Trump and his Presidency:

Corruption, Economic Crime

and the Rule of Law
The Constitutional Framework

‘Checks and Balances’ - James Madison – Federalist 51 (1788)

President ‘ … shall take Care that the Laws be faithfully executed.’ Art.
II, Sec. 3. U.S.Constitution
Can a President be indicted:
(i) at federal level?
DOJ memo 1973
(ii) at state level?

Evidential Immunity?
United States v Nixon (1974) 418 US 683
Clinton v Jones (1997) 520 US 681
Trump v Vance (2020) 140 S Ct 2412

Substantive immunity? United States v Trump (2024)

When can a President be impeached?
Article II Section IV

The President, Vice-President and all civil officers of the United States
shall be removed from office on impeachment for, and conviction of,
treason, bribery, or other high crimes and misdemeanours.

(Two-thirds majority of Senate to convict)

Activities prior to becoming President?
History of Impeachment
Andrew Johnson 1867 (Tenure of Office Act 1867, Sacking of Edwin Stanton (SO War)
impeached and acquitted
Richard Nixon 1974 (Watergate, ‘Saturday night massacre – 3 articles
Article 1 [Nixon], has prevented, obstructed, and impeded the administration of justice, …
[Nixon] has repeatedly engaged in conduct violating the constitutional rights of citizens, impairing the due and proper administration of justice
and the conduct of lawful inquiries, or contravening the laws governing agencies of the executive branch and the purposed of these agencies.
:[Nixon] has repeatedly engaged in conduct violating the constitutional rights of citizens, impairing the due and proper administration of justice
and the conduct of lawful inquiries, or contravening the laws governing agencies of the executive branch and the purposed of these agencies.
This conduct has included one or more of the following:
[Nixon] has failed without lawful cause or excuse to produce papers and things as directed by duly authorized subpoenas issued by the
Committee on the Judiciary of the House of Representatives [ …] and willfully disobeyed such subpoenas.

Bill Clinton 1998 Inquiry by Starr into “Whitewater” expanded to consider perjury by WJC in
Clinton v Jones (1997) 520 US 681 about his relationship with Monica Lewinsky: impeached and
acquitted
Trump …
Criminal Jurisdictions
Federal (Special Counsel or FBI) State (usually NY, also GA)

Logan Act and Foreign Agents Registration

Act Laundering jurisdiction
RICO Tax evasion
Obstruction of Justice Obstruction of Justice
Laundering
Campaign finance laws
Tax evasion
Campaign finance laws Election Offences
Sedition/insurrection State RICO (GA)
Election offences
Some Aids
• Michael Cohen (fixer – paid off “Stormy Daniels”, imprisoned for tax fraud.)
• Rudy Giuliani (Negotiator on Trump Moscow, chief 2020 election disputer “Just say we
won”.) Bankrupted by libel action by company that made voting machines about
which he lied.
• Allan Weisselberg (COO Trump Organisation, imprisoned 2022 for tax frauds, pleaded
to perjury in civil fraud case 2024.)
• Michael Flynn (Trump’s first National Security Adviser, did not declare money he took
from Russia and Turkey), pleaded guilty, pardoned by Trump. Cohen/Felix Sater
• Steve Bannon
• Paul Manafort (Trump campaign chair, employed by pro-Putin faction in Ukraine,
repatriated money from various entities in Cyprus and elsewhere to support lifestyle).
• Family members
1. The Money Laundering allegations – (A)
Trump Hotels, Deutsche bank and the Rouble

DB

The proceedings against DB

https://uk.reuters.com/article/uk-usa-trump-russia-fusion/sales-of-tru
mp-properties-suggestive-of-money-laundering-researcher-idUKKBN1F
8058
http://www.chicagotribune.com/news/opinion/commentary/ct-trump-
money-laundering-kushner-20180105-story.html
Deutsche Bank
Note also the overvaluation of Trump property to secure loans. His
Westchester NY property was expressed to be worth $25-50m on
Trump’s ethics declaration. It was valued at $250m to secure a loan
from DB.
"For decades... President Donald Trump’s buildings — those he helped
build and those to which he licensed his name — have drawn alleged
kleptocrats who may be looking to funnel some of their money out of
their countries."
https://t.co/fvoZg5vAF3
2. The Money Laundering Allegations (B)
(Republican Party and the NRA)
The Russia – NRA – GOP link

The Colorado case – Cottrell

Maria Butina
Caveats
Not all Russian money is dirty, but the range of predicates in US Federal
law is wider than e.g. UK.
Expatriating money from Russia is entirely rational and not necessarily
criminal.
Media sources invariably claim that any given rich Russian is ‘close to
Putin’. They can’t all be.
3. The Sex Trafficking allegations
Trump Model Management
4. Trump’s tax affairs

Subsidies to Allan Weisselberg (Trump signed the cheques for his

grandchildren’s school fees).
Fraudulent valuations of property so as to reduce liability
Fraudulent returns
5. Complicity in Russian interference in the
2016 US election
Posited deal

Russia wanted:
1. (specifically) Magnitsky Act sanctions lifted
2. (generally) influence over US.

