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Sep 14 2020

The Power Of Positive Thinking

Personally I wouldn’t trust Cy Vance Jr. to take out the trash.

The People v. Donald J. Trump
By Jeff Wise, New York Magazine
9/14/20

You might think, given all the crimes Trump has bragged about committing during his time in office, that the primary path to prosecuting him would involve the U.S. Justice Department. If Joe Biden is sworn in as president in January, his attorney general will inherit a mountain of criminal evidence against Trump accumulated by Robert Mueller and a host of inspectors general and congressional oversight committees. After the DOJ’s incoming leadership is briefed on any sensitive matters contained in the evidence, federal prosecutors will move forward with their investigations of Trump “at the fastest pace they can,” says Mary McCord, the former acting assistant attorney general for national security.

But federal charges aren’t the likeliest way that The People v. Donald J. Trump will play out. State laws aren’t subject to presidential pardons, and they cover a host of crimes beyond those committed in the White House. When it comes to charging a former president, state attorneys general and county prosecutors can go places a U.S. Attorney can’t.

According to legal experts, the man most likely to drag Trump into court is the district attorney for Manhattan, Cyrus Vance  Jr. It’s a surprising scenario, given Vance’s well-deserved reputation as someone who has gone easy on the rich and famous. After taking office in 2010, he sought to reduce Jeffrey Epstein’s status as a sex offender, dropped an investigation into whether Ivanka Trump and Donald Trump  Jr. had committed fraud in the marketing of the Trump Soho, and initially decided not to prosecute Harvey Weinstein despite solid evidence of his sex crimes. “He has a reputation for being particularly cautious when it comes to going after rich people, because he knows that those are the ones who can afford the really formidable law firms,” says Victoria Bassetti, a fellow at the Brennan Center for Justice who served on the team of lawyers that oversaw the Senate impeachment trial of Bill Clinton. “And like most prosecutors, Vance is exceptionally protective of his win-loss rate.”

Last year, after U.S. Attorneys in the Southern District dropped their investigation into the hush money that Trump had paid Stormy Daniels, Vance took up the case. Suspecting that l’affaire Stormy might prove to be part of a larger pattern of shady dealings, his office started digging into Trump’s finances. What Vance is investigating, according to court filings, is evidence of “extensive and protracted criminal conduct at the Trump Organization,” potentially involving bank fraud, tax fraud, and insurance fraud. The New York Times has detailed how Trump and his family have long falsified records to avoid taxes, and during testimony before Congress in 2019, Trump’s longtime fixer Michael Cohen stated that Trump had inflated the value of his assets to obtain a bank loan.

Crucially, all of these alleged crimes occurred before Trump took office. That means no claims of executive privilege would apply to any charges Vance might bring, and no presidential pardon could make them go away. A whole slew of potential objections and delays would be ruled out right off the bat. What’s more, the alleged offenses took place less than six years ago, within the statute of limitation for fraud in New York. Vance, in other words, is free to go after Trump not as a crooked president but as a common crook who happened to get elected president. And the fact that he has been pursuing these cases while Trump is president is a sign that he won’t be intimidated by the stature of the office after Trump leaves it.

If Trump cooked his books, observes Sheil, that false information would essentially “flow into the tax returns.” The first crime begets the second, making both the bookkeeper and the tax accountant liable. “Since you have several folks involved,” Sheil says, “you could either bring a conspiracy charge, maximum sentence five years, or you could charge each individual with aiding and abetting the preparation of a false tax return, with a max sentence of three years.”

To build a fraud case against Trump, Vance subpoenaed his financial records. But those records alone won’t be enough: To secure a conviction, Vance will need to convince a jury not only that Trump cheated on his taxes but that he intended to do so. “If you just have the documents, the defense will say that defendant didn’t have criminal intent,” Jaroslaw explains. “I call it the ‘I’m an idiot’ defense: ‘I made a mistake. I didn’t mean to do anything.’ ” Unfortunately for Trump, both Cohen and his longtime accountant, Allen Weisselberg, have already signaled their willingness to cooperate with prosecutors. “What’s great about having an accountant in the witness stand is that they can tell you about the conversation they had with the client,” Jaroslaw says.

Through appeals, Trump has managed to drag out the battle over his tax returns. The case has gone all the way to the Supreme Court, back down to the district court, and back up to the appeals court. But Trump has lost at every stage, and it appears that his appeals could be exhausted this fall. Once Vance gets the tax returns, Eisen estimates, he could be ready to indict Trump as early as the second quarter of 2021.

Sheil, for one, believes Vance may already have Trump’s financial records. It’s routine procedure, he notes, for criminal tax investigators working with the Manhattan DA to obtain personal and business tax returns that are material to their inquiry. But issuing a subpoena to Trump’s accountants may have been a way to signal to them that they could face criminal charges themselves unless they cooperate in the investigation.

Once indicted, Trump would be arraigned at New York Criminal Court, a towering Art Deco building at 100 Centre Street. Since a former president with a Secret Service detail can hardly slip away unnoticed, he would likely not be required to post bail or forfeit his passport while awaiting trial. His legal team, of course, would do everything it could to draw out the proceedings. Filing appeals has always been just another day at the office for Trump, who, by some estimates, has faced more than 4,000 lawsuits during the course of his career. But this time, his legal liability would extend to numerous other state and local jurisdictions, which will also be building cases against him. “There’s like 1,037 other things where, if anybody put what he did under a microscope, they would probably find an enormous amount of financial improprieties,” says Scott Shapiro, director of the Center for Law and Philosophy at Yale University.

Even accounting for legal delays, many experts predict that Trump would go to trial in Manhattan by 2023. The proceedings would take place at the New York State Supreme Court Building. Assuming that the judge was prepared for an endless barrage of motions and objections from Trump’s defense team, the trial might move quite quickly — no longer than a few months, according to some legal observers. And given the convictions that have been handed down against many of Trump’s top advisers, there’s reason to believe that even pro-Trump jurors can be persuaded to convict him. “The evidence was overwhelming,” concluded one MAGA supporter who served on the jury that convicted Paul Manafort, Trump’s former campaign chairman. “I did not want [him] to be guilty. But he was, and no one is above the law.”

Trump’s conviction would seal the greatest downfall in American politics since Richard Nixon. Unlike his associates who were sentenced to prison on federal charges, Trump would not be eligible for a presidential pardon or commutation, even from himself. And while his lawyers would file every appeal they can think of, none of it would spare Trump the indignity of imprisonment. Unlike the federal court system, which often allows prisoners to remain free during the appeals process, state courts tend to waste no time in carrying out punishment. After someone is sentenced in New York City, their next stop is Rikers Island. Once there, as Trump awaited transfer to a state prison, the man who’d treated the presidency like a piggy bank would receive yet another handout at the public expense: a toothbrush and toothpaste, bedding, a towel, and a green plastic cup.

Make it so.

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