Teri Kanefield
+ Your AuthorsArchive @Teri_Kanefield Author, lawyer (UC Berkeley) My threads are here: terikanefield-blog.com/ NBC News Opinion contributor Impeachment notes: impeachment-trump.com/ Apr. 27, 2019 4 min read

(Thread) Trump and the Limits of Criminal Law

I've gotten variations on this question: “What Trump did when he did X was despicable. Why isn't it a crime?”

Not everything bad or immoral is a crime. The Trumps have a history of exploiting that distinction.

1/ Fred Trump, Donald Trump's father, went into the real estate business, and got rich when he figured out how to cheat.

Returning WWII soldiers were eligible for home loans under the new GI bill. There was thus a need for single family homes.

2/ Fred Trump rented himself equipment at inflated prices and billed the government for tacked on expenses that never occurred. When he submitted costs, he added a 5% architect’s fee even though there was no architect.

3/ He submitted falsely high estimates, did the work for millions less, and pocketed the difference.

When he was hauled before the Senate probe into public corruption, he escaped punishment because there were no specific laws against what he did (now there are).

4/ When the Senate was not able to pin a crime on him, Fred Trump declared himself a victim, and accused the Senators of doing "untold damage" to his reputation by accusing him of wrongdoing.

Fred Trump didn’t get rich because he added value.
He gamed the system.

5/ Donald also cheated & gamed the system.
He cheated on his taxes:  https://www.nytimes.com/interactive/2018/10/02/us/politics/donald-trump-tax-schemes-fred-trump.html 
In 1984, he began profiting from money laundering when Russian gangsters purchased Trump real estate:

6/ The NY AG is suing the Trumps for “persistently illegal” and and “repeated and willful self-dealing transactions” in their management of the Trump Foundation. This means stealing from charity. For more, see 👇

7/ Now let’s answer this question👇

Every crime has elements. To get a conviction, a prosecutor must have evidence to prove each element of a crime beyond a reasonable doubt.

8/ I’ve explained why Mueller concluded he didn't have evidence to charge a conspiracy. If you missed it, see👇

We know from the report that Trump and his campaign sat back and let Russia help him win.

8/ This was particularly despicable because they knew the Russians were weaponizing material stolen from their opponent.

Trump’s “Russia are you listening” comment, followed by Russia actually hacking, raises the question of whether Trump is guilty of accomplice liability.

9/ The DOJ lists the elements of aiding and abetting here:

For Trump to be convicted of aiding and abetting Russian attack, the prosecution must be able to prove each of these elements👇 beyond a reasonable doubt.

10/ The first element is tough.

But third is the toughest, because Meuller didn't find evidence that Trump participated.

He said what happened was more akin to “two parties taking actions that were informed by or responsive to the other’s actions or interests.” (Vol. I, p. 2)

11/ Trump made it clear at the start of his candidacy that he wanted to move the U.S. away from NATO toward Russia.

Russia had an interest in Trump winning.

They were ‘informed by or responsive to the other’s actions or interest” partly because their interests were aligned.

12/ Accessory after the fact similarly requires an act such as “assists.”

Sitting back and benefitting doesn’t meet the elements.

OK, you say. Trump lied, covered up for Russia, and tried to sabotage the investigation.
Isn't that helping?

13/ Instead of seeing this as accomplice liability, Mueller saw it as obstruction of justice—a more serious crime.

Obstruction is “corrupt use of his authority” and "Congress has the authority" to prevent the president from corruptly using his power." (Report, vol. II, p. 8)

14/ This brings us to the real problem. Lots of people are OK with Trump's wrongdoing and obstruction.

The real problem is that Trump is being shielded by a major political party, a large portion of the population, and a large part of Congress.

15/ There is a sense out there that Trump is “getting away” with something, perhaps because we're not seeing punishment (like prison).

See this on the problems in general with punishment:  https://terikanefield-blog.com/justice-and-punishment/ 

I don't think he's getting away with everything. Consider . . .

16/ . . . how exposed Trump is, after all those decades hiding behind a carefully crafted fake image. Most of the world now sees what he is. Certainly anyone who actually read the Mueller report instead of taking Trump's word for it.

Think of all those NDAs. His "brand."

17/ And the story is still unfolding.

The fact that so many people (and members of Congress) are shielding Trump brings me back to the preliminary considerations of impeachment, which I will continue writing about next.


I am going to add this very good question to the thread. If you click through, you can see my response.

I, too, struggled with this.

All my threads are also blog posts. You can view this one here:  https://terikanefield-blog.com/trump-and-the-limits-of-criminal-law/ 

You can follow @Teri_Kanefield.


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