Trump Facing Multiple Legal Disasters

The 45th President is unlikely to face Federal prosecution but state and civil suits are not going his way.

In my previous post, noting that former President Trump took classified documents to Mar-a-Lago upon leaving office, I reiterated my longstanding belief that “he’ll almost certainly not be prosecuted” for this or any of the many crimes he likely committed while in office. Like it or not—and I mostly don’t—we have “a long history of reluctance to charge Presidents and other high officials with crimes, for reasons both understandable and undemocratic.”

That does not, however, mean that Trump is in no legal jeopardy; it’s just unlikely to come in the form of Federal criminal prosecution. In addition to the cases that have been slowly winding there way through New York City and New York State systems—in which a judge just ordered that Trump and his children must comply with deposition requests—another judge has ruled that there is sufficient evidence for a suit alleging Trump participated in “a civil conspiracy [that] included the Proud Boys, the Oath Keepers . . . and others who entered the Capitol on January 6th with the intent to disrupt the Certification of the Electoral College vote through force, intimidation, or threats.”

As WaPo’s Philip Bump observes, this is a profound ruling:

. . . [Judge] Mehta is not saying that this conspiracy was proved; rather, that it was not implausible that it might be. It’s the difference between going to trial and reaching a verdict. The second important qualifier is that Mehta is describing only a civil conspiracy, in keeping with the nature of the lawsuits (brought by several members of Congress) that he was considering.

A civil conspiracy, Mehta writes, does not require that conspirators “entered into any express or formal agreement, or that they directly, by words spoken or in writing, stated between themselves what their object or purpose was to be, or the details thereof, or the means by which the object or purpose was to be accomplished.” They don’t need to know all the details of any plan or all of those participating in affecting it. They need only have come “to a mutual understanding to try to accomplish a common and unlawful plan … [the] general scope of which were known to each person who is to be held responsible for its consequences.”

The evidence at hand, Mehta concluded, suggests that such a conspiracy may have been in place between Trump and members of those right-wing extremist groups.

Mehta’s argument is fleshed out by highlighting a number of less-recognized elements of the period before the Capitol was overrun, including the three that struck me.

The first was his mention of the previous incidents of violence in Washington. In November and December, Trump supporters came to Washington to protest and, each time, scattered incidents of violence broke out afterward as members of the Proud Boys skirmished with counterprotesters.

“On the evening of November 14, 2020, multiple police officers were injured and nearly two dozen arrests were made,” the ruling reads. “Then, on December 12, 2020, supporters of the President clashed with District of Columbia police, injuring eight of them, which led to over 30 arrests, many for acts of assault. The President was aware of these rallies, as he tweeted about them, and he would have known about the violence that accompanied them.”

In other words, there was every reason for Trump to believe that a protest on his behalf in Washington might attract extremists and that those extremists might then engage in violence. It certainly casts a different light on White House Chief of Staff Mark Meadows’s statement that the National Guard would “protect pro Trump people” on Jan. 6.

The second thing that stood out to me was Mehta’s repeated isolation of Trump’s having advocated for attendees at his rally to march to the Capitol.

This is something I’ve written about repeatedly. There were several events planned for the day of Jan. 6, including the speech at the Ellipse outside the White House and a rally on Capitol Hill afterward. Permitting for the rallies indicated that there might be some movement between the White House and the Capitol but that a march wasn’t authorized. When Trump explicitly called for rally attendees to march to the Capitol during his speech, he guaranteed (if unintentionally) that there would be a massive imbalance of protesters to law enforcement at the scene, allowing the Capitol to be more easily breached.

Importantly, that call to head to the Capitol surprised other organizers. One, Dustin Stockton, told the New York Times that “the plan had been to stay at the Ellipse until the counting of state electoral slates was completed.” There had been internal deliberations about the idea, which Stockton believed had been resolved toward staying near the White House. When he heard Trump call for people to head to the Capitol, Stockton worried that it “felt unsafe.” The march, Mehta says, was an addition made by Trump and his campaign.

