Andrew Harrer | Bloomberg | Getty Images
Former President Donald Trump might have easily avoided conviction at his second impeachment trial — but he could find it a lot tougher to beat the several serious criminal and civil probes that he now faces.
And at least one of those investigations carries the potential for Trump to be sent to jail if convicted.
That would be an unprecedented event in American history, as no ex-president has ever been charged with a crime, much less locked up for one.
Trump, a Republican, whose spokesman did not immediately respond to a request for comment, has claimed that the probes are politically motivated witch hunts by Democratic prosecutors.
But judges in two of those investigations have repeatedly ruled against Trump’s lawyers in disputes related to evidence.
Those rulings underscore the criminal and civil risk that Trump faces, as does the fact that on Jan. 20, he lost the protection from prosecution effectively rendered by holding the office of president.
“There’s a lot of balls up in the air in the potential criminal arena, and if I were Donald Trump, I would not be resting easy,” said Joseph Tacopina, a leading criminal defense attorney in New York City.
Find him the votes
The most recent of the criminal probes was launched just last week in Georgia, by Fulton County District Attorney Fani Willis.
Willis’ investigation is focused on an early Jan. 2 phone call that Trump made to Georgia Secretary of State Brad Raffensperger.
During that call, which was recorded, Trump pressured Raffensperger, who is the top election official in the state, to “find” him enough votes to overturn his election loss to Joe Biden in Georgia.
Willis plans to begin asking a grand jury next month to issue subpoenas in the probe, which her office has said is eyeing possible violations of election fraud laws, as well as “the making of false statements to state and local government bodies, conspiracy, racketeering” and other charges.
Trump for months had claimed without evidence that he was swindled out of a second term by widespread ballot fraud to Biden’s benefit.
Thousands of Trump supporters who believed those falsehoods rioted at the U.S Capitol on Jan. 6 in a violent, but ultimately failed effort to get Congress to reject Biden’s victory. Trump was impeached by the House of Representatives for inciting that riot with his claims.
A Department of Justice official last month said that while prosecutors are focused at the moment with charging people who rioted at the Capitol itself, “we will continue to follow the facts and the law” when looking at the question of whether to charge Trump or any of his allies with incitement.
Senate Minority Leader Mitch McConnell of Kentucky, who was one of 43 Republicans to vote for Trump’s acquittal Saturday at his impeachment trial, explicitly suggested in a post-verdict speech that Trump could face criminal prosecution for the riot.
McConnell voted for acquittal because, he argued, a former president cannot be tried for an impeachment. But McConnell also said there is “no question” that Trump was “practically and morally responsible for provoking the” riot.
“He didn’t get away with anything, yet,” McConnell said. “We have a criminal justice system in this country. We have civil litigation. And former presidents are not immune from being [held] accountable by either one.”
Underscoring McConnell’s point was a civil lawsuit filed in Washington federal court on Tuesday by the NAACP and Rep. Bennie Thompson, D-Miss., claiming that Trump, his personal lawyer Rudy Giuliani, and two right-wing extremist groups, the Oath Keepers and Proud Boys, conspired to incite the Capitol riot.
“The insurrection was the result of a carefully orchestrated plan by Trump, Giuliani and extremist groups like the Oath Keepers and Proud Boys, all of whom shared a common goal of employing intimidation, harassment and threats to stop the certification of the Electoral College” of Biden’s win the NAACP said in a statement.
Trump’s spokesman, Jason Miller, said Trump “did not incited or conspire to incited any violence at the Capitol on Jan. 6.”
The most serious criminal case
While the Capitol riot investigation and the Georgia probe are the most recent investigations, perhaps the most serious criminal case Trump faces is likely the one that has been conducted for several years by the Manhattan District Attorney’s Office.
DA Cyrus Vance Jr.’s probe originally appeared to have been focused on what seemed to be a relatively minor issue: whether Trump’s company, the Trump Organization, properly accounted on its financial books hush money payments made to two women who said they had sex with him.
If the company had not properly recorded those payments in its records, it is possible that the Trump Organization could have escaped with a small civil penalty, if even that.
One of those payments was made by Trump’s then-lawyer, Michael Cohen, to porn star Stormy Daniels, shortly before the 2016 presidential election.
The other payment was made by the Trump-allied publisher of The National Enquirer to Playboy model Karen McDougal, in the months before that same election.
