Such a remedy would inevitably invite outrage and reek of corruption, but would put Trump in the clear without it ever needing to be decided by a court if a president’s pardon powers extend to himself.

Broad those powers may be, they are exclusive to potential criminal charges on a federal level. Upon leaving office, Trump would be as vulnerable to prosecution on state charges as any other American citizen. In his home state of New York, both he and the Trump organization have been under investigation for the bulk of his presidency.

Manhattan District Attorney, Cyrus Vance Jr., would appear to be the most likely candidate to haul Trump before a jury of his peers. His office is currently overseeing an investigation that began with hush-money payments made to Stormy Daniels by Michael Cohen at the behest of Donald Trump. It has since expanded and probed into Trump’s personal finances and potential illegalities at his family business. When Vance subpoenaed eight years of financial records from Donald Trump’s bankers, the result was a landmark Supreme Court decision that determined a sitting president is not immune from investigation, including his activities before he took office. Per the decision, Mazars USA, must turn over the requested records to prosecutors. The charges most likely to trip up a post-presidency Trump are tax and bank fraud related. In separate stories, two years apart, the New York Times reported that Trump had inherited much of his wealth through legally dubious tax dodges and that in the years preceding his election he paid just $750 in federal taxes, and no federal taxes at all in three of the four years before his presidency. Michael Cohen, in his lengthy testimony before the House in 2018 stated that it was common practice at the Trump organization to inflate the value of properties when using them as collateral for loans and to deflate the value to tax assessors for the sake of lower liability. If those charges are accurate, and substantiated in court, it is a textbook case of continuous fraud.

Political deference and unscrupulous pardons may keep Trump from ever facing the music in federal court. They will do him no good should any prosecutor at the state or city level be inclined to charge him with a crime. Trump received a stunningly low 14% of the popular vote in Manhattan, where the DA’s office is up for grabs in a 2021 election. Prospective Democratic candidates have all made holding Trump to account a key part of their platform. This is to say nothing of the dozens of pending civil suits against Trump with allegations ranging from sexual assault, defamation and unpaid campaign bills. Trump’s presidency ends in a little over a month as of this writing, at which point his legal troubles are likely to intensify.

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