On Saturday 7 November 2020, America chose Democrat Joe Biden as it’s 46th president. With Donald Trump having left the White House, what could become of the legal wrangling’s that have been hanging over his head since he took office in January 2017? Trump has been surrounded by lawsuits and controversy throughout his time in office and his legal woes are likely to deepen as he loses the protections the US legal system affords a sitting president. This may explain why he is a) adamant in consistently undermining the authenticity of the election result, and b) suggesting that he might leave the US, following his defeat.
New York: criminal investigation
Manhattan District Attorney, Cyrus Vance, has been investigating Trump and the Trump Organisation for over two years. The probe was initiated by claims that Trump paid “hush money” to two women who said they had sexual encounters with him. According to Vance, the investigation recently expanded to focus on bank, tax and insurance fraud, as well as the falsification of business records. All allegations have been denied by Trump.
One of the main concerns hindering Vance’s investigation has been Trump’s status as a sitting president – a sitting president cannot be indicted. As a federal prosecutor, Vance is not bound by those rules but may still have been reluctant to charge Trump because of uncertainty over whether the case was constitutional. Alas, these concerns are void given Trump has left office, and the investigation is no small change. As with any investigation, these charges pose a great threat to Trump. Subpoenas have been issued and the prosecution has taken litigation all the way to the Supreme Court, which indicates the seriousness of the alleged charges.
Justice Department: tax fraud probe
Trump may also face criminal prosecution brought by the US Department of Justice after a recent New York Times report stated Trump paid only $750 in federal income taxes in 2016 and 2017. Trump has rejected the findings in The Times report, tweeting that he had paid millions of dollars in taxes but that his taxes were legally reduced due to depreciation and tax credits. It may be that the U.S. Justice Department could tactfully decide that charging Trump is not in the public interest, even if there is evidence of a criminal wrongdoing, because pursuing criminal charges against a previous president is “not… good for democracy“, as Biden puts it.
New York: civil tax fraud investigation
New York Attorney General, Letitia James, has an active tax fraud investigation into Trump and the Trump Organisation. The investigation launched in March 2019, after Trump’s former lawyer told Congress that the president had fabricated asset values to secure more favourable terms for loans and obtain tax benefits. It is alleged that Trump regularly inflated asset values to save money on loans and insurance but deflated them to reduce real estate taxes. Investigators have not yet determined whether the law was broken but if found true, The Trump Organisation could face hefty financial penalties. Trump has denied all wrongdoing, as has the Trump Organisation, and claims that the investigations are politically motivated.
E. Jean Carroll: defamation lawsuit
Trump also faces a defamation case brought by E. Jean Carroll, a former Elle columnist. Carroll originally sued Trump for defamation in 2019, after he denied Carroll’s allegation that he sexually assaulted her in a Bergdorf Goodman dressing room in the 1990’s, adding that she had lied to drive sales of her book. Carroll cites damage to her reputation and career in her claim.
The lawsuit was on the verge of the evidentiary stage before the Justice Department intervened and progressed the case to the federal court, arguing that the federal government be substituted for Trump as the defendant in the case. However, Trump did not make his statements about Carroll in the scope of his employment as president, and therefore District Judge Lewis Kaplan refused substitution. Upon departure from the White House, the Department of Justice is expected to abandon efforts to shield Trump from the case and the evidentiary stage of the lawsuit is anticipated to resume.
Summer Zervos: the other defamation lawsuit
In a secondary defamation lawsuit, Trump faces charges brought by Summer Zervos, a 2005 contestant on Trump’s reality television show “The Apprentice”. Zervos alleges that Trump aggressively groped and kissed her in a Los Angeles hotel room in 2007, at what she thought would be a meeting to discuss a job opportunity at the Trump organisation. When Trump denied her claims, questioning her motivations, Zervos sued him for defamation. Trump originally appeared unphased by the allegations, pressing the immunity argument. However, Clinton v. Jones poked holes in his argument, finding that a sitting president has no immunity against civil litigation. Nevertheless, the completion of Trump’s presidency leaves the floor open for such proceedings to resume.
The backdrop for much of Trump’s presidency has been his own potential criminal exposure. Under American law, a sitting president cannot be indicted on criminal charges, but unless Trump is given pardon by Joe Biden – since Trump did not choose to pardon himself before his departure — the former president’s legal woes could quickly mount. Ideally, if prosecutors find difficulty bringing a case against a former president, they would have been incentivised to make accommodations for Trump in return for his concession; a plea bargain. Trump could have expunged his looming legal exposure through Vice President Mike Pence; critics suggested, that in true Nixon style, Trump would resign as president before January allowing Pence to take over, giving Pence the power to pardon Trump. Trump did not choose any of the scenarios predicted, instead making a point of his disdain by skipping Biden’s inauguration, refusing to celebrate his successor. However, what is certain is that this former president will not have an easy ride away and out of the White House.
By Amani-Cane Elouazani
Law and Finance Contributor