Apart from the somewhat comical 1872 arrest of President Ulysses S. Grant by a District of Columbia police officer for driving his carriage through the streets of Georgetown at an excessive speed, no American President has ever been charged with committing a crime. Grant was taken to a local police station, where he paid a fine, and was released.
In 1974, Richard Nixon came perilously close to prosecution when a federal grand jury named him as an unindicted co-conspirator in the Watergate cover-up. Nixon was later preemptively pardoned by his successor, Gerald Ford, for all Watergate-related federal crimes.
But what about Donald Trump? Should the man considered by many to be the most corrupt chief executive in our nation’s history be held accountable, either under federal or New York State law, for what appears to be a lifetime of crime?
Former federal prosecutor Glenn Kirschner, now a legal analyst with NBC and MSNBC, offers an unequivocal answer.
“Trump’s career as President has been criminal from start to finish,” Kirschner says. “I, for one, could prove a variety of [his] crimes in my sleep if given the opportunity.”
According to Kirschner, an indictment against Trump might start with the charge of “conspiracy to defraud the United States,” as set forth in Section 371 of Title 18 of the United States Code. This statute, which he notes “has the beauty of being listed on the Department of Justice website,” stipulates that conspiracies are considered complete when one or more of the co-conspirators takes an “overt act” to further the objectives of the conspiracy. In Trump’s world, he explains, “The number of conspiracies is practically endless.”
Trump's Presidential Conspiracies
Trump’s presidential conspiracies may have commenced during the 2016 election campaign, when he allegedly instructed Michael Cohen, his former attorney and personal fixer, to pay hush money to two women—pornstar Stormy Daniels and former Playboy model Karen McDougal—with whom he had extramarital affairs. In 2018, Cohen pleaded guilty to making the Daniels and McDougal payoffs in violation of the Federal Election Campaign Act. Harkening back to Nixon, the complaint lodged against Cohen treated Trump, dubbed “Individual-1,” as the instigator of the plan.
The conspiracy continued after the election into the summer of 2017, Kirschner says, because Trump reimbursed Cohen for fronting the money to Daniels and McDougal after he became President, thus impairing the functions of the Federal Election Commission. Although the Department of Justice, under the leadership of Attorney General William Barr, subsequently dropped its investigation of Individual-1, the probe could be resumed at any time before the five-year federal statute of limitations expires in 2022.
Kirschner also cites the President’s attempt in July 2019 to pressure Ukrainian President Volodymyr Zelensky to dig up political dirt on Joe and Hunter Biden in exchange for the release of American military aid, which was the basis for the articles of impeachment lodged against Trump.
“Not only did Trump plainly solicit a bribe and commit an act of extortion,” Kirschner says, “he named [during his phone call with Zelensky href="https://www.whitehouse.gov/wp-content/uploads/2019/09/Unclassified09.2019.pdf" target="_blank"] both Rudy Giuliani and Bill Barr as co-conspirators who would be enlisted to further his corrupt scheme.”
Kirschner, who cautions that no one has yet been charged and everyone enjoys the presumption of innocence, adds that former acting Trump Chief of Staff Mick Mulvaney should also be looked at as a potential co-conspirator in the Zelensky affair for conceding, in a ham-fisted press conference last October, that the administration engages in illegal political “quid pro quo” transactions with foreign leaders “all the time.”
Beyond conspiracy and extortion and bribery in relation to Zelensky, Kirschner argues, Trump should be investigated for a bevy of other felonies.
These include obstruction of justice in former Special Counsel Robert Mueller’s probe into suspected Russian interference in the 2016 election; obstruction of Congress in connection with the impeachment inquiry initiated by the House in September 2019; and attempting to interfere with the delivery of mail in the run-up to the November election by imposing service cutbacks on the post office.
In a September campaign rally in North Carolina, Trump illegally encouraged his supporters to vote twice—once by mail and once in person.
Kirschner is especially troubled by Trump’s attempt to interfere with the impeachment-inquiry testimony of Marie Yovanovitch, the former ambassador to Ukraine, who was recalled from her post in the spring of 2019 because of suspected disloyalty to Trump. In a series of rage tweets sent out while Yovanovitch was testifying last November, Trump disparaged the career diplomat, declaring that, with regard to her assignments in Somalia and Ukraine, “Everywhere Marie Yovanovitch went turned bad.”
“I don’t think anybody can say with a straight face that doesn’t constitute witness tampering,” Kirschner insists. “You let me take that to a jury and I have a good shot at conviction.”
Kirschner also believes Trump is vulnerable to charges of involuntary manslaughter, based on a theory of gross negligence, for directly contributing to the staggering COVID-19 death toll by actively and repeatedly misinforming the public about the dangers of the disease, and failing to urge Americans to mitigate the dangers by means of social distancing and the wearing of face masks.
Of course, as Kirschner notes, no federal prosecution of Trump is possible without a change in administrations. “Bill Barr,” he says, “will never investigate any charges of corruption or crimes committed by the President or other executive-branch officials.”
According to two lengthy memoranda prepared by the DOJ’s Office of Legal Counsel—the first drafted in 1973 in response to President Nixon and Watergate, the second in 2000 in response to the multiple scandals that triggered the impeachment of President Bill Clinton—“the indictment or criminal prosecution of a sitting President would impermissibly undermine the capacity of the executive branch to perform its constitutionally assigned functions.”
Kirschner believes the DOJ’s policy not only misstates the law but actually “encourages a President to behave lawlessly and cling to power at all costs because he knows he can’t be held accountable while occupying office.”
Is Trump a Lawless President?
It is possible that Trump, even if re-elected, could face criminal charges from Manhattan District Attorney Cyrus Vance, who has been leading a state grand jury probe to determine if the Daniels and McDougal payoffs, or any other aspect of Trump’s private financial dealings, violated state fraud and income tax laws.
“The Manhattan DA’s office is one of the most eminent prosecutorial agencies in the country,” says Albany Law School professor Vincent Bonventre. “The suspicion is that the President and the Trump Organization may have misstated their assets and debts in loan applications and tax filings.” And state prosecutions are not constrained by DOJ policy or federal law.
Bonventre is confident that Vance is serious about following the evidence wherever it may lead, especially in light of the Supreme Court’s historic ruling in July that rejected Trump’s claims of “absolute immunity” from state criminal prosecutions.
In the meantime, both Bonventre and Kirschner recognize the threat to democracy posed by a lawless President. “Compared to Trump,” Bonventre charges, “Richard Nixon was a saint.”
Kirschner goes further, saying grimly, “I don’t think the republic could survive four more years of the combination of Donald Trump and Bill Barr.