Donald Trump

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law and order

How Trump Could Be Prosecuted After the White House

Impeachment is a big question mark, but an outline of the case against an ex-President Trump is already taking shape.

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Renato Mariotti is the Legal Affairs Columnist for POLITICO Magazine. He is a former federal prosecutor and host of the “On Topic” podcast.

With Congress enmeshed in a fraught debate over whether to impeach President Donald Trump, Robert Mueller’s brief and dramatic news conference provided a sharp reminder that impeachment is not the only option for addressing the president’s alleged misdeeds.

The outlines of a potential civilian prosecution of a former president Trump are already emerging. While there are reports of tax dodges, illegal campaign contributions, and improper foreign contributions to his inaugural committee—among other things—investigations into those claims are ongoing. There is, however, an overwhelming case that the president engaged in obstruction of justice—his effort to stop the special counsel’s office from probing his campaign’s ties to Russia.

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In the second volume of his 448-page report, Mueller sets forth evidence of obstruction of justice that any competent federal prosecutor could use to draft an indictment. And Mueller made it clear himself that his detailed report was intended, in part, to “preserve the evidence” because “a President does not have immunity after he leaves office.”

Although it’s impossible to know exactly what a prosecution of Citizen Trump would look like, or who would conduct it, it’s already possible to project some paths a likely prosecution would take. In the eyes of a seasoned former federal prosecutor looking only at the evidence we have so far, here are the likely routes—and what Trump has to worry about next.

The Three Strongest Cases

Mueller’s team examined 10 distinct courses of conduct by Trump that could constitute obstruction of justice, but it’s not clear there is sufficient evidence to prove them all beyond a reasonable doubt. Three of the potential charges, however, are so strong that they are virtually certain to be included in any indictment of Trump. (They’re strong enough that over 1,000 former federal prosecutors signed a letter stating that Trump would be indicted if he were not president.)

The strongest count would be his attempt to fire Mueller, the man appointed to investigate the Russian government’s interference in the 2016 election and the possibility that the Trump campaign conspired with it. Very simply, obstruction of justice is when someone acts to undermine an investigation with the intent to do so, and there can be no serious question that firing Mueller would have curtailed the investigation. By the time Trump tried to fire Mueller, he knew the special counsel was also investigating him for obstructing justice. Trump tweeted about how he was under investigation a day before he tried to fire Mueller, and White House counsel Don McGahn warned Trump about his “exposure” for obstructing justice.

On June 17, 2017, Trump directed McGahn to get Deputy Attorney General Rod Rosenstein to remove Mueller, telling him “you gotta do this.” When McGahn didn’t follow through, Trump called him a second time the next day, after which McGahn decided to resign. Ultimately, he didn’t quit, but didn’t follow through on Trump’s order, either.

Weeks earlier, McGahn advised Trump to avoid “trying to meddle in the investigation” and that “knocking out Mueller” would be “another fact used to claim obstruction of justice.” When your lawyer tells you that doing something could be a crime and you do it anyway, that is extremely strong evidence of your criminal intent—“substantial” evidence, in Mueller’s own words.

That episode would be the strongest count in an indictment of Trump, but at least two others would almost certainly also be charged. The first came two days later, on June 19, 2017, when Trump summoned former campaign manager Corey Lewandowski (then a cable news commentator) to the Oval Office. In a private meeting, Trump dictated a private message and asked Lewandowski to personally deliver it to then-Attorney General Jeff Sessions, who had recused himself from the Russia probe. That is notable because McGahn previously made clear to Trump that he could not contact the DOJ or FBI about the investigation. Going to a private citizen allowed Trump to bypass McGahn’s directive.

During the meeting, Trump directed Lewandowski to tell Sessions that he should give a speech stating, among other things, that he would meet with Mueller and limit his investigation to “investigating election meddling for future elections” as opposed to the 2016 presidential election. A month later, Trump followed up with Lewandowski and asked whether he had spoken to Sessions. Lewandowski told Trump the message would be delivered soon, and Trump told him that if Sessions did not meet with him, Lewandowski should tell Sessions he was fired. Lewandowski gave the message to an aide who knew Sessions better than Lewandowski did. But that aide never passed along the message because it made him “uncomfortable.” The aide lied and told Lewandowski he delivered the message, which he subsequently disposed of.

There is plenty of evidence that Trump knew his conduct was wrongful, from his attempt to bypass McGahn by going to a cable news commentator, to the prior advice McGahn already gave Trump about efforts to curtail the investigation.

The third count that would almost certainly be included in any indictment of Trump was his effort to pressure McGahn to create a false record to hide the fact that Trump had directed him to fire Mueller. Trump’s attorney initially made a request to McGahn’s attorney to deny a New York Times article reporting that Trump ordered him to fire Mueller. When McGahn refused to recant the story, Trump became angry. He told one aide that McGahn was a “lying bastard” and said that if McGahn didn’t write a letter denying the Times’ account, Trump would fire him.

