Super fine article here from NBC News THINK
(Carol C. Lam, former U.S. attorney for the Southern District of CA) with
this headline — quite long, but an excellent read:
“Why hasn't Trump been criminally
charged with something — anything — yet?”
Given all this activity, many Americans may well be wondering why
Trump hasn't been criminally charged with ... well, something.
While former President Donald J. Trump is doing all he
can to remain public and relevant after his election loss, there's one
thing he undoubtedly wishes people would ignore: The mass of criminal investigations that
have been building momentum since the end of his presidency. Freed from the
legal and practical concerns about indicting a sitting president, a number of
prosecutors' offices have been charging ahead with criminal investigations of Trump,
his organization, and his associates.
Now, and freed from
the legal and practical concerns about indicting a sitting president, a number
of prosecutors’ offices have been charging ahead for example:
1. NY AG Letitia James confirmed that office is pursuing a criminal investigation of the Trump Organization.
2. The NY Manhattan DA finally
obtained the Trump Organization's financial
documents from its accountants’
3. A
DA in GA is investigating criminal allegations that Trump
tried to illegally influence the election results in
the state’
4. Federal prosecutors in DC may be looking into
whether Trump should be charged with playing a role in the attack on the
U.S. Capitol on January 6. (My related post here).
Recently, the U.S. attorney's office in Manhattan also
executed search warrants at the home and offices of Rudy
Giuliani.
Giuliani was Trump's personal attorney. The search warrants were
based on allegations that he engaged in illegal lobbying on behalf of a foreign government.
Now, these reports of
subpoenas, search warrants, and witness interviews have put what are typically
confidential investigations squarely in the public view thus given all this
activity, many Americans may well be wondering why Trump hasn't been criminally
charged with something yet.
Simple, yet complex at the
same time.
A criminal case
generally falls into one of four categories:
1. Small cases brought against small targets (most
of the thousands of criminal cases filed every day).
2. Big cases brought against small targets (think
the Oklahoma City bombing).
3. Small cases brought against big targets (Martha Stewart's prosecution for lying about
an insider trade that saved her about $50,000).
4. Big cases brought against big targets (such as
Rep. William Jefferson (D-LA) who was convicted of bribery in 2009 and
sentenced to 13 years).
A former president of the United States is unquestionably a
big target and therefore falls into either category three or four. But there
are risks to both approaches.
Let's assume a prosecutor wants to pursue a category four
case — that is, a big case against Trump.
Such a case would be likely to involve complex financial
transactions, such as those resulting in huge, questionable tax refunds to the
Trump Organization, a focus of both the NY AG (James) and the Manhattan DA (Vance).
The problem is that complexities can open the door to
potential defenses in a criminal trial.
Putting aside the enormous task of collecting, analyzing,
and summarizing all of the documents (a job that the Manhattan DA's office has
wisely outsourced to an expensive consulting firm),
the prosecution must also prove criminal intent, which can be challenging when
the target heads a large organization.
In fact, the typical defense
offered by tax evaders is: “My accountants prepared my returns and I just
signed them.”
That hasn't gone unnoticed
by Trump, who has already pointed out that his tax returns were prepared: “By and
among the biggest and most prestigious law and accounting firms in the U.S.”
It could be a heavy lift
to convict a former president of any kind of business fraud when he has
surrounded himself with lawyers and accountants.
That is why the cooperation of those same lawyers and accountants
can be essential to obtaining a criminal conviction.
For example, Michael
Cohen, Trump's convicted former attorney, is enthusiastically cooperating
against his former boss.
Now here is immense pressure on
Allen Weisselberg, the CFO of the Trump Organization, to
do the same.
However, both men come with considerable baggage: Cohen is a convicted felon, and Weisselberg is under investigation of allegations of tax misdeeds of his own.
That might
impair their credibility at trial.
Thus, if a category four case includes too many problems,
should prosecutors consider charging a smaller category three case:
A single misstatement on a bank loan application? Such a
charge could perhaps come out of the NY AG and Manhattan DA probes.
Maybe, but bringing a
small case against a big target carries its own risks, too.
Such cases leave the impression, perhaps unfairly, that either the defendant isn't being prosecuted for the full scope of his or her illegal conduct, or that the defendant is being singled out for prosecution simply because he or she is a high-profile person.
Neither takeaway seems particularly satisfying.
In fact, it's possible that all of the above concerns played
roles in the apparent decision by NY Federal prosecutors not to pursue
charges against Trump over allegations that he made “hush
money payments to Stormy Daniels” since the FEC has similarly declined to
take any action regarding those payments.
What about the January 6
attack on the Capitol, or Trump's phone call to Georgia Secretary of State
Brad Raffensperger, which may have violated Georgia
election laws by telling him to find x-number of votes so he could win GA?
Both would be big cases, but they would also be politically
charged cases, and therein lies another problem for prosecutors:
· Prosecutors know a criminal charge isn't a
conviction.
· There is a world of difference between obtaining
a criminal indictment, which requires only “probable cause.”
· Then obtaining a criminal conviction, which
requires a finding that the defendant is “guilty beyond a reasonable doubt.” This
for good reason; it’s the highest burden of proof that exists in our legal
system.
Prosecutors know they should bring criminal charges only if they believe they can convict the defendant. To operate under any other standard would be unethical. That is true no matter who the defendant is.
In the case of a high-profile defendant, prosecutors aren't likely to file charges unless they are as certain as humanly possible that they will be able to obtain a conviction. Plus, because prosecutors must convince a unanimous jury of 12 ordinary citizens that a defendant is “guilty beyond a reasonable doubt,” bringing a politically charged or divisive case puts that certainty further out of reach.
Which brings us back to
the question: With all these investigations hanging over his head, will Donald
Trump ever be charged with a crime?
We know this: For a former
U.S. president to be convicted of a crime, the prosecutor's case must be
substantial, the evidence overwhelming, and the jury unbiased.
The most likely scenario is that the Trump Organization will
be criminally charged with a financial crime (yes, organizations themselves can
be charged and criminally fined if convicted).
If the New York prosecutors have enough documentary and
testimonial evidence that Donald Trump knew about those financial crimes, they
would be likely to bring charges against the former president, as well.
That's a high hurdle for them to clear. But if they don't
make it, it won't be for lack of trying.
Related topic also from NBC News THINK here
– FYI.
My 2 cents: I have nothing
to add – this is good stuff and it’s very educational, too. It stands as
written by Ms. Lam – a very excellent article.
Thanks for stopping by.
No comments:
Post a Comment