With all the focus on how a largely symbolic impeachment might affect Donald Trump’s re-election prospects, numerous investigations and lawsuits concerning the president and his associates seem to have dropped off the political radar. But they are still going—and could affect the result of the next election.
Trump has done his best to stonewall many of these matters, particularly those before Congress, by litigating almost every demand for testimony and other evidence. That strategy of maximum resistance could backfire.
That’s because the string could well run out on many of Trump’s defenses in the coming months, and the investigations—and accompanying revelations—could accelerate immediately before Election Day 2020, making Trump’s misconduct a renewed focus of public attention as voters prepare to go to the polls.
A review of only the most high-profile investigations serves to highlight the political dangers and uncertainties Trump faces.
In the months since the Mueller Report was released, Trump and the Department of Justice have largely stymied the House Judiciary Committee’s investigation into the multiple acts of presidential obstruction of justice detailed in the special counsel’s report by denying legislators access to critical witnesses and evidence.
Trump’s unprecedented resistance is exemplified by his effort to bar former White House Counsel Don McGahn from testifying about his efforts to force the firing of Robert Mueller, in what McGahn recognized would have amounted to a repeat of Richard Nixon’s “Saturday Night Massacre.”
McGahn’s account of Trump’s audaciously criminal conduct is recounted in detail in the Mueller Report, making an executive-privilege claim regarding much of his testimony difficult to sustain. Yet the DOJ has argued that a purported absolute immunity doctrine, applicable to advisers who are presidential “alter egos,” allows the White House to bar McGahn from sharing even his already largely public record evidence with Congress. Further, the White House appears prepared to assert in court that the same immunity claimed for McGahn attaches to lower level White House employees who reportedly witnessed Trump’s wrongdoing, an assertion that has even less support in applicable law.
The Judiciary Committee also recently subpoenaed informal Trump adviser Corey Lewandowski, who, per the Mueller Report, was directed by Trump to tell then-Attorney General Jeff Sessions to fire Mueller. Trump is reportedly considering making a claim of executive privilege to bar Lewandowski from testifying or to limit his testimony, but the proposition that such a privilege (let alone an immunity from congressional inquiry) attaches to Trump’s communications with a person who was not a government employee is quite weak.
Trump plainly hopes that the Supreme Court will back his stonewalling by upholding his audacious privilege and immunity claims, or simply delaying a resolution for the better part of two years, thereby allowing him to skirt any effect on the election.
It is, however, more than possible that Chief Justice John Roberts will not choose to make the court into an open aider and abettor of Trump’s defiance of Congress, and will vote in favor of ordering some or all of the witnesses to testify. If so, damaging witnesses like Lewandowski and McGahn could well end up appearing before Congress in the latter half of 2020, soon before the election, thereby placing Trump’s obstruction back in the headlines during the campaign’s final months.
Another active area of litigation has been spawned by Trump’s assiduous efforts to shroud his taxes and other financial records in a veil of secrecy. Having set the dubious precedent of being the first president to refuse to release any of his tax returns since Nixon, Trump is now embroiled in multiple lawsuits directed at preventing government agencies, banks, and accountants from disclosing his records to Congress.
Federal appeals courts in New York and Washington recently heard arguments on subpoenas issued by the House Financial Services Committee for Trump family records held by Trump’s banks and his accountants, respectively. Trump’s lawyers, once again backed up by the DOJ, have argued that Congress does not have a legitimate “legislative purpose” to seek these records, a claim that has little to no support in Supreme Court case law.
The stakes of these cases increased last week when Deutsche Bank, one of the subpoena recipients, acknowledged that it possesses one or more of the tax returns Trump has sought to hide.
Meanwhile, Trump is doing his best to prevent government agencies from turning over his returns, Treasury Secretary Steven Mnuchin has refused to comply with a House demand for the documents, despite a federal law that expressly mandates that he do so. The president also brought a lawsuit to prevent the House from availing itself of a newly enacted New York law allowing Congress to seek certain tax-return information from Trump’s home state.
Once again, Trump is playing a delay game, seeking to hold off the day by which he will, inevitably, be forced to disclose much of the financial information he has been so determined to hide. Yet, once again, the delay may not ultimately work to Trump’s benefit. Particularly given the make-weight nature of many of his arguments, Trump might only succeed in deferring such disclosures until closer to the climax of the presidential campaign.
