… The Country Is on the Cusp of a New Era …

America is inching closer to a possibility it has never seen before:

the indictment and trial of a former president.

New York State’s attorney general, Letitia James, announced, “We have informed the Trump Organization that … We are now actively investigating the Trump Organization in a criminal capacity.” According to The New York Times, James will be sending two of her office’s prosecutors to join the team of Cyrus Vance Jr., the Manhattan DA. With this news, Donald Trump, those around him, and the country as a whole inch closer to the prospect that a former president could face criminal charges, and possibly even prison time.

The country has not been through anything like this before.

The ongoing investigation is sweeping. James began it as a civil investigation following the 2019 congressional testimony of Trump’s former attorney, Michael Cohen,

that the Trump Organization had lied about the value of its assets in order to secure loans and insurance and to reduce its tax liability.

Her focus includes the Trump Organization’s valuation of Seven Springs, a 213-acre estate in Westchester County, which it used to claim a $21.1 million tax deduction for a conservation easement on the property in 2015. James is also looking into a $160 million loan on a property at 40 Wall Street in Manhattan, which Trump personally guaranteed for $20 million, as well as

“large portions of debt owed by the Trump Organization” relating to the Trump International Hotel and Tower, in Chicago,

that were claimed as taxable income, and the valuation of Trump National Golf Club, in Los Angeles.

Vance’s municipal-level, criminal grand-jury investigation adds other areas of possible criminality to the scope of James’s state-level inquiry, including possible bank and tax fraud.
Vance is also reportedly looking into hush money paid to Stormy Daniels and other women on Trump’s behalf—a maneuver that sent Cohen to jail for campaign-finance violations.

By law, grand juries operate in secret, but it’s publicly known that Vance has also subpoenaed Mazars USA LLP, Trump’s personal accounting firm for financial records

relating to the former president and his businesses.

In July 2020, the Supreme Court rejected a bid to protect those records from disclosure on presidential-immunity grounds, and Vance finally obtained Trump’s returns in February of this year.

Vance’s office has reportedly interviewed Cohen at least eight times, and Cohen has stated that: “Unfortunately for Trump, I have backed up each and every question posed by the district

attorney’s office” with “documentary evidence.”

Vance has also sought records from two of Trump’s largest creditors, Deutsche Bank AG and Ladder Capital Corp, and from Columbia Grammar & Preparatory School, which is attended by the

grandchildren of the Trump Organization’s CEO, Allen Weisselberg, who has worked for the Trump family since 1973.

In 2017, he became the only nonfamily member to serve with Trump’s sons, Eric and Don Jr., to manage the trust established to hold Donald Trump’s business assets while president.

According to the grandchildren’s mother, Jennifer Weisselberg, more than $500,000 in tuition was paid through checks signed by either Allen Weisselberg or Trump himself

as part of compensation for Allen Weisselberg’s son, Barry, from 2012 to 2019.

Vance’s office has been trying to get Allen Weisselberg to cooperate with the investigation He  was also involved in reimbursing Cohen for the $130,000 payment made to Stormy Daniels

before the 2016 election.

For her part, James has also subpoenaed the Trump Organization for records relating to “consulting fees” it paid to Ivanka Trump,

in addition to documents regarding the various properties implicated in the investigation.

In October, Eric Trump sat for a deposition by lawyers in James’s office.

The Trump Foundation dissolved amid an investigation by James’s predecessor, Barbara Underwood, into whether it violated laws in connection with Donald Trump’s 2016

presidential campaign and whether its charity work was otherwise legitimate.

Only criminal charges can produce jail time.

Although indictments can be filed against corporations—which the Department of Justice has deemed “‘legal persons’ … capable of committing crimes” and

“criminally liable for the illegal acts of its directors, officers, employees, and agents”—corporations can’t go to jail.

Nonetheless, individual corporate officers can be charged along with a corporation.
This is where Trump, his top affiliates, and his family are all in potential trouble.
Trump’s tax counsel in 2016 described him as “the sole or principal owner in approximately 500 separate entities [that] do business as The Trump Organization.
It’s hard to imagine a scenario in which none of this comes back to Trump himself.Whether the joint efforts of the Manhattan DA and the New York State AG will lead to indictments is unknowable at this point, but the matter is clearly ramping up.

One question of late is whether either jurisdiction could force Trump to appear in New York in the event that he is criminally charged, given that he is lodged primarily in his Mar-a-Lago estate

in Florida, though he recently moved to his country club in Bedminster, New Jersey. Florida Governor Ron DeSantis is a staunch Trump ally, and Palm Beach County State Attorney Dave Aronberg

has publicly acknowledged that “informal conversations” have occurred regarding whether DeSantis could intervene “in case an indictment happens.”

But as Aronberg noted, DeSantis “can try to delay it, he can send it to a committee and do research about it, but his role is really ministerial, and ultimately the state of New York can go to court and get an order to extradite the former president.”

In fact, this is a rare circumstance in which the Constitution is quite explicit regarding a governor’s obligation to respect an extradition request from another state:

Article IV, Section 2 provides that “a person charged in any state with treason, felony, or other crime … shall on demand of the executive authority of the state from which he fled,

be delivered up, to be removed to the state having jurisdiction of the crime.”

A statute of troubling origins dating from 1793 and known as the Fugitive Slave Act sets forth procedures for extradition, which the Supreme Court has affirmed.

As president, Donald Trump dodged conviction despite two impeachment trials on three counts of constitutional wrongdoing.

Now his own criminal and civil liability, as well as that of his businesses, his staff, and his children, are squarely within the sights of the rule of law.

Former Senate Majority Leader Mitch McConnell put it plainly in his remarkable speech justifying his vote to acquit Trump for his role in the January 6 insurrection at the United States Capitol:

“We have a criminal justice system in this country.

We have civil litigation.

And former presidents are not immune from being held accountable by either one.

This story is part of the project “The Battle for the Constitution,” in partnership with the National Constitution Center.

Professor of law at the University of Baltimore
 She is the author of the book How to Read the Constitution—And Why.