Editor’s Note: Norman Eisen, a former ambassador and ethics czar for President Barack Obama and impeachment counsel to House Judiciary Committee Democrats in 2019-20, is a senior fellow in governance studies at the Brookings Institution. E. Danya Perry is a co-founder and attorney at Perry Guha LLP in New York, as well as a former federal prosecutor and New York State Deputy Attorney General. John Cuti is a co-founder and an attorney at Cuti Hecker Wang LLP in New York. He litigates criminal law, constitutional law, and other matters and has considerable experience with New York State criminal proceedings. They are among the co-authors of the new Brookings report “New York State’s Trump Investigation: An Analysis of the Reported Facts and Applicable Law.” The views expressed in this commentary are their own. View more opinion on CNN.
As long-time criminal law practitioners, we know that the Monday meeting held between New York prosecutors and former President Donald Trump’s attorneys was among the more dramatic that can play out in the behind-the-scenes life of any case.
The District Attorney for the County of New York is reportedly preparing to charge the Trump Organization, and perhaps certain of its executives, in connection with allegedly valuable fringe benefits provided to company employees. The defense lawyers were reportedly trying to talk the prosecutors out of it.
We urge the DA to follow the evidence wherever it may lead in this initial set of charges, and the ones that may follow, even if that brings the prosecution to Trump himself.
In a new Brookings report, we offer a roadmap for what may lie ahead, including for the ex-president. Any analysis must begin with the likely soon-to-be-filed charges. If the recent news coverage is accurate, they will likely be narrowly focused on the company’s provision of fringe benefits to executives without the payment of proper payroll or other taxes on them. Those charges may be filed against not only the Trump Organization for a tax avoidance scheme, but also against any individual executive who knowingly failed to record or report those benefits as taxable income.
But we believe it is unlikely that the DA will begin and end its prosecution with a focus on fringe benefits alone. Prosecutors often initially bring a narrow set of charges. Then, over time, they may supersede with additional charges as the case develops, broadening their focus and working their way up the corporate ladder.
There are many reasons why the DA might do this here, including, perhaps, to apply pressure on Trump Organization CFO Allen Weisselberg. The DA reportedly has been trying to get him to testify against Trump – so far without success. Weisselberg could be charged if, for example, he directed a tax avoidance scheme to benefit the company and/or if he himself personally benefited from unreported fringe benefits.
In our experience, the threat of charges against a would-be cooperator can be quite persuasive, but actually filing an indictment plainly raises the stakes. We each have prosecuted or defended individuals in that spot. It is uncomfortable for the defendant.
And any tax fraud case eventually could include other schemes, depending on how the evidence develops. According to reports, prosecutors are looking at allegations that conservation easements may have been improperly taken, that certain income may have been misreported as consulting fees and that now-infamous “hush money” payments may have been illicitly obscured as “legal expenses.”
If any or all of those efforts served to reduce the tax liabilities of the company, and perhaps those of its officers or employees, additional charges should be forthcoming. Many of the same operative facts potentially could be charged as the separate offense of falsifying business records. According to the New York Times, other potentially chargeable offenses could also include insurance fraud and a scheme to defraud lenders or others.
That brings us to Trump himself. His penchant for micromanagement is well known. Photographs of him smiling and signing huge stacks of tax forms related to his family business have been widely distributed. It also has been reported that Trump allegedly signed checks to reimburse the hush money payments and was likewise intimately involved in other operations of his company now under scrutiny. Trump has repeatedly denied any wrongdoing.
The fact that Trump likely will not be named in the first case or cases to be filed does not mean he can rest easy. We may well see more charging decisions before DA Cyrus Vance, Jr. leaves office at the end of this year. We do not, of course, know whether Trump will be among those charged – if anyone is. If the evidence does not merit it, he should not be. But given the known facts and the law, we believe Trump is at substantial risk.
Whether the case remains narrow or, as we suspect, it ultimately expands to include broader charges, we want to be clear that this is unlikely to be a slam-dunk case for the prosecution.
Our report includes an extended treatment of possible defenses. The Trump Organization and any executives charged could point to the passage of time, with some of the conduct appearing to fall outside the applicable statute of limitations period. They may argue a lack of criminal intent, including that they reasonably relied on the advice of professionals, such as accountants and lawyers, and therefore acted without the required intent to defraud.
And any charged individuals may attempt to argue unfair or selective prosecution for political reasons in court – or, as Trump has already done, in the court of public opinion. While rarely a sound defense under the law, the defense would need only one sympathetic juror to secure a hung jury and a mistrial.
But there are potentially powerful rejoinders to each of those points. Statutes of limitations can be extended in New York where there are ongoing conspiracies; prosecutors are permitted to count from the date of the most recent of the series of bad acts, allowing older, related conduct – otherwise outside the limitations period – to be swept in. Limitations periods are also extended where a potential defendant was out of the jurisdiction during the statutory period, as Trump was when occupying the White House.
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Furthermore, if a defendant can be shown to have known an action is plainly wrong, or subverted professionals, all the advice in the world will not shield him or her. And the rejoinder to claims of political persecution is the principle that in America, the laws apply equally to everyone, no matter how powerful.
So far, we have been impressed with the dogged persistence of the DA, and we hope the prosecutors keep it up to get to the truth about Trump, whatever it may be. Vance and his team have fought through years of litigation to investigate Trump, including two ultimately successful trips to the US Supreme Court.
Having now teamed up with investigators from the New York Attorney General’s Office, the DA appears poised to file the first – but perhaps not the last – set of charges. The prosecution should continue pressing forward with its investigation of Trump for the most fundamental of American ideas: that no one is above the law, not even former presidents.