Later, after McGahn refused to comply with Trump’s request, Trump called him to discuss the matter. Trump told McGahn he did not say what McGahn remembered him saying—he hadn’t used the word “fire,” he said. Trump asked why McGahn had told Mueller’s team about his directive to McGahn. McGahn told Trump he had to—their conversations were not protected by attorney-client privilege—and moreover, that he had notes of the conversation. (Trump told McGahn that he “never had a lawyer who took notes.” McGahn memorably retorted that a “real lawyer” does.)

Although asking someone to write a letter is typically not a crime, in this case, McGahn was an important witness against Trump. If McGahn wrote a letter that lied about what Trump did and said, it would completely undercut his value as a witness against Trump.

The evidence supporting these three counts tells a tightly knit story of Trump’s efforts to fire and curtail Mueller and Trump’s attempt to hide the fact that he had done so.

The Second-Tier Charges

Some prosecutors would limit an obstruction indictment to these, but others might include Trump’s efforts to dissuade Paul Manafort, his former campaign chairman, from cooperating, which Mueller appears to believe is supported by substantial evidence.

One reason it’s weaker is that unlike the three previous charges, Trump would have a viable defense against a charge that he tried to push Manafort not to cooperate: It is based almost entirely upon comments that Trump made publicly. While it is true that public statements can obstruct justice, Trump is the president of the United States, and was commenting on matters of intense public interest. While that does not excuse Trump’s comments blasting the idea of cooperation with law enforcement, Trump might argue that his motive was to improve his political standing, not to obstruct the investigation. It’s not a great defense, but it is viable.

A strong argument could also be made to include Trump’s direction to former FBI Director James Comey to “let [former national security adviser Michael] Flynn go” and potentially his subsequent decision to fire Comey. While Mueller does not think the evidence supporting this conduct is as strong as the evidence supporting the potential charges discussed above, it demonstrates a pattern of behavior—Trump tried to control the scope of the investigation of him and his associates and was willing to fire those who oversaw the investigation because they posed a danger to him.

Trump’s main defense to that charge would be a legal claim that the president cannot obstruct justice by exercising his power as president. This argument, which was made most notably by William Barr when he was a private citizen, would also be used by Trump’s legal team as a defense to his orders to fire Mueller and curtail the investigation against him. Mueller examined this legal view and persuasively dismissed it, as most legal scholars have, but no court has ruled on the issue because no president has ever been indicted for conduct while in office. (It’s worth noting that Barr recently admitted that he disagreed with Mueller’s legal analysis, and his own outside-the-box view informed his “exoneration” of Trump.)

Other Legal Jeopardy

Things could get even worse for Trump between now and January 2021.

Federal prosecutors in the Southern District of New York told a federal judge that Trump directed payments (to women he had had affairs with) that were campaign finance crimes for which Trump’s former lawyer Michael Cohen pleaded guilty. This does not necessarily mean that there is sufficient evidence to charge Trump—the statement by prosecutors operated under a lower standard of proof, and they would need to prove Trump’s intent and knowledge—but it nonetheless represents a significant danger for Trump, given that their investigation is ongoing. There are numerous other ongoing federal and state investigations of Trump and his associates, from a probe of his inaugural committee’s finances to an investigation of the Trump Organization.

State-level charges have an extra level of jeopardy because Trump cannot be pardoned for them by a president. It’s entirely possible for a recently defeated Trump to step aside and allow another president—potentially Vice President Mike Pence—to pardon him before a federal case could even be brought. (That would not be unprecedented. Gerald Ford pardoned Richard Nixon about a month after he became president.)

There is also the danger that Trump could engage in additional obstructive conduct before the next election, particularly if the House of Representatives initiates an impeachment inquiry. This might give Trump an incentive to pressure or influence potential witnesses against him, like McGahn. Most clients in legal jeopardy know not to make matters worse for themselves, but Trump has demonstrated that he does not always follow the advice of his attorneys.

So, for Trump, much more is riding on the next election than remaining in office. The five-year federal statute of limitations applies to obstruction of justice, and obstructing a federal investigation is not a state crime, which means that a reelected President Trump could not be prosecuted for his obstruction in 2017 until he left office in January 2025, which is over two years after the statute of limitations would run. Some have argued that the statute of limitations would be tolled (essentially, put on hold) while Trump was in office, but no court has reached that conclusion and it’s unclear one ever will. For that reason, winning the election might be Trump’s best path to avoid being charged with a felony.

The 2020 stakes could not be higher for him.

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