We urge the DA to follow the evidence wherever it may lead in this initial set of charges, and the ones that may follow, even if that brings the prosecution to Trump himself.
But we believe it is unlikely that the DA will begin and end its prosecution with a focus on fringe benefits alone. Prosecutors often initially bring a narrow set of charges. Then, over time, they may supersede with additional charges as the case develops, broadening their focus and working their way up the corporate ladder.
There are many reasons why the DA might do this here, including, perhaps, to apply pressure on Trump Organization CFO Allen Weisselberg. The DA reportedly has been trying
to get him to testify against Trump — so far without success
. Weisselberg could be charged if, for example, he directed a tax avoidance scheme to benefit the company and/or if he himself personally benefited from unreported fringe benefits.
In our experience, the threat of charges against a would-be cooperator can be quite persuasive, but actually filing an indictment plainly raises the stakes. We each have prosecuted or defended individuals in that spot. It is uncomfortable for the defendant.
And any tax fraud case eventually could include other schemes, depending on how the evidence develops. According to reports, prosecutors are looking at allegations that conservation easements
may have been improperly taken, that certain income may have been misreported
as consulting fees and that now-infamous “hush money” payments may have been illicitly obscured as “legal expenses
If any or all of those efforts served to reduce the tax liabilities of the company, and perhaps those of its officers or employees, additional charges should be forthcoming. Many of the same operative facts potentially could be charged as the separate offense of falsifying business records
. According to the New York Times, other potentially chargeable offenses could also include
insurance fraud and a scheme to defraud lenders or others.
That brings us to Trump himself. His penchant for micromanagement
is well known. Photographs of him smiling and signing
huge stacks of tax forms related to his family business have been widely distributed. It also has been reported that Trump allegedly signed
checks to reimburse the hush money payments and was likewise intimately involved in other operations of his company now under scrutiny. Trump has repeatedly denied
The fact that Trump likely will not
be named in the first case or cases to be filed does not mean he can rest easy. We may well see more charging decisions before DA Cyrus Vance, Jr. leaves office at the end of this year. We do not, of course, know whether Trump will be among those charged — if anyone is. If the evidence does not merit it, he should not be. But given the known facts
and the law, we believe Trump is at substantial risk.
Whether the case remains narrow or, as we suspect, it ultimately expands to include broader charges, we want to be clear that this is unlikely to be a slam-dunk case for the prosecution.
includes an extended treatment of possible defenses. The Trump Organization and any executives charged could point
to the passage of time, with some of the conduct appearing to fall outside the applicable statute of limitations period. They may argue a lack of criminal intent, including that they reasonably relied on the advice of professionals, such as accountants and lawyers, and therefore acted without the required intent to defraud.
And any charged individuals may attempt to argue unfair or selective prosecution for political reasons in court — or, as Trump has already done, in the court of public opinion
. While rarely a sound defense under the law, the defense would need only one sympathetic juror to secure a hung jury and a mistrial.
But there are potentially powerful rejoinders to each of those points. Statutes of limitations can be extended
in New York where there are ongoing conspiracies; prosecutors are permitted to count from the date of the most recent of the series of bad acts, allowing older, related conduct — otherwise outside the limitations period — to be swept in. Limitations periods are also extended where a potential defendant was out of the jurisdiction
during the statutory period, as Trump was when occupying the White House.
Furthermore, if a defendant can be shown to have known an action is plainly wrong, or subverted professionals, all the advice in the world will not shield
him or her. And the rejoinder to claims of political persecution is the principle that in America, the laws apply equally to everyone, no matter how powerful.
So far, we have been impressed with the dogged persistence of the DA, and we hope the prosecutors keep it up to get to the truth about Trump, whatever it may be. Vance and his team have fought through years of litigation to investigate Trump, including two ultimately successful trips
to the US Supreme Court.
Having now teamed up
with investigators from the New York Attorney General’s Office, the DA appears poised to file the first — but perhaps not the last — set of charges. The prosecution should continue pressing forward with its investigation of Trump for the most fundamental of American ideas: that no one is above the law, not even former presidents.