Thursday, September 28, 2023

The major criminal investigations into Donald Trump, explained

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Shreya Christina
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If all the criminal investigations into former President Donald Trump end in conviction, then Trump will be a true renaissance man of crime.

The FBI searched Mar-a-Lago, Trump’s Florida residence, and removed several boxes of documents — some of which reportedly contained classified information about nuclear weapons. That’s part of one investigation into possible violations of the Espionage Act and improper handling of federal records. Meanwhile, a second federal investigation is looking into the January 6 attack on the Capitol and broader efforts to overturn the 2020 election, an issue that obviously could implicate the man who spent most of the 2020 lame-duck period trying to erase his loss to President Joe Biden.

In Georgia, Trump consigliere Rudy Giuliani was informed by state prosecutors that he is a target of a criminal investigation into interference with the 2020 election in their state specifically. Trump could also be implicated, and even criminally charged, before this Georgia investigation concludes. In a post-election call with Georgia Secretary of State Brad Raffensperger (R), Trump told the state’s top election official that he wants “to find 11,780 votes.” Biden defeated Trump in Georgia by 11,779 votes.

Then there are two separate New York investigations into the Trump Organization and Trump’s web of surrounding businesses, which are investigating allegations that Trump misrepresented his companies’ finances in order to obtain bank loans or to reduce taxes.

New York Attorney General Letitia James’s (D) investigation into these allegations is primarily civil (as in, non-criminal), but a parallel investigation by Manhattan District Attorney Alvin Bragg already led to two indictments — both the Trump Organization and its CFO Allen Weisselberg were indicted in July 2021.

Weisselberg pleaded guilty to more than a dozen different counts on Thursday. He also agreed to testify against the Trump Organization — but not against Trump himself — if called to do so. Nevertheless, Bragg is reluctant to indict Trump, according to an interview last month with former Manhattan prosecutor Mark Pomerantz.

Trump’s staff did not respond to an inquiry seeking comment on these investigations, but the former president routinely posts statements on social media denying allegations against him, often using hyperbolic rhetoric such as comparing the United States to “broken, Third-World Countries.”

Of course, all the standard disclaimers should apply. All of these investigations are ongoing and have not led to charges against Donald Trump. They may never lead to such charges. If Trump is charged, the courts must afford him a presumption of innocence until he is convicted. And even if prosecutors are convinced that they have an airtight case, they may be reluctant to file charges against a former president whose supporters have already threatened violence against people and institutions associated with the investigations into Trump — and, in at least one case, engaged in actual violence.

Nevertheless, the sheer diversity of the state and federal statutes that Trump may have violated is astounding. All told, it’s four criminal investigations — two federal and two state-based — which together scrutinize Trump’s conduct before, during, and after his presidency. Even if only one of these investigations leads to a conviction, the elderly Trump could potentially spend the rest of his life behind bars. While some of the criminal statutes Trump may have violated carry penalties of only a few years in prison, others carry maximum sentences of up to 20 years.

It’s a lot to keep track of, and many important details about these investigations are not publicly known and may never be revealed to the public unless Trump is eventually indicted. The US Department of Justice, in particular, has very strong rules and norms against speaking about ongoing criminal investigations — especially when those investigations involve major political figures.

Worse, while DOJ is reluctant to speak about its investigations into Trump, Trump certainly is not. And that means that many initial reports about these investigations may be based on dubiously accurate social media posts by Trump himself.

With these caveats in mind, here is our best attempt to explain what we do know about the criminal investigations into Trump.

The DOJ’s Mar-a-Lago classified documents investigation

The investigation into Trumpworld that most recently seized headlines is, perhaps at first glance, the most banal: a federal investigation into possible mishandling of classified documents. In early August, FBI agents executed a search warrant at Mar-a-Lago. According to a property receipt that these agents gave a Trump lawyer at the end of the search, they seized several boxes of documents, many of which they say are classified.

The FBI characterized some of these documents as “classified/TS/SCI,” a designation that refers to “sensitive compartmented information” — information “concerning or derived from intelligence sources, methods, or analytical processes” that the government typically treats with extraordinary caution. Documents containing this kind of information are normally stored in specialized facilities designed to prevent the information from getting out — and not in the personal residence of a former government official.

For obvious reasons, the FBI hasn’t been especially forthcoming about what was in the documents seized from Trump, but the Washington Post reported that they include “classified documents relating to nuclear weapons.”