Trump, who has denied having sex with either woman, nonetheless reimbursed Cohen for the payment. Cohen later pleaded guilty to federal crimes, which included campaign finance violations related to payoffs to both women.
Cohen, who served time in prison, has been cooperating with Vance’s probe since 2018.
And the investigation, court records and news reports suggest, has only grown in scope since then.
Last August, a court filing by Vance indicated that the probe could be eyeing “insurance and bank fraud by the Trump Organization and its officers.”
A month later, another filing by Vance suggested that the investigation also could be eyeing Trump for tax crimes.
Cohen had testified to Congress in early 2019 that Trump had improperly inflated and deflated the value of his real estate assets for tax and insurance purposes.
Dubious tax schemes and outright fraud
Vance’s filings appeared to reference that testimony, and one filing explicitly noted that The New York Times has reported that Trump engaged in “dubious tax schemes during the 1990s, including instances of outright fraud.”
Shortly before Christmas, Vance’s investigators requested records from three towns in Westchester County, New York, as part of the probe. The records relate to Trump’s 213-acre Seven Springs Estate site, which sprawls across those towns.
And the Wall Street Journal reported last Saturday that Vance’s office also is eyeing loans Trump took out on Trump Tower on Fifth Avenue, and three other properties in Manhattan: 40 Wall Street, the Trump Plaza apartment building and the Trump International Hotel and Tower.
At the same time, Vance is waiting for the U.S. Supreme Court to decide whether to hear an appeal by Trump of a grand jury subpoena for years of his income tax returns and other financial records, which the prosecutor is seeking as part of his investigation.
The Supreme Court last summer rejected Trump’s argument that the subpoena, which was issued to his accountants, Mazars USA, was barred because of his status as president at the time. But the high court said Trump could raise new arguments against the subpoena with a U.S. District Court in Manhattan judge.
However, those arguments were quickly rejected by that judge and then by a panel of judges on the 2nd Circuit Court of Appeals.
Trump then, in October, asked the Supreme Court to hear his appeal of those rejections. But the court has yet to say if it will do so.
Gerald Lefcourt, a Manhattan criminal defense lawyer, said, “It’s very strange that the Supreme Court has taken so long” to decide if it will take the case, particularly given the fact that it has previously ruled on other arguments related to the subpoena.
“When are they going to rule?” Lefcourt asked, rhetorically.
If the Supreme Court reject’s Trump’s request, Vance, whose office has declined to comment on the nature of his probe, would quickly get the tax returns and other records.
But because those records are expected to be voluminous, it could take several months to sift through them, and to determine if they would provide evidence for a criminal prosecution.
Tacopina, the other criminal defense lawyer, said Vance’s persistence in seeking Trump’s tax returns — which the former president has refused to voluntarily make public for years – could be a sign of how strong the prosecutor believes his case to be.
“Cy Vance is fighting way too hard for this case to fall down,” Tacopina said. “He seems to be on to something.”
As Vance awaits the Supreme Court’s decision, New York’s attorney general, Letitia James, is conducting a civil investigation of Trump and his company, whose focus overlaps partly overlaps the criminal probe.
James’s investigation has been going on since 2019, but only came to public light in August with a court battle over answers her investigators sought from Eric Trump, the second oldest son of Donald Trump, who runs the Trump Organization with his brother, Donald Trump Jr.
James’ office has said she is investigating how Trump valued certain real estate assets, including the Seven Springs Estate, as well as properties in Manhattan, Chicago and Los Angeles.
A big question related to Seven Springs property is whether the site’s valuation was grossly inflated to claim a $2.1 million tax deduction for donating a conservation easement in 2015.
Eric Trump, after initially agreeing to be interviewed by James’s investigators, later reneged on that deal, the AG has said. Eric Trump then tried to have the interview delayed until after the presidential election.
James then asked a judge to force Eric to comply with the interview, which the judge did in September.
James afterward called the ruling a “major victory,” which “makes clear that no one is above the law, not even an organization or an individual with the name Trump.”
Eric Trump, for his part, said at the time, “The New York Attorney General has called my father an ‘illegitimate’ president and pledged to take him down while she was running for office. Her actions since demonstrate a continued political vendetta and attempt to interfere with the upcoming election.”
Eric was questioned under oath by James’ investigators in early October.