Last night, New York’s Office of the Attorney General announced that its investigation of the Trump Organization has progressed from a civil to a criminal case. A civil case would involve something like, “We learned you’ve underpaid your taxes, and you have to pay a fine.” A criminal case investigates more serious, deliberate violations.
Of course, the attorney general is an elected official, who perhaps has a political incentive to play up her investigation, which means any announcement needs to be taken with a measure of skepticism. But, even allowing for Letitia James’s political ambitions, there is a sound public-interest rationale behind such an announcement: The American people need to be prepared for the fairly likely possibility that the former president will be prosecuted.
While polling on the matter is scant, I’ve found that even among news-savvy liberals I speak with, few people grasp the severity of Trump’s legal exposure. Trump fans “know” he is a brilliant businessman based on the character he portrayed in a reality show, and Trump haters have heard about his financial difficulties.
His likely criminal record has been discussed much less frequently, and often in fairly long, dense reported investigative stories. The best of these was a 2018 New York Times report describing Trump’s practice of creating fake shell companies to bury profits. The Times described this as “outright fraud” — fraud being a defined crime, not just an aggressive use of tax shelters or operating in legal gray areas. And while most of that fraud took place decades ago, other reporting has built a very strong case that Trump has engaged in tax fraud much more recently.
There is also an overarching cynicism that none of this will amount to much in the end, created primarily by the anticlimactic denouement of the Mueller investigation. But Trump had key advantages he could use against Mueller: The special prosecutor was following department guidelines that prevented him from accusing Trump of a crime. Trump could fire Mueller at any moment; he could supply his testimony in the form of evasive, lawyered-up written answers; and he could dangle pardons to subordinates like Paul Manafort and Roger Stone to keep them from testifying against him.
None of these advantages apply to his legal defense against New York State. More dangerously for Trump, prosecutors appear to have leverage to get his main accountant, Allen Weisselberg, to cooperate.
Weisselberg’s compensation included what appear to be under-the-table payments to his family. The Trump Organization reportedly gave Weisselberg’s son a rent-free New York apartment, and reportedly paid his grandchildrens’ private-school tuition. The significance of these relatively small-bore violations is that they implicate Weisselberg, his son, or both in apparent tax evasion.
Prosecuting financial crimes is very difficult to do without an inside cooperator, but the revelations about Weisselberg reveal a pretty direct path for getting him to flip on his boss.
A criminal prosecution of a former president, especially one who is still functioning as his party’s leader, would be an unsettling and potentially traumatic development. I wrote last year about the dilemma it would present: The upside of imposing accountability for his decades of operating outside the law without consequence would be offset by the dangerous perception that he was just facing political retaliation.
As president, Trump constantly threatened to lock up his political enemies, reflecting his belief that the legal system was merely a tool that he could use to punish them. (One reason he believes this is that he is, himself, a crook, who, like many criminals, assumes that everybody else is either a fellow criminal or a sucker.)
The worst thing prosecutors could do would be to spring charges on Trump before a public completely unprepared for the news.
The more surprised the public is to learn of charges against Trump (should they be filed), the easier it will be for Trump to depict them as political. Trump’s criminal defense will be the legal equivalent of his familiar political message: corroding confidence in public institutions and spreading his belief that corruption is the norm.
The biggest risk of charging Trump with crimes is that the news will come as a shock to Americans. They need to understand that he isn’t facing criminal accountability because he lost, but because it should have happened years ago.