An attachment to the search warrant, which a federal court made public last week, also identifies three federal criminal statutes that the FBI believes Trump may have violated, all of which involve the destruction, concealment, or mishandling of certain government documents.

Most notably, the FBI believes that Trump may have violated a provision of the Espionage Act that makes it a crime to “willfully” retain certain national security information that “the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation,” rather than turning that information over to an “officer or employee of the United States entitled to receive it.”

The Justice Department reportedly tried to negotiate with Trump for the return of these documents, and sought to retrieve them via a subpoena. DOJ sought a search warrant after an informant tipped them off that Trump still had classified documents at his private residence, despite the fact that one of Trump’s lawyers had signed a written statement claiming that Trump had returned all the material marked as classified that he’d stored at Mar-a-Lago.

Violations of the relevant provision of the Espionage Act can lead to a prison sentence of up to 10 years, but it is still unclear whether Trump will face criminal charges for allegedly stealing these documents — or whether those charges will come anytime soon. And there are several reasons to believe that the Justice Department will move cautiously before indicting a former president whose supporters violently attacked the US Capitol less than two years ago.

One is a recent Wall Street Journal report stating that “Attorney General Merrick Garland deliberated for weeks over whether to approve the application for a warrant to search former President Donald Trump’s Florida home.” Another is longstanding DOJ policies and traditions counseling against actions that could influence an upcoming election. It’s not impossible to imagine Trump being indicted before the upcoming midterms, but such an outcome is not likely.

What we can say is there are signs that this investigation remains active, and that it could eventually lead to criminal charges. Among other things, in a document filed in federal court on Monday, the Justice Department asked the court to keep the affidavit it submitted to justify obtaining a search warrant secret. The affidavit, DOJ said, would reveal “highly sensitive information” that would “cause significant and irreparable damage to this ongoing criminal investigation.”

The Justice Department investigation into January 6

Last January, Garland announced that the Justice Department has “no higher priority” than its investigation into the January 6 attack on the Capitol, and that his department “remains committed to holding all Jan. 6 perpetrators, at any level, accountable under law.”

According to the Justice Department, more than 830 individuals have been charged for alleged criminal activity relating to the January 6 attack on the Capitol. And, if anything, DOJ appears to be stepping up these prosecutions. Last May, as part of its annual budget proposal, the Justice Department sought to hire 131 more lawyers to prosecute cases related to this attack.

It remains unclear whether this investigation is actively investigating Trump’s own role, however — and, if so, how close it is to an indictment against the former president. And the Justice Department is likely to keep an even tighter hold on any information regarding such an investigation into Trump than it has on the Mar-a-Lago investigation. Bear in mind that virtually no one outside of the Justice Department, including purportedly the White House, knew about the FBI’s impending search of Mar-a-Lago until after it had begun.

There is, however, at least one outward sign that Trump is under investigation. Last May, prosecutors subpoenaed the National Archives for the same Trump administration documents that the Archives already turned over to the US House committee investigating the January 6 attack.

While the Justice Department is unlikely to say much about whether Trump could be indicted for January 6-related crimes until after such an indictment takes place, both congressional and judicial officials have indicated that Trump most likely violated at least two federal criminal statutes during his efforts to overturn the 2020 election — one protects Congress from interference, and the other prohibits conspiracies to defraud the nation.

We know that from a lawsuit Trump lawyer John Eastman filed last January in a federal court in California, seeking to prevent the House January 6 committee from obtaining certain emails sent or received by Eastman. Among other things, Eastman claimed that the emails were protected by attorney-client privilege.

Ordinarily, communications between a lawyer and their client are protected from disclosure. But, as a federal appeals court has explained, “communications are not privileged when the client ‘consults an attorney for advice that will serve him in the commission of a fraud’ or crime.” And the January 6 Committee argued that Trump may have consulted Eastman in order to violate two criminal federal laws.

One of these laws makes it a crime to obstruct Congress’s official business, while the other makes it a crime to conspire to defraud the United States. The first carries a maximum penalty of 20 years in prison, while the other calls for a maximum sentence of five years.

Ultimately, Judge David Carter agreed that Trump most likely violated both laws. Among other things, Carter wrote, “Trump attempted to obstruct an official proceeding by launching a pressure campaign to convince Vice President Pence to disrupt the Joint Session on January 6.” The judge added that “the illegality of this plan was obvious.”

