WASHINGTON — Former president Donald Trump wasn’t charged in the indictments unsealed Thursday accusing his company and a longtime executive of financial crimes, but it doesn’t mean he’s off the hook.
The Trump Organization and its chief financial officer Allen Weisselberg were jointly charged with carrying out a tax fraud scheme dating back to March 2005, according to an indictment unsealed on Thursday afternoon. Weisselberg, who has worked for the Trump family since the 1970s, was also charged individually with grand larceny and with falsifying tax records related to $1.76 million in “indirect” compensation he allegedly received from the Trump organization which wasn’t properly reported and wasn’t taxed.
The indictment makes few references to Trump himself. Aside from acknowledging that he owns the Trump Organization, the former president is only mentioned in relation to payments made to cover private school tuition for Weisselberg’s family members, which were originally made via personal checks signed by Trump and later drawn from a trust in Trump’s name. In 2016, Weisselberg allegedly directed a staff member to remove references to himself from the tuition entries in Trump’s general ledger, for which he is charged with falsifying business records.
Trump’s personal legal exposure remains open-ended. The Manhattan District Attorney’s Office made clear on Thursday that the investigation into Trump’s business dealings remains “active” and “ongoing.”; New York State Attorney General Letitia James, whose office is investigating the Trump Organization as well, put out a statement saying that the “investigation will continue, and we will follow the facts and the law wherever they may lead.” Trump’s own lawyer Ronald Fischetti told reporters that when prosecutors informed him that his client wouldn’t be charged in these first indictments, they also said the probe wasn’t over.
Weisselberg has refused to cooperate with the investigation so far, according to numerous news reports. But many a criminal defendant has vowed to fight, only to cut a deal once they’ve been charged and prison suddenly is a reality. Weisselberg has worked in some capacity for the Trump family for decades and described himself as Trump’s “eyes and ears” from an “economic standpoint.” His cooperation could open a whole new chapter in the probe.
One big unknown is how much to read into the fact that the Trump Organization — a company that Trump has run for decades, with the exception of the last four years when he was president — was charged, but not Trump himself. It could mean prosecutors don’t have the evidence as of now to personally tie him to the criminal activity they alleged against Weisselberg and the company. It could also mean that they do have evidence against Trump, but are sitting on it as they explore other potential charges.
The indictment doesn't touch on other issues that the district attorney’s office and the New York state attorney general’s office have publicly acknowledged they were investigating, including whether Trump and his company had improperly inflated the value of assets, including various properties, to get loans and tax benefits.
The prosecution places a large dark cloud over his business interests, regardless of whether Trump personally is ever charged. Even if Weisselberg stands by his boss and refuses to take a deal and cooperate, a trial would likely reveal even more internal information about the Trump Organization’s finances and how it operates; Trump has fought in court for years to shield his personal financial records as well as documents related to his company and his family from Democrats in Congress probing his affairs.
Trump has denounced the investigation as part of a larger series of politically motivated attacks by his Democratic foes. In a June 28 statement responding to news reports that indictments were imminent, he called it “a continuation of the greatest Witch Hunt of all time,” repeating one of his favorite phrases to attack the Russia investigation and his two impeachments.
He also delivered a preemptive attack on any effort to hold the company criminally liable for how it had managed its affairs, saying in the June 28 statement, “They just leaked that we were given one day, today, to make our case about things that are standard practice throughout the U.S. business community, and in no way a crime.”
Trump’s response to the release of the indictment and arraignment of his company and a longtime top executive on Thursday was less specific: “The political Witch Hunt by the Radical Left Democrats, with New York now taking over the assignment, continues. It is dividing our Country like never before!”
Conventional wisdom held that Trump was shielded from facing criminal prosecution while he was in office. In 2000, the Justice Department’s Office of Legal Counsel issued a memo stating that a sitting president was immune to federal prosecution. That memo wasn’t binding on state prosecutors and it was never tested in court, but a Trump indictment while he was president was considered an unlikely scenario because any attempt to charge him would have almost certainly triggered a fierce constitutional showdown.
The Supreme Court did rule last summer that Trump couldn’t avoid criminal investigation altogether while in office and cleared the path for the New York district attorney’s office to enforce the grand jury subpoena for years of Trump’s tax returns.
Former special counsel Robert Mueller probed whether Trump tried to obstruct his investigation into Russian interference in the 2016 election but ultimately declined to make a “prosecutorial judgment” either way. However, Mueller wrote that there was “substantial evidence” Trump committed potentially obstructive acts and made clear his final report did not “exonerate” Trump.
Then-attorney general Bill Barr announced that he’d determined Mueller’s evidence wasn’t “sufficient” to find Trump committed crimes; a legal fight over public access to an internal memo that Justice Department officials submitted to Barr at the time regarding that issue is ongoing. A partially unsealed version of the memo revealed that officials had determined that regardless of Mueller’s findings, Trump would have been immune from federal prosecution under the 2000 memo.
Once Trump was out of office, all bets were off. Former presidents and high-level government officials continue to enjoy some legal protections against being sued or hauled into court over actions they previously took in an official capacity, but there’s no such immunity for criminal acts.