Updated at 4:23 p.m. ET
Of all the perks of being president, Donald Trump may soon miss most the
legal protection that it affords.
For four years, Trump has benefited from the de facto immunity from
prosecution that all presidents enjoy while in office. But that cloak will pass
to Joe Biden when he's sworn in on Jan. 20, leaving Trump out in the legal cold.
"Clearly, the president enjoyed immunity when he was in office," said Danya
Perry, a former state and federal prosecutor in New York. "And it's possible, as
a matter of law, that he could be indicted on Jan. 21."
There's no indication that an indictment is imminent, and it's possible that
Trump could emerge entirely unscathed. But there's also no doubt that once
he's out of office, he'll be facing a higher level of legal jeopardy than he has in years.
"His legal risks increase immeasurably come Jan. 21, both on the civil and the
criminal side," Perry said.
Potential federal liability
The most developed case that could ensnare Trump might be out of the Southern
District of New York. It stems from the federal prosecution against Michael
Cohen, Trump's onetime personal attorney and fixer.
Cohen pleaded guilty to a range of crimes, including arranging illegal hush
money payments to keep women silent during the 2016 campaign about extramarital
affairs they say they had with Trump before he was president. Trump has denied the
allegations.
Cohen has said he acted at the direction of and in coordination with Trump.
Prosecutors, meanwhile, referred to the president in court papers as "Individual 1."
It is Justice Department policy that a sitting president cannot be indicted. So
although it's possible for a president to break the law before or during his time
in office, prosecutors' inability to seek an indictment effectively means he can't
be accused, tried or punished while still in office.
Cohen's wrongdoing, which prosecutors tied to Trump without naming him, raises
the question as to whether Trump might face charges of his own.
"Ordinarily, had the target not been a sitting president with immunity, I think
'Individual 1,' as he's referred to, very likely would have been prosecuted along with
his aider and abettor, Michael Cohen," Perry said.
Uncharted waters
There could be significant complications to pursuing such a case, however.
For one, prosecuting a former president would be politically fraught, particularly
in a country as divided as this one. The decision on whether to do so at the federal
level will fall to the new administration.
"It comes down to a political calculation," said Kim Wehle, a former federal
prosecutor who now teaches at the University of Baltimore School of Law.
"And the understanding is President-elect Biden has already signaled he doesn't
have an appetite for that, which makes sense given he has a lot of political capital
that needs to be used on critical issues like the pandemic, like climate change, like
the economy."
Biden has indeed signaled his reluctance to pursue a case against his predecessor.
In August, Biden said he'd leave the decision to the Justice Department and the
attorney general, but he suggested pursuing charges might do more damage than good.
"I think it is a very, very unusual thing and probably not very — how can I say it? — good
for democracy to be talking about prosecuting former presidents," Biden said.
There's also the possibility that Trump could attempt to pardon himself before
leaving office. The president has asserted he has that power but said in the past he
didn't feel he needed to use it because he argues he hasn't broken any law.
An attempt at a self-pardon would be an unprecedented move and could very well
face legal challenges.
The city and state of New York
What is clear about Trump's pardon power, however, is that it does not extend to crimes
at the state level. And that could prove problematic for Trump in his former hometown.
Manhattan District Attorney Cyrus Vance Jr. has an active criminal investigation into
Trump and his businesses. The exact contours of the probe are not clear, but court papers
suggest he's investigating possible insurance or financial fraud.
"That looks like it's the most likely place where he could have some criminal liability
around taxes, for example," Wehle said.
The case has been tied up for months as Trump fights a grand jury subpoena that Vance
issued to the president's personal accounting firm. Vance's office is seeking eight years
of Trump's tax returns and financial records.
The president fought the subpoena all the way to the Supreme Court last summer and
lost, although the high court left the door open for him to raise other legal challenges.
Trump did so, arguing that the subpoena was overly broad and politically motivated.
Vance rejected those claims, and lower courts agreed with the district attorney's office.
Trump's attorneys are now asking the Supreme Court to block the subpoena.
Wehle said the patience Vance's team has shown in litigating its subpoena case suggests
the probe isn't simply political — a Democratic city official in New York playing to the
crowd there.
"It's hard to imagine that Cyrus Vance would have put this kind of effort into
investigating Donald Trump while he was president if he was just going to drop that
investigation and anything that could come out of that when he is a private citizen like
anyone else," Wehle said.
The Vance case is not the only legal trouble brewing in New York.
The state attorney general, Letitia James, is conducting a civil investigation into the
Trump businesses. James is looking into whether the Trump Organization improperly
inflated the value of its assets for loan or insurance purposes, and then deflated the
value for tax purposes.
The president's son, Eric Trump, reportedly was deposed under oath last month as
part of the probe.
While James' investigation is a civil one, it could cross over to the criminal side
depending on what investigators uncover.
According to Perry, the former New York prosecutor, both of the probes could be
relatively straightforward because they are likely based heavily on documents.
"If you're looking at several assets, for example, and different values are attributed to
them, one in a tax return and another in a bank loan document, that might be relatively
simple," she said. "They do seem to be very paper based."
Cohen alleged in congressional testimony that Trump's businesses engaged in such
practices.
But there are significant challenges in criminal tax cases, Perry said, because returns
for a sprawling business can be complicated, and prosecutors have to prove that
people involved willfully broke the law.
"To prove that the taxpayer here, Mr. Trump himself, has committed intentional, willful
tax fraud can be difficult, and it doesn't necessarily fly off the pages of the tax
returns," Perry said. "A cooperating witness is always very helpful for that."
It isn't clear whether Cohen or other sometime aides of Trump might be in a position
to appear in a criminal case and testify as to the boss's actions or intentions.
And Trump's legal jeopardy does not end there.
He also faces defamation lawsuits filed by two women who say he sexually assaulted
them — allegations he denies. While Trump doesn't face criminal liability in those suits,
he does face potential damage to his reputation and financial repercussions.
In all, it adds up to a legally perilous — and potentially expensive — post-presidency.
"It's a potential avalanche," Wehle said. "But this is, again, a man that is very used to
using the legal system to his advantage."