The Trump presidency is different, as I note when I am outside the United States. Back during the Bush administration, foreigners would often (and without prompting) verbally criticize traveling Americans for the actions and policies of our President. And when that happened to me, which was often, I often felt an emotional need to defend President Bush, no matter how terrible a president I actually thought he was.
With the Donald, though, not so much on either tip. Oh, he certainly comes up all the time, far more than President Bush ever did. But nobody — not in the Netherlands, not in Uruguay, not in Argentina, and not in Mexico — has ever put on an accusatory tone. It is more pity, sometimes shaded with incredulity. That may be why I have never felt any urge to defend the Trump administration ... but I suspect that even should I hear a vicious hostile angry attack on his presidency my reaction would be, “Well, yeah.”
The worst that has happened to anyone I know is the American daughter of a good friend, who got a nasty note in her Mexico City school calling her a “Trump lover.” (Both the friend and his daughter are also Mexican citizens, but kids don’t care about that.) Considering what has been happening in U.S. schools, that is small beans. And compared to the Bush administration, it is nothing.
It is something to have Mexicans pity you for living under a corrupt president. In Mexico, one of the biggest problems that officials seem to be immune from prosecution. They cannot be indicted while in office and it is damnably hard to prove anything once out.
Which brings me to the recent news that the Trump administration is considering issuing pardons for the president and his family. Such pardons would be unprecedented in American history, but it is not clear that they would be unconstitutional. I certainly think that it would have been ridiculous for the framers to have given the president the power to pardon themself, but the question is open.
Except it might not matter! Donald Trump is a resident of New York State and the owner-proprietor of 500 different partnerships, LLC’s, S-corps, and pass-through proprietorships forming the Trump Organization business collectivity domiciled in New York. Trump’s business activity occurs in New York State as a consequence of his residency and offices located in New York, and his financial transactions, insofar as the financial entities within which those transactions take place are under New York State supervision and regulation, are subject to New York State law.
Imagine that the Mueller investigation uncovers some sort of financial chicanery. Well, I talked to Dave Greenbaum, a lawyer from Trump’s home borough (not pictured above!), and as you might expect any such evidence would be admissible in New York courts and give Eric Schneiderman all the ammunition he needs to go after the President. (At least once he is out of office; beforehand is less clear.)
The easy stuff: misstated income and fraudulent income tax returns. If Trump has been using his labyrinthine corporate structure to hide income, he is liable for New York income tax fraud under Tax Laws 1805 and 1806, which would be felonies. Even if he pardoned himself for the federal income tax evasion, he would still be liable for state tax evasion.
Getting harder: securities and business entity fraud under GBL 23-A-352 and 353, aka the Martin Act. If Trump has been using his business entities to shuttle debt and conceal liabilities from lenders, limited partners, and other persons, he is potentially liable for felony misrepresentation under identical elements as SEC rule 10b-5. (Misrepresentation or Omission, and Materiality). A federal SEC violation would be chargeable under New York law, as long as New York had jurisdiction, and since Trump is a New York citizen and most of his business happens in New York, despite choice of law clauses, New York would have jurisdiction.
Harder still: New York no longer has a treason statute, but any foreign payments structured so as to defraud co-owners or partners or secured parties would serve for bank fraud or Martin Act charges. And New York has a conspiracy law just as strong as 18 USC 371. Plus, in New York you can be charged for attempting financial crimes, even if you fail to pull it off.
Barely possible: New York has two relevant laws on obstruction of justice: NYPL 195.05 and NYPL 205.50 et seq. 195.05. “Obstructing govt. admin in the second degree” consists of affirmative action to prevent a public servant from carrying out their official duties and it is a Class A misdemeanor. 205.50 is “hindering prosecution,” which can range from a Class A misdemeanor to a Class E felony. That law could conceivably be used to prosecute the Bharara firing, given that Bharara was working with the New York attorney general to trawl Trump payments through New York banks, but it would be hard to argue that it really obstructed government administration or hindered prosecution in New York State.
Basically impossible: payoffs that take the form of capital investments in Trump businesses unless there is an obvious quid pro quo or you can use them to charge conspiracy to commit tax fraud. It is barely possible that if Trump uses a vehicle as a conduit for a payment that he only partially owns, he could be charged with a Class B misdemeanor for ripping off a co-owner.
In short, if the Mueller investigation uncovers untoward things in the President’s business dealings,it is highly likely that the State of New York will come after him. It will not be as effective as a federal prosecution, but even if he pardons himself and Congress fails to remove him, he will still be in no small legal peril.
¿Viva Nueva York?