“[I]t is at least plausible to infer that, when he called on rally-goers to march to the Capitol, the President did so with the goal of disrupting lawmakers’ efforts to certify the Electoral College votes,” Mehta writes. In other words, even if he didn’t know that was the Oath Keepers’ and the Proud Boys’ specific plan, it might certainly be part of a “mutual understanding” of what the day’s desired outcome was.

Mehta analyzes Trump’s encouragement of the crowd during the speech that morning at length. While Trump has long pointed to his mention of supporters “peacefully and patriotically” making their voices heard, Mehta notes that that was offset by his more frequent, angrier exhortations. (He also set aside Trump’s argument that his speech and his broader claims about voter fraud were protected as part of his duties as president. After all, he wrote, an effort to “secure or perpetuate incumbency” is not a function of the presidency.)

The third thing that struck me was Mehta’s isolation of Trump’s use of “we” language. Trump did this a lot as president, and still does. It’s part of what endears his audience to him; they often see him as fighting for their collective interests more than his own. On the morning of Jan. 6, though, Trump’s incessant use of “we” — “All Mike Pence has to do is send it back to the states to recertify, and we become president,” “we’re going to walk down,” etc. — bolsters the conspiracy question.

” ‘We’ used repeatedly in this context implies that the President and rally-goers would be acting together towards a common goal,” Mehta writes. “That is the essence of a civil conspiracy.”

My expertise in civil law is minimal and I have no strong opinion as to whether the plaintiffs will be able to prove their case, even to the lower standard of preponderance of the evidence. Still, this not only means months, if not years, of expensive litigation but an essentially limitless fishing expedition that will expose all manner of internal communications. This parallels the House investigation, which also has subpoena power and the cooperation of the Biden White House, but Trump and others will be compelled to testify or plead the Fifth here.

Columnist and Lincoln Project co-founder George Conway argues “Trump’s luck may finally be running out.” His focus is on the New York cases.

On Thursday, a judge in New York ordered Trump, along with his daughter Ivanka and his son Donald Jr., to testify within 21 days at civil depositions in the New York attorney general’s investigation of potential fraud at the Trump Organization. The judge’s opinion brutally rejected Trump’s arguments for blocking the depositions: It would have been “blatant dereliction of duty” for the attorney general not to take the testimony, the judge explained, because prosecutors have unearthed “copious evidence of possible financial fraud” in Trump’s business.

[…]

As the judge noted, and as revealed in court papers filed on Monday by the attorney general, Trump’s accounting firm, Mazars, sent a letter on Feb. 9 to the Trump Organization terminating its relationship with Trump. The letter was astounding in many respects.

Mazars said that 10 years of Trump’s financial statements, from 2011 to 2020, “should no longer be relied upon,” and that Trump should tell that to the people he gave them to. The accountants explained that they reached this conclusion based upon court filings previously made by the New York attorney general, as well as the accountants’ own investigation and other sources.

And then they quit. Under the “totality of the circumstances,” Mazars wrote, “we have also reached the point such that there is a non-waivable conflict of interest with the Trump Organization. As a result, we are not able to provide any new work product to the Trump Organization.” Oh, and by the way, Donald and Melania’s tax returns are due in four business days — but, hey, we promise “to facilitate a smooth transition to your new tax preparers.” Best regards, Mazars.

Translated from legal-accountingese, the letter was an unmitigated disaster for Trump, far beyond his possibly having to file late returns. By saying the statements “should no longer be relied upon,” the accountants effectively announcedYou misled us. By “totality of the circumstances,” they likely meant, The prosecutors investigating you, and the case they’re making, are serious.

[…]

Now the man who longhas had trouble finding decent legal representation might find it all but impossible to find new auditors and tax preparers. It’s hard to imagine that any reputable accounting firm will touch his tax returns, let alone fix and bless his financials for a decade or more.

