Trump: From the White House to the Jailhouse?

Posted on Jan 18, 2021 in Blog
Trump: From the White House to the Jailhouse?

Over the past year, Donald Trump not only wanted to win because he wanted to be President, but he also knew that, if he lost, he could be facing serious indictments from the State of New York.  As the active President of the United States, he is immune from prosecution, and should he have been able to keep the Presidency for another four years, the statutes of limitations would have run on his criminal exposure in NYS and he would have exited his second term free from the threat of prosecution. He fought hard to win reelection not only to stay in the White House, but also to prevent an indictment. 

Now that he lost, not only is Trump facing indictment in New York, but because of his misconduct, he is facing potential prosecution in Georgia and, as we all know, conviction by the US Senate.  Each of those proceedings are not only serious, but will keep his legal team busy for some time. 

The prosecution in New York is very serious.  Manhattan District Attorney Cyrus Vance, Jr., has not disclosed the detail of the probe, citing grand jury secrecy rules, but he has stated that the Trump Organization has engaged in “extensive and protracted criminal conduct.”  Trump faces at least two NYS inquiries into whether he misled tax authorities, bank or business partners and engaged in securities, mail, wire and bank fraud.  He also faces allegations from two women who he allegedly assaulted.

In Georgia, Trump has recently created additional criminal exposure.  As recently reported, The Fulton County District Attorney is opening an investigation over Trump’s attempts to overturn the results of the state’s 2020 election, an inquiry that is also beyond his federal pardon power.  Among the matters the DA is looking into is a phone call Mr. Trump made in which he pressured Georgia’s Secretary of State to overturn the state’s election results.  Many veteran prosecutors believe Trump clearly violated state law with his threatening undertone and strong-arm tactics.  Trump’s actions and statements were a clear attempt to influence the conduct of the Secretary of State, and to commit election fraud, or to solicit the commission of election fraud.  In Georgia, Trump may have violated at least three serious laws, criminal solicitation to commit election fraud, a related conspiracy charge and the “intentional interference” of  another person’s “performance of election duties.”

Finally, Trump faces a potential conviction by the Senate.  While it will certainly take a mountain of evidence for the Senate to obtain 17 votes from Republicans, he is facing potential “disqualification” to hold the office of the Presidency for life.  Currently, there is a debate as to whether the Senate has jurisdiction to convict a President after he has left office.  Despite Trump’s claims to the contrary, there is precedent.  In 1876, Secretary of War William Belknap faced an impeachment trial after resigning.  Although he was acquitted, the trial did occur after his tenure.  Further, if he could not be convicted after he leaves office,  then a government official could just resign without facing prosecution.  That result simply makes no sense.  There are also those that believe that, because of his actions, the Senate does not need a two-thirds majority to bar him from public office.  The 14th Amendment, ratified in 1868, which is primarily known for providing citizenship and equal protection under the law to anyone born or naturalized in the United States, may come into play.  Section three of that amendment also provides a path for disqualification, stating that no person shall hold office if they have taken part in an “insurrection or rebellion” against the United States. The requirement is a simple majority or 51 votes.  While it has never been used against a president, and the Constitution does not give any directive on how Section 3 of the 14th Amendment should be invoked and some Democrats are considering it’s applicability in this case.  There would presumably have to be a trial before the Senate convicts.  However, lawmakers could bypass the trial requirement by creating new legislation under Section 5 of the 14th Amendment to provide a procedure for applying Section 3. The new legislation would need to pass both chambers and be signed by the president.

In short, now that his term is over, Trump will be facing potential prosecution and conviction by the Senate for some time.  Perhaps that is why he maintained, without any basis whatsoever, that he won the election.  He said so not because he wanted to, but because he had to.

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