Losing Could Expose Trump to Prosecution for Any Number of Crimes
Former presidents normally don�t go to jail, but few have committed so
many obvious crimes unrelated to their duties in office.
Jon Schwarz
Jon Schwarz

October 18 2020, 8:00 a.m.

Even if President Donald Trump loses on November 3, it�s hard to imagine
that he�ll ever be convicted of any crime, much less serve time in prison.

That�s because, first and foremost, no former U.S. president has ever seen
the inside of a cell � and not because all presidents have faithfully
followed the law. Presidents accumulate huge favors owed, favors that they
cash in, figuratively and literally, when they become former presidents.
On the modest end of the spectrum, 20 wealthy friends of Ronald Reagan
bought a mansion in Bel-Air, Los Angeles, for him and Nancy to live in
when he left office. More significantly, ex-presidents receive political
protection from their allies, as when Gerald Ford pardoned Richard Nixon
for anything whatsoever he�d done in office.

Presidents accumulate huge favors owed, favors that they cash in, when
they become former presidents.

And beyond anything concrete that a president does for the factions that
back him, those factions also strenuously oppose any consequences for
their president�s actions for reasons of basic class solidarity. If an ex-
president can face consequences, that would suggest that people one step
down the power ladder could too. And the people at the top of U.S. society
see consequences like Leona Helmsley saw taxes: They�re for the little
people.

That said, stranger things than the prosecution of Trump have happened:
for instance, Trump being elected president in the first place.

Trump is more vulnerable to prosecution than other presidents because he�s
engaged in so many potential nontraditional presidential crimes. With the
invasion of Iraq, George W. Bush committed what the Nuremberg trials
referred to as �the supreme international crime� of initiating a war of
aggression. But there was never any chance that he�d be punished for this,
because the entire U.S. power structure agrees that American presidents
have the right to do it. Same for conducting thousands of drone strikes or
torturing people around the globe. By contrast, Trump has engaged in many
comparatively small, shabby, possible criminal activities outside of his
presidential duties.

Right now, Trump is protected from indictment under all federal laws
because he�s president. For decades, the Justice Department has held that
it cannot prosecute sitting presidents; former special counsel Robert
Mueller agreed and explained that he never had the option to charge Trump
because it would be unconstitutional. And, whether or not this perspective
is correct, Attorney General William Barr is a loyal hatchet man who would
never take action against his patron.

It does seem, according to a recent Supreme Court ruling, that Trump could
theoretically be indicted for violating state laws while in office. In
practice, however, that is extremely unlikely.
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But if Trump is defeated and extracted from the Oval Office, much of his
presidential shield will disintegrate. He could try to pardon himself on
the way out the door for all crimes he�s ever committed. But no one knows
whether presidents can do this, since none have ever tried; in any case,
it would only apply to violations of the federal code.

So let�s assume that Trump loses, he doesn�t pardon himself, and the state
and federal justice systems suddenly become enthused like never before
about treating the ultra-powerful like the powerless. Trump would then
become vulnerable to prosecution in the below ways we already know about �
plus, in all likelihood, many, many others we don�t know about yet.
Tax Fraud

Trump has gone to extraordinary lengths not to release his taxes. He also
declared that any probing of his finances by Mueller would cross a �red
line.� We now know that there�s a reason for his anxiety. The U.S. tax
code provides so many ways for billionaires � especially real estate
developers � to legally avoid taxes that it takes real effort to illegally
evade them. But Trump appears to have been up to the challenge.

Tax fraud seems to be a family tradition for Trump.

Tax fraud seems to be a family tradition for Trump. The Trumps set up a
company in 1992 owned by Trump, his siblings, and a cousin who apparently
did nothing except siphon money from the real estate empire of Donald�s
father, Fred Trump, into the company�s pockets. This allowed Fred to
shower his children with millions of dollars in gifts without having to
pay any gift tax.

