DONALD TRUMP has spent the two months since his electoral defeat furiously trying and consistently failing to overturn the results. Armchair psychiatrists claim that Mr Trump’s lifelong fear of being seen as a loser has inspired his battle against democracy. But another motive is possible: at the stroke of noon on January 20th, the legal shield that Mr Trump has wielded to stave off lawsuits will vanish, exposing him to an abundance of civil and criminal legal peril.
The most serious trouble Mr Trump faces may be in his former home town, where the Manhattan district attorney, Cyrus Vance, has been investigating several possible financial crimes, including Mr Trump’s alleged hush-money pay-offs to an adult-film star and a Playboy model on the eve of the 2016 election. Michael Cohen, Mr Trump’s former lawyer and fixer—now under home confinement for lying to Congress and other crimes, including campaign-finance violations—says his old boss directed him to pay these women, Stormy Daniels and Karen McDougal, to prevent revelations of extramarital dalliances that could have dented his presidential run. (Mr Trump denies these allegations.)
As part of his investigation, Mr Vance subpoenaed eight years of financial records and tax documents from Mazars USA, Mr Trump’s accountant. Mr Trump sued to block the subpoena, losing in both the district and circuit courts. He appealed, and in July 2020, a 7-2 Supreme Court majority found that “the public has a right to every man’s evidence”—including the president’s. But while the justices rejected Mr Trump’s claim that presidents have total immunity from criminal investigation, they gave him a lifeline: one more chance to make less outlandish arguments against the subpoena in the lower courts. Mr Trump fared no better in the second round, but the Supreme Court proceeded to sit on a final appeal for three months, staying mum and keeping the documents out of the district attorney’s hands.
Mr Vance seems ready to pounce when, as court-watchers expect, the Supreme Court finally dismisses the appeal. Some observers think that dismissal could come just as Mr Trump is leaving town. The ramifications could be serious for Mr Trump as he reprises his role as private citizen: Mr Vance’s office has suggested the investigation may range significantly more broadly than just pay-offs. A task-force is ready to sort through reams of documents that Mazars could send over within weeks. Potential charges, if evidence is found, could include scheming to defraud, falsification of business records, insurance fraud and criminal tax fraud. Some of these are felonies carrying penalties of up to 25 years.
Whether Mr Trump or members of his family might face criminal indictments is still unclear; Mr Vance won’t know how strong a case he has until the documents arrive. For now, all we know is that Mr Trump fought assiduously to keep his finances under wraps and soon they may be scrutinised by a grand jury.
Other troubles await Mr Trump in New York that could cost him money, if not freedom. Drawing on Mr Cohen’s testimony to Congress, New York’s attorney-general, Letitia James, is investigating what she says may be fraudulent business practices in which Mr Trump and the Trump Organisation inflated the value of their assets when applying for loans and deflated them to evade tax liability. The Trump Organisation says Ms James’s inquiry is politically motivated. Mr Trump’s son Eric, the company’s executive vice-president, has dismissed it as an “anti-Trump fishing expedition”—a charge that Mr Trump has also levelled against Mr Vance’s investigations.
More civil lawsuits are pending in New York, including claims from E. Jean Carroll, a former columnist, and Summer Zervos, a contestant on “The Apprentice”, Mr Trump’s hit television show. Ms Carroll wrote in 2019 that Mr Trump raped her in the dressing room of a Manhattan department store; Ms Zervos said he sexually harassed her on set. Both hit the president with defamation lawsuits when he called them liars. Moments after his second impeachment on January 13th, Ms Carroll tweeted: “Trump tore our democracy. I’m going to tear him to shreds in court.”
Two of the many corners of the constitution Mr Trump’s administration brought to public attention are the domestic and foreign emoluments clauses—provisions designed to prevent presidents from profiting from their office. Several lawsuits tried to enforce this norm against Mr Trump—whose businesses seemed to reap windfalls from foreign states buying space in his towers and other properties—to little avail. But Karl Racine, the attorney-general of Washington, DC, is pursuing similar charges on another legal hook. Mr Racine says some members of the Trump family made a sweet deal with themselves when the inaugural committee—a tax-exempt charity—used non-profit funds to pay the Trump International Hotel $175,000 a day to host events during the 2017 inauguration. This, Mr Racine says, is a violation of District of Columbia law governing the operation of non-profit organisations. On January 11th, Mr Racine tacked on another allegation: that the non-profit footed the bill for a $49,000 payment that should have been issued by the Trump Organisation, a for-profit business.
The basis of Mr Trump’s impeachment last week—instigating the Capitol insurrection—may implicate District of Columbia law, too, as well as a federal criminal statute. Persuading someone to use “physical force against the person or property of another” is a federal crime; sparking a riot is a crime under DC law. Given the broad scope for free speech set by the First Amendment, however, it may be hard to make criminal charges stick. The legal test is whether Mr Trump is guilty of inciting a specific lawless action, as opposed to just general exhortation. Jed Shugerman of Fordham law school notes another conceivable fount of lawsuits stemming from Mr Trump’s actions on January 6th: civil tort claims from families of the six people who died in the mayhem.
Mr Trump could also find himself in legal jeopardy for the hour-long phone call he made to Georgia’s secretary of state on January 2nd. Citizens for Responsibility and Ethics in Washington (CREW), a watchdog, has asked the Department of Justice and Georgia prosecutors to investigate Mr Trump’s bid to find nearly 12,000 votes to swing the election to him some three weeks after the electoral college voted. CREW says the president may have “illegally conspired to deprive the people of Georgia of their right to vote” and “to intimidate Georgia election officials in an effort to falsify the count of votes in the presidential election”. Fani Willis, the district attorney for Fulton County (in essence, Atlanta), is considering an investigation.
Yet another legal inquiry may await Mr Trump. Mr Shugerman says New York could subpoena witnesses to an earlier attempt to interfere with the 2020 election: Mr Trump’s phone call in July 2019 asking Ukraine’s president to dig up dirt on Hunter Biden, the son of his eventual rival. Tying security assistance to the announcement of an investigation was the basis of Mr Trump’s first impeachment; it could constitute extortion and criminal conspiracy under New York law.
As his days in office dwindle, Mr Trump may be tempted to issue himself a presidential pardon. No president has ever attempted such legal onanism, though Richard Nixon contemplated it in 1974 before the Office of Legal Counsel in the Justice Department said it would be out of line with the principle that “no one may be a judge in his own case”. A self-pardon may run counter to Mr Trump’s instincts, as it would require him to confess to potential misdeeds. (The constitution permits “offences” to be pardoned, not people.) The strategy may also backfire if the courts conclude self-pardons are unconstitutional; Mr Trump may then have laid out a detailed list of potential crimes for prosecutors to investigate. In any case, relief from federal prosecution would not save the recipient of a pardon from answering to transgressions of state laws. Days of reckoning are coming.