Even if lenders don’t exercise any rights they might have to call in their loans, Trump apparently still needs to refinance hundreds of millions’ worth of them soon. As Trump biographer Timothy L. O’Brien of Bloomberg Opinion puts it, “Good luck refinancing your debt when the accountants” — who have just declared a decade of your financials utterly worthless — have “just walked out the door.”

So Trump would face a heap of problems even if the New York attorney general (and the Manhattan district attorney she’s working with) closed up shop tomorrow. No wonder Trump’s son Eric was all but crying when he mentioned the prosecutors this week on Fox News.

But as Thursday’s ruling makes clear, the prosecutors aren’t going away anytime soon. And in 21 days, absent some relief from a higher court, Trump will face a profound conundrum at his deposition.

Will he testify and (assuming he’s even capable of it) tell the truth, and possibly implicate himself in crimes? Or will he provably lie under oath, and virtually guarantee himself an indictment for perjury?

Or will he do the sensible thing — plead his Fifth Amendment right against self-incrimination hundreds of times, as Eric Trump and the company’s finance chief, Allen Weisselberg, already have done — and face the political embarrassment (and, in civil litigation, the negative inferences) that would entail? In court Thursday, Trump’s lawyer said that he was advising his client to do precisely that.

All of this combines into multiple, overlapping, catastrophic disasters for Trump. The admissions from his accountants alone would seem to doom him in the New York cases. Not to mention likely spawning multiple civil suits from those who Trump has cheated over the years. And, even if he somehow manages to win all of these cases, the legal costs—and I can’t imagine the lawyer who isn’t demanding pay-as-we-go from Trump given his tendency to not pay his bills—would be crushing.

None of this will be quite as satisfying as seeing him convicted for the Federal crimes he committed. Or being convicted in the Senate for either of the two impeachments. It’s rather like getting Al Capone on tax evasion. But I do think it makes it that much more implausible for him to mount a successful run for the Presidency in 2024.

FILED UNDER: Law and the Courts, , , , , , , , , , , , , ,
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Mu Yixiao says:

    Unless you’re talking about Biden, there’s an error in the tagline.

    45, not 46

  2. Jen says:

    It’s certainly taking these pigeons long enough to roost.

    At some point he simply has to face consequences. He has to.

    The 46th President is unlikely to face Federal prosecution but state and civil suits are not going his way.

    I think/hope you mean the 45th President here.

    2
  3. Sleeping Dog says:

    Couldn’t happen to a nicer guy.

    Actually TFG’s risk of criminal indictment is higher in the NY and Atlanta investigations. Neither of those DA’s have the concern of setting a precedent of a DoJ of under one party’s president indicting a previous prez of the other party. Given that the Atlanta investigation is about the integrity of Georgia’s election system, that is the one to watch.

    5
  4. DK says:

    Interesting stuff.

    But I do think it makes it that much more implausible for him to mount a successful run for the Presidency in 2024.

    Or Trump and his fans might come to see a 2024 run as his most plausible way out legal and financial troubles.

    9
  5. Not the IT Dept. says:

    Setting aside Trump for a minute, we really need to get over this attitude that presidents are some kind of God-Emperors wielding almost divine powers over the universe and everything in it. We can respect the office – and the impact it has on our lives – without going overboard into worshiping the man. It’s an attitude the Founding Fathers would have found abhorrent. Ford set a bad precedent with Nixon.

    12
  6. CSK says:

    @Not the IT Dept.:

    By “the one to watch,” do you mean that Trump is more likely to be nailed by it, or that it has greater national importance?

  7. OzarkHillbilly says:

    I can just hear it now:

    NY state lawyer: “Would you please state your name for the record?”
    trump: “I am invoking my 5th Amendment right against self incrimination.”

    3
  8. OzarkHillbilly says:

    In the wake of the Mazars letter, does Duetsche Bank cut their losses and let him sink or do they loan him more in the hopes that he can stay afloat long enough to mitigate the disastrous loans at least a little bit?