Of course, if Trump is eventually indicted for violating either statute, the Justice Department will carry a heavier burden than the January 6 committee had to overcome in order to convince Judge Carter that some of Eastman’s emails were not privileged. Trump, like any criminal defendant, will be entitled to a jury trial. And the Justice Department will have to prove its case beyond a reasonable doubt.

But Carter’s opinion suggests that there is at least some low-hanging fruit that the Justice Department can pick if it decides to bring criminal charges against Trump.

The Georgia election investigation

Last January, Fulton County District Attorney Fani Willis’s office asked a Georgia court to convene a special grand jury “for the purpose of investigating the facts and circumstances relating directly or indirectly to possible attempts to disrupt the lawful administration of the 2020 elections in the State of Georgia.” That includes the Trump campaign’s attempt to create a slate of fake members of the Electoral College who would fraudulently tell Congress that the state’s electoral votes were cast for Trump.

Willis informed these 16 fake electors that they are targets of the investigation — meaning that they are at risk of criminal charges — although a state judge ruled last month that Willis may not herself pursue charges against one of these fake electors because she has a conflict of interest. That fake elector could still be charged by a different prosecutor who does not answer to Willis.

Willis’s investigation is also targeting at least one person in Trump’s inner circle. Less than two years ago, Rudy Giuliani was a central figure in Trump’s effort to overturn the 2020 election — known for his clownish lawyering in a November 2020 lawsuit and for an equally clownish press conference held in the parking lot of a Philadelphia landscaping company. On Wednesday, he was in Atlanta to testify before the special grand jury. Giuliani has also been informed that he is a target of the investigation.

Meanwhile, a lawsuit involving an even more prominent Trump ally offers another limited window into what matters Willis’s office may be investigating. Last month, Sen. Lindsey Graham (R-SC) was subpoenaed to testify before the Georgia grand jury. Shortly thereafter, he asked a federal court to quash the subpoena. His strongest argument is that the Constitution’s speech and debate clause, which prohibits sitting members of Congress from being questioned about their “legislative” activity but not their “political” activity, applies to this investigation.

In rejecting Graham’s attempt to quash the subpoena in its entirety — because Willis’s investigation seeks at least some information that is unrelated to Graham’s legislative duties — Judge Leigh Martin May’s opinion lays out several topics that the grand jury is likely to ask Graham about, including Graham’s “potential communications and coordination with the Trump Campaign and its post-election efforts in Georgia.”

Additionally, Willis’s inquiry wishes to explore two phone calls between Graham and Secretary Raffensperger, where Graham allegedly “questioned Secretary Raffensperger and his staff about reexamining certain absentee ballots cast in Georgia in order to explore the possibility of a more favorable outcome for former President Donald Trump.”

(Graham asked the conservative United States Court of Appeals for the 11th Circuit, where Trump appointees make up more than half of the active judges, to block Judge May’s order. So it remains to be seen whether Graham will actually testify.)

Of course, even if Giuliani or Graham is eventually charged or convicted of a crime, it remains an open question whether any of their actions could also implicate Trump. But there are a few Georgia criminal statutes that Trump’s broad efforts to overturn the 2020 election, and specifically his “find 11,780 votes” phone call with Raffensperger, might violate.

One such law makes it a crime to willfully tamper “with any electors list, voter’s certificate, numbered list of voters, ballot box, voting machine, direct recording electronic (DRE) equipment, or tabulating machine.” And while no evidence has yet emerged that Trump personally tampered with any of these items, Georgia law also makes it a crime to, “with intent that another person engage in conduct constituting a felony,” solicit another person to commit such a felony. Meanwhile, another state law specifically makes it a crime to engage in “criminal solicitation to commit election fraud.”

If convicted of either crime, Trump “shall be punished by imprisonment for not less than one nor more than three years.”

The New York investigations into the Trump Organization

Finally, Trump — or, at least, his businesses — are the subject of two related financial fraud investigations, at least one of which has a small chance of ending in criminal charges against Trump.

Letitia James, the New York attorney general, has spent the better part of three years investigating whether the Trump Organization, Trump’s flagship company, misled either banks or tax officials about the value of its assets — allegedly inflating their value when seeking a loan from a bank, or minimizing their value in order to reduce taxes. James even deposed Trump earlier this month as part of this investigation, although Trump spent that interview repeatedly invoking his Fifth Amendment right against self-incrimination.

