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The Investigations Trump Can’t Stop

Presidential pardons offer no protection from state prosecutions

New York Attorney General Eric Schneiderman has spearheaded several investigations into the financial interests of Donald Trump and people close to him. (Courtesy Schneiderman’s office) 
New York Attorney General Eric Schneiderman has spearheaded several investigations into the financial interests of Donald Trump and people close to him. (Courtesy Schneiderman’s office) 

President Donald Trump might be able to pardon everyone he wants — possibly even himself. But that would not end his legal troubles.

Trump already fired FBI Director James B. Comey amid an investigation into allegations of collusion between his campaign and Russia. He has attacked Attorney General Jeff Sessions, raising questions about whether he intends to try to remove Robert S. Mueller III, the special counsel appointed by the Justice Department to head the Russia probe.

The president and his lawyers have also reportedly discussed whether he could pardon family members and aides caught up in the Russia investigation. 

But Trump has no control over state and local-level probes looking into the financial interests of his businesses, his family and his aides. And he can’t fire state and local prosecutors or issue pardons for state crimes.

The state investigations have been developing for months, largely overshadowed by probes by Congress, the FBI and the Justice Department. If state and local prosecutors lose confidence in their federal counterparts, they could become more aggressive, legal experts say. 

“If they think the federal government is not enforcing the law, they will step in,” said Caroline Fredrickson, president of the American Constitution Society, a liberal legal organization. 

Some conservative critics suggest that such investigations are politically motivated. They point out that most — if not all — of the probes so far have been spearheaded by prosecutors who are Democrats. Some of the same prosecutors have joined in challenges to Trump administration policies, such as his ban on visitors to the United States from some predominantly Muslim countries.

“It’s up to the attorneys general who have been activists in many respects to explain why the sudden interest in Mr. Trump, other than the fact that he is our president and he is in the opposition party,” said Tom Fitton, president of Judicial Watch, a conservative watchdog group that has called on the Trump administration to appoint a special prosecutor to investigate Hillary Clinton.

Some legal scholars also say investigations targeting Trump could create a dangerous precedent.

“Central to the rule of law is the principle that prosecutors may not employ their inquisitorial arsenal against political adversaries,” Frank Bowman, a law professor at the University of Missouri in Columbia, wrote on this week. “The ethos of prosecutorial restraint protects us all. If liberals abandon it in pursuit of Trump, they will have no ground of complaint if he, or some even less savory successor, unleashes prosecutorial power against his political foes.”

However, other legal experts and liberal groups say Trump’s myriad financial and business interests pose legal questions unlike any president before, and that state and local prosecutors are obligated to enforce the laws in their jurisdictions. Those obligations would be compounded if Trump acted to quash the investigations on a federal level.

Trump has pushed the boundaries of what is acceptable, “and beyond that, he has really violated constitutional norms,” Fredrickson of the American Constitution Society said.

“We have a vital need for attorneys general to step up and enforce the rule of law,” she said. “I don’t think any of this is political. It’s patriotic.”

Jed Shugerman, a Fordham Law professor who has written about Trump’s various legal entanglements, said the connections being made to foreign policy and political decisions are “widespread and deep” — and unprecedented.

“This is not just money corruption,” he said. “It is fair to ask questions about whether this degree of entanglement of financial control, and potentially who knows what else they have on him, destabilizes global security and enables the increasing power of authoritarianism and dictatorship around the world.”

The Big Apple

Much of the action so far has been centered in New York, where Trump has a long and rocky relationship with the state’s Democratic attorney general, Eric Schneiderman.

The veteran prosecutor has been the target of Trump’s caustic tweeting for many years.

New York attorneys general have a history of striking out on their own in the face of federal inaction — a legacy that a Schneiderman predecessor, Eliot Spitzer, contributed to by taking on New York’s financial industry more than a decade ago.

The New York Office of the Attorney General was the first to file a civil suit for alleged fraud by Trump University. Trump agreed to a $25 million settlement in that case and two separate class action suits related to the same allegations late last year, though he has repeatedly denied culpability and claimed the case was politically motivated.

Since the November election, Schneiderman’s office has reportedly beefed up its staff devoted to investigating public corruption and fighting White House policies.

His new hires include Howard Master, an assistant U.S. attorney who worked on public corruption cases under former U.S. Attorney Preet Bharara of the Southern District of New York. The move was widely interpreted to signal that Schneiderman planned to pick up on investigations Bharara started before he was controversially fired by Trump in March.

Some congressional Democrats have also prodded Schneiderman to take up investigations into Kremlin connections to the Trump campaign, cases under his jurisdiction because of Trump bank accounts and businesses that are located in New York.

The office has several open investigations connected to Trump, Schneiderman spokeswoman Amy Spitalnick confirmed this week. Those include probes into the Donald J. Trump Foundation, the Eric Trump Foundation and Trump’s personal lawyer, Jay Sekulow. According to media reports, prosecutors are looking into allegations that state laws governing the use of charitable contributions may have been violated.

The office is also looking into the activities of Paul Manafort, Trump’s former campaign chairman. Lawmakers on Capitol Hill also want to talk to Manafort about possible Russian influence during the 2016 campaign, among other issues.

Manhattan District Attorney Cyrus Vance Jr. has also reportedly begun preliminary investigations into Manafort’s real estate activities. A spokeswoman from Vance’s office declined to comment.

More to come?

Legal experts say other offices are likely considering whether they have jurisdiction to open investigations of their own.

That could be done through statutes that give states broad powers to investigate corporate wrongdoing, said Shugerman, the Fordham Law professor.

And state civil lawsuits against Trump or his associates might turn up material — such as Trump’s income tax records — that could feed criminal investigations, he said.

Already, the Democratic attorneys general in Maryland and Virginia have filed a civil suit against Trump, saying that payments to Trump’s businesses from foreign governments violate anti-corruption clauses in the constitution. 

“There are so many different state statutes and state powers that come into play,” Shugerman said. 

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