Trump wanted: hotel in Moscow, which required funding, consents &c.

Evidence of Russian interest in end of
sanctions
Press conference question by Russian journalist ( spy )
2015 Maria Butina (associate of Paul Ericson and NRA contact)
Trump Tower meeting June 2016 (Kushner, Manafort, Trump Jr talk with
Russians about ‘orphanages’ [≈ Magnitzky sanctions])
Kushner meeting with Russians in Seychelles (Jan 2017)
Offences?
Violation of campaign finance laws?
Failure to register under Foreign Agency Registration Act?
6. Profiting from Presidency: the Emoluments
Clause litigation
Article 1 Section 8:
No Title of Nobility shall be granted by the United States: And no
Person holding any Office of Profit or Trust under them, shall, without
the Consent of the Congress, accept of any present, Emolument, Office,
or Title, of any kind whatever, from any King, Prince, or foreign State.
Allegation
Trump profited from the Trump Hotel in Washington, violating the
Emoluments Clause in the Constitution. https://t.co/ft1Ak1DTXJ (Jan
2019)

Supreme Court decided this issue was moot, January 2021.

Trump, In re (2020) 958 F 3d 274, cert granted, judgment vacated sub
nom Trump v. DC, (2021) 141 S Ct 1262.
7. The Finances of the Inauguration (Jan
2017)
Allegations:
1. $100m raised from various donors of which $40m unaccounted for.
2. Overcharging by Trump Hotel DC for inauguration-related events.
3. Use of surplus to pay Jared Kushner’s legal bills.

Offences? Frauds?
8. The Trump Foundation (Charity)
Allegations of misuse of charity funds (paying personal legal fees from
charity funds &c).

Foundation wound up by NY courts December 2018. Bans for family

from acting on boards of NY charities.
People of New York v Donald J Trump, Donald J Trump Jr., Ivanka Trump,
Eric F Trump, and the Donald J. Trump Foundation 2018 WL 6188436
(NY Sup).
9. Obstruction of Justice
NB history – articles of impeachment against Nixon & Clinton both contained
allegations of obstruction – attempts to cover up other wrongdoing.
A Attempting to obstruct investigation of Flynn (briefly National Security
Adviser, 2017) by pressurising and then sacking James Comey (Director of the
FBI).
B Obstructing investigation of Trump self/family/compadres by
sacking/pressurising those involved (or not involved – Sessions) in the Russia
investigation with a view to securing its end.
C Obstruction of justice by promising/delivering pardons to people who kept
schtum.
D Judicial and prosecutorial appointments
Sacking of Comey [Director, FBI] (2017)
FBI was investigating Russian interference in election, and Flynn’s part
therein.
Trump wanted the investigation stopped. He fired Comey, expecting
that the A-G (Sessions) would end the enquiry. Instead Sessions
recused himself and his deputy set up a Special Counsel investigation.
Redolent of Nixon’s “night of the long knives” (the beginning of his
end).
Mueller - Outcome
Many individual prosecutions
(i) Clear evidence of Russian interference in 2016 US Presidential Election
(ii) Significant damning evidence of obstruction of justice (by Trump)

Report makes no recommendation to indict the President (because of an

existing, but questionable DoJ policy that a sitting President cannot be
indicted). No recommendation to impeach (because, said Mueller, that was
a decision for the House). A-G Barr puts out statement saying DoJ will take
no further action. House Democrats decided not to impeach.
9. First Impeachment Feb 2020 - the phone
call with Zelensky
Soliciting action against Biden and his son.
‘I would like you to do us a favour though … Because our country has
been through a lot and Ukraine knows a lot about it. I would like you to
find out what happened with this whole situation with Ukraine, they
say Crowdstrike …. The other thing, there's a lot of talk about Biden's
son, that Biden stopped the prosecution, and a lot of people want to
find out about that, so whatever you can do with the Attorney General
would be great. Biden went around bragging that he stopped the
prosecution so if you can look into it … it sounds horrible to me... ‘.
Impeachment (House of Representatives v
Trump, Feb 2020)
Allegations
Trump made delivery of military aid to Ukraine conditional upon Ukraine
mounting an anti-corruption investigation of the business activities in Ukraine of
Joe (the favourite to contest the 2020 election with him) and Hunter Biden (Joe’s
son).
Were any criminal offences committed?
1. Campaign finance
2. FCPA
3. Extortion
… but no criminal offence formally necessary for ‘high crimes and
misdemeanours’ anyway.
Articles of Impeachment alleged:
1. Abuse of power
2. Obstruction of Congress in its investigation of the President's conduct regarding Ukraine.

