Donald Trump surrounded by business: why he is unlikely to ever go to jail
Donald Trump has to face several criminal and civil cases. He intends to use his last days at the White House to escape some of them. But the future Justice Department of the Biden administration will take the lead next. Anne E. Deysine, professor emeritus jurist and Americanist at the University of Paris Nanterre-Paris Lumières, takes stock and explains why the outgoing American president should escape prison.
Donald Trump is today literally surrounded by cases, both civil and criminal. Some are linked to his actions as president, starting with obstacles to justice revealed by the Mueller report. They come under federal law. Others, dating from before his accession to the White House, relate to his behavior towards several women who accuse him of sexual assault. They come under state criminal law. Still others, which concern its financial activities, are also subject to state law and, in particular, to the law of the State of New York, the seat of most of its companies (although some of them have their registered offices). in Delaware, a state known for its pro-business tax laws).
The New York Times has revealed that the billionaire has only paid $ 750 in income tax for several years in a row, which could result in him being sued for tax evasion. In this context, and as one would expect from him, the one who is still president until January 20, 2021 uses and abuses - for his relatives, while perhaps waiting to do it for himself - of a very particular prerogative: the right of pardon.
The perversion of the right of pardon
Under the Constitution, the right of pardon is a broad power that belongs to the President and has only two exceptions: cases of impeachment, and limitation of the scope to federal crimes and misdemeanors. A possible pardon would therefore protect the individual Donald Trump neither from prosecution by the State of New York nor from possible trials for sexual assault.
The abuses of the right of pardon are legion and the previous presidents are not, in this respect, without reproach: for example, George H. Bush has pardoned several senior figures involved in the Iran Contra affair and Bill Clinton pardoned his half-member. brother as well as a fugitive financier, Marc Rich, who had contributed a lot to the financing of his foundation.
But Trump's 44 pardons and commutations are on another scale; it is a self-centered, self-centered systematic exercise. With the exception of a few blacks whom the president has pardoned in an attempt to attract the vote of their community, the only extenuating circumstances of the beneficiaries are to be close to Trump, to have ties to the House. White or a resonance with the base (like Sheriff Arpaio, convicted of anti-immigrant discriminatory acts), to be wealthy, powerful, supported by Fox News and / or to have committed the same type of violations as some of the relatives of Trump who were prosecuted in connection with Special Prosecutor's Mueller investigation.
Thus, Paul Manafort was targeted by twelve charges including "conspiracy against the United States", "violation of FARA law on lobbying for a foreign power", "money laundering", "false statements" and "no. -declaration of accounts held abroad ". Indicted in two separate courts, he pleaded guilty and then not guilty and was sentenced to a total of seven and a half years in prison before being pardoned at the end of November 2020.
President Trump also pardoned Michael Milken, the king of "junk bonds", responsible for the 2007 financial crisis, or the media mogul Conrad Black, who owes this privileged treatment to the extremely flattering biography of Trump which he published in 2018.
And despite the recommendations of the Department of Justice, Trump commuted the sentence of his ally Roger Stone convicted of lying to Congress as part of the investigation into Russian interference in the 2016 campaign. Romney tweeted: "This is historic and unprecedented corruption: a US president commutes the sentence of a person convicted by a jury because he lied to protect the same president."
Before leaving the White House, President Trump plans to pardon certain members of his family in order to protect them from possible prosecution, as well as his relatives, such as Rudi Guiliani or Steve Bannon, who have contributed directly or indirectly to his multiple turpitudes, before or during the presidency. If pardoned, they could not be indicted or made to agree to a guilty plea in exchange for incriminating testimony against Trump.
Hence the pardon of Richard Stone and, more recently, that of the short-lived national security adviser Michael Flynn, who lied about his contacts with the Russian ambassador during the transition. Among the president's children, at least Ivanka needs one, who has been heard in a case involving Trump nomination committee funds in which the state attorney for the federal capital Washington DC is investigating exorbitant hotel rates. Trump and billed to the committee.
Can Trump self-amnesty?
Donald Trump is aware of these various Damocles swords. Since 2018, he has repeatedly claimed to have the right to self-pardon. He does not hesitate to proclaim that he is above the law, which is contrary to the Anglo-Saxon tradition and to what the Supreme Court affirmed in the decision US v. Nixon in 1974, then repeated in 2020 in the two Mazars and Vance decisions: no one is above the law. The first problem with a possible self-amnesty is that one cannot in fact be both judge and party, and that this pardon would immediately be challenged in court. No case law exists but a 1974 memo issued by the legal advice office (OLC) replied in the negative.
Without delving into etymology, the English word pardon, which comes from French, necessarily implies two people. This axiom is confirmed by Anglo-Saxon tradition, from the Magna Carta to the Constitutional Convention of Philadelphia, which considers that forgiveness involves two people.
The right of pardon must also be placed in the philosophical and political schema of the Founding Fathers who specifically excluded a president who is "the source of law", as was the English sovereign. Because that would have meant that he was not subject to the law and that he would therefore be immune from civil and criminal prosecution. This choice also explains why the President of the United States can be impeached when this procedure could not affect the king under English law.
Moreover, the sanction of impeachment is "only" dismissal and the obligation to leave power, but Article I section 3 takes care to specify that "the individual accused may nevertheless be subject to of indictments, trials and penalties under the law ". The threat of prosecution after term of office was intended to deter the president from misbehaving, looting the public treasury, bribing judges, or rigging an election.
The risk of prosecution is real even in the scenario where Trump resigns so that his vice president, who has become president, can pardon him. One thinks, of course, of the precedent of President Ford pardoning Richard Nixon, but there is a big difference: Nixon had resigned even before the judicial commission voted on the articles of impeachment. Donald Trump has indeed been indicted by a majority of the House of Representatives. And the political cost would be high for Mr. Pence.
