Washington Whispers: A Road Map to Trump’s Legal Woes
Updated: Jul 22, 2021
By Jessie Seigel / Washington, D.C.
Donald Trump is a defendant in so many ongoing lawsuits, one wonders how on earth he can even keep track of them. This handy-dandy guide should help the rest of us keep them all straight. If there’s any justice, our former president will end up in the poorhouse or the pokey.
On the civil side, his niece, tell-all author Mary Trump, is suing her uncle and his siblings for fraud and civil conspiracy, alleging that they swindled her out of millions of dollars which she was entitled to after her father’s death.
Summer Zervos, a former contestant on The Apprentice, and E. Jean Carroll, an established columnist for Elle magazine are each angrily suing Trump for defamation. Each woman had separately accused Trump of sexual assault and Trump had responded with public name-calling and character assassination.
Michigan voting rights activists and the NAACP are suing Trump for violation of the Voting Rights Act, based on the intimidation of voting administrators, brazenly pressuring Republicans on Michigan’s state canvassing board not to certify the election totals for Detroit.
Two of the U.S. Capitol police officers who were severely beaten during the January 6 coup attempt have filed a suit against Trump for inciting it.
Democratic Mississippi Rep. Bennie Thompson and Democratic California Rep. Eric Swalwell have each filed a suit arguing that Trump violated a Reconstruction-era law making it a crime to conspire to prevent elected officials from discharging their duties.
Thompson’s suit claims Trump, Giuliani, the Proud Boys and the Oath Keepers “plotted, coordinated and executed a common plan to prevent Congress from discharging its official duties in certifying the results of the presidential election.” He seeks an order enjoining Trump from future violations.
And those are only the civil suits.
On the criminal side, Fulton County, Ga. District Attorney Fani Willis is investigating whether Trump violated state law by pressuring Georgia Secretary of State Brad Raffensperger to “find” sufficient Trump votes to overturn the 2020 election. In their infamous phone call, Trump pressed: “So look. All I want is this. I just want to find 11,780 votes, which is one more than we have. Because we won the state.” Charges against Trump–conspiracy to commit election fraud, criminal solicitation to commit election fraud and intentional interference in the exercise of election functions–may be in the offing.
Washington, D.C. Attorney General Karl Racine has opened an investigation into whether Trump’s incendiary language at his January 6 rally constituted criminal incitement. Racine may be considering charges against Trump under a local statute that makes it “unlawful for a person to incite or provoke violence where there is a likelihood that such violence will ensue.”
And on July 1, with great fanfare, Manhattan District Attorney Cyrus Vance Jr.’s office charged the Trump organization’s longtime Chief Financial Officer (CFO) Allen Weisselberg and the Trump Organization with 15 counts of financial crimes, including federal tax fraud, falsifying business records, grand larceny and conspiracy. The indictment described a 15-year scheme to provide tax-free benefits to top executives, including Weisselberg, who is alleged to have avoided paying over $1.7 million in taxes.
New York Attorney General Letitia James has opened a parallel investigation into whether the Trump Organization manipulated property values to avoid taxes and gain other financial benefits. In May, James said her civil investigation had expanded into a criminal one and would be joined with the Manhattan DA’s inquiry.
After the indictment, CFO Weisselberg was speedily removed from his leadership position at dozens of Trump organization subsidiaries. There’s so much speculation on whether Weisselberg, who is 73 years old, will flip on Trump or be willing going to jail for him, that I imagine bookies are taking odds on the matter.
Other members of Trump’s family may be in legal trouble as well, including his reputed favorite child, Ivanka. To permit Trump to deduct large payments made to Ivanka as business expenses, the payments were treated as consulting fees. But Ivanka was an executive officer and full-time employee of Trump’s companies, so any consultation by her would be part of her full-time job and payment would be part of her salary, not a consulting fee. (Asked if Donald Trump would take the fall for his children or vice versa, Mary Trump asserted that the relationship between Trump and his children is “entirely transactional and conditional.” She speculated that her cousins would not “risk anything for him, just as he wouldn’t risk anything for them.”)
Meanwhile, hotels and residential towers are stripping the colossally large and gaudy letters of Trump’s name off of their buildings. After Trump’s alleged incitement of the Capitol attack, some real estate brokers, lenders, and other businesses cut ties with his organization.
You would think dealing with all this would keep Trump and his lawyers busy enough. But you’d be wrong. Trump brought a suit of his own—against Facebook and Twitter—claiming that by blocking his accounts from their platforms, they are denying him his First Amendment right
to free speech.
Donald Trump has a long habit of bringing frivolous lawsuits to intimidate or silence those who oppose him. But, somehow, I don’t think the heads of these two corporate giants are shivering in their boots about this flimsy case.
For starters, the First Amendment to our Constitution only prevents Congress from making any law curtailing freedom of speech. It doesn’t require any private entity to publish or promote anything—let alone aid Trump’s efforts to rile his rabble into some new insurrection based on his lies.
Trump’s lawyers are arguing that Facebook and Twitter are nevertheless subject to the First Amendment because they are, in effect, government actors. But the Supreme Court already rejected that argument in a 2019 case, Manhattan Community Access v. Halleck. There, a public access TV channel refused to put a video on the air and banned those who made it from submitting future content. To the former president’s consternation, his handpicked Supreme Court Justice, Brett Kavanaugh, wrote the opinion.