James’s investigation is civil and not criminal, but it could potentially lead to an extraordinary sanction against Trump’s business. At one point, James appeared to be laying the groundwork to invoke New York’s “corporate death penalty” statute — a law that allows the state attorney general to ask a court to effectively dissolve a business that engages in “repeated” or “persistent fraud or illegality.” In a June interview, however, James signaled that she may not “want to go that far.”

James’s investigation parallels a similar criminal investigation that is currently led by Alvin Bragg, the Manhattan district attorney. Like the state-level investigation, this Manhattan investigation has been going on for a few years. Bragg’s predecessor, Cyrus Vance, even had to fight off an effort to sabotage this investigation in a 2020 Supreme Court case.

The latest news about this criminal investigation, however, suggests that it is unlikely to lead to charges against Trump. While former Trump Organization CFO Allen Weisselberg pleaded guilty on Thursday to allegations that he did not pay taxes on $1.7 million in compensation — including an apartment, two cars, and private school tuition for family members — he agreed only to testify against the Trump Organization if called to testify in a trial against the company, and is not expected to assist a broader inquiry into Trump himself.

Meanwhile, the transition from Vance to Bragg appears to have injected more caution into the Manhattan DA’s office. Shortly after Bragg took office at the beginning of this year, a senior lawyer who played a significant role in the Trump investigation resigned from the DA’s office. “I believe that Donald Trump is guilty of numerous felony violations,” attorney Mark Pomerantz wrote in his resignation letter, which protested Bragg’s decision “not to go forward with the grand jury presentation and not to seek criminal charges at the present time.”

In a July interview, Pomerantz said that he thought that Bragg “and the new team were focused on the risk that we could lose the case” against Trump. Again, to win a criminal case against Trump, prosecutors would have to prove that case beyond a reasonable doubt.

In any event, it is possible that either James’s investigation or Bragg’s office will uncover new evidence that will change Bragg’s mind. For the moment, however, the New York investigations appear unlikely to lead to criminal charges against Trump.

The three other investigations, by contrast, appear to be more likely to end in Trump’s indictment and possible conviction.

So what should we take away from all of this?

The purpose of a criminal investigation, and ultimately of a prosecution, is to convince a jury to convict a defendant after a full criminal trial has taken place. It is not to provide the media or the public with regular updates about what law enforcement knows about potential suspects.

Especially within the context of federal investigations, these norms exist both to protect the investigation itself — if a suspect learns too much about what information law enforcement is seeking, they could destroy evidence or tamper with witnesses — and to protect potential suspects. When someone is formally charged with a crime, they have an opportunity to vindicate themselves at trial. If they are merely the subject of accusations tossed off by government officials, they have no real way to protect or rehabilitate their reputation.

For these reasons, anyone eager to see how the investigations into Trump will end must have patience.

One other factor that voters — and, especially, journalists — should bear in mind as they evaluate what is going on with these investigations is that while the Justice Department will ordinarily be very tight-lipped about an ongoing investigation (and responsible state-level prosecutors will also not be especially forthcoming), Trump will not. And he is likely to tell lies and half-truths to mislead the public and rile up his supporters.

Here’s an example: During its search of Mar-a-Lago, the FBI took three passports from Trump’s residence. A team of investigators tasked with screening the searched materials for extraneous documents quickly discovered that they had the passports, and they were returned to Trump. In a statement, the FBI said that it “follows search and seizure procedures ordered by courts, then returns items that we do not need to be retained for law enforcement purposes.”

Compare that narrative to how Trump characterized the FBI’s brief acquisition of these passports:

A third caveat to bear in mind is that Trump, who famously confessed on video to committing sexual assault, has a history of avoiding legal consequences even when his guilt is difficult to deny. There’s also never been an indictment of a former president, at least in part because political leaders want to avoid the risk that they will face retaliatory prosecutions if their opposition takes power. Top Republicans are already trying to intimidate Attorney General Garland with threats of retaliatory investigations. And some of Trump’s supporters have turned to violence or threats of violence.

Those aren’t reasons to let a man who tried to overturn the result of a presidential election off the hook if he committed a crime, but they are likely to inspire prosecutors to tread cautiously.

It is likely, in other words, that a cloud of uncertainty will loom over Trump’s fate for quite a while.


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