Donald Trump is in trouble.
He is in trouble not because he has committed a number of violations of federal law, making him subject to indictment after he leaves office. He can almost certainly pardon himself for all of those offenses before leaving office, whether he leaves next year or four years thereafter. Law professors can probably argue either side of the question of whether a sitting president has the power to pardon himself, but it is quite likely that he can do so, since the Constitution does not appear to limit the pardon power: “…he shall have Power to grant Reprieves and Pardons for Offenses against the United States….”. (Article II, Section 2) It does not specify that Trump cannot pardon himself of his federal crimes.
Rather, Trump’s serious legal exposure stems from the fact that much of what he did is likely a violation of state law in whatever geographic jurisdictions he engaged in questionable conduct. In fact, New York District Attorney Cyrus Vance, Jr. has already commenced an investigation of Trump for suspected bank fraud. Given the fact that the Trump Organization has long operated out of Trump Tower in Manhattan, it is quite possible that Trump, as well has his minions (including family members working for the Trump Organization), committed state legal violations.
Former federal prosecutor Ankush Khardori wrote an op-ed for The Wall Street Journal on August 18th (“Will the Manhattan District Attorney Be the New Robert Mueller?”) suggesting that “knowledgeable experts” who have reviewed some of the relevant documents concluded that they were “skeptical about the prospect of legal liability” because of the complexity of the laws and regulations at issue. Mr. Khadori also pointed out that former Special Counsel Robert Mueller, after a thorough investigation of the President and his minions, did not conclude that Trump committed any crimes, nor, however, did he give Trump a clean bill of health. Rather, Mueller simply followed Trump’s belief that a sitting president could not be indicted federally.
There is, of course, a lot of patter on the titillating subject of whether Trump will ever see the inside of a prison cell. Carrie Johnson, the Justice Correspondent for National Public Radio, wrote a piece on August 13th, posing the question: “If Joe Biden wins the presidency, his Justice Department will face a decision with huge legal and political implications: whether to investigate and prosecute President Trump.” She quotes the Democratic presidential candidate as noting that it would be “a very, very unusual thing and probably not very, how can I say it? good for democracy – to be talking about prosecuting former presidents.” To do so would risk creating an even larger “divide” within the nation.
Yet, state authorities have been inching closer to Trump.
In the New York Times on August 3rd, 2020, Benjamin Weiser, Ben Protess, and William K. Rashbaum remarked on Trump’s desperate and failing struggle to keep his financial records hidden. Already, the Supreme Court has refused to step in, at Trump’s behest, in order to derail Vance. Trump’s lawyers deemed Vance’s investigations into Trump’s financial records a “distraction” for the president and driven by “political considerations” (whatever either of those defenses mean). Alas, despite Trump and his organization’s objections to providing evidence of their financial records, Vance has managed to get a tighter grip on proof of Trump’s various financial schemes.
The separation of state and federal law has often posed challenges to individuals. Thus, for example, opioid drug trafficking is a violation of both state and federal law. A person can be charged and acquitted under state law, and the next day be indicted for the same offense under federal law. There is nothing in the Constitution’s double jeopardy clause (“nor shall any person be subject for the same offense to be twice put in jeopardy”) that prevents this, as the Supreme Court has made clear. Under-reporting of income can be prosecuted by both state and federal authorities. A single act of fraud can result in separate federal and state prosecutions, for while the state prosecutes the fraud itself, the feds have jurisdiction when the fraudster has used the means of interstate communication (telephone) or commerce (crossing state lines) or the mails (“mail fraud”).
There is much evidence that Trump may have violated the laws of various states in which he has operated, New York being only the most prominent. And it is quite possible, if not likely, that Vance is not the only state prosecutor licking his chops for an opportunity to go after Trump after he has departed the White House. In other words: Trump had better start lawyering up the day he leaves office. This assumes, of course, that even if he ostensibly loses the upcoming election, he concedes defeat and actually leaves. This raises yet another issue that lawyers and journalists and op-ed editors will be able to fight over.
I personally have a certain amount of sympathy for Trump. I have long believed that life in this country has been vastly over-criminalized. (Consider my 2009 book, Three Felonies a Day: How the Feds Target the Innocent, and my just-released book, Conviction Machine: Standing Up to Federal Prosecutorial Abuse [with Sidney Powell].) But, fair or not, the dual system of separate and overlapping federal and state criminal laws, which has plagued ordinary citizens for centuries, also poses a distinct threat of criminal liability to a president. As Shakespeare put it best (as he usually does): “Uneasy lies the head that wears a crown.” (Henry IV, Part II, Act III, Scene 1.)
For lawyers and pundits, Donald Trump is indeed the gift that keeps on giving.
RIP: Gants and Bader Ginsburg
Like so many others, I feel pummeled by the deaths, in so brief a period, of two judicial titans: Chief Justice Ralph Gants of the Supreme Judicial Court of Massachusetts, who died of a heart attack on September 14th, and Associate Justice Ruth Bader Ginsberg of the Supreme Court of the United States, who died of metastatic cancer this past Friday, September 18th. Many thousands of words have been written and spoken about the legacies of these two giants, and so I have chosen to note their passing with a few personal observations.
What made these two justices so unusual, and what adds to the tragedy of their demise (especially the death of Justice Gants, who was only 66 years old), is that each combined legal brilliance with an accessible writing style along with a deep and intuitive sense of the impact of their, and their respective courts’, rulings on real human beings. Law and judging can be a very abstract undertaking, especially at the appellate level where the people at the center of the legal controversies do not personally stand before the appellate courts assigned with deciding their fates (only the lawyers do), especially when they are incarcerated during their appeals.
But both Gants and Ginsberg cut through the formalism and the dry legalities, to deal with the intensely human issues that are, properly understood, at the center of the legal enterprise. In areas of criminal law where mortals run afoul of the law often due to circumstances that Fate deals out, and in gender discrimination and other forms of unfairness and social bias determined by immutable factors, both of these justices unfailingly recognized that they were dealing with fallible human beings. As a lawyer whose law practice has long focused on criminal and civil liberties matters, I have always judged a judge by whether he or she recognized that the cases before them dealt with human beings – with all their faults, flaws, vulnerabilities, histories and challenges. Life is hard, and a distressingly small minority of judges, particularly at the appellate level, take this into sufficient account when they pronounce upon the fates of those whose cases come before them. Ralph Gants and Ruth Bader Ginsberg were, to use an appropriate Yiddish term (appropriate in part because both were Jewish), menschen. Mensch is a Yiddish word that literally means “a man,” but colloquially it describes a person who is a real human being of decency and empathy.
May both of these menschen rest in peace.
Harvey Silverglate, a criminal and civil liberties lawyer, is GBH News’ Freedom Watch columnist. The assistance of paralegal Emily Nayyer is gratefully acknowledged.