Unless Kavanaugh and the rest of the Court twist their analysis of precedent into pretzel-like knots to please Trump (not impossible but, hopefully, unlikely in this particular instance), Trump is out of luck. His time would be better spent attending to a defense against the myriad legal actions piling up against him.
The one hole in the dragnet descending upon Trump and his associates is the lack of needed action by Attorney General Merrick Garland’s Department of Justice (DOJ). Instead of investigating the role of Trump and his confederates in the January 6 coup attempt, the DOJ is busy continuing to defend Trump’s alleged right not to be sued for defamation.
In her book, What Do We Need Men For? A Modest Proposal, published in 2019, Elle columnist Carroll charged that Trump sexually assaulted her in the mid-1990s in a Bergdorf Goodman department store dressing room. In an Oval Office interview in June 2019, Trump claimed Carroll was “totally lying,” that he didn’t know her, and couldn’t have assaulted her because “she’s not my type”. He also made other statements in the national press smearing her integrity and honesty. Carroll then filed a suit against Trump for defamation.
Trump’s Attorney General, William Barr, had the DOJ argue that Trump could not be sued because his alleged defamatory conduct was committed as part of his official duties as president.
A judge reasonably ruled that the president’s statements had no relationship to the official business of the United States and so were not within the scope of his presidential duties. Before Trump left office, the DOJ filed an appeal. That is not surprising.
But why, pray tell, hasn’t Biden’s Attorney General, Merrick Garland, withdrawn the appeal? Why is Biden’s DOJ continuing to defend the Trump claim that the alleged defamation occurred as part of the president’s official conduct?
The DOJ is arguing on appeal that, “Elected public officials can — and often must — address allegations regarding personal wrongdoing that inspire doubt about their suitability for office,” and that “officials do not step outside the bounds of their office simply because they are addressing questions regarding allegations about their personal lives.”
Ostensibly, the DOJ is trying to protect the office of the presidency. But such a blind defense of that office regardless of the act committed makes a mockery of the law. It feeds directly into the anti-democratic Trump-Barr position that anything a president does is automatically done in his role as president and therefore protected. Under that theory, Trump could, as he once suggested—shoot someone on Fifth Avenue and get away with it—so long as he was president when he did it.
Carroll’s lawyer, Robbie Kaplan, tweeted in January: “Calling a woman you sexually assaulted a ‘liar,’ a ‘slut,’ or ‘not my type’ — as Donald Trump did here — is NOT the official act of an American president.” By continuing the Trump administration’s appeal, Attorney General Garland is helping to obliterate the American value that no one should be above the law.
Garland also appears to be shying away from investigating what role Trump and his confederates played in the January 6 coup attempt. So far, the DOJ seems to be pursuing only the little fish who mobbed the Capitol and did the dirty work. But the available circumstantial evidence is screaming for a full investigation. Though House Speaker Nancy Pelosi is forming a Select Committee to investigate, such probes by Congress are no substitute for a criminal investigation by law enforcement.
The DOJ should be investigating why—despite indications of the coming attack so clear that members of Congress and of the public felt grave concern—the usual security measures taken for demonstrations were not employed for the ceremonial Electoral College certification.
The DOJ should definitely be investigating why Trump abruptly replaced Secretary of Defense Mark Esper with Acting Secretary Christopher Miller right after he lost the election. It should investigate why Acting Secretary Miller then delayed sending National Guard troops in to support the Capitol police for hours—whether or not that failure was deliberate and whether the delay was coordinated with Trump.
Michael Flynn’s brother, Lt. General Charles Flynn, should also be questioned about his role at the meeting where decisions on sending in support were addressed.
And the DOJ should certainly be investigating whether the inflammatory language spewed by Trump, as well as his now-disbarred lawyer Rudy Giuliani, Representatives Paul Gosar and Mo Brooks, and former National Security Advisor Michael Flynn at the January 6 rally and/or in the days preceding it amount to criminal incitement.
If Attorney General Garland is hesitating for fear that an investigation will appear to be politically motivated or tarred as such by Trump’s minions—that is not an excuse for failing to investigate.
If the DOJ does not do its duty, if there is no determination of the degree to which the January 6 coup attempt was coordinated and by whom, if there is no punishment for those who planned it as well as those who carried it out—they will try again. In fact, every repetition of the Big Lie that the 2020 election was stolen is a continuance of that coup attempt, as are all the restrictions Republicans are passing on voting rights.
Al Capone went to prison for tax evasion rather than for his many violent crimes. One could persuasively argue that if Trump is prosecuted, convicted and goes to prison for tax evasion rather than for fomenting a coup, it still gets him off the streets.
But if we allow those who backed the January 6 coup attempt to present it as having been just a spirited rally that got out of hand, an unplanned riot by malcontents, or a planned attack by just a couple of fringe right-wing groups—if our federal legal agencies cannot even muster the courage to openly acknowledge the circumstantial evidence and follow where it may lead—all the next demagogue will learn from our response is how to better get away with a coup. And the next time, that coup will succeed.
Political columnist Jessie Seigel had a long career as a government attorney in which she honed her analytic skills. She has also twice received an Artist’s Fellowship from the Washington, D.C. Commission on the Arts and Humanities for her fiction, and has been a finalist for a number of literary awards. In addition, Seigel is an associate editor at the Potomac Review, a reviewer for The Washington Independent Review of Books, and a dabbler in political cartoons at Daily Kos. Of this balance in her work between the analytic and the imaginative, Seigel jokes, “I guess my right and left brains are well-balanced.” More on and from Seigel can be found at The Adventurous Writer, https://www.jessieseigel.com.