There have been signs, including a posting on his Twitter-alternative website from the Crook-in-Chief that an arrest was supposed to be about to occur, that Donald Trump may soon be the prisoner in the dock. Obviously, until charges are filed, any discussion of potential charges are just speculation. But here is what seems to be in the wind. And I did postpone writing this to see what might get filed this past week, but, since there is no guarantee about when these charges will come, I decided to go ahead with this post.
Right now, the case that appears on the eve of being filed is from Manhattan County in New York. These charges arise out of something which is, unfortunately, somewhat common with closely-held corporations — an inability to keep the corporation separate from the person. Legally, a corporation is a separate legal person from its owners, officers, and employees. The corporation is legally responsible for paying its own expenses and liabilities. The personal expenses and liabilities of the employees are supposed to be paid by the employees out of their personal funds. If the employer covers those expenses, that is considered to be compensation to the employee (or dividends to the owner) which has to be reported to the IRS and state taxing authorities as income for the employee (or income to the owner). This situation is what got the Trump Organization charged and convicted for benefits that it provided to some of the executives which were included as business expenses (and employee compensation is a business expense) on the corporate returns but not reported as income to the executives.
In Trump’s case, the issue is sexual misconduct by the CEO of the company. Now, if the company is being sued for sexual harassment of its female employees under Title VII, that is a legitimate business expense. If the CEO is sued for sexual misconduct in his personal ife, that is not a legitimate business expense, and he should be paying the settlement and the legal expenses out of his personal account. Complicating the matter for Trump is that these issues arose while Trump was running for office. That raises the issue of whether the settlements and non-disclosure agreements were for personal reasons — to avoid his spouse learning about his infidelity — or for political reasons — to avoid the public learning that the candidate is a liar and cheat who can’t even keep his wedding vows much less any other promise. It is clear that there are some fraudulent business records here as Michael Cohen and the women should not have been paid from Trump Organization accounts but whether the offense is a felony or misdemeanor depends upon whether that improper use of corporate funds where for other criminal purposes — namely avoiding tax liability on the part of Donald Trump (if Trump had paid the bills and then taken a draw from the company that would have been income to Trump and the expense would not have been tax deductible) and the Trump Organization (distribution of income by a company is not tax deductible but legal expenses are) or to avoid reporting a campaign expense (if the settlement was designed to avoid the political consequences, it would be considered to be a campaign expense).
It also looks like the process in Fulton County, Georgia (Atlanta) are also nearing the time when charges will be filed. Right now, the charges seem to be a mix of trying to influence election officials (the phone calls to the Secretary of State’s office) and other types of election fraud and forgery (the false certifcates related to the fake electors). Since Donald Trump did not personally testify before the investigative grand jury, it seems unlikely that he is facing perjury charges. To file perjury charges against Donald Trump, it would have to be shown that he told the witnesses to lie. There could also potentially be some witness tampering charges for attempts to harass or bribe some of the witnesses to prevent their testimony.
We are probably a month or two away from potential federal charges. There are two separate federal cases being handled by a special prosecutor.
One case would be in the District Court for the District of Columbia. Those charges would relate to Trump’s involvement in encouraging his supporters to breach the U.S. Capitol. The ultimate issue is whether Trump’s speech on January 6, considered in light of what he knew about the attendees at his rally and his prior comments, were designed to encourage his supporters to breach the capitol and (potentially) to engage in acts against the House and Senate to disrupt the counting of the votes or intimidate them into rejecting the votes from certain states that had voted for President Biden.
The other case would be in the Southern District of Florida (probably, but might end up in D.C.). This case would involve Trump’s possession of, concealment of, and resistance to requests for the return of presidential records (including confidential records) that belonged to the National Archives under federal law. This case seems extremely solid from news reports about the sequence of events. Other high level officials have been charged and convicted for less serious violations of the relevant statutes, but Donald Trump would be the first former President ever charged under these statutes. Since the news broke on Trump, it has become clear that other top level officials have also kept some documents that they should not have, but those violations are more ambiguous in terms of criminal intent. And, any legal and media defense will try to blur the distinctions.
And lastly, we have a potential security fraud case (likely to be filed in the Southern District of New York if it ever reaches the level of formal charges being filed). This case involves the financial arrangements around Truth Social (that Twitter alternative mentioned above). There are some rather dubious things that have occurred related to that project that might qualify as securities fraud or money laundering. At this point, whether Trump is personally involved in these crimes is still a big unknown.
Now Trump (and his apologists) will try to paint all of these criminal cases as political charges. Admittedly, his status as a high-profile public figure has played a role in these charges. If he was a nobody, some of his misconduct would have flown under the radar or (in the case of the New York charges) might have been handled as a civil matter. And no former president has ever faced criminal charges, but Donald Trump is the first former president that has engaged in the type of misconduct that is arguable criminal. In all these cases, no serious person can claim that there is not probable cause (the official legal standard for filing charges) that a crime has been committed. Whether the evidence in these cases is solid enough to overcome the presumption of innocence and make it likely that a jury will find Donald Trump guilty beyond a reasonable doubt (the ethical standard for filing charges) remains to be seen as is the question of whether the jury will see the evidence in the same way that prosecutors do and find Donald Trump guilty.
On the more practical side is what will happen once these charges are filed. Typically, in these types of cases, the offender is permitted to self-surrender. The offender is booked and immediately arraigned. The offender then posts some type of bond which will include some conditions restricting some activities. In this case, those conditions may restrict international travel but will permit domestic travel. The case will then be set for some further pre-trial events (which will probably just involve the attorneys). More likely than not, a trial date will not be immediately set. When a trial date is set, we are probably looking at early 2024.
The longer-term question is what those charges will mean for the 2024 election. While not absolutely required, criminal defendants typically attend their trials. Leaving as soon as jury selection begins to go campaign in Iowa (or whatever states are forthcoming) will not look good for the defendant. Sticking around for the trial will be a good excuse for avoiding debates and travel during the primaries. And the real question is what will happen to Trump’s support. Will the Trumpistas put blinders on and ignore the substantial evidence of serious misconduct? (Highly likely). Will the Trumpistas start to doubt whether these charges will make it difficult or impossible for Trump to win the general election? (Unlikely for the hardcore believers, but there might be enough erosion on the margins to open up the possibility that somebody else could get the nomination.) Will independents and moderate Republicans head for the door if Trump manages to get the nomination despite being a convicted felon? (Not all of them, but enough to make Trump non-viable.) And how will the various states and the courts handle Donald Trump being found guilty? (Most states have laws providing that the national nominees are the candidates on the general election ballot, but some of them bar convicted felons from running for office. Whether those laws are constitutional for federal candidates is still an open question.) And what can (or will) the Republican Party do if it is saddled by its voters with a presumptive nominee who is potentially ineligible to be on the ballot in several states? Yes, these are unprecedented issues, but they are unprecedented because we have never before elected somebody so clearly willing to break the law to the presidency. So now, we will wait and see what the answer to these questions are. The shoe is about to drop.