  9. Kathy says:

    Count no one happy until Benito does the best perp walk ever.

    6
  10. CSK says:

    @Kathy:
    Many people are saying it will be the best perp walk ever.

    6
  11. Sleeping Dog says:

    @CSK:

    I believe that you should have directed that question to me. ‘By the one to watch,’ I did mean that it is most likely to lead to an indictment. The Fulton Cty DA has impaneled a grand jury for the purposes of forcing testimony and offering cover to those who do testify. From what I’ve read, under Georgia criminal procedure a GJ doesn’t decide on indictment, but I’m not clear on how that decision is made.

    @OzarkHillbilly:

    I don’t believe that Duetsche Bank has any choice but to let him sink. They have a fiduciary responsibility to their investors and they are all ready skating on thin ice due to some of their business relationships. Floating a loan to an bankrupt Trump that has doubtful prospects of repayment would likely lead DB into all sorts of hot water.

    2
  12. CSK says:

    @Sleeping Dog:
    I did indeed mean to direct it to you.

  13. OzarkHillbilly says:

    @Sleeping Dog: I am hoping you are correct but hope springs eternal

  14. sam says:

    (and, in civil litigation, the negative inferences [of invoking the 5th])

    What that means is that, while jurors in criminal trials are not allowed to infer anything from an invocation of the 5th, not so in civil trials: In civil trials, jurors can infer guilt from the invocation.

    2
  15. CSK says:

    He just can’t keep his mouth shut:

    http://www.thedailybeast.com/how-donald-trump-said-too-much-and helped-new-york-investigators?ref=home

    2
  16. steve says:

    You are wrong about this hurting his re-election chances. It does not matter one whit what the investigators actually find or prove. Trump supporters will just use this as more proof that they are making up stuff to get Trump and support him just as much or maybe even more. It is a true cult of personality.

    Steve

    5
  17. CSK says:

    @steve:
    True. The Trumpkins are saying it’s either fabricated or that Hillary Clinton did the same or worse.

    1
  18. senyordave says:

    I gave up a while ago on the idea Trump ever having to actually pay for his crimes in the legal sense. The idea that he might spend a large part of his miserable life worrying about his legal future does bring me some satisfaction.

    1
  19. James Joyner says:

    @DK: @steve: There aren’t enough Trump fanatics to elect him. This makes it even harder for Independents and even old school Republicans to vote for him.

    1
  20. CSK says:

    @James Joyner:
    Does Trump know that, and not care, because he gets enough ego gratification from having millions of followers, or does he not know, and believes a majority of the voters are behind him?

    3
  21. Sleeping Dog says:

    @James Joyner:

    All the more reason that he should be the R candidate in 24!

    1
  22. steve says:

    James- He will get the same number of votes in 2024, at least, as he did in 2020. No one who voted for him then was really an independent. The question is whether enough people would turn out to vote against him with his prior presidency 4 years gone.

    Steve

    1
  23. gVOR08 says:

    @Sleeping Dog: Indeed. It’s a terrible risk to take, because lightning could strike twice, but nothing drives D turnout like Trump. I probably don’t want him as the R nominee, but I hope he stays a highly visible presence looming behind the whole Party.

  24. Just nutha ignint cracker says:

    @Kathy: @CSK: I’ll go ahead and place my bet now. This circus will be stretched out until either FG shuffles off this mortal coil or community memory of him fades to the point where any charges can be quietly dropped. Even pseudo-rich guys get different justice than the rest of us.

    And FG won’t go the way of Al Capone. He isn’t a dago.

    2
  25. OzarkHillbilly says:

    @steve: @CSK: deleted because JJ beat me to it.

  26. dazedandconfused says:

    I suspect the mad desperation of trying to remain in office stemed from an awareness that, for him, not being POTUS equals screwed.