The statute of limitations has run out on any potential crimes in that
situation. But the recent New York Times investigation of Trump�s taxes
revealed that he appears to have set up similar gambits to pass money
along to his children tax-free. His company deducted $747,622 in
�consulting fees� for Vancouver and Hawaii hotel projects. Meanwhile, a
consulting company co-owned by Ivanka Trump paid her exactly the same
amount, even as she was an employee of Trump�s company. Millions more in
consulting fees flowed to unknown persons. If Ivanka and her siblings were
indeed the recipients of this money, it should be close to a slam dunk
case of tax fraud: It is against the law to get consulting fees from a
company you are employed by.

The Times also uncovered potential criminal conduct in Trump�s treatment
of a huge estate he owns in Westchester County, New York, outside the
city. Trump claimed that it is an investment property rather than a
personal residence, allowing him to write off property taxes as a business
expense. But there is little evidence that Trump has operated the estate
as a business.

Then there�s the issue of Trump�s peculiar $50 million loan to himself,
and whether Trump wrote off hush money payments as business expenses, and
much more that�s already in the public domain. A thorough state or federal
investigation would almost certainly uncover even more dicey tax behavior.

All this is why Michael Cohen, Trump�s former fixer who himself has
pleaded guilty to multiple counts of tax evasion, recently said that Trump
�may soon be the first sitting president to go from the White House
straight to prison.�
Bank and Insurance Fraud

Cyrus Vance Jr., the district attorney for Manhattan, is currently
investigating what his office calls �possibly extensive and protracted
criminal conduct at the Trump Organization.� Beyond Trump�s taxes, Vance
appears to be probing whether Trump provided insurers and banks with false
statements about his financial position in order to receive lower premiums
and interest rates on loans. In certain circumstances, this would be
illegal.
Michael Cohen arrives at his Manhattan apartment in New York City on July
24, 2020.

Michael Cohen arrives at his Manhattan apartment in New York City on July
24, 2020.

Photo: Corey Sipkin/AFP via Getty Images
Campaign Finance Violations

Campaign finance law is complex and confusing in the best of times but
especially when it involves paying off your mistresses to keep quiet
(allegedly). The $130,000 received by Stormy Daniels almost certainly
counts as a contribution to Trump�s campaign. But it was also totally
legal for Trump to donate as much money as he wanted to his 2016
candidacy, thanks to a 1976 Supreme Court decision. The Daniels hush money
should have been kosher if Trump had sent her lawyer the money himself
directly and disclosed the purpose of the payment in FEC filings. (He
probably could have gotten away with classifying it as something like
�legal expenses.�)

Campaign finance law is complex and confusing in the best of times but
especially when it involves paying off your mistresses to keep quiet
(allegedly).

Instead, Trump used Michael Cohen as a conduit, and Cohen could not
legally give the Trump campaign more than $5,400. Causing Cohen to do so,
together with potential related offenses, could plausibly create legal
jeopardy for Trump.

Even more serious is the issue of Trump�s $10 million donation to his
campaign on October 28, 2016, in the campaign�s final days. Trump was then
surprisingly low on cash, and around this time he received an unusual
payment of $21 million from a Las Vegas hotel he co-owns with a friend and
political supporter. If this was not a legitimate payout, it could
constitute an illegal campaign contribution. In addition, according to a
new CNN report, Mueller and others at the Justice Department investigated
for years whether the $10 million may have been provided by an Egyptian
bank � but the probe was closed this July without subpoenaing Trump�s
financial records.
Bribery

Trump famously does business around the world, including in countries
where real estate is an even more sleazy business than in the U.S., and
bribes are routinely expected and paid. However, thanks to the Foreign
Corrupt Practices Act, it is illegal for Americans to participate in this,
which leads to complaints from U.S. businesspeople that they are at a
disadvantage. Andrew Weissmann, one of Mueller�s senior prosecutors, notes
in a new book that, because the Mueller investigation did not dig into
Trump�s finances, �we do not know whether he paid bribes to foreign
officials to secure favorable treatment for his business interests.�
Negligent Homicide