Inside Story

Before the deluge

A series of long-awaited legal proceedings against Donald Trump could start as early as this week

Lesley Russell 13 March 2023 2045 words

Mounting perils: Donald Trump at this month’s Conservative Political Action Conference in Maryland. Alex Brandon/AP Photo

When the Manhattan District Attorney’s office invited Donald Trump to testify before a grand jury this week, it was seen as a strong indication he will soon face criminal charges over his alleged role in paying hush money to porn star Stormy Daniels during the 2016 election campaign.

Together with his companies and a number of his senior White House staff, Trump is facing an unprecedented array of state and federal legal investigations and lawsuits. He will have to navigate every one of them, and associated financial and reputational costs, during his campaign to secure the Republican presidential nomination for 2024.

Perhaps the most serious charges are those likely to emerge from special counsel Jack Smith’s investigation of Trump’s role in inciting the 6 January riots and attempting to overturn the 2020 election result, and his obstruction of efforts to locate classified documents at his Mar-a-Lago resort.

In the case of the Mar-a-Lago documents, the improper handling of federal records and obstruction of a federal investigation could be the basis of charges under the Espionage Act. The 6 January case is more complex: it is looking at how Trump spent money raised purportedly to help pay for legal challenges to the election; at efforts to have his own slates of state electors file fraudulent official certificates; and at who organised and funded the 6 January rallies. It could result in charges that Trump and others engaged in a conspiracy to defraud the United States and/or obstruct official government proceedings.

In Georgia, a criminal investigation is looking at Trump’s attempt to persuade state officials to overturn Joe Biden’s win in their state. In a post-election call, Trump told Georgia’s Republican secretary of state, Brad Raffensperger, that he wanted “to find 11,780 votes” (Biden won the state by 11,779 votes). It is a federal felony to knowingly attempt “to deprive or defraud the residents of a state of a fair and impartially conducted election process” through “the procurement, casting, or tabulation of ballots that are known by the person to be materially false, fictitious, or fraudulent under the laws of the State in which the election is held.”

A grand jury convened to make a preliminary investigation has concluded that multiple indictments are warranted for Trump’s alleged efforts to overturn the Georgia results. The decision whether to proceed will be made by the Fulton County’s district attorney, Fani Willis.

Trump also faces a raft of civil charges. These include a joint lawsuit from a number of members of Congress and Capitol police officers contending that Trump’s fiery speech incited the 6 January attack on the Capitol, and claiming damages, and two separate New York investigations into the Trump Organization and Trump’s web of related businesses. Both the New York probes are examining allegations that Trump misrepresented his companies’ finances in order to obtain bank loans or to reduce taxes.

This brings us back to the Manhattan District Attorney’s investigation into the money paid to Stormy Daniels to keep quiet about a tryst with Trump. Daniels was given US$130,000 in the closing days of the 2016 campaign by Trump lawyer and long-time “fixer” Michael Cohen, who was later reimbursed by Trump. Cohen confessed to violating New York State election law and served jail time in 2018.

In January this year, district attorney Alvin Bragg empanelled a grand jury to hear evidence about Trump’s role in the payment. Kellyanne Conway, who held a senior advisory position on the Trump presidential campaign and later became a White House counsellor, has given evidence, though it’s not clear whether she appeared before the grand jury or simply met with prosecutors. It was Conway who Cohen notified when the payment had been made, and who presumably then notified Trump.

To make this case a felony (a more serious crime punishable by a prison sentence of more than a year), prosecutors will have to show that Trump was involved in the falsification of business records. (The Trump Organization labelled the US$130,000 as legal expenses.)

As the shape of the 2024 presidential campaign starts to emerge, these proceedings will become political dynamite. Special Counsel Smith’s pace has quickened in recent weeks, signifying to observers that he is working to present his charges before the presidential primary debate season begins in August. Charging decisions in the Georgia inquiry are expected in the (northern) spring or summer.

These unusual and complex probes have turned some of Trump’s many current and former lawyers and senior presidential aides into witnesses or even potential targets of investigation. In recent weeks the special counsel has issued a flurry of grand jury subpoenas to high-profile witnesses including former vice-president Mike Pence and Trump’s former chief of staff, Mark Meadows, with strict deadlines for responses. These have triggered multiple, closed-door legal battles that could delay proceedings for some months and may well be part of Trump’s management strategy.

Trump lawyers have asked a federal judge to block the subpoena for Pence to testify, citing executive privilege. Pence himself has said he is prepared to fight his subpoena “as far as it needs to go.” While he is obviously looking to protect himself and his own possible presidential bid, this might also be a feint to protect himself against attacks from Trump, who has already accused him of disloyalty.

Trump’s push for all-encompassing executive privilege is an ongoing attempt to enable him (and by extension his aides) to withhold information from the Congress, the courts and the public. But this presidential power may not reach as far as he hopes: the constitution gives presidents immunity from being sued only over their official actions, and the US Supreme Court has never held that presidents are immune from criminal prosecution. The question, then, is whether Trump’s 6 January speech and efforts to overturn the election result fell within his official job responsibilities.

