Donald Trump has used his duties as president to shield himself from a variety of lawsuits during the last four years. That will change now that Joe Biden has beaten him in the 2020 race for president, and Trump will become a private citizen once again.
Trump is a magnet for litigation, and he already faces two separate inquiries into his business dealings by the New York state attorney general and the New York City district attorney. There are civil suits against Trump by two women claiming he defamed them by calling them liars when they accused him of sexual crimes. There’s also the further possibility that federal prosecutors could charge Trump with obstruction of justice or other crimes relating to the Robert Mueller investigation, Trump’s failed attempt to link Joe Biden with Ukrainian corruption and the same campaign-finance violations his former lawyer, Michael Cohen, went to prison for.
Many Trump critics—including the incoming vice president, Kamala Harris—have called for aggressive federal prosecution of Trump once he leaves the White House. In his probe of possible Trump campaign ties to Russia, special prosecutor Robert Mueller highlighted several instances of Trump behavior that may have been obstruction of justice. Mueller could have charged Trump, but he didn’t, most likely because of Justice Department policy opposing any federal prosecution of a sitting president. Many legal experts think Mueller was building a case against Trump for prosecutors to use once Trump was out of office.
Active investigations into Trumpworld
But federal prosecution of a former president would be unprecedented and fraught with political danger. The more immediate threat for Trump is probably an acceleration of the two New York cases, once Trump can no longer claim presidential privilege to hold off prosecutors. “His principal criminal problem is going to be at the state level,” says Ben Wittes, editor-in-chief of Lawfare. “Those are clearly active investigation looking at his finances, and I assume his finances are problematic. Trumpworld is a target-rich environment.”
New York City District Attorney Cyrus Vance is seeking at least eight years’ of Trump’s personal and corporate financial records, in a probe most likely focusing on possible fraud by Trump’s family business, detailed in several New York Times exposes. Vance may also be looking into the two 2016 hush-money payments to women Trump allegedly had affairs with. Cohen, when he was Trump’s lawyer, arranged those payments, and in 2018 he pled guilty to violating campaign-finance law, among other things. If Cohen committed a crime by arranging the payments, then it stands to reason that Trump—who signed the checks—did too.
Trump’s lawyers have repeatedly argued that Trump’s duties as president should shield him from such prosecution. Lower courts have shot that down, Trump has appealed, and the Supreme Court will now decide once and for all whether Vance can obtain Trump’s financial records—perhaps soon. The Court may simply refuse to consider Trump’s latest appeal, which would leave the Appeals Court ruling intact and force Trump and his accounting firm to turn over the material. It could also hear the case—with three Trump appointees presiding. But if the court puts the Vance case on the docket, it would be after Trump leaves the White House.
The New York State attorney general is pursuing a civil case against Trump’s business, looking into claims that Trump deliberately misvalued several holdings, as Cohen and others have alleged. That case might also move more quickly once Trump becomes a private citizen who can’t claim any special treatment.
In a defamation case against Trump brought by E. Jean Carroll, U.S. Attorney General William Barr had moved to invalidate the suit by claiming Trump had immunity as a federal employee, and appointing the Justice Department, rather than Trump’s personal lawyers, to defend Trump. An appeals court judge shot that down last month. Barr’s Justice Department could appeal, but the point will become moot with Trump is due to leave his federal job in January. Carroll’s case would essentially be toast if she had to battle the Justice Department. But with Trump out of office Carroll’s case will continue as a dispute between two private parties.
Another woman, Summer Zervos, has also brought a defamation suit against Trump, with Trump once again claiming presidential immunity. That case is headed to a New York appeals court in 2021, with the immunity claim obviously neutered once Trump is no longer president.
A pardon or a case against Trump
Trump’s departure from government could also lead to some kind of resolution of his supposed audits at the IRS. The current IRS commissioner is a Trump appointee who has probably been unlikely to force an adverse tax ruling that could cost Trump millions or even hundreds of millions of dollars. But the dynamic could flip once Trump is gone, especially if the IRS feels duty-bound to demonstrate its independence by going tough on Trump. We know very little about Trump’s tax disputes with the IRS, however, and Trump becoming a private citizen once again wouldn’t necessarily change that.
As for possible federal prosecution of Trump once he leaves office, Trump does have the option of trying to pardon himself before Jan. 20. That would be unprecedented, and the question of whether it’s legal might end up before the Supreme Court. It might also imply guilt in a way that could work against Trump in other cases at the state or local level. Another option is for Trump to resign before January and strike a deal with Mike Pence, who would become president long enough to pardon Trump in a way that might be less legally dubious—but would still imply guilt.
If there’s no pardon, Biden will face the unsavory prospect of pursuing a criminal case against Trump that’s likely to be politically explosive, given that nearly half of all voters wanted Trump to be reelected. The cleanest way to do it might be appointing a bipartisan commission of respected prosecutors to study the question and make recommendations as to whether the Barr Justice Department properly handled the matter, or violated legal or ethical norms. If the feds do pursue a case against Trump, a special prosecutor insulated from political influence—yes, like Mueller—would probably be better than Justice Department prosecutors answering to the attorney general, who’s a presidential appointee.
There’s also a case for dropping the matter at the federal level, which would fit with Biden’s call for unity and preserve precious political capital for other priorities. What Biden shouldn’t do is choose an attorney general with an explicit agenda one way or the other. “Biden’s role is to pick the right person for attorney general, then defer to that person,” Wittes says. “You don’t want to appoint somebody who has an obvious vendetta. You want to appoint somebody of enormous nonpartisan stature, and then defer to that person.” It might be a decision Biden is happy to delegate.
Rick Newman is the author of four books, including “Rebounders: How Winners Pivot from Setback to Success.” Follow him on Twitter: @rickjnewman. Confidential tip line: [email protected]. Encrypted communication available. Click here to get Rick’s stories by email.
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