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Keep an Eye on Team Trump’s Legal Woes

An indictment related to Trump’s business seems imminent in New York, while the legal fallout from the Big Lie continues.
June 29, 2021
Keep an Eye on Team Trump’s Legal Woes
Trump's personal lawyer Rudy Giuliani speaks during a press conference at the Republican National Committee headquarters in Washington, DC, on November 19, 2020. (Photo by MANDEL NGAN / AFP) (Photo by MANDEL NGAN/AFP via Getty Images)

Three separate developments in the last few days suggest that, after years of flouting laws and trampling norms, Team Trump may finally be held to account for some of its misdeeds. This is important not only as a matter of justice but also because without some measure of accountability, the precedent set by the Trump presidency will destroy the republic itself.

Late last week, the news broke that outgoing Manhattan District Attorney Cyrus Vance is considering an indictment of the Trump Organization, the conglomeration of hundreds of businesses of which Donald Trump is the “sole or principal owner.” The allegations in the anticipated indictment will reportedly involve myriad taxless perks paid to benefit top executives, including the family of Allen Weisselberg. Weisselberg has served as the financial brains of the Trump Organization dating back to the days of Trump’s father, Fred Trump, and thus knows where all the bodies are buried. Vance has teamed up with Letitia James, the attorney general for the state of New York, in investigating the Trump Organization and Weisselberg, whom prosecutors likely hope to “flip” by providing criminal leniency in exchange for information regarding Trump’s state of mind. (So far, Weisselberg has refused to cooperate.) Vance has also empaneled a special grand jury to focus on the Trump Organization and its possible over- or undervaluing of assets in order to secure loans and insurance and to evade tax liability.

Proving fraud requires more than a paper trail—prosecutors must show that a corporate agent (such as Donald Trump) knew of the shenanigans going on, which is why Weisselberg is so pivotal. Trump notoriously declines to write anything down or use email, enabling him to claim plausible (or implausible) deniability as to the bad actions of the underlings within his vast business holdings. His former lawyer, Michael Cohen, told Congress in 2019 that Trump routinely directed him to lie and that “there was nothing that happened at the Trump Organization . . . that did not go through Mr. Trump for his approval and signoff.” Of course, Cohen went to jail for his service to Trump, so prosecutors likely need more than his testimony to make a case that implicates Trump himself.

Needless to say, corporations cannot go to jail. But an indictment of the Trump Organization can have severe repercussions for its ability to hang on to its customer base, secure loans, and otherwise continue to operate—not to mention the impact of criminal fines that could result from a plea or conviction at trial. A criminal indictment of the Trump Organization hardly rules out future indictments of individual officers, either. Prosecutors have evidently made a proffer to Trump’s lawyers regarding the evidence amassed thus far, giving the company until Monday to respond, but whatever they come up with is unlikely to move the indictment needle much.

Meanwhile, Trump’s former attorney general Bill Barr handed Georgia prosecutors a gift in his discussions with Jonathan Karl, who reported in the Atlantic this week that Barr told him of the election: “If there was evidence of fraud, I had no motive to suppress it. But my suspicion all the way along was that there was nothing there. It was all bullshit.” Prosecutors in Fulton County are investigating Trump’s infamous recorded phone call to Georgia Secretary of State Brad Raffensperger pressuring him to “find” enough votes to swing the state his way (despite multiple audits confirming Joe Biden’s win) as a possibly fraudulent attempt to influence the 2020 election. As MSNBC legal analyst Glenn Kirschner has observed, Barr’s comments bear on Trump’s knowledge that his call to Raffensperger was legally bogus. Atmospherically, moreover, it is stunning that Barr—who had nurtured the Big Lie early on by publicly claiming to be investigating illusive fraud—is now marginalizing Trump while potentially opening himself up as a possible witness in that pending criminal investigation.

The last news item suggesting that Teflon Don may be losing his nonstick coating appeared last week in a 33-page judicial opinion by a New York state appeals court, which suspended Trump’s attorney Rudy Giuliani from practicing law in the state. This decision was not written by a panel of bar examiners, mind you, but by judges who—unlike politicians and propagandists—are procedurally bound by laws and rules of evidence. In remarkable detail, the court itemized the

uncontroverted evidence that [Giuliani] communicated demonstrably false and misleading statements to courts, lawmakers and the public at large in his capacity as lawyer for former President Donald J. Trump and the Trump campaign in connection with Trump’s failed effort at reelection in 2020.

According to the judges, the lies include Giuliani’s statements “that in the Commonwealth of Pennsylvania more absentee ballots came in during the election than were sent out before the election.” Incredibly, Giuliani “does not deny that his factual statement . . . was untrue,” instead throwing “some unidentified member of his ‘team’” under the bus for purportedly “‘inadvertently’” pulling bad data off of a website that his lawyers didn’t bother to provide to the court.

Giuliani also misrepresented to a federal court in Pennsylvania that Donald Trump’s lawsuit challenging the election was based on fraud, even though the complaint’s

only remaining claim asserted was an equal protection claim, not based on fraud at all. The claim concerned the experience of two voters having their mail-in ballots rejected and challenged the notice and cure practices concerning mail-in ballots in different counties.

Giuliani nonetheless continued to pretend that the case was based on a fraud claim—an apparent ploy to feed the public lie that fraud tarnished the election.

The New York appeals court was also upset that Giuliani “made extensive and wide-ranging claims about Dominion Voting Systems Inc.’s voting machines manipulating the vote tallies to support his narrative that votes were incorrectly reported,” even though Georgia “had completed a hand count of all ballots” which “confirmed the results of the election with a zero percent risk limit.”

The court’s opinion is a blow-by-blow factual and legal accounting of how the Big Lie about the 2020 election is in fact a big lie. For anyone frustrated by the months of obscene gaslighting, it makes for satisfying reading.

“The seriousness of [Giuliani’s] uncontroverted misconduct cannot be overstated,” the court wrote:

This country is being torn apart by continued attacks on the legitimacy of the 2020 election and of our current president, Joseph R. Biden. The hallmark of our democracy is predicated on free and fair elections. False statements intended to foment a loss of confidence in our elections and resulting loss of confidence in government generally damage the proper functioning of a free society. When those false statements are made by an attorney, it also erodes the public’s confidence in the integrity of attorneys admitted to our bar and damages the profession’s role as a crucial source of reliable information.

All told, this latest string of events gives us hope that the lies of Donald Trump and his cronies will be met with consequences. Lies to tax collectors, lies to banks, lies to insurance brokers, lies to state officials, lies to courts, and lies to the American people.

Accountability for Donald J. Trump finally beckons.

Kimberly Wehle

Kimberly Wehle is a contributor to The Bulwark. She is a professor at the University of Baltimore School of Law, a former assistant U.S. attorney and associate independent counsel in the Whitewater investigation, and the author of How to Read the Constitution—and Why (HarperCollins). Her latest book is What You Need to Know About Voting—and Why (HarperCollins). Twitter: @kimwehle.