Donald Trump enters the final months of the 2020 campaign under a dark new cloud: public confirmation that he, his companies and his family are the focus of a wide-ranging criminal investigation by Manhattan District Attorney Cyrus Vance.
As Attorney General William Barr ramps up his scheme to misuse the Department of Justice to interfere with yet another presidential election in Trump’s favor, Vance publicly confirmed on Monday that Trump is in the crosshairs of a wide-ranging grand jury investigation—but only because Trump himself all but begged Vance to make that announcement.
Enterprising reporters, aided by public records and occasional leaks— including of old tax records by Trump’s niece, Mary Trump—have spent the past several years piecing together a sordid tale of potential tax and insurance fraud (not to mention frauds upon disfavored family members, like Mary) stretching back decades in the Trump Organization. Unsurprisingly, prosecutors took an interest in the same transactions, leading Vance’s office to seek Trump’s financial records. For over a year, Trump’s been engaged in a litigation campaign focused on preventing a grand jury Vance empanelled from obtaining those records from Trump’s accountants. Now, that campaign has backfired.
Things had already been going badly for Trump in this legal fight but he bought time as the case made its way up to the Supreme Court, which ultimately rejected his argument, reasoning that “the public has the right to every man’s evidence.” The high court then returned the matter to a district court, while affording Trump with little remaining basis to object, in the absence of any reason to conclude that the subpoena will interfere with his official duties.
It is well established that grand juries have wide latitude to conduct investigations. As Supreme Court Justice Robert Jackson put it, a grand jury “can investigate merely on suspicion that the law is being violated, or even just because it wants assurance that it is not.” Therefore, if Trump had been astute, he would have accepted the high court’s decision and given up on his effort to block Vance’s subpoena. But Trump chose to overplay his hand. Last month, the president’s lawyers declared that the nature and scope of Vance’s investigation is limited to an inquiry into Trump’s illicit efforts to funnel hush money payments to former sexual partners during the months leading up to the 2016 election through his fixer, Michael Cohen, and contended that the purported narrowness of the inquiry meant that Vance had no right to make a broad demand for Trump’s financial records.
Yet Trump had no basis to make declarations about the scope of the DA’s investigation; indeed, the only detailed explanation Vance has offered to date is contained in a (properly) secretly filed portion of a declaration by one of his prosecutors that has been reviewed only by the court. Furthermore, by making uninformed assertions about the scope of the investigation, Trump was all but daring Vance to comment about the nature of an ongoing investigation in the run up to an election.
And that is just what Vance’s attorneys did, albeit obliquely and with careful attention to grand jury secrecy rules, in a brief filed Monday in opposition to Trump’s desperate last-ditch effort to prevent disclosure of his financial records.
After noting that the DA has no obligation to disclose the nature or scope of an ongoing criminal investigation in response to a challenge to a subpoena—let alone improperly disclose grand jury evidence – Vance’s office stated that Trump’s claims about the supposedly limited scope of the investigation “is fatally undermined by undisputed information in the public record.” The DA’s brief then went on to quote the judge himself, who months ago—after reading Vance’s secret account of the matters under review—observed that it is related to “alleged insurance and bank fraud by the Trump Organization and its officers.”
But Vance’s office did not end there. In a significant footnote, the filing cited articles from The Washington Post and Wall Street Journal that address some of the wide-ranging evidence of fraud by the Trump Organization that journalists have uncovered over the past several years, which have included allegedly overvaluing assets to defraud investors, bank lenders and insurers (as well as allegedly undervaluing them to defraud disfavored heirs like Mary Trump). Vance’s lawyers did not expressly say that Trump is under investigation for this smorgasbord of financial crimes. Yet Vance can hardly be blamed for creating an inference of potentially wide ranging illegality by the president. After all, Trump’s lawyers all but demanded it by challenging the DA to explain why his grand jury’s subpoena was not overbroad.
As a result of his own lawyers’ bad strategy, Trump enters the final stretch of the campaign with the cloud of a broad criminal investigation hanging directly over his head. That investigation is highly unlikely to end before Nov. 3; indeed, Trump’s continued, and all but certainly futile, efforts to stymie the DA’s inquiry make it all the more certain that the investigation will continue for months, regardless of whether Trump, or any of his companies and associates, are ultimately charged, let alone found guilty.
All of that would have been properly kept confidential as the grand jury continued its work if Trump’s own lawyers hadn’t opened this can of worms. It’s a can of worms that Trump is familiar with, given how Comey’s serial misconduct in commenting on the FBI’s investigation of Clinton, in contravention of department of justice policy, may well have cost her the election. Notably, it was Comey’s mistreatment of Clinton, rather than any supposed conspiracy against Trump, that Rod Rosenstein cited in recommending Comey’s dismissal to an approving then attorney general Jeff Sessions, with Rosenstein calling Comey’s conduct “gratuitous,” and a breach of the “traditions of the Department and the FBI.”
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One person who disagreed with that judgment, however, was then private citizen William Barr, who declared in October 2016 that Comey “did the right thing” by reaching out to taint a presidential candidate on the eve of an election. After taking office as attorney general, Barr has made his contempt for the longstanding DOJ policy against using ongoing investigations to engage in political theater even clearer.
Trump’s own effort to replay his success of 2016 by ginning up a public announcement that his current opponent, Joe Biden, was the subject of an investigation by Ukraine for a non-existent crime not only failed, but ultimately resulted in his own impeachment. But Barr has since stepped into the breach, repeatedly peppering his public statements with hints that his own personally designated investigator, Connecticut U.S. Attorney John Dunham, may soon be releasing a report, and possibly indictments, calling into question the bona fides of the FBI’s (as well as Robert Mueller’s) investigation of Russian criminal interference in the 2016 election, and the Trump campaign’s welcoming thereof.
Asked how he reconciles his repeated promos for potential dirt on the DOJ’s investigation of Russian crimes committed during the last election in the midst of the 2020 campaign with his department’s policies, Barr disingenuously asserts that it’s OK, because Biden himself is not the target of the investigation. But the policy (which Barr recently adopted himself) provides that the department “may never select the timing of public statements (attributed or not), investigative steps, criminal charges, or any other action in any matter or case for the purpose of affecting any election, or for the purpose of giving an advantage or disadvantage to any candidate or political party.” Furthermore, as Joshua A. Geltzer and Ryan Goodman, recently observed, based on Barr’s record, we can count on Barr to “distort [Durham’s] conclusions in a way favorable to President Trump’s political ambitions,”
While Hillary Clinton may have lost her bid for the White House because of an investigation that fully cleared her of claims of criminality, the public is now so inured to Trump’s parade of misconduct that Vance’s court filing was not even front-page news. Yet the fact that Trump has now been publicly identified as the focus of a law enforcement investigation of potentially systematic criminality will make it all the more difficult for the president and his DOJ consigliere Barr to effectively employ innuendo to taint Biden.
After all, as Vance just told a court, the president himself is now fully embroiled in an investigation of “possibly extensive and protracted criminal conduct at the Trump Organization.”