To say that the US doesn’t have a great record of holding its elites accountable would be a gross understatement. So while former prosecutors and other legal experts have argued that Donald Trump faces significant criminal liability once he’s out of office, those analyses have been greeted with quite a bit of skepticism. People with Trump’s connections and resources are hardly ever punished so it’s understandable, especially given Joe Biden’s consistent promise to try to “heal” a fractured nation.
But Trump isn’t a typical member of America’s ruling class, and while a 75-year-old former president with the means to afford a team of high-power lawyers may not ever actually face the inside of a prison cell, there’s a better chance that he will be convicted after he leaves office than some people believe.
Ideally, if Biden wins the presidency, he would appoint a Special Counsel staffed entirely with Republicans to investigate crimes Trump is alleged to have committed in office. Biden’s administration would emphasize that holding Trump accountable is something Republicans need to do for the good of their party as well as the country and promise that they would have full autonomy from the White House and the DOJ to pursue the facts wherever they may lead.
But there’s good reason to think that’s unlikely, given that Democrats tend to be wary of “criminalizing” politics and would see going after a polarizing former president as setting a dangerous precedent. So Trump will probably never face federal charges for obstructing justice, coordinating with foreign powers to undermine the 2016 election, violating campaign finance laws or other offences related to his presidency. If history is any guide, he certainly won’t be held accountable for any human rights violations committed on his watch either at home or abroad.
State-level prosecutions for financial crimes are another matter entirely. The Manhattan DA, Cy Vance, filed a motion recently which implied that his office was pursuing charges that may include tax evasion and banking and insurance fraud. Meanwhile, on Monday, after dodging a subpoena for weeks, Eric Trump invoked his Fifth Amendment rights rather than testify in a separate probe of Trump’s businesses by New York State AG Tish James. There may be similar investigations underway in other states where The Trump Organization does business.
The crimes Trump is suspected of committing are easy-to-explain acts of fraud. He allegedly manipulated the values of his properties to defraud the IRS, banks and insurance companies. Those very crimes helped make the Trump family’s fortunes; as The New York Times reported in 2018, Donald Trump was earning $200,000 per year from his father’s tax fraud scheme as a 3-year-old and was a tax fraud millionaire by age 8.
Experts say that these kinds of offenses tend to be red-flags for money laundering, and there are a lot of questions about why Trump, who had previously done business with other people’s money, suddenly went on a buying spree acquiring money-losing properties with cash several years back.
When powerful people do face consequences for violating the law, these are exactly the kind of tawdry financial crimes that often bring them down.
More importantly, state and local prosecutors in blue states would have powerful incentives to prosecute Trump. There are two reasons why our political elites often enjoy impunity. First, prosecutors guard their winning percentage, and people who can afford to drop millions on their defenses are more likely to be acquitted. Second, they tend to be well-connected. In many cases, they are reliable political donors.
But we should be as cynical about prosecutorial decisions as we are about the impunity that American elites typically enjoy. After four years of attacking blue states, Trump doesn’t have a lot of friends in high places in states like New York or California. Prosecuting a historically unpopular authoritarian like Trump would be a career-making move in those states. It would make a prosecutor into an overnight star among their constituents and put their name on the national map. Professional ambition is probably the best reason to think that Trump may end up being the rare powerful political figure who pays a price for tax evasion and fraud.
While this isn’t a prediction, the stars may align for the Trump Crime Family to see some “law and order” up close, from the other side of the system.