We Asked a Lawyer if Donald Trump Could Ever Get Prosecuted for Sexual Assault

As in the case of the many (more serious) allegations against Bill Cosby, decades of time passing since the incidents in question doesn't help the cause.

by Allie Conti
Oct 17 2016, 7:30pm

Summer Zervos, right, reads a statement alongside her attorney Gloria Allred during a news conference in Los Angeles, Friday October 14, 2016. (AP Photo/Ringo H.W. Chiu)

On October 7, the Washington Post released the now-infamous video from 2005 in which Donald Trump brags about how his status allows him to "grab [women] by the pussy" with impunity. "Pussygate," as some are now calling it, quickly took over the presidential campaign. Moderator Anderson Cooper addressed the tape at the beginning of the town-hall debate last week, and at least eight women have since come forward to say that the Republican nominee's words were not just bluster. A People reporter recounted being pinned against a wall at the candidate's Mar-a-Lago estate. A former businesswoman told the New York Times the alleged billionaire groped her breasts and tried to put his hand up her skirt on a cross-country flight more than three decades ago. And on Friday, Summer Zervos, a former The Apprentice contestant, went public with her own claims of harassment and unwanted kissing.

The list goes on and on.

In some ways, the cascade of accusations recalls the deluge that led to Bill Cosby's indictment last year—though so far none of the new claims against Trump include allegations of rape. (One civil case against the real estate scion does center on allegations of rape against a 13-year-old in New York in 1994.) With both famous men, shifting cultural mores and rising awareness about sexual assault have significant swaths of the country interrogating their alleged sexual misconduct over a period of decades. But Trump stands apart in that his behavior with women is under intense scrutiny in the weeks leading up to an Election Day in which his name is on the ballot in 50 states. Is it really plausible the candidate will end up in legal hot water, though?

To find out if Trump could ever actually be prosecuted after the Pussygate tape and subsequent allegations, I called up Shan Wu, a former sex crimes prosecutor for the Department of Justice and current criminal defense attorney in Washington. Here's what he and I talked about.

VICE: Is any of what Donald Trump has been accused of in the past week or so illegal?
Shan Wu: Some of it is, [but] some of it probably wouldn't be criminal. It would be illegal if you say that illegal encompasses both criminal and civil, with civil being, like, sexual harassment laws, [and] things which were not not criminal per se [but] could still be illegal in terms of sexual harassment, especially if he was, for example, the employer of someone or the organizer of the event like one of his beauty pageant shows. But I think one thing that people are not doing a good job of distinguishing between is criminal sexual assault versus, perhaps, sexual harassment, or just pure crass behavior.

Right, but is it plausible for a DA to pursue criminal charges for any of these alleged offenses?
At the moment, there are so many coming up that it's hard to parse through all of them. But the leak from Access Hollywood, what he's saying there would not constitute sexual assault to a prosecutor because he's saying, "They let you do it." So that's implying, rightly or wrongly, that in his mind his hypothetical has consent. So it would not be criminal because there's [no] claim that he's overcoming anybody's will.

If those women were employees of his, that would be sexual harassment, because he would be in a position of authority over them.

I guess I'm wondering more about cases like the one with the People reporter who claims she was pushed against a wall and felt up by Trump.
Those situations in which the victim is clearly stating, I did not consent to this, and he just started touching me or kissing me or groping me—those would all be actionable criminally, at least as a matter of theory. If someone has not gotten consent from you and they just start grabbing you, that's going to be sexual assault of a criminal nature.

What's the statute of limitations on something like this, though?
Right, so once you move to the fact that it's technically criminal to touch a person against their will, then it [becomes]: Would a prosecutor and/or the police actually pursue the case? Then you look at things like timing of it and what evidence there is. For example, with the plane one, I would say it's impossible today that a prosecutor would touch it because it's 35 years old.

And the question of the statute of limitations––there are some states now which have done away with the statute of limitations for serious sexual assault, and I think New York, which is where this allegation by a woman who was 13 [who accused Trump of rape] was filed—it was a civil lawsuit against Trump. That one could still be viable. That's one legal question: What is the statute of limitations in the particular states that these matters [allegedly] occurred in? And there are places in which conduct many years ago could still be a viable criminal case. And then the last step is weighing the circumstances and strength of the evidence of these cases.

Although it's very common that victims react in different ways or that they report them or don't report them for different reasons, the police always look with disfavor upon a case that's older and was never reported. So if you had something that happened several years ago—much less a decade or more—they're gonna view that as a weak case. So there are quite a few hurdles to go through before saying that he could really face criminal charges. I'd say the age of these cases make that unlikely.

But under the question, "Does this conduct, if true, constitute sexual assault?" Absolutely. If you see someone on a plane and start grabbing them, or if you pin someone against a wall and they don't want you to, that's a no-brainer.

Does the fact that this stuff is coming out near the end of a presidential campaign present any unique challenges?
I think prosecutors are always mindful of whether they can be accused of furthering a political agenda. So I think that could be a further barrier to anyone really pursuing a criminal investigation. Were he to be elected as president and then one of these matters, like the New York one that involves a child, that would definitely present some legal challenges about how to bring the case. You would have to think about whether a special prosecutor needed to be appointed, since one of the reasons we had the old independent counsel laws was the idea that the executive branch can't investigate itself. So the president appointed the attorney general, and the attorney general works for the president, so the attorney general would have to be overseeing some investigation of the president. So I think that would definitely present some challenges, and they would probably move to appoint a special prosecutor so there would be some independence with that investigation.

Might Trump's history of being so lawsuit-prone intimidate DAs? Could he sue for malicious prosecution?
Most prosecutors would not be deterred or worried about being sued later for a wrongful prosecution because prosecutors and police have a certain time of immunity for their functions. So if they are acting within scope of their duties, then they're mostly immune to being sued personally for bringing a case. That's obviously a very good law to have, because if police are trying to do their jobs and they arrest the wrong person, they don't need to think, Hey, I need to be double-sure, because I could get sued.

And same thing with a prosecutor. If they feel they have the evidence, they should go forward without worrying about losing the case and getting sued. So I don't think people saying, "I'm gonna sue you if you get this wrong," would be a deterrent. In civil cases, [though], absolutely. I've seen that a lot, where potential allegations and potential complainants choose not to come forward because they're afraid of being countersued or of having their lives torn apart with a counter investigation.

Is comparing Trump to Cosby useful at all? Both are obviously famous men who seem to have evaded public accountability for alleged sex offenses for decades, but is that where the overlap ends?
It seems pretty different to me as a prosecutor because of the allegations of the drugging that went on with Bill Cosby. I think they're similar in that there is a sudden flood of many claimants coming forward. But I think from a criminal law standpoint, it seems very different because of the allegations of planning, meaning needing to have certain Quaaludes ahead of time, planning to get a person drinking. All of those allegations make for a different type of predatory behavior. This would seem that if all of these allegations were true, it would seem like more of a serial impulsive predator who's looking for people in a vulnerable position and thinks everyone should be attracted to him.

By running for president, it does seem like Trump laid the groundwork for his potentially becoming a Cosby-esque figure, though. It's hard to imagine all these women would have gone after him if he were still just a reality TV show host, right?
Absolutely. I think anyone who's gonna run for public office nowadays needs to expect that there's gonna be a tremendously aggressive investigation of them. And I'm quite confident that if he were not in the position he was in, that most of this would never have come out.

This interview has been lightly edited and condensed for clarity.

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