Why is Donald Trump not in jail?
Donald Trump surrounded by business: Why he's unlikely to ever go to jail
Donald Trump faces several criminal and civil cases. He intends to use his last days in the White House to escape some of them. But the future Department of Justice of the Biden administration will take over next. Anne E. Deysine, professor emeritus lawyer 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 now literally surrounded by cases, both civil and criminal. Some are linked to his actions as president, starting with obstructions 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 relate to its financial activities, are also subject to state law and, in particular, the law of the State of New York, the seat of most of its companies (even if some of them have their head office in Delaware, a state known for its business-friendly tax laws).
The New York Times has revealed that the billionaire has only paid $750 in income taxes for several years in a row, which could lead to him being prosecuted 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 special prerogative: the right of pardon.
The perversion of the right of pardon
Under the Constitution, the right to pardon is a broad power that belongs to the president and has only two exceptions: cases of impeachment, and the limitation of the scope of application to federal crimes and misdemeanors. A possible pardon would therefore not protect the individual Donald Trump either from prosecution by the State of New York or from possible trials for sexual assault.
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Abuses of the right to pardon are legion and previous presidents are not, in this respect, beyond reproach: for example, George H. Bush pardoned several senior figures involved in the Iran Contra affair and Bill Clinton pardoned his half- brother as well as a fugitive financier, Marc Rich, who had been instrumental in funding his foundation.
But Trump's 44 pardons and commutations are on another scale; it is a self-interested and self-centered systematic exercise. With the exception of a few black people whom the president has pardoned to try to attract the vote of their community, the only extenuating circumstances of the recipients are being close to Trump, having ties to the House Blanche or a resonance with the base (such as Sheriff Arpaio, convicted of anti-immigrant discriminatory acts), of being rich, powerful, supported by Fox News and/or of having committed the same type of violations as some of those close to Trump who were prosecuted as part of Special Counsel Mueller's investigation.
Thus, Paul Manafort was targeted by twelve charges including "conspiracy against the United States", "violation of the FARA law in matters of lobbying for a foreign power", "laundering", "false declarations" and "non -declaration of accounts held abroad". Charged before two separate courts, he pleaded guilty 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 has also pardoned Michael Milken, the king of "junk bonds" (rotten bonds), responsible for the financial crisis of 2007, or the media magnate Conrad Black, who owes this privileged treatment to the extremely flattering biography of Trump that he published in 2018.
And despite Justice Department recommendations, 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: an American president commutes the sentence of a person convicted by a jury because he lied to protect this 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 those close to him, such as Rudi Guiliani or Steve Bannon, who have contributed directly or indirectly to his multiple turpitudes, before or during the presidency. If they were pardoned, they could not be indicted or made to accept a guilty plea in exchange for incriminating testimony against Trump.
Hence the pardon of Richard Stone and, more recently, that of the ephemeral national security adviser Michael Flynn, who had lied about his contacts with the Russian ambassador during the transition. Of the president's children, at least Ivanka might need it, who was heard in a case involving Trump nominating committee funds in which the Washington D.C. district attorney is investigating the hotel's exorbitant rates Trump and charged to the committee.
Can Trump grant himself amnesty?
Donald Trump is aware of these various Swords of Damocles. Since 2018, he has repeatedly claimed to have the right to self-amnesty. He does not hesitate to proclaim that he is above the law, which is contrary to 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 indeed be both judge and party, and that this pardon would be immediately challenged in court. No case law exists but a 1974 memo issued by the Office of Legal Advice (OLC) answers in the negative.
Without delving into etymology, the English word pardon, which comes from French, necessarily implies two people. This axiom is confirmed by the 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 replaced in the philosophical and political scheme of the Founding Fathers who had specifically excluded a president who was a "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 protected from civil and criminal prosecution. This choice also explains that the President of the United States can be impeached while this procedure could not strike 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 impeached may nevertheless be subject to indictments, trials and penalties under the law". The threat of prosecution after the term was completed was intended to deter the president from misbehaving, plundering the treasury, bribing judges or rigging an election.