Procedure?
No witnesses

Defence?
Allegations did not disclose High crime or Misdemeanour.
Trump has learned his lesson

Result? Acquitted: count 1 52-48; count 2 53-48.

10 Electoral Offences
(2016) Payoff to “Stormy Daniels” – falsified business record also undeclared election expense.
(NY hush money trial 2024)

(2020) Raffensburger call (GA election interference case)..

“ … And you are going to find that they are — which is totally illegal, it is more illegal for you
than it is for them because, you know what they did and you’re not reporting it. That’s a
criminal, that’s a criminal offense. And you can’t let that happen. That’s a big risk to you and to
Ryan, your lawyer. And that’s a big risk. But they are shredding ballots, in my opinion, based
on what I’ve heard. And they are removing machinery and they’re moving it as fast as they
can, both of which are criminal finds. And you can’t let it happen and you are letting it happen.
You know, I mean, I’m notifying you that you’re letting it happen. So look. All I want to do is
this. I just want to find 11,780 votes, which is one more than we have because we won the
state.”
11 The Presidential Records issue
Presidential Records Act

Repeated request/ subpoena / search reveled violations

Proceedings in Federal court in Florida before judge Aileen Cannon

Civil Actions implying criminality
Trump University (Makaeff v Trump University (2013) 715 F 3d 254 (9th
Cir), 258, 271; Cohen v Trump (2016) 200 F Supp. 3d 1063, 1067
(Southern District of California)
Trump Foundation (above)
NY tax/business records fraud case Trump Corporation: liable for c $500
million.
Rape of E Jean Carroll: liable for c$100million
11. The 2020 election and 6th Jan 2021
As of the Saturday after the election Biden had secured a clear
majority of the electoral votes.

What usually happens?

Concession
or
Litigation followed by ‘concession’ through gritted teeth ( Bush v Gore,
531 US 98 (2000))
The plan(s)
(a) Successfully contest at least four states (from GA PA NV AZ WI)
If the votes could be redesignated …
If not try to get votes annulled so that …
Electoral litigation
https://en.wikipedia.org/wiki/Post-
election_lawsuits_related_to_the_2020_U.S._presidential_election
(b) Get the election referred to the States for a vote under US Constitution (Article 2 s 1.3)

