“New York State’s Trump Investigation:
An Analysis of the Reported Facts and Applicable Law”
“V. Conclusion
As we have noted from the start, this report is based on publicly available information, which we have assembled and analyzed in light of the potentially governing statutes and relevant legal principles. We do not have any inside prosecutorial information, and are not privy either to unreported evidence uncovered by the prosecuting authorities, or to the particular insights that they have gleaned from their intense efforts in connection with the investigation. We thus cannot offer a definitive judgment or prediction of either what will occur, or what action should be taken in light of the complete record.
At the same time, the facts that are known and publicly accessible demonstrate numerous instances of business dealings through which the Trump Organization, and Donald Trump personally, are alleged to have secured many millions of dollars of financial advantage by alleged manipulations and misrepresentations.
As we have discussed, each of these instances is its own story, and the prospects of any potential case to be brought must be evaluated in light of all the surrounding facts. And, as we have tried to do in Section IV, the pros-pects for success must be weighed in the context of the person of Trump, who, over a period of years, has proven to be quite effective in avoiding personal accountability.
All of these considerations, including the prospects that a prosecution will succeed or fail, will be front and center in the minds of those in New York charged with making the ultimate prosecution decisions—as well they should be. But also at the heart of prosecutors’ thinking—as a basic tenet of the American legal system to be preserved above all others—will be the idea that our laws apply equally to everyone and that no person is above the law. That principle strongly suggests that if there is powerful evidence of substantial wrongdoing to secure personal advantage—evidence of the sort that would plainly cause others to be held to account—it should lead to prosecution even in the unusual case of a former president, his company, and its employees.
We have noted press reporting that the first charges may be imminent. Recognizing the inherent uncertainty of such a projection, additional charges if any may come as soon as this summer or fall. That is because a special six-month grand jury has been impaneled, statutes of limitations are running (as we discuss in detail in Section IV.A), and Manhattan District Attorney Cyrus Vance, Jr.’s term is set to expire at the end of this year.
He likely will want to either bring, or decline, remaining charges before he leaves office. Recent press reports about the timing of the first of the possible cases are consistent with our projection.338
A complicating factor in the charging calculus that cannot be ignored is Trump’s status as a failed political candidate, and the possibility that any proceeding will be viewed cynically as an act of political retribution by his opponents.
With respect to federal charges, President Biden has determined to leave the matter to the U.S. Department of Justice.339 Whatever the DOJ may decide, this consideration obviously weighs differently where action by the DANY and the NYAG is concerned. While there are certainly those who will perceive politicization in any criminal or enforcement action that may be taken, those in charge of these offices have never been Trump’s direct electoral adversaries. And as the lead law enforcement officials in the locale where Trump has for decades centered his business dealings, they bear the greatest public responsibility for the integrity of the law enforcement process as it concerns nearly all of the dealings apparently at issue. Ultimately, they must choose between acting, or leaving the actions of Trump and those associated with him beyond public account-ability. We think that the ability of state authorities to engage on the unique facts of this situation is a great strength of our federal system.
While one should take extreme caution before pursuing charges against high-profile politicians and their associates, in principle the law applies equally to princes and paupers alike. A legal system that gives a free pass to the powerful would run contrary to the binding foundation of law that we have one system of justice, and that all are subject to it.
Thus, with all the qualifications we have offered, we think there is serious risk that criminal enforcement action will be taken as a result of the ongoing investigations of the business dealings of Donald J. Trump and the Trump Organization."
