WASHINGTON — President Trump’s stunning defeat raises a wild new question: whether he might face criminal charges.
Trump's presidential shield of protection from federal indictment is now officially scheduled to expire at the moment he steps down on Jan. 20, 2021. And there’s little telling how prosecutors will approach the pile of incendiary evidence he’s leaving behind.
A decision to charge Trump would raise the stunning spectacle of slamming a former American president in the dock, and risk subsuming President-Elect Joe Biden’s first term under churning controversy. The move would enrage Trump's followers: Trump has painted himself as the victim of leftist anger and selective justice, and many of them would surely see any criminal charges in that same light, no matter how strong the evidence might be.
Yet if prosecutors reviewing the evidence conclude it contains clear and compelling proof of criminal violations, then forgoing prosecution in the name of national unity raises a different problem: That might encourage future presidents to lean into their worst instincts, break rules and commit crimes—with the assurance that the country couldn’t handle their criminal downfall.
Deferring action might signal that anyone who captures the presidency becomes too big to fail, including, potentially, Trump himself, if he decides to run again in 2024.
“The next attorney general will have to decide not only whether charges can be filed, but whether they should be,” said Barbara McQuade, the former top federal prosecutor in Detroit. “Do we want to be the kind of country where a president gets prosecuted by his successor's administration? On the other hand, do we want to be a country where a president can commit crimes with impunity without any accountability?”
Trump’s potential criminal exposure weighs heavily on his mind, according to Michael Cohen, who spent years at Trump’s elbow as his private attorney and fixer. Cohen says Trump is frantically fighting to hold onto power out of fear of future prosecution once he steps down.
“Defeat in this election marks the beginning of the end for his company and the loss of his finances,” Cohen told VICE News. “It could mean incarceration for him, his family members or certain executives at the Trump Org.”
Vice President-Elect Kamala Harris, a former prosecutor, has said Trump should absolutely face charges after he steps down.
The decision should be made by an independent attorney general, Harris said during the Democratic primary. But any fair-minded official could only reach one conclusion, she said.
“I believe that they would have no choice, and that they should, yes,” Harris told NPR.
Biden has been more circumspect. He’s said he won’t direct his future attorney general to investigate or prosecute Trump—but he won't stand in the way, either.
“I will not interfere with the Justice Department's judgment of whether or not they think they should pursue a prosecution of anyone that they think has violated the law, but I think it depends on what happens,” Biden said in August.
Biden signaled he’s aware of how prosecuting Trump could shake the country, however, adding that it's “not very … good for democracy to be talking about prosecuting former presidents.”
The question might be out of the Biden administration’s hands, however: Manhattan District Attorney Cy Vance is already probing Trump’s financial affairs. A decision by Vance to move forward with state-level charges would arise independently from any federal case brought by the Department of Justice.
Both federal and state investigators have plenty of evidence to consider.
Vance’s team has indicated in court filings that it’s digging deep into Trump’s financial dealings, and his prosecutors have fought Trump all the way to the Supreme Court to review Trump’s tax returns and other financial records.
“I think that the most likely criminal charges Trump faces are those relating to his finances currently under investigation by the Manhattan DA,” McQuade said.
Cohen has said Trump directed him to orchestrate illegal hush-money payments to women who say they slept with Trump—in a series of events that ultimately helped send Cohen to prison. He’s also claimed that the Trump family business fiddled with the valuations of its assets for tax and insurance purposes.
Cohen, who documented his incendiary breakup with Trump in a recent tell-all memoir, calls Trump’s family business a key vulnerability for his former boss.
“Trump needed this election like people need oxygen to stay alive,” Cohen said. “A plethora of litigation will now ensue. This was not only a political death but the end of Trump’s business, his finances and possibly his freedom.”
The New York State Attorney General Letitia James is leading a separate, civil investigation into Trump’s business practices, but whatever she finds could easily be turned over to Vance’s criminal prosecutors.
Former Special Counsel Robert Mueller’s final report presents enough evidence to bring a federal indictment against Trump for obstruction of justice, according to a public letter signed by over 1,000 former prosecutors.
Trump’s actions in the Ukraine scandal, which led to his impeachment by the House of Representatives last year, raised evidence of other possible violations, too, former prosecutors and legal experts told VICE News, ranging from possible campaign finance violations to potential witness intimidation.
Yet because charging Trump would likely prove so incendiary, prosecutors would want to make sure their charges are beyond question, former prosecutors said.
“I think the DA's office will be careful about bringing charges that are not ironclad,” said Rebecca Roiphe, a former prosecutor in the Manhattan DA’s office and now an expert on prosecutorial ethics at New York Law School. “They might bring a hard-to-prove case against a different person, but it would be very risky in this situation. I assume that if the DA seeks charges, the proof will be overwhelming.”
Trump could try to hide behind a presidential pardon. But that would only do him so much good.
First of all, Trump would probably have to resign before his presidency ends, and let Vice President Mike Pence grant him a preemptive pardon on the way out the door.
That would be essentially the route former President Richard Nixon took. In the wake of the Watergate scandal, Nixon resigned in 1974 and let his successor, President Gerald Ford, grant him a preemptive pardon.
But a federal pardon wouldn’t protect Trump from state charges that might be brought by Vance’s team.
Trump might decide to start handing out the Nixon treatment to his family members and allies, however, which would at least shield them from federal offenses.
“I think that if he loses he will pardon many, many people, including himself and his family and friends,” said Harry Sandick, a former federal prosecutor with the Southern District of New York.
It’s unclear whether the courts would allow Trump to pardon himself, but some legal experts think he might give it a shot.
“This has never been tested,” Sandick said.