The risk of lawsuits is real even in the scenario where Trump resigns so that his vice president-turned-president can pardon him. One thinks, of course, of the precedent of President Ford pardoning Richard Nixon, but there is a major difference: Nixon had resigned even before the Judiciary Committee voted on the articles of impeachment. Donald Trump has indeed been impeached 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 for 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 prosecution for obstruction of justice, monetization of the right of pardon or tax evasion, among the dozens of possible charges – 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 lawsuits that would be instrumental zed by the right and are not certain to succeed. 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 are matters that fall under state law and, in the first place, the accusation 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 defamation lawsuits (one brought by a former contestant on Trump's long-hosted reality show, The Apprentice, the other by the ex-boss of the government agency in election probity officer, Chris Krebs, fired by Trump in November). And finally a rape charge from the 1990s (E.J. Carroll v. D.J. Trump) in which the victim has a dress bearing the DNA of the rapist.
All that remains is to get a judge to compel Donald Trump to give his DNA. When Trump accused Carroll of lying, she sued him for libel in New York courts and there was talk of a pre-election deposition. So W. Barr, the Minister of Justice wanted to protect the president and, under specious pretexts, sought to refer the case to federal jurisdiction. The judge refused but the administration appealed. On this point, the Biden administration could decide to weigh in so that the case remains within the jurisdiction of the courts of the State.
There is also the investigation led by the Attorney General of New York, who asked directly and then in court to have access to Trump's financial and tax documents. These cases are ongoing and have escalated to the Supreme Court, which ruled in June 2020 that the New York Attorney's subpoenas are enforceable and the grand jury (indictment) may have access to these financial and tax documents.
Also in New York State, the Attorney General has launched a broad investigation into the practices of the Trump Organization, which weighs on suspicion of civil fraud aimed at minimizing the tax burden and inflating assets fraudulently. 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" (obsolete).
However, Trump's past shows that he knows how to obstruct the prosecuting authorities and drag out trials so as to tire and ruin his unpaid subcontractors or architects.
If we look at some of the 4,000 lawsuits in which Trump has been involved for almost 50 years, we must realize that he does not always win and that he has been regularly forced to accept a settlement at the amicable, whether in the case of the racial discrimination lawsuit (Trump v. USDOJ, 1973) or the lawsuit brought by the occupants whom Trump wanted to dislodge in order to demolish a building (Central Park South Tenants, 1983) . But the specifics are forgotten and in the lot, many of his fanciful litigations won him such as in Trump v. Palm Beach v. County, 1992.
It is probably 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 sued the bank and demanded $3 billion in damages. The bank fought back but ended up agreeing to renegotiate the repayment schedule. In this case, as in many others, the total lack of scruples coupled with the use of litigation for strategic purposes enabled the property developer to win his case.
Donald Trump has learned the lesson of Roy Cohn, which he applied to post-election litigation: always attack and do not bother with evidence. And he always got away with it 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 jail for Donald Trump?
Will Donald Trump ever go to jail? This seems unlikely because he knows how to drag things out and will be able to compromise in private matters, and probably also with the Attorney General of New York. Remember that in the United States, in both 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 remain in the media, his main concern with that of restoring his financial health. We know from the NYT that he 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 white people" he claims to defend. And when one reads the bylaws of this Political Action Committee (PAC) closely, one finds that Trump can use these funds as he sees fit.
In conclusion, Trump will no doubt continue to hover like a dark cloud over the United States and the Biden administration. Its harmful guardian 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 once again become an ordinary citizen, 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 the corruption, of which Trump and his relatives are allegedly guilty and which have only been discovered thanks to the investigation of special prosecutor Mueller, while they are most often unpunished.
Are we going to see a series of legislative reforms like after the Watergate affair? What will be the role of the Ministry of Justice, which the president-elect has announced he wants to be independent and non-partisan? These are two crucial questions for Donald Trump's successor.
