Trump's Crimes, and What to Do About Them
by Neil H. Buchanan
Donald Trump left office without pardoning himself, surprising many people -- certainly including me. Or did he actually pardon himself without telling anyone about it (yet)? Trump's former lawyer Michael Cohen suggested as much shortly after President Biden's inauguration. Whatever else one thinks about Cohen, he certainly was spot-on when he testified two years ago that Trump would not leave office peacefully.
Being right about one thing, however, does not make Cohen a seer. Did Trump issue a secret "pocket pardon"? Maybe, but if he did try to pardon himself -- and somehow overcame all of his brazen reality-show instincts by not bragging about it and daring people to stand up to him -- we will not learn about it until either Trump needs an adrenaline rush of news coverage (perhaps at his upcoming CPAC speech?) or he actually is in danger of being indicted for federal crimes and pulls the self-pardon out of his pocket.
Will any federal prosecutor actually try to prosecute Trump? Had Trump announced a self-pardon on January 19, that would have made federal prosecution both less and more likely. It would be less likely because any prosecutor would have to take into account the extra hassle and uncertainties of litigating the pardon question as a threshold matter. It would be more likely, however, because it would give the Justice Department in a post-Trump world a reason to say: "No one can do this." But as it stands today, the balancing question is between holding an unrepentant serial offender to account and avoiding an inevitably controversial prosecution at a politically volatile time.
That will not be an easy decision, but in the end, federal prosecutors should pursue every case against Trump and his associates that they can win on the merits. Why is that so clearly the right approach?
In my new Verdict column today, I return to the question of pardons. Although I use Cohen's tantalizing "pocket pardon" as a news hook, my main purpose there is to continue to dismantle the idea that the Constitution's Pardon Clause gives every president absolute and unreviewable (by the courts or Congress) power to issue any pardons that he or she chooses. I add a few points to my textual case against the absurdly expansive reading, but the central point of the column is to show that the Supreme Court's dictum that the pardon power is "unlimited" has been badly misinterpreted -- even by people who not only should know better but who actually should be motivated to know better.
Next week (unless unexpected news events intervene), I will write about how Trump's known pardons could be challenged. When it comes to pardoning himself, however, we are in the odd situation in which even the people who say that "of course" the Pardon Clause gives the president absolute control over pardons also say that "of course" that power is not so absolute as to include self-pardoning. Even without adding my broader arguments into the mix, the consensus among scholars across the political spectrum is already very bad for Trump. That does not guarantee that at least two of the Supreme Court Six would agree, but the odds are strongly against Trump.
As I noted above, even a losing self-pardon argument is a potential time-waster for any prosecutor who might decide to prosecute Trump. The good news about our new world, however, is that Trump's old strategy of running out the clock is no longer a major hurdle. The sooner a prosecution begins, the sooner the courts can rule against Trump's self-pardon (if it exists), leaving plenty of time to proceed with the actual criminal case(s) against Trump.
Shortly after the election, one of Dorf on Law's loyal readers pointed me to a column by Jack Townsend, who writes what he describes as a "blog on Federal Tax Crimes principally for tax professionals and tax students." There, in the immediate aftermath of Trump's loss, Townsend laid out the possibility of reaching a series of non-prosecution agreements with Trump, in the best interests of the country.
The piece is understandably dated. For example, it begins with a response to a column by a conservative academic that presumed that the Senate would continue to be under Republican control. Last month's runoffs in Georgia certainly changed things! More substantively, Townsend's arguments largely revolved around the idea that dangling non-prosecution in front of Trump could induce him to do certain things, such as agreeing not to pardon himself or any of his associates before he leaves office. Trump did, indeed, issue plenty of corrupt pardons. More to the point, he can no longer do the things that we were worried about until January 20.
This is not to criticize Townsend, of course, because the world is completely different today than it was only a few months ago. Three points from his column do carry forward. First, he says that his goal is national healing: "I think the United States should forego prosecuting Trump[, which will] permit us to move on, even at the cost of giving Trump a pass for crimes solely because he was President with a substantial national following." Trump certainly maintains that substantial national following, but without the quid of Trump's better behavior to be exchanged for the quo of non-prosecution, the only argument remaining for non-prosecution is political. Concerns about divisive prosecutions are not completely misplaced, but when the law has been repeatedly violated by a man who all but rubs our faces in it, the argument in favor of prosecutions -- even though the right will deride them as "show trials" -- becomes stronger, not weaker.
Second, Townsend appears to believe that Trump did commit crimes, including tax crimes, and that Trump also has civil tax liability, specifically noting 26 U.S.C. § 7201 (tax evasion) or 18 U.S.C. § 371 (tax conspiracy, offense or defraud). Townsend does not directly say that Trump is guilty of those or other crimes, so perhaps I am reading between the lines there. But in any case, I certainly have every reason to believe that Trump is guilty of tax evasion, conspiracy, and so on. Never having been a prosecutor, I cannot know what kinds of in-house debates might lead a U.S. attorney to choose not to pursue even strong cases, but from the publicly available information to date, it is difficult not to conclude that the cases against Trump are strong indeed.
