Former US President Donald Trump could face serious legal challenges as his return to civilian life strips him of numerous legal protections after his electoral loss and the inauguration of President Joe Biden on Wednesday.
A norm in US law holds that sitting presidents are immune from indictment. The Justice Department’s Office of Legal Counsel (OLC) has regulations that prevent federal law enforcement agencies from indicting the president.
Special Prosecutor Robert Mueller, who investigated Russian interference in the 2016 presidential polls that saw Trump elected, referenced guidance from the OLC to justify not indicting Trump for obstruction of justice while clarifying the decision did not exonerate the president.
Now, as Trump returns to normal life, the former president faces court cases without presidential shielding.
Federal charges and the secret self-pardon?
Trump could face charges on the federal level related to financial activities and his tax returns.
Perhaps the most fleshed-out case centres on testimony from Trump’s former lawyer and fixer Michael Cohen, who in 2018 pleaded guilty in Manhattan federal court to a range of crimes including sending hush money to an adult actress as Trump was running for president, making the payment illegal campaign spending.
Cohen has stated he committed these crimes at Trump’s behest, though prosecutors have thus far only referred to this person as “Individual 1”.
Trump has denied any misconduct.
The former president could also face an indictment related to his much-hidden tax returns.
The New York Times obtained and released copies of Trump’s tax records going back more than 20 years.
Experts say there are indicators of possible tax evasion and other financial crimes. Records show Trump, who is a billionaire, paid $750 in federal income tax for 2016 and 2017, which appears to be suspiciously low for a man of his wealth.
Nick Akerman, a former federal prosecutor, told CNN in September it “looks like Trump has done a whole series of activities that could qualify as tax fraud, not tax avoidance. This is a very important distinction”.
Trump has denied allegations related to his taxes and said he pays millions in taxes.
Even if Trump were to face federal charges, there is the possibility he issued pardons for himself and family members without the public’s knowledge.
Trump issued 70 pardons on his last day in office, to political allies like Steve Bannon and Republican fundraiser Elliott Broidy.
It appears Trump did not issue a self-pardon, which would have tested legal jurisprudence and possibly paved the way for illegal activity with impunity on the part of the US head of state. But some legal scholars have not ruled it out.
I’m not convinced Trump passed on pardoning himself (in secret). I guess we will find out if he’s indicted on federal charges.
— Rick Hasen (@rickhasen) January 20, 2021
Trump could have issued a self-pardon without alerting the public. The pardon would have been recorded but will not be known unless there are federal charges filed.
Empire State legal woes
A presidential pardon does not shield individuals from state and city charges. Trump could possibly face numerous ones.
New York appears to hold the most legal landmines for Trump. New York County District Attorney Cyrus Vance has conducted a criminal investigation into Trump for more than two years, though the exact nature of the investigation is unknown.
Vance’s team said in court filings the investigation could delve into allegations of tax and insurance fraud and falsification of business records.
They are currently waiting for a Supreme Court order that would secure eight years of Trump’s tax returns, though reports say Vance is already in possession of some Trump tax documents.
State Attorney General Letitia James has opened an inquiry into the Trump Organization’s finances, resulting from Cohen’s claims it inflated assets to attain loans while deflating assets to avoid taxes.
That investigation is civil and would not result in jail time, but fines.
Trump also faces legal proceedings resulting from allegations of sexual misconduct and rape.
E Jean Carroll, a writer, alleges in a defamation suit that Trump raped her in a New York department store in the 1990s and then accused her of lying about it to sell books.
These are the shoes I was wearing when Trump attacked me.
They are 27 years old. The label is “Barney’s New York.”
I am walking on air today because tomorrow Trump will be gone. pic.twitter.com/7ZM1Rmq4kk
— E. Jean Carroll (@ejeancarroll) January 19, 2021
Trump has denied the allegation. During Trump’s term, the Justice Department attempted to shield the former president from the case.
It attempted to replace Trump as the defendant in the case and claimed he enjoyed broad immunity since he spoke about Carroll in his role as president.
It appears unlikely Biden’s Justice Department will continue to shield Trump, though it has yet to make filings in the case.
Summer Zervos, a former contestant on The Apprentice, the reality television programme of which Trump was the host for 14 years, has also accused Trump of sexual misconduct, unwanted kissing and groping.
The case was on hold while Trump was in office as courts decided whether he needed to face allegations while in office. Trump previously claimed immunity as president.
That claim is unlikely to stand after his return to civilian life.
Trump still faces a trial in the Senate resulting from the House of Representatives impeaching him for an historic second time a week before he left office.
Trump faces a single charge of incitement over the January 6 Capitol riot. House Speaker Nancy Pelosi plans to send the article to to the Senate on Monday, beginning the trial.
“There will be a trial,” Senate Majority Leader Chuck Schumer said on Friday. “It will be a full trial, it will be a fair trial.”
Legal questions remain over whether a former president can be impeached after they leave office, though there is nothing explicitly stated in the US Constitution that bars it.
Trump faced intense criticism from Democrats and Republicans and was deplatformed across social media following a speech he gave to his supporters ahead of their assault on the US Capitol.
Trump had long repeated baseless claims the election was stolen from him by voter fraud. His campaign mounted numerous legal challenges to election results, most of which were swiftly thrown out.
Senate Republican leader Mitch McConnell has proposed the trial be delayed as the Senate confirms Biden’s appointments.
Biden has said the Senate can do both.