Analysis & Comment

Opinion | Why the Law Is Strong Enough to Take on Donald Trump

A 15-count indictment for tax fraud and other charges filed in New York on Thursday against the Trump Organization and its longtime chief financial officer, Allen Weisselberg, has already stimulated as much hand-wringing as satisfaction from those who have called for accountability for Donald Trump. Some express concern that Mr. Trump himself was not charged and may never be. Others note that these are “only” state tax fraud counts against his business and an associate — rather than bold federal action against Mr. Trump himself by the Justice Department.

As former federal and state prosecutors and government lawyers, we believe that the charges support a different conclusion. They mark a major inflection point in Mr. Trump’s long-running battle with the rule of law — one that does not bode well for the future of his business, or indeed for Mr. Trump himself. Rather than betraying weakness, these charges are a signal that our system of dual sovereignty — in which multiple jurisdictions are empowered to address egregious wrongdoing — can also address the challenges that Mr. Trump has uniquely posed.

These charges raise the possibility of steep fines for the company and jail time for Mr. Weisselberg. Given the relatively small circle of people engaged in Mr. Trump’s organization and his historic tendency to micromanage, there is good reason to suppose that the continuing inquiry is reaching quite close to the ex-president himself. Mr. Trump is reported to have personally been involved in some of the alleged misconduct, like signing the checks for some of the tuition-fee fringe benefits at issue.

No one knows whether Mr. Trump will be indicted, an outcome that will depend on a host of factors, perhaps most important whether Mr. Weisselberg or others cooperate. But Mr. Trump remains at risk on multiple issues.

Most fundamentally, we see the filing of charges as a critical step in demonstrating the resilience of American federalism. Cynics responding to the indictment may bemoan that the Justice Department has allowed New York prosecutors to take the lead in holding Mr. Trump accountable. But this criticism ignores the unprecedented circumstances here, in which the subjects are business associates and interests of a former president.

With respect to any potential federal charges relating to any wrongs arguably perpetrated by Mr. Trump or any Trump entities, President Biden has properly determined to leave the matter to the Justice Department. Attorney General Merrick Garland has in turn made clear that under his watch, “political or other improper considerations must play no role in any investigative or prosecutorial decisions.”

With this concern in mind, Attorney General Garland has taken forceful action in a number of areas posing the greatest threats to our system of government and law. These actions include vigorous pursuit of the prosecutions of the insurgents who invaded the U.S. Capitol on Jan. 6; developing and moving forward with a comprehensive program to address and combat domestic terrorism; and strong litigation action against state voter suppression laws, including suing in Georgia.

At the same time, Mr. Garland so far has avoided narrower actions personally targeting Mr. Trump that would put the Biden administration in direct public conflict with the ex-president. Possible federal cases that for now at least seem not to be on Mr. Garland’s agenda include prosecution with respect to the evidence of obstruction of justice laid out in the Mueller Report; campaign finance violations, for which Michael Cohen, Mr. Trump’s onetime attorney, was criminally charged; and allegations of interference in the 2020 election, including Mr. Trump’s shocking call to the Georgia secretary of state pressuring him to “find 11,780 votes” as well as Mr. Trump’s role in triggering the insurrection.

We believe the criticisms that have been raised regarding Mr. Garland’s judicious approach to investigating Mr. Trump are misplaced. How does one administer justice without inviting cynical allegations of political motivation, given the history of the past four years, and while the former president persists in his efforts to undermine our democracy? The answer is carefully, by the exercise of restraint, and by focusing the use of power on the most critical problems that must be addressed most urgently. Mr. Garland has striven not to make Mr. Trump himself the explicit focus of his efforts, and so to avoid the swirl of controversy that surrounds the former president.

Whatever path the attorney general may find appropriate in the future, for now America is fortunate to have strong institutional players in the states and localities. And it’s not just the Manhattan district attorney, Cyrus Vance Jr., and the New York attorney general, Letitia James. Fani Willis, the district attorney of Fulton County, Ga., is also investigating Mr. Trump and his allies’ startling behavior under her state’s criminal law. As Mr. Vance did, she has brought in an outside expert and is pressing forward in a low-key but serious fashion.

For these state and local officials, the political considerations obviously weigh differently than they do for the Biden administration. There are certainly people who will perceive politicization in any state investigation, but Mr. Vance and Ms. Willis do not work for Mr. Trump’s direct electoral adversary. And in Mr. Vance’s case, as the lead law enforcement official in the locale where Mr. Trump has for decades centered his business dealings, his office bears the greatest public responsibility for the integrity of the law enforcement process. We believe that the ability of state authorities to engage on these issues is a great strength of our federal system.

The ultimate value of the district attorney’s investigation is simple: accountability. While the ultimate question of guilt or innocence will be left to a state judge and a jury, the investigation upholds the most fundamental precept of American governance: As Mr. Vance has put it, “no one — not even a president — is above the law.”

Donald Ayer, a former U.S. attorney in the Reagan administration and deputy attorney general in the George H.W. Bush administration, is an adjunct professor at Georgetown Law. E. Danya Perry, a former deputy attorney general for the State of New York and former assistant U.S. attorney for the Southern District of New York, is a co-founder of Perry Guha LLP. Norman Eisen, a senior fellow at Brookings, was President Barack Obama’s ethics czar and ambassador to the Czech Republic, and served as special counsel to the House Judiciary Committee during the first Trump impeachment. They are among the authors of “New York State’s Trump Investigation.”

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