The defendant looked uncomfortable as he stood to testify in the shabby courtroom. Dressed in a dark suit and somber tie, he seemed aged, dimmed, his posture noticeably stooped. The past year had been a massive comedown for the 76-year-old former world leader. For decades, the bombastic onetime showman had danced his way past scores of lawsuits and blustered through a sprawl of scandals. Then he left office and was indicted for tax fraud. As a packed courtroom looked on, he read from a curled sheaf of papers. It seemed as though the once inconceivable was on the verge of coming to pass: The country’s former leader would be convicted and sent to a concrete cell.
The date was October 19, 2012. The man was Silvio Berlusconi, the longtime prime minister of Italy.
Here in the United States, we have never yet witnessed such an event. No commander-in-chief has been charged with a criminal offense, let alone faced prison time. But if Donald Trump loses the election in November, he will forfeit not only a sitting president’s presumptive immunity from prosecution but also the levers of power he has aggressively co-opted for his own protection. Considering the number of crimes he has committed, the time span over which he has committed them, and the range of jurisdictions in which his crimes have taken place, his potential legal exposure is breathtaking. More than a dozen investigations are already under way against him and his associates. Even if only one or two of them result in criminal charges, the proceedings that follow will make the O. J. Simpson trial look like an afternoon in traffic court.
It may seem unlikely that Trump will ever wind up in a criminal court. His entire life, after all, is one long testament to the power of getting away with things, a master class in criminality without consequences, even before he added presidentiality and all its privileges to his arsenal of defenses. As he himself once said, “When you’re a star, they let you do it.” But for all his advantages and all his enablers, including loyalists in the Justice Department and the federal judiciary, Trump now faces a level of legal risk unlike anything in his notoriously checkered past — and well beyond anything faced by any previous president leaving office. To assess the odds that he will end up on trial, and how the proceedings would unfold, I spoke with some of the country’s top prosecutors, defense attorneys, and legal scholars. For the past four years, they have been weighing the case against Trump: the evidence already gathered, the witnesses prepared to testify, the political and constitutional issues involved in prosecuting an ex-president. Once he leaves office, they agree, there is good reason to think Trump will face criminal charges. “It’s going to head toward prosecution, and the litigation is going to be fierce,” says Bennett Gershman, a professor of constitutional law at Pace Law School who served for a decade as a New York State prosecutor.
Here, according to the legal experts, is how Trump could become the first former president in American history to find himself on trial — and perhaps even behind bars.
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.
They’ll have plenty of potential charges to choose from. Both Mueller and the Senate Intelligence Committee — a Republican-led panel — have extensively documented how Trump committed obstruction of justice (18 U.S. Code § 73), lied to investigators (18 U.S. Code § 1001), and conspired with Russian intelligence to commit an offense against the United States (18 U.S. Code § 371). All three crimes carry a maximum sentence of five years in prison — per charge. According to legal experts, federal prosecutors could be ready to indict Trump on one or more of these felonies as early as the first quarter of 2021.
But prosecuting Trump for any crimes he committed as president would face two significant and perhaps fatal hurdles. First, on his way out of office, Trump could decide to preemptively pardon himself. “I wouldn’t be surprised if he issues a broad, sweeping pardon for any U.S. citizen who was a subject, a target, or a person of interest of the Mueller investigation,” says Norm Eisen, who served as counsel to House Democrats during Trump’s impeachment. Since scholars are divided on whether a self-pardon would be constitutional, what happens next would depend almost entirely on which judge ruled on the issue. “One judge might say, ‘Sorry, presidential pardons is something the Constitution grants exclusively to the president, so I’m going to dismiss this,’ ” says Gershman. “Another judge might say, ‘No, the president can’t pardon himself.’ ” Either way, the case would almost certainly wind up getting litigated all the way to the Supreme Court, perhaps more than once, causing a long delay.
Even if the courts ultimately ruled a self-pardon unconstitutional, another big hurdle would remain: Trump’s claims that “executive privilege” bars prosecutors from obtaining evidence of presidential misconduct. The provision has traditionally been limited to shielding discussions between presidents and their advisers from external scrutiny. But Trump has attempted to expand the protection to include pretty much anything that he or anyone in the executive branch has ever done. William Consovoy, one of Trump’s lawyers, famously argued in federal court that even if Trump gunned someone down in the street while he was president, he could not be prosecuted for it while in office. Although the courts have repeatedly ruled against such sweeping arguments, Trump will continue to claim immunity from the judicial process after he leaves office — a surefire delaying tactic. “If federal charges were ever brought, it is unlikely that a trial would be scheduled or start anytime in the foreseeable future,” says Timothy W. Hoover, president of the New York State Association of Criminal Defense Lawyers. By the time any federal charges come to trial, Trump is likely to be either senile or dead. Even if he broke the law as president, the experts agree, he may well get away with it.
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Source: New York Magazine