And they shall make a List of all the Persons voted for, and of the Number of Votes for each; which List
they shall sign and certify, and transmit sealed to the Seat of the Government of the United States,
directed to the President of the Senate. The President of the Senate shall, in the Presence of the Senate
and House of Representatives, open all the Certificates, and the Votes shall then be counted.
The Person having the greatest Number of Votes shall be the President, if such Number be a Majority of
the whole Number of Electors appointed; and if there be more than one who have such Majority, and
have an equal Number of Votes, then the House of Representatives shall immediately chuse by Ballot
one of them for President; and if no Person have a Majority, then from the five highest on the List the
said House shall in like Manner chuse the President. But in chusing the President, the Votes shall be
taken by States, the Representation from each State having one Vote;
Either the ‘fake electors’ scheme; or
Have the Vice President (Pence) reject the certified returns of the State.
(c) Impose martial law
6th January 2021 – the insurrection
Criminal proceedings: c.1200 prosecutions
Issues of fact
1. Before: was Trump involved in the planning? What did he know,
when did he know it? Immediately after these events little was
known.
2. Trump’s speech in the Ellipse: to his knowledge, some present were
armed
3. During: there is no offence like ‘misconduct in public office’, but
what greater dereliction could there be?
The Second Impeachment
Single Article: ‘incitement of insurrection’ against the U.S. government and
‘lawless action at the Capitol’.
‘ … prior to the joint session of Congress held on January 6, 2021, to count the votes of the electoral college, President Trump
repeatedly issued false statements asserting that the presidential election results were fraudulent and should not be accepted by
the American people or certified by state or federal officials;
shortly before the joint session commenced, President Trump reiterated false claims to a crowd near the White House and willfully
made statements to the crowd that encouraged and foreseeably resulted in lawless action at the Capitol;
members of the crowd, incited by President Trump, unlawfully breached and vandalized the Capitol and engaged in other violent,
destructive, and seditious acts, including the killing of a law enforcement officer;
President Trump's conduct on January 6, 2021, followed his prior efforts to subvert and obstruct the certification of the presidential
election, which included a threatening phone call to the Secretary of State of Georgia on January 2, 2021;
President Trump gravely endangered the security of the United States and its institutions of government, threatened the integrity
of the democratic system, interfered with the peaceful transition of power, and imperiled a coequal branch of government; and
by such conduct, President Trump warrants impeachment and trial, removal from office, and disqualification to hold US office.
Result: to convict: 56 to acquit: 44 (acquitted).
Comparison to Criminal trial?
• Time to investigate
• Time to prepare?
• Trial by victims?
• Double jeopardy?
Outcome
Not guilty
49 democrats plus 7 Republicans (Richard Burr (NC), Bill Cassidy (LA),
Susan Collins (ME), Lisa Murkowski, (AK), Mitt Romney, (UT) Ben Sasse,
(NE) Pat Toomey (PA)) = 56 voted to convict, thus falling 11 short of the
2/3 required to convict.
Fourteenth Amendment
Section 3.
No person shall be a Senator or Representative in Congress, or elector of President and Vice-
President, or hold any office, civil or military, under the United States, or under any State, who,
having previously taken an oath, as a member of Congress, or as an officer of the United States, or as
a member of any State legislature, or as an executive or judicial officer of any State, to support the
Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or
given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House,
remove such disability.
Section 4.
The validity of the public debt of the United States, authorized by law, including debts incurred for
payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be
questioned. But neither the United States nor any State shall assume or pay any debt or obligation
incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or
emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.
Section 5.
The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
Then …
Merrick Garland as A-G. but little action directly against Trump
Congressional Committee (chair Bernie Thompson) on Jan 6th sits and
produces a report which could serve as an indictment.
Nov 2022 Jack Smith appointed Special prosecutor.
Donald J. Trump v. Norma Anderson, et al.
601 U. S. ____ (2024)
(on appeal from Colorado)
S 3 does not disqualify him.
Live criminal cases against Trump
1. The DC trial (Federal) - conspiracy to defraud the United states;
conspiracy to obstruct an official proceeding; obstruction of and
attempted obstruction of an official proceeding; conspiracy against rights.

2. Presidential records offences (the Florida trial) (Federal)

3. The fake electors scheme and pressure on Raffenspurger (the GA trial)

(State)

4. Election expenses/hush money offences (“Stormy Daniels”) (State)

Obstacles to convictions
• Jury unanimity requirement
• Delays (motion before trial v appeals after trial)
• Judges – trial and US Supreme Court
• Size of indictment (how many accused, how many counts).
• “Events” (love lives of Georgian prosecutors)
Pardons
1: The President shall be Commander in Chief of the Army and Navy of the
United States, and of the Militia of the several States, when called into the
actual Service of the United States; he may require the Opinion, in writing,
of the principal Officer in each of the executive Departments, upon any
Subject relating to the Duties of their respective Offices, and he shall have
Power to grant Reprieves and Pardons for Offences against the United
States, except in Cases of Impeachment.

Only applies to federal matters.

Role of Supreme Court? Advisory Opinion?
Limitations of the Pardon power
Only applies to federal offences (equivalent powers in state law held by
governors).

Person pardoned loses rights in respect of self-incrimination &c, and

may be subject to subpoena either by courts or congressional
committees.

Pardon for Blagoyovitch Feb 2020

Prosecutors - Removing US attorneys general from the federal districts
(Southern district of New York, Eastern District of Virginia ) Involved in
investigations of trump
Judges – Making clear what his expectations were of Justice Barrett, or
the other judges who “work for me“.
NB Numbers of (lifetime) federal judicial appointments which have
were made under Trump.
Delays in securing Senate approval to DOJ posts below the level of
Attorney General (Merrick Garland now having been approved)
US Constitution
Does the Constitution require amendment? In respect of:

Electoral counts?
(i) Was there/should there be a mechanism that could have prevented this
(dangerous) state of affairs coming into being?
(ii) Order of succession?
(iii) Vice-President be the returning officer?
Appointment and dismissal of major Law enforcement figures (Director,
FBI, special counsel)

Independence of the judiciary

Role of the Attorney-General
What does the Rule of Law require?

Who makes decisions on investigation and prosecution?

Independence of people who make these decisions from political
pressure.
Reasons he might not be held criminally
liable
Rich
Powerful
Unusual offences
Media capture
Time