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Avlon: A Trump self-pardon is not what the founders intended
03:07 - Source: CNN
CNN  — 

President Donald Trump’s actions during his final days in office have significantly increased his exposure to potential criminal prosecution, lawyers say, complicating his life after the White House.

Over five days last week – beginning with a phone call to the Georgia Secretary of State directing him to “find” votes to overturn the election to encouraging the pro-Trump crowd to “show strength” in their march to the Capitol – lawyers say the President has put himself under the microscope of state and federal prosecutors.

“There are potential state and federal crimes that he can be prosecuted for just for the things he’s done this past week and what’s troubling for him is he won’t have the immunity from prosecution that DOJ say says a sitting president has as of next Wednesday,” said Harry Sandick, a former federal prosecutor.

The new possible criminal exposure comes on top of ongoing New York state investigations into the President’s finances and multiple defamation lawsuits related to Trump denying sexual assault accusations by women. The Manhattan district attorney’s office has a broad criminal investigation looking into allegations of insurance fraud and tax fraud. The New York attorney general has a civil investigation into whether the Trump Organization improperly inflated the value of its assets.

The New York criminal investigation has been slowed by a fight over the President’s tax records, a scrum that is again before the Supreme Court. The wait has stopped prosecutors from contacting Trump’s private banker or seeking interviews with employees of the Trump Organization, people familiar with the matter say. Lawyers have speculated the court may be waiting for Trump’s term to end next week before ruling.

Sandick and other lawyers, however, say that as alarming as Trump’s recent statements have been, there are multiple hurdles for prosecutors to prove that the President violated election laws or those relating to incitement or sedition.

“The incitement ones are challenging if you only have evidence of his own words because they’re sufficiently ambiguous that it would be hard to prove beyond a reasonable doubt,” said Sandick.

“But the evidence is not only his own words. He organized this event, he invited [Rudy] Giuliani and Congressman [Mo] Brooks to speak. They made statements that were far more expressive than Trump’s own,” said Sandick. “If you add into the case the fact that there may have been some coordination with the rioters and other speakers, then prosecutors could build a case against Trump,” he added.

On Tuesday, Trump defended his remarks, saying lawyers vetted them and said they were “appropriate.” Speaking at Joint Base Andrews before departing for Texas, Trump falsely said those who’d analyzed his remarks had found no fault in them.

“It’s been analyzed,” he said. “People thought what I said was totally appropriate.”

“They’ve analyzed my speech, my words,” he continued. “Everybody to a T thought it was appropriate.”

Growing legal reckoning

The new exposure Trump faces as he leaves office comes as the President is already part of a wide-ranging criminal investigation by the Manhattan District Attorneys’ office, which is looking into a range of potential state crimes.

He is also facing a civil investigation from the New York attorney general’s office, which is looking at whether the President improperly inflated the value of his assets to obtain loans or favorable tax benefits. And, then, there are defamation lawsuits sparked by Trump denying accusations made by women who have alleged he assaulted them, including E. Jean Carroll, the former magazine columnist who has accused him of rape and Summer Zervos, who claims the President sexually assaulted her in 2007. Those cases have been delayed in the courts largely because of Trump’s position – that will no longer be the case next week.

Manhattan prosecutors have been interviewing individuals and examining evidence, but their investigation has been slowed as they wait for the Supreme Court to rule on a subpoena issued 16 months ago to Trump’s accountant for the President’s personal and business tax records.

Cary Dunne, general counsel for Vance’s office, told a judge in July that the subpoena delay has led to “continuing concerns about the potential loss of critical evidence and expiration of statutes of limitations.”

In October, a federal appeals court found the subpoena was not overly broad or issued in bad faith, but the Supreme Court has not ruled for three months on Trump’s request for a stay of the decision.

As the dispute has lingered in the courts, key investigative steps have been on hold, those people say say. Prosecutors can’t confront key witnesses without the documents or determine whether there is evidence that any laws have been broken, people familiar with the matter say.

Investigators subpoenaed Trump lender Deutsche Bank for records in late 2019 and interviewed employees about underwriting practices after the election, but they were not involved in the Trump loans.

