By Deborah Ramirez and Tara Lai Quinlan
When Achilles was born his mother sought to protect him from danger by holding his ankle and dipping him in the river Styx, leaving his heel vulnerable. It turns out Donald Trump may also have an Achilles heel under American criminal law. For even if Trump pre-emptively pardons himself and his associates, he could remain vulnerable to state crime prosecutions over which he has no pardoning power.
Before examining Trump’s vulnerability to state criminal prosecution, it is important to understand the current status of the ongoing federal investigation. Deputy United States Attorney General Rod Rosenstein’s May 17 order appointing former FBI Director Robert Mueller as Special Counsel under Sections 600.4 and 600.10 of Title 28 of the Code of Federal Regulations gave Mueller broad authority to investigate Trump and his relationship with Russia. It provided Mueller with a broad investigatory scope authorizing him to investigate:
(i) any links and or coordination between the Russian government and individuals associated with the campaign of President Donald Trump; and
(ii) any matters that arose or may arise directly from the investigation; and
(iii)any other matters within the scope of 28 C.F.R. § 600.4(a).
Mueller’s investigation has since expanded to Trump’s business dealings and those of Senior Adviser Jared Kushner, the criminal probe of former Trump campaign chairman Paul Manafort, and may be soon be expanded to examine the roles of Attorney General Jeff Sessions and Rosenstein in the May 9, 2017 firing of FBI Director James Comey. Upon concluding the investigation, Mueller has authority to prosecute any federal crimes uncovered in the investigation.
President Trump is unhappy with the broadening of Mueller’s investigation and is “considering perhaps terminating” Mueller. There are two ways the President might try to end Mueller’s investigation. First, he could attempt to fire Mueller as alluded to by Trump confidant Chris Ruddy on June 12. But because Mueller was appointed as Special Counsel by Rod Rosenstein, the President cannot legally fire him. Certainly Trump’s lawyers have told him that only Rod Rosenstein can do this. And Rosenstein testified before the Senate Appropriations Committee on June 13 that Mueller “can only be fired for good cause” under Sections 600.4 and 600.10 of Title 28 of the Code of Federal Regulations. Trump may eventually choose to fire Sessions, Rosenstein and any others until he finds someone to agree to fire Mueller without cause or with a bogus “cause.” But any Trump firing of Mueller would likely be found improper by the courts, as they did when President Nixon ordered the firing of Special Prosecutor Archibald Cox in October 1973.
Second, Trump has signaled that he may use the presidential power under Article II Section 2 of the United States Constitution to pardon “aides, family members and even himself” to pre-emptively avoid criminal liability before Mueller’s investigation even concludes. While the Article II Section 2 pardon power is a complex legal issue, its silence on the President’s right to pardon himself leads some legal scholars to believe that he can pardon himself and anyone else before, during or after a criminal investigation. While such a move might create legal and political challenges for Trump, his pre-emptive pardoning of himself and others will not insulate him from state prosecutions for tax evasion, false statements, fraud or state tax charges.
The reasons for Trump and his associates’ vulnerability to state criminal prosecution lie in the complex nature of federal criminal law. First, even if Trump pre-emptively pardoned himself and his associates before the end of Mueller’s investigation, Mueller and his team could still proceed with criminal prosecutions against unpardoned Trump associates. If during the course of such an investigation, Mueller and his team found evidence of federal or state criminal wrongdoing, they would likely consider prosecuting a criminal conspiracy under the federal Racketeer Influenced and Corrupt Organizations Act (RICO), 18 United States Code, Sections 1961-1968. RICO allows federal prosecutors to conduct federal investigations and prosecutions of specified state crimes. Federal prosecutors are permitted to identify non-indicted co-conspirators, people who may potentially have criminal liability but who are not prosecuted for any number of reasons, like cooperation as government witnesses, lack of evidence, or in this case, being pardoned. Thus Mueller and his team might choose to prosecute any non-pardoned associates of Trump, and list any pardoned individuals as unindicted co-conspirators in the federal RICO case.
Regardless of any Trump pardons, Trump and his associates could be prosecuted under state law for any state crimes uncovered during Mueller’s investigation. The reason for this is that state crimes are not covered under Article II Section 2’s broad pardon power, and any evidence of state crimes could be handed over to state prosecutors under Federal Rule of Criminal Procedure 6(e)(3)(E), which allows a federal court to grant disclosure of grand jury proceedings “(iii) at the request of the government, when sought by a foreign court or prosecutor for use in an official criminal investigation”. This type of sharing of federal evidence of state crimes is commonplace in criminal prosecutions, and has formed the basis for a host of state criminal prosecutions, particularly in gang prosecutions and other complex criminal conspiracies. This longstanding practice could mean that Trump or his pardoned associates, or others with the Trump Organization, Eric Trump Foundation or related legal entities could be prosecuted by state prosecutors like New York’s Eric Schneiderman for state tax evasion, fraud, perjury, false statements or any number of state offences.
While it remains to be seen whether Mueller and his team will subpoena Trump’s state tax records as part of their investigation, it is clear that even if Trump pardons himself he may still face state criminal prosecution for any number of state crimes.