But with the polls showing Democratic rival Joe Biden leading the race, the stakes will be much higher for Trump if he loses the election. A number of legal issues, including a criminal investigation by prosecutors in New York, will come into focus in the weeks following election day.
“In every respect, his leaving office makes it easier for prosecutors and plaintiffs in civil cases to pursue their cases against him,” said Harry Sandick, a former federal prosecutor in Manhattan’s U.S. Attorney’s Office. “For example, he claims a higher level of protection against lawsuits in criminal cases and also in congressional lawsuits, [and that] is largely based on the fact that he is president. ”
Some have suggested a formal apparatus for investigating Trump after he leaves office. Rep. Eric Swalwell, a California Democrat, has floated the creation of a “presidential crime commission” made up of independent prosecutors who can investigate “those who activated a corrupt president,” as he put it in an August tweet. “Example 1: Sabotage the record to win an election.”
During that probe, Trump has challenged a lawsuit against his accounting firm over eight years of tax returns and financial records. Five courts have ruled that the lawsuit is valid, and last week Trump faced the latest setback when a federal appeals court rejected his appeal and ruled that the big issue of the lawsuit was not too broad or broadcast in bad faith. On Tuesday, Trump’s lawyers asked the Supreme Court to block the enforcement of the lawsuit to give it time to appeal to the court. Trump already lost an appeal to the Supreme Court in July when it ruled that the president is not immune to a state lawsuit.
Prosecutors in New York have said tax records, working papers and business transaction documentation are critical to their investigation, which has been going on for more than a year.
There are legal issues as to whether a state prosecutor can file charges against a sitting president.
“He’s so powerful right now. They know they can not accuse him right now, so there’s an incentive to build their case and get ready. I think what happens if he loses and leaves the office, that things will go very fast, “said Jennifer Rodgers, a legal analyst at CNN and former federal prosecutor.
Plays fast and loose with the value of the company’s assets
The New York attorney general also continues a separate civil investigation into the Trump organization and whether in some cases it improperly inflated the value of certain assets and lowered them in others in an attempt to secure loans and obtain economic and tax benefits.
Investigators are looking at tax breaks at the Trump Seven Springs property in Bedford, New York and the Trump National Golf Club in Los Angeles. They are also investigating the valuation of a Trump office tower on Wall Street and the forgiveness of a loan of more than $ 100 million at the Trump International Hotel and Tower in Chicago.
Lawyers for the Trump organization have said in court documents that they believe New York’s attorney Letitia James is politically motivated, and they initially tried to push Eric Trump’s deposition off until after election day, but a judge rejected that request. State attorneys, who have said they do not coordinate with any criminal law enforcement agency, said their investigation is civil. But they can make a criminal referral if they think there is enough evidence.
“With a big-time boss when they make these hundreds or millions of dollars of transactions, they’re always advised by lawyers and accountants,” said Dan Alonso, a former prosecutor at Manhattan’s District Attorney. “There are many layers between destroying tax treatment and the criminal liability of the president, it is a big leap.”
Opening of sluice gates for litigation
If Trump is not re-elected, he will lose the reverence the courts have given to incumbent presidents and open the river gates to many lawsuits.
State attorneys in Washington, DC and Maryland sued the president in 2017, claiming he was corruptly profiting from his position by placing his economic interests above U.S. citizens.
The state investigators prepared more than 30 subpoenas, including for the Trump organization and others concerning the Trump companies. Trump sued for blocking the lawsuit, claiming he violated the constitutional clause in the constitution by virtue of the hundreds of thousands of dollars that foreign governments and others have spent on his properties. Trump has appealed the decision to the Supreme Court, which has not yet decided whether the case should be heard. Another remuneration lawsuit filed by hotel and restaurant operators in New York is also pending.
In August, after a state court judge denied Trump’s attempt to postpone a defamation case, the president deployed the Justice Department to try to put himself in the nearly-year-long trial. The Justice Department asked a federal judge to replace Trump in a defamation case brought by Carroll, a one-time columnist in Elle magazine who accused the president of raping her in a locker room of a department store in the mid-1990s. Trump has denied the allegation.
The move, if granted, could effectively kill the lawsuit, which has been separate from the courts since last November because the Justice Department cannot be sued for defamation. A judge has scheduled a hearing in the case for Wednesday. Carroll has stated that she seeks to oust the president and to compare with a sample of male genetic material, which she says is on the dress she wore the day of the alleged rape.
Other lawsuits have also been withheld by virtue of Trump’s status as president.
After a judge in the court of the New York State denied Trump’s attempt to dismiss Zervos’ trial, the president appealed the decision, arguing that the Constitution’s supremacy clause prevents a state court from hearing a case against a sitting president. The Zervos case is now awaiting a ruling by the New York State Court of Appeals on the question of whether state courts have jurisdiction over him while he occupies the White House.
In these civil cases, where Trump has in some cases tried to avoid testifying or presenting DNA evidence, Sandick said Trump will lose the ability to argue that he will get some protection from the White House if he ends up to leave the oval office. “If he is not president, all this will disappear.”
Minor sway over potential witnesses
Lawyers say a less obvious factor that could change if Biden wins is the sway Trump has held over accountants, bankers and those in his inner circle who could be crucial witnesses for authorities.
“They become much less afraid to talk about someone who is no longer president,” Rodgers said. She added that a case with allegations of false statements to banks or tax fraud would probably be heavily documented, which, once the subpoena for the tax return is filed, could help the investigation.
Of course, if Trump is re-elected, it is possible he could possibly run out of the statute of limitations, which for some crimes in New York state law is five to six years; postpone these lawsuits for another four years; or simply continue to enjoy the benefits of the Department of Justice’s Office of Legal Counsel opinion stating that a sitting president cannot be prosecuted.
The Office of Legal Counsel note has already isolated Trump from possible prosecution in two cases: the special legal investigation led by Robert Mueller, which found evidence that Trump had obstructed the law but did not prosecute him, and the investigation conducted by the U.S. Attorney’s Office the southern district of New York, citing Trump as “individual 1” by accusing his former attorney Michael Cohen of campaign financing crimes for facilitating hush-money payments to two women who alleged affairs with Trump. Trump has denied the allegations. Cohen pleaded guilty and said under oath that Trump had ordered him to break the law. Cohen was reimbursed for these payments by the Trump Organization well into 2017, which could extend the statute of limitations for this crime to 2022. Some lawyers have speculated that it is possible that Trump would try to pardon federal crimes before leaving office. .
The decision on whether to resuscitate these investigations would fall to a Biden administration and top law enforcement officials who headed the Department of Justice and the Manhattan U.S. Attorney’s Office.
As a testimony before Congress, Mueller was asked by the Republican Rep. Ken Buck of Colorado: “Could you accuse the president of a crime after he left office?”
“Yes,” Mueller replied.
“You think he committed – you could accuse the President of the United States of obstruction of justice after he left office?” Asked Buck.
Mueller replied, “Yes.”