A judge of the Federal District Court for the District of Columbia ruled last year that the case brought by the members of Congress and the Capitol Police could proceed because Trump’s various communications before and on 6 January amounted to a “call to action.” Trump’s lawyers appealed that ruling to the District of Columbia Circuit Court, which then asked for the justice department’s opinion.

In a friend-of-the-court brief, the civil division of the justice department said that if Trump’s speech incited the 6 January riot — the contention found credible by the District Court — then he was not shielded by immunity. Urging the appeals court to allow the suit to proceed, the department’s lawyers wrote that the “traditional function [of public speaking] is one of public communication. It does not include incitement of imminent private violence of the sort the District Court found that the plaintiffs’ complaints have plausibly alleged here.” If the justice department says this about a civil case, it should hold the same position in a criminal case.

This is not the only pending case that tests the limits of when Trump was acting in his capacity as president. A separate District of Columbia Court is weighing whether he was acting in his official capacity when he spoke disparagingly of writer E. Jean Carroll, who has accused him of raping her in the 1990s and is suing him for defamation. In this case the justice department agreed with Trump’s lawyers that he made these remarks while answering reporters’ questions and was acting in his official capacity. This case against Trump looks likely to be dismissed.

Some of Trump’s lawyers are using another blocking tactic, asserting lawyer–client privilege. This argument can be overcome under the “crime–fraud exception” if prosecutors can show that Trump’s lawyers’ actions are part of a criminal scheme. Federal prosecutors are attempting to use the exception to compel further testimony in relation to the advice from lawyer Evan Corcoran used by Trump to obstruct the Mar-a-Lago documents investigation.

Legal jousting has been a way of doing business for Trump for decades. A USATODAY analysis in 2016 found that he and his businesses had been involved in at least 3500 legal actions in federal and state courts during the previous three decades. Even as he claimed the Oval Office he faced seventy-five active lawsuits.

Trump adopted his litigious nature early, after his family company was sued by the justice department in 1973 on grounds that its rental housing policy violated the Fair Housing Act. He and his father used the notorious and famously combative lawyer Roy Cohn to counter-sue, claiming defamation. There was no real victory, but his biographers see this episode as driving home the key lessons he learned from Cohn: deny, deflect, delay and don’t put anything in writing. Perhaps this last dictate explains why Trump doesn’t use email.

Trump has carried these lessons through five decades of lawsuits, tax challenges and business failures, two impeachments and more legal investigations than any other president. As one biographer, a former federal prosecutor, wrote, “[Trump] sued at the drop of a hat. He sued for sport; he sued to achieve control; and he sued to make a point. He sued as a means of destroying or silencing those who crossed him. He became a plaintiff in chief.”

Trump might often threaten to sue, but he rarely follows through and almost always loses when he does. This is partly a result of poor legal advice: infighting has always been rife in a legal team whose personnel has changed dramatically over the years.

More recently he has used many curiously incompetent, and sometimes fraudulent, legal advisers. These include Rudy Giuliani (now in legal jeopardy over his false claims about the 2020 election), Sidney Powell (the subject of a petition brought by the State Bar of Texas Commission for Lawyer Discipline alleging that she violated legal ethics rules in working to overturn the 2020 election) and Jenna Ellis (who recently admitted to making false statements about the 2020 election).

Guided by these figures, Trump’s legal failures accumulated in the months immediately after November 2020. He and his allies filed more than sixty lawsuits seeking to overturn the election results, all of which — including direct petitions to the US Supreme Court, which includes three Trump-appointed justices — failed for lack of evidence. Some were dismissed because of errors in filings and other procedural lapses.

Trump has a reputation for not paying his lawyers, and these days he is increasingly conducting his legal nastiness using other people’s money. The Republican Party has paid millions for Trump’s legal bills. Recently the chair of the Republican National Committee announced that the committee will no longer do so because Trump is running for the party’s presidential nomination. During 2021 and 2022, when many Republican candidates struggled with election finances, Trump spent more than US$16 million from his political action committee, Save America, on legal payments, including US$10 million on his own legal fees.

The House select committee that investigated the 6 January insurrection found that much of the money accumulated by Save America came from a Trump fundraising drive that took US$250 million in donations from supporters specifically to cover legal challenges to the 2020 presidential election results. The fund was never actually created, and the money was instead used mostly to cover Trump’s own legal fees and for payments to several pro-Trump organisations headed by former Trump administration officials.

Trump could be defending himself in as many as four criminal cases as he runs for the Republican presidential candidature next year. He believes, perhaps accurately, that an indictment would increase his poll numbers. He insists that he is a victim of political enmity and corrupt prosecutors, and that the investigations are an effort to silence his supporters. He refuses to acknowledge that his legal problems are entirely a result of his own actions.

When asked if he would stay in the 2024 race if indicted, he responded that he “wouldn’t even think about dropping out of the race.” It was a bold declamation, but one that may not be his to make. No president or former president has ever been indicted. (Richard Nixon was pardoned by his successor, Gerald Ford, “for all offenses against the United States” that he “committed or may have committed” during his presidency.) But Donald Trump is in growing legal and political peril. •