Former federal prosecutor describes the ‘potential culpability’ Trump faces from NY attorney general’s probe

Although former President Donald Trump has been gone from the White House for a year, he hasn’t disappeared from the headlines by any means — and he continues to be the subject of multiple investigations, with the investigators ranging from Fulton County District Attorney Fani Willis and Manhattan DA Alvin Bragg to House Speaker Nancy Pelosi’s select committee on the bloody January 6, 2021 insurrection. New York State Attorney General Letitia James has been investigating Trump as well, and her civil probe is the subject of a Politico op-ed by attorney and former federal prosecutor Ankush Khardori.

In his op-ed, published by Politico on January 19, Khardori explains, “On Tuesday night, New York Attorney General Letitia James lit up Twitter with the announcement that her office had ‘uncovered significant evidence indicating that the Trump Organization used fraudulent and misleading asset valuations on multiple properties to obtain economic benefits, including loans, insurance coverage and tax deductions for years.’ The series of tweets represented a rhetorical escalation in the New York attorney general’s office’s years-long investigation of the Trump family company.”

Nonetheless, the former president has not been charged with anything as a result of James’ investigation. But a separate probe by the Manhattan DA’s Office, formerly led by ex-DA Cyrus R. Vance, Jr., resulted in a criminal indictment on tax fraud charges for Allen Weisselberg, long-time chief financial officer for the Trump Organization; however, Donald Trump himself hasn’t been charged with anything in connection with that investigation.

In his op-ed, Khardori poses the question: What does James’ announcement “actually reveal about former President Donald Trump’s potential criminal culpability?” And he points out that James’ civil investigation of the Trump Organization is separate from the criminal investigation that the Manhattan DA’s Office has conducted.

“James’ office was careful to note that it had ‘not yet reached a final decision regarding whether this evidence merits legal action’ even in the civil proceeding,” Khardori explains. “James’ office argued, for instance, that it had identified various ways in which financial statements concerning Trump’s business had been ‘inaccurate or misleading when compared with the supporting data and documentation that the Trump Organization submitted to its accounting firm’ and said ‘evidence obtained’ by the office ‘indicates that Mr. Trump was personally involved in reviewing and approving’ those documents before they were used ‘to obtain a host of economic benefits, including loans, insurance coverage, and tax deductions.’”

Khardori continues, “By itself, this might be good evidence in a civil case, but it would not form the basis for a particularly strong criminal fraud case. That is because in a criminal financial fraud case, material discrepancies among financial documents — say, an internal accounting document that shows one value and a financial statement provided to a potential lender that shows a very different value — are often just the start of an investigation. Prosecutors then have to identify culpable individuals who had criminal intent to mislead third parties.”

The former federal prosecutor argues, however, that “the odds of a civil lawsuit by James’ office concerning Trump’s business dealings appear to be increasing.”

“That is one reason that lawyers in James’ office may have decided to subpoena Trump and his kids at this time — in order to force a resolution to an issue, whether the office can seek an adverse inference in a future trial, that could be very important later in court,” Khardori writes. “At this point, however, the practical and political effects of such a civil lawsuit are hard to assess.”

Khardori doubts that any of the investigations Trump is facing will hurt him politically with his diehard supporters.

“Short of an actual criminal conviction of Trump himself,” the attorney argues, “there is good reason to believe that Trump the politician will emerge largely unscathed after these investigations are over — even if James’ office files a significant and wide-ranging civil case concerning the Trump Organization’s business dealings. Prior civil proceedings — like the settlements of cases involving the so-called Trump University and Trump’s supposed charitable foundation — did not appear to have meaningfully dented his appeal to his supporters.”