Prosecutors have also not been in contact with Rosemary Vrablic, Trump’s private banker at Deutsche Bank, which has loaned the President more than $300 million dollars, people familiar with the investigation said. Last month, Vrablic’s lawyer said she is “committed to cooperating with authorities if asked.” Investigators also have not sought interviews with any employees of the Trump Organization, the people say.

Lawyers for the New York attorney general’s office, which has a lower burden of proof in civil investigations, have also dealt with delays. Eric Trump, the President’s son and the executive vice president of the Trump Organization, fought a subpoena for his testimony for four months until a judge ordered him to be deposed in October. One of Trump’s tax attorneys is also in a back and forth with the state over the disclosure of certain records.

Precedent of not prosecuting former presidents

The President’s actions this past week have already cost him financially – the PGA of America said on Sunday night it would not hold its championship in 2022 at the Trump golf course in New Jersey and Deutsche Bank said it would not do business with him – and the specter of ongoing criminal investigations may have a longer-term impact on his business prospects. New York City announced Wednesday that it is taking steps to cancel contracts with Trump Org for the Ferry Point golf course and carousel and ice skating rink in Central Park.

Trump’s recent statements will present the Biden administration, which has made calls for unity, and his Justice Department with the dilemma of potentially prosecuting a former president.

Biden’s nominee for Attorney General, Judge Merrick Garland, has a reputation for even handedness. He also has experience with domestic terrorism cases having prosecuted the Oklahoma City bombers.

“There’s a long precedent of not prosecuting former presidents over policy differences,” said Elliot Williams, a CNN legal analyst and former federal prosecutor. “The difference is we’re not talking about policy difference here, and this is perhaps the most egregious conduct we’ve ever seen from a president while in office. If they have chargeable offenses there’s a really strong case to be made for pursuing them against President Trump.”

Some former prosecutors say that a lot of the conduct is morally reprehensible, but it isn’t clear if it will cross the line into violating the law. Investigators will need to prove the President intended to commit crimes, a high bar in criminal cases, not that he was encouraging lawful protests or truly believed that he won the election.

This weekend, in an interview with NPR, acting US attorney for Washington, DC, Michael Sherwin doubled down on his earlier statements that investigators are “looking” at any and all actors, including the President, Giuliani and others who revved up the crowd.

“Look, I meant what I said before. In any criminal investigation, I don’t care if it’s a drug trafficking conspiracy case, a human trafficking case or the Capitol, all persons will be looked at,” Sherwin told NPR. “If the evidence leads to any actor that may have had a role in this and if that evidence meets the four corners of a federal charge or a local charge, we’re going to pursue it,” he said.

Like the riot, the legal liability for Trump’s call to Georgia election officials will turn on his statements. Trump called the Georgia Secretary of State Brad Raffensperger, a Republican, imploring him to “find” 11,780 votes to give him the edge to overturn the election. It followed a call in December in which Trump told a Georgia elections investigator to search for dishonesty in the 2020 presidential election, telling the individual that the investigation was of national importance, according to a source with knowledge of the call.

The calls have prompted letters and calls for state and federal investigations into Trump’s conduct. It isn’t clear if there is an active investigation. Former prosecutors say the outreach is worth federal prosecutors’ scrutiny even if Trump wasn’t successful because of the intimidation and threats the officials have faced.

As the end of Trump’s presidency nears, sources tell CNN Trump has considered pardoning himself, his family members and other allies from federal charges. Lawyers say it is not clear whether a self-pardon would hold up in court, but a presidential pardon has no bearing on state investigations.

If Trump escapes his presidency without any criminal charges, lawyers say, his last weeks in office have assured him a place in history.

“Even if prosecutors don’t end up charging him, the fact is that there’s a basis here for investigating multiple different federal crimes at once,” said Williams, adding, “there are a lot of mobsters who don’t even have that many criminal investigations open involving them at one time.”

Editor’s note: An earlier version of this story, published January 13, presented paraphrasing of the President’s comments to the Georgia elections investigator as direct quotes. The story has been updated following the discovery of an audio recording of the call. Read more here.