Trump’s associates raised the unprecedented sum of $107 million for his inaugural festivities, an amount that was more than double the cost of other recent inaugurals. Since that time, both the sources of the funds and the recipients have been the subject of a growing number of investigations, implicating some of Trump’s closes associates, and possibly his wife and family.
The longest running, and most serious, inquiry is being conducted by federal prosecutors in Brooklyn, who reportedly recently interviewed longtime Trump friend and confidant Thomas Barrack, who played a central role in raising large-dollar contributions for Trump’s campaign and inaugural celebration. Barrack has close business ties to the Saudi royal family and other Middle Eastern regimes, and prosecutors are reportedly focused on whether foreign funds made their way into the inaugural accounts, as well as whether Barrack and others (including Elliott Broidy) have leveraged their relationships with Trump to further their business interests, or those of foreign clients.
Barrack is far from the only person close to Trump who was involved in questionable transactions in connection with the inauguration. For example, Melania Trump friend Stephanie Winston Wolkoff, whose firm was hired to manage the events, reportedly has detailed records regarding how the massive sums were spent. Presumably those documents include information on the approximately $1.5 million that was said to have been paid for events at the Trump hotel in Washington, D.C., at rates that one planner allegedly believed were inflated.
It is difficult to predict whether any charges would be filed in this matter. But one thing is clear: Trump himself is concerned enough that he has reportedly cut off ties with Barrack.
Trump’s increasingly audacious efforts to profit from the presidency have also been the focus of multiple lawsuits, including by state governments and House Democrats, most alleging that Trump is in violation of the “foreign emoluments clause” of the Constitution, which, on its face, bars federal officials from receiving gifts or profits from foreign nations and officials.
These suits have all been met with skepticism or outright rejection by federal trial or appellate courts, largely because the plaintiffs were deemed to lack standing, i.e., the personal stake in a dispute required to maintain a federal lawsuit. In the wake of Trump’s recent suggestion that he might hold next year’s G-7 summit at his own Florida resort, however, House Judiciary Committee Chairman Jerrold Nadler announced that Trump’s profiteering is becoming a subject of the broader inquiry into potential grounds for impeachment.
As a legal matter, it will be difficult for Trump to argue that Congress cannot inquire into such matters in connection with a potential impeachment. Indeed, the failure of the lawsuits brought to date confirms that such proceedings in Congress are the only mechanism available for enforcing the Constitution’s limitations on the receipt of gifts and profits by the president from foreign leaders, as well as U.S. citizens.
Government investigations are not the only source of litigation challenges for Trump; he also faces potential private civil liabilities. Most notably, in January 2017, former Apprentice contestant Summer Zervos filed a defamation lawsuit against him in a New York court, alleging that Trump had lied about sexually assaulting her in 2007. Trump’s efforts to dismiss that action have failed to date, and in March 2019 an intermediate appellate court upheld Zervos’ demand to force Trump to testify under oath, leaving it to New York’s highest court to decide the issue.
The case bears many similarities to the defamation lawsuit Paula Jones brought against President Bill Clinton. It was similarly premised on a claim that Clinton had lied about his effort to coerce Jones into having sex with him. After the Supreme Court refused to hold the case in abeyance, Clinton gave false testimony about his sexual relationship with Monica Lewinsky that formed the foundation for the impeachment proceedings against him.
Given Trump’s proclivity for mendacity, it is unsurprising that his lawyers are doing all they can to avoid him facing similar questioning. If the highest New York court rules that Trump must submit to interrogation, his lawyers may make a last-ditch effort to have the case heard by the Supreme Court. Absent such extraordinary intervention, however, in the months before the election, Trump could well find himself having to choose between giving testimony about his long history of sexual-assault allegations and losing the lawsuit—and effectively being deemed to have lied about his encounter with Zervos.
While Trump has so far succeeded in holding investigators at bay, he could well find himself defending against new revelations about his misconduct at the time he is facing a challenging bid for re-election.
Editor’s note: This story has been updated to reflect that Elliott Broidy was convicted of a misdemeanor, not a felony.