    The Mazar’s defection got a fairly muted response, very possibly due to an awareness that Wall Street gave up on his deadbeat ass some time ago and he has for many years relied on foreign sources of funding. Many of these appear to have been sketchy. Real estate-money laundering types.

    All that changed when he became POTUS and then lost the power of that office. For the foreseeable future everything he does will be under a microscope. Deutsch Bank has bowed out, and it’s a fair bet Putin and the Saudis stopped taking his calls the day Biden was sworn in.

    He’s screwed and he knows it.

  27. DK says:

    @James Joyner: I guess. Aside from my McCain vote I’m a more or less doctrinaire Dem, so I defer to your expertise in old school Republicanism.

    But where are they? Setting aside that independents are largely a myth (at least the ones who regularly vote), Sen. Collins won’t face voters again till 2026. She still won’t make a clean break from Trumpism, won’t refuse to support Trump if he runs in 2024. Ditto retiring Republican Sens. Portman and Toomey.

    Trump and his acolytes spent the week lying about his White House being spied upon. Trump threatened Obama and Hillary with execution. Where was the old school Republican condemnation chorus?

    Every school of Republicans is using Trump’s sore loser election lies to enact laws that make voting harder. I’ll believe they will disavow Trumpism when they actually do. Not holding my breath.

    3
  28. Gustopher says:

    @dazedandconfused: If Deuscht Bank wants nothing to do with him, there are always these guys:

    https://twitter.com/falconryfinance/status/1446873636485287941?s=21

    Already own a trained arabian hunting falcon? Collateralize it. Secure a loan financing another falcon. That falcon? Collateralize it too. There’s no end to the number of falcons you can buy. The bank bundles its interests into a Falcon Backed Security and sells it. EVERYONE WINS

    Also, ConvoyCoin is a thing now. So many grifts available.

  29. gVOR08 says:

    Much of this flows from the prohibition against indicting a sitting president. Something that comes not from the Constitution but from an Office of Legal Counsel opinion. Which is to say it’s not in the Constitution, it’s not even law, it’s DoJ policy. The opinion is absurd on it’s face.

    The spectacle of an indicted president still trying to serve as Chief Executive boggles the imagination,

    but it’s OK for a president credibly suspected of crime to serve?

    The indictment or criminal prosecution of a sitting President would unconstitutionally undermine the capacity of the executive branch to perform its constitutionally assigned functions

    The Founders provided for a vice in case the prez couldn’t carry on. And there is the whole rest of the administration. And I recall reading that the guy who wrote the opinion, like any good lawyer asked to write an opinion, asked his boss, the then AG, which way he wanted the opinion to go.

    It’s a shame we can’t ask the Founders how they felt about presidential immunity. Of course the “originalist” Federalist Justices could cherry pick a few shreds of evidence and find that the Founders thought Republican presidents should be immune. I suspect if we could ask, the Founders would be appalled that the question even came up, and amazed that we think anyone above the law.

  30. Just nutha ignint cracker says:

    @gVOR08:

    I suspect if we could ask, the Founders would be appalled that the question even came up, and amazed that we think anyone above the law.

    Or they would ask why the Senate didn’t convict him. (They might also ask about why so many people get to vote when it’s clear that having this many voters can only lead to trouble.)

  31. DK says:

    @Just nutha ignint cracker:

    They might also ask about why so many people get to vote when it’s clear that having this many voters can only lead to trouble.

    Our problem is the opposite. The United States has been increasingly shambolic since the Apartheid Supreme Court gutted the Voting Rights Act, enabling right wing vote suppression. Not to mention voter apathy and America’s embarrassingly-low voter turnout levels, due in part to braindead bothsidesism.

    1
  32. Just Another Ex-Republican says:

    The walls are closing in on Trump again?!?! Been seeing this sort of article for years now. I’ll believe it when a court convicts and the appeals run out. IE probably not in my remaining lifetime (and I haven’t hit retirement age yet).

    One can hope and dream, as always, of course.