Third, Trump certainly continues to be civilly liable to pay his past taxes. And those cases can be won on a preponderance standard, not guilt beyond a reasonable doubt. They are also, by the way, not pardonable.
Those last two points suggest, in fact, that even if somehow one thinks that Trump should not be prosecuted for other crimes or pursued civilly in other areas, the tax arena is an especially ripe area for federal prosecution. After all, even if the New York District Attorney brings tax cases against Trump, those would be for evading state and city taxes, not federal taxes. The federal government is the only entity that can prosecute federal tax evasion, and it is the only entity that can force delinquents to make good on unpaid federal taxes, penalties, and interest.
Moreover, in a 2016 presidential debate, Trump infamously defended himself against charges that he had paid no taxes by saying: "That makes me smart!" If he has not merely been minimizing taxes within the confines of the law but was actually cheating, it is important to let the public know that non-payment of taxes is not a (putatively) rich man's prerogative.
Maybe tax is different. Whatever one thinks about the standards for, say, criminal incitement, and even if one (wrongly) disparages election law violations as not real crimes, tax law is a relatively "clean" arena in which one can (or cannot) prove that Trump broke laws.
I happen to think that there are plenty of other areas in which federal prosecutors should pursue cases against Trump. The Mueller Report (which, of course, never exonerated Trump) laid out ten specific instances in which a criminal case could have been pursued, had Robert Mueller not made the fateful decision to obey a poorly reasoned, decades-old White House memorandum.
Yesterday, Jennifer Rubin wrote a strong op-ed on her Washington Post platform, laying out how soon-to-be-Attorney General Merrick Garland should decide whether and how to prosecute Trump. She notes that Garland is uniquely positioned to pull off the trick of continuing to be seen as above politics, given his sterling reputation: "If Garland goes by the 'book' and decides to prosecute, his stature as an independent, esteemed former judge makes him precisely the right person for the job."
Most importantly, she notes that there is literally a manual at the Justice Department explaining how to make such a decision:
"The attorney for the government should commence or recommend federal prosecution if he/she believes that the person’s conduct constitutes a federal offense, and that the admissible evidence will probably be sufficient to obtain and sustain a conviction, unless (1) the prosecution would serve no substantial federal interest; (2) the person is subject to effective prosecution in another jurisdiction; or (3) there exists an adequate non-criminal alternative to prosecution."
As my discussion above makes clear, all of these elements are clearly met in the tax context. It might be tempting, then, to say that Garland should not stand in the way of tax prosecutions of Trump but should shy away from others. At least that is not nothing. And certainly when it comes to election interference, it is probably smart to allow the Fulton County DA in Georgia to nail Trump for his call to Brad Raffensberger to "find" the right number of Trump votes to flip the state.
But as Rubin put it: "[T]he decision to prosecute the ex-president for the Capitol attack might be controversial but not difficult." To insulate himself (and Biden) even further from charges of politicizing federal law enforcement (regarding the January 6 insurrection and otherwise), it seems to me that Garland should set up a fully independent office within DOJ with the specific task of pursuing (or not) Trump-related prosecutions.
The most important principle, however, is not to allow Trump and his cultists to exercise a massive hecklers' veto. Yes, they will complain about everything and anything. Mueller, a lifelong Republican with an apolitical reputation for probity, became a punching bag for Trumpists. Any crime that might be charged, certainly including tax crimes, will be ridiculed for being either too insignificant or too big. That they will scream should not thwart the neutral pursuit of justice.
In a Dorf on Law column a few months ago, I endorsed an argument offered by Ari Melber, a Cornell Law graduate who hosts an afternoon show on MSNBC. Here is what I wrote:
"Melber's point was that there is an important symmetry in the politicization of prosecutorial decisions. Just as it is wrong for Trump to be threatening to prosecute people for political reasons, so it is wrong for Biden (or anyone else) to promise not to prosecute people for political reasons. This idea, moreover, is not limited to refusals to prosecute one's political allies, because it is just as corrosive to have a president direct the people's lawyers not to prosecute a political foe for political reasons. In each case, the wrongdoer is getting special treatment from the president as a matter of political intervention in the criminal justice system."
It will admittedly be tempting for Biden's supporters to think something along these lines: "Geez, we're already behind because of the impeachment trial, and cabinet nominees are still being slow-walked. The last thing we need is another distraction from the good work that we're trying to do for the American people." That is not a bad thought, but that is precisely what Garland promised not to do, when he testified at his hearing last week (Note: Garland got a Senate hearing!):
"I would not have taken this job if I thought that politics would have any influence over prosecutions and investigations. ... The president made abundantly clear in every public statement ... that decisions about investigation and prosecutions will be left to the Justice Department."
Being able to make "decisions about investigation and prosecutions" means not preemptively ruling out investigating or prosecuting. Surely, there will be times when the best apolitical, law-driven decision is not to pursue a case. Given the cornucopia of possibilities that Trump and his crime family have created for both federal and state prosecutors, however, we should expect that Garland's DOJ will make a nonzero number of decisions to charge Trump and Trumpists. Would it be easier and more pleasant if we could put this all behind us? Maybe, but sometimes doing the right thing is difficult and unpleasant.