On paper, nothing would prevent President Biden from pardoning his predecessor if he wanted, as President Ford had done in 1974, to move forward and get the country out of the crisis. But there is the obstacle of impeachment and, above all, it would be unacceptable to the left of the Democratic Party; finally, the person concerned, far from being grateful, would undoubtedly use it to hammer home that this is a sign of Joe Biden's guilt ("who knows he cheated") and of his weakness. Then arises the opportunity of federal prosecutions for obstructing justice, monetization of the right of pardon or tax evasion, among the dozens of possible indictments - and it is a real dilemma.
Joe Biden is rather inclined to appeasement in order to move forward and not lose his political capital in pursuits that would be instrumentalised by the right and are not certain of succeeding. But he hears the arguments of the left of the Democratic Party, convinced that it is necessary to prosecute Trump, if only to restore the rule of law (rule of law) and democracy. However, both have little impact on what state prosecutors and judges can decide.
State affairs
The real problem for Trump is the matters of state law and, in the first place, the charge of fraud attached to the payments made to buy the silence of two women who, during the 2016 campaign, accused him of sexual assault. Then there are the two libel lawsuits (one brought by a former candidate for Trump's long-running reality TV show, The Apprentice, the other by the ex-boss of the government agency in Chief Electoral Officer Chris Krebs, sacked by Trump in November). And finally a rape charge that dates from the 1990s (E.J. Carroll v. D.J. Trump) in which the victim has a dress bearing the rapist's DNA.
All that remains is to get a judge to force Donald Trump to donate his DNA. When Trump accused Carroll of lies, she sued him in New York courts for libel and there was talk of a pre-election deposition. So W. Barr, the Keeper of the Seals wanted to protect the President and, under specious pretexts, sought to refer the matter to federal jurisdiction. The judge refused but the administration appealed. On this point, the Biden administration could decide to weigh so that the case remains within the jurisdiction of state courts.
There is also the investigation led by the Attorney General of New York, who asked directly and then in court for access to Trump's financial and tax documents. These cases are ongoing and have been traced to the Supreme Court, which ruled in June 2020 that the New York prosecutor's subpoenas were enforceable and that the grand jury (indictment) could have access to these financial and tax documents.
Also in New York State, the Minister of Justice has launched a broad investigation into the practices of the Trump organization, over which suspicions of civil fraud aimed at minimizing the tax burden and inflating assets fraudulently hang. to obtain loans on favorable terms.
The risk is that these cases drag on too long; they could then no longer meet the conditions for litigation and become "moot" (lapsed).
However, Trump's past shows that he knows how to obstruct the prosecution authorities and drag out lengthy trials so as to tire and ruin his unpaid contractors or architects.
If we look at some of the 4,000 legal proceedings in which Trump has been involved for nearly 50 years, it must be noted that he does not always win and that he has been regularly forced to agree to a settlement in the amicable, whether in the case of the lawsuits for racial discrimination (Trump v. USDOJ, 1973) or the legal action brought by the occupants whom Trump wanted to dislodge in order to demolish a building (Central Park South Tenants, 1983) . But the details are forgotten and in the lot, many of his fanciful litigation has allowed him to succeed as in Trump v. Palm Beach c. County, 1992.
It is undoubtedly the legal battle with Deutsche Bank in 2008 that gives the best idea of what is likely to happen. Unable to make a refund, Trump attacked the bank and demanded $ 3 billion in damages. The bank counterattacked but ended up agreeing to renegotiate the repayment schedule. In this case, as in many others, the total absence of scruples coupled with the use of litigation for strategic purposes allowed the real estate developer to succeed.
Donald Trump has learned the lesson of Roy Cohn, which he applied to post-election litigation: always attack and not bother with evidence. And he has always managed without his lawyers being sanctioned for abuse of process or for having brought "frivolous" actions. It is therefore to be expected that it will continue.
No prison for Donald Trump?
Will Donald Trump ever go to jail? This seems unlikely because he knows how to drag things out and will know how to deal in private matters, and probably also with the Attorney General of New York. Remember that in the United States, in criminal and civil matters, only 2 to 3% of cases go to trial. The others end in a guilty plea or a settlement. The advantage of an amicable agreement is that the conditions are not known and that the president can therefore claim that he has won and stay on the front page of the media, his main concern along with that of rebuilding his financial health. We know from the NYT that it has $ 400 million in debt that is coming due soon.
But with his pseudo-legal defense fund, he has already raised more than $ 200 million through contributions from the "poor little whites" he claims to be defending. And when you read the statutes of this Political Action Committee (PAC) closely, you can see that Trump can use these funds as he sees fit.
In conclusion, Trump is likely to continue to hang like a black cloud over the United States and the Biden administration. Its nefarious tutelary shadow also risks blocking the Republican Party and preventing it from evolving. Will the personalities of this party who have presidential ambitions dare to come forward if on January 20 the outgoing president announces his candidacy for 2024?
More broadly, the question of the legal risks weighing on a Trump who has become an ordinary citizen again, including questions about a possible recourse to presidential pardon, are only the tip of an iceberg of accusations of crimes and misdemeanors, related or no to corruption, allegedly guilty of Trump and his relatives and which were only discovered thanks to the investigation of Special Prosecutor Mueller, when they are most often unpunished.
Are we going to witness a series of legislative reforms like after the Watergate affair? What will be the role of the Ministry of Justice, which the elected president has announced that he wants to be independent and not partisan? These are two crucial questions for Donald Trump's successor.
