While the investigation of special counsel Robert Mueller is complete, President Donald Trump’s legal woes are not over. At least five fronts remain on the legal battleground.
After investigating for nearly two years, Mueller on Friday submitted his report to Attorney General William Barr. His investigation, according to a four-page summary Barr sent to Congress, did not establish a conspiracy between the Russian government and the Trump campaign to interfere with the 2016 presidential election. On whether Trump obstructed justice, Mueller reached no conclusion, but Barr himself decided that the evidence did not establish an obstruction of justice offense.
This development leaves many questions unanswered, and tees up a legal battle over executive privilege. Congress will want to see Mueller’s entire report and will want to understand why, after two years of investigating, he declined to reach a decision on obstruction of justice. Did he expect Congress to make that decision in light of Department of Justice policy that a sitting president cannot be indicted? Did he believe it was appropriate to surrender this ultimate question to Barr as the head of the Department of Justice? Or did he plan to reach a conclusion, only to be overruled by Barr?
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In its oversight role, Congress will want answers to these questions. The executive branch may invoke executive privilege and other laws to avoid disclosing these materials and decisions to Congress. While the Supreme Court ruled in United States v. Nixon that executive privilege is not absolute, that case involved a criminal grand jury subpoena and not a congressional subpoena, so the outer limits of executive privilege remain unclear. If Congress pushes the matter, we can expect a legal battle over executive privilege that could be decided by the courts.
A second legal battle looms in the U.S. Attorney’s Office for the Southern District of New York (SDNY), which continues to investigate campaign finance violations. Trump’s former lawyer Michael Cohen pleaded guilty to these charges, among others, admitting that he made an excessive contribution and caused a corporation to make an illegal contribution to the campaign of “Individual 1,” whom Cohen has identified as Trump. In court documents, prosecutors described the scheme as an effort to buy and bury negative stories about Trump’s relationships with women to prevent them from influencing the election. In his congressional testimony, Cohen admitted that he was later repaid for his expenditures by the Trump Organization. Cohen presented checks to Congress signed by Trump and Donald Trump Jr. that Cohen claims were part of the scheme.
Criminal exposure in campaign finance scheme
Just last week, a federal judge in New York ordered that 19 pages of a search warrant for Cohen’s property could remain sealed for another 60 days while the SDNY investigation continues.
In his opinion, Judge William H. Pauley III wrote that “aspects of its investigation remain ongoing, including those pertaining to or arising from Cohen’s campaign finance crimes.” He noted that the search warrant materials described “an assortment of uncharged individuals” and their involvement in communications and transactions connected to the charges, including “those cooperating with the government” and “other subjects of the investigation.”
This language indicates that SDNY is nearing completion of its investigation, and that other individuals face criminal exposure. Only a small universe of individuals were involved in the scheme, and, if Cohen is to believed on this point, one of them is Trump.
A third area of legal risk for Trump is the SDNY investigation into the Trump inaugural committee and Trump Organization. The office last month issued subpoenas seeking documents relating to donors and spending. The subpoenas reportedly reflected an investigation into conspiracy against the United States, false statements, mail fraud, wire fraud, money laundering and inaugural committee laws. In addition, CNN reported that SDNY had also expressed interest in interviewing members of the Trump Organization.
Rick Gates, the deputy chairman of the Trump campaign and inaugural committee, agreed to cooperate with prosecutors following his own guilty plea in a case brought by Mueller. Information provided by Gates could be shared with prosecutors in SDNY. Even if a sitting president cannot be indicted, that policy does not apply to an entity such as the inaugural committee or the Trump Organization.
Profiting from the presidency
A fourth legal challenge looms regarding the Trump Foundation, a nonprofit organization that Trump voluntarily dissolved last year after the New York attorney general filed a civil lawsuit. The lawsuit alleged that the foundation was serving as a “checkbook” for Trump’s business and political interests, engaging in “a shocking pattern of illegality.” The allegations in the civil suit could very easily become the basis for federal charges of mail fraud, wire fraud or tax offenses for the foundation and its officers and directors, including Trump and his children, if it can be shown that they acted with criminal intent.
A fifth legal threat exists in the form of lawsuits alleging that Trump has violated the emoluments clauses of the Constitution. Presidents are prohibited from accepting things of value from foreign governments or from profiting from their presidency. Pending lawsuits say Trump is doing just that. Attorneys general in Maryland and the District of Columbia have filed lawsuits arguing that Trump is using his Trump International Hotel in Washington, D.C., to profit illegally off of his presidency. The government of Saudi Arabia and government lobbyists have rented rooms from the Trump hotel, creating an apparent conflict of interest for the president.
Another lawsuit filed by Democratic lawmakers in the House and Senate allege similar violations based on Trump’s properties around the world. Judges in both cases have denied a motion to dismiss the case, finding that the plaintiffs have standing to sue, and permitting the cases to proceed.
Beyond these five legal issues, Trump faces the potential disclosure of the full Mueller report, which did not recommend criminal prosecution but could still include facts damaging to Trump and his presidency. He also faces multiple congressional investigations into foreign influence, his finances and his White House personnel practices. And one of Mueller’s grand juries continues to investigate “robustly,” according to a federal prosecutor in court on Wednesday.
Mueller delivered his report, but for Trump, this is far from over.
Barbara McQuade, a former U.S. attorney for the Eastern District of Michigan, is a professor at the University of Michigan Law School. Follow her on Twitter: @barbmcquade