New York's Trump investigations hold him accountable

Manhattan Dist. Atty. Cyrus Vance Jr. leaves court in New York.

By Harry Litman

Aug. 28, 2020 3 AM PT

President Trump faces incoming fire from three different directions in his native New York, and his odds of escaping unscathed look long.

We’ve known for a while about the Manhattan district attorney’s dogged pursuit of the president’s tax records. That odyssey is poised to end soon and probably successfully for the D.A., at least in terms of obtaining the records.

Then last week, the U.S. attorney’s office for the Southern District of New York indicted erstwhile Trump guru Stephen K. Bannon on criminal charges. If Bannon cooperates with authorities, he might well have vivid stories to tell about Trump and his circle.

And on Monday, New York Atty. Gen. Letitia James filed a motion revealing that her office too is on Trump’s trail. The motion disclosed a long-standing civil investigation into whether the Trump Organization improperly inflated its assets to get loans and obtain tax benefits, a practice that former Trump attorney Michael Cohen told Congress was routine.

There are some serious legal risks to Trump from each of these investigations, but they’re pressing only if he isn’t reelected. (We know the feds have a rule against indicting a sitting president, and the state probably lacks constitutional power to do so.) Should election day result in a loss, it may jeopardize his fortune and even his liberty.

Start with the case being pursued by Manhattan Dist. Atty. Cyrus Vance Jr. He has subpoenaed Trump’s tax returns from his accountants. The filings in the case make it clear that Vance thinks the returns could shed light on a variety of criminal financial misdeeds, including the possibly fraudulent treatment of alleged hush-money payments to Stormy Daniels and Karen McDougal.

The Supreme Court rejected Trump’s argument in Vance’s case — that the president cannot even be investigated — and returned the case to the trial court. Last week, that court rejected the balance of Trump’s arguments against complying with the subpoenas, calling the reasoning “unprecedented” and “perilous to the rule of law.”

Next, the U.S. Court of Appeals will hear Trump’s motion for a stay Sept. 1. . Look for it to deny the stay in short order, and for the Supreme Court to rebuff Trump’s attempt to take up the case again; it no longer concerns any interesting or unusual principles of law.

All of this back and forth could put eight years of Trump’s tax records — records he many years ago promised he would “absolutely” release if he ran for office — into Vance’s possession. Because a grand jury is involved, the records will remain shielded from public view, but in the event they contain evidence of a crime, including by Trump, Vance seems eager to pull the trigger on charges.

Meanwhile, down the street at the U.S. attorney’s office of the Southern District of New York, Steve Bannon’s goose may soon be cooked. Bannon, 66, has been charged with defrauding donors who gave millions to a private effort to help Trump construct his big, beautiful border wall. Were a jury to find him guilty, Bannon would be looking at the possibility of a hefty recommended sentence of, depending on a judge’s call, no less than five years and more likely 10 or more.

Bannon’s best opportunity to dramatically reduce that potential sentence is to cooperate now with authorities, and speaking as a former prosecutor, what they would want is evidence of crimes committed by members of the Trump circle.

Bannon is to some degree on the record about how he might react if his loyalty was put to the test. “I’ll cover myself on the downside,” he told author Michael Wolff in the book “Siege: Trump Under Fire.” And indicating what a dangerous witness he could be for the president, Wolff quotes Bannon as saying that Trump is “not the billionaire he said he was, just another scumbag.” When the book came out, Trump responded with “Bannon ... has lost his mind.” But the White House must view Bannon’s arrest with consternation.

Finally, James’ investigation into the civil matter of the Trump Organization’s business dealings could also develop into criminal charges — ultimately brought by her office, Vance or the feds — that touch the president or those close to him. And civil charges alone could have serious financial implications for the Trump Organization and the president’s personal fortune.

With a grand jury and multiple prosecutors hovering, how would Trump react if Joe Biden wins on Nov. 3? Contesting the election’s result might be one way out of the legal system’s grasp — but that’s a topic for another column. What about decreeing a wide-ranging pardon for himself and others threatened by the New York investigations?

Trump has already shown his willingness to use the pardon power in ways most presidents would abjure (including the TV-style White House “reveal” pardon during the Republican Convention this week). There is no reason to think a sudden lightning strike of propriety would keep Trump from using the power of office for his personal protection.

A pardon could preempt federal prosecution, but it would not stand in the way of James and Vance in New York.

Last year, New York changed its double jeopardy law. Before the change, state prosecutors couldn’t go after conduct that had already been pardoned at the federal level. A narrowly targeted revision, pushed through by James, closed a loophole, in her words, and provided leeway for criminal indictments specifically on charges pardoned by a president. In a statement, James called the change a “necessary check on presidential power today and for all presidents to come.”

Trump has proved himself a prolific escape artist during his presidency, using delay, subterfuge and political muscle to push back against any number of potentially mortal lies, gaffes and legal threats. But his very success has inspired many powerful actors to want to hold him, finally, to account after he leaves office.

It’s up to you, New York, New York.

@HarryLitman