Out of the Past

No longer, for the moment, dominating headlines in the U.S. or around the world, Donald Trump faces increasing legal peril. It’s entirely possible that he will become the first American president ever charged with committing felonies in or out of office—and the cases against him could, in turn, upend the U.S. Republican Party and 2024 presidential election. Public prosecutors in at least four jurisdictions are conducting criminal and civil investigations of Trump, while the U.S. Congress’ January 6 Committee will begin hearings, in April or May, on the attack at the U.S. Capitol and Trump’s role in it. How serious are these legal threats against him?

Kimberly Wehle is a professor of law at the University of Baltimore, a former assistant U.S. attorney, and the author of How to Think Like a Lawyer—and Why. The biggest danger to Trump, Wehle says, is the criminal investigation in Georgia over his call to the state’s top election official, when the former president asked him to “find” enough votes to reverse Joe Biden’s victory there. As Wehle points out, that call was recorded, eliminating any doubt about what Trump said. The January 6 Committee also presents potentially grave legal jeopardy for him, given the caliber of the prosecutors leading the investigation, the fact that the hearings will be public, and the possibility that the committee will refer criminal charges to the Justice Department. Meanwhile, Wehle says, what’s happening with the long-running civil and criminal probes of Trump’s business dealings led by prosecutors in Manhattan and New York State remains murky, and their outcomes remain uncertain—but then, so is the potential damage to Trump they represent.

Michael Bluhm: How do things look for Donald Trump right now?

Kimberly Wehle: It’s likely that there’s going to be some legal accountability. There are ongoing criminal investigations in Georgia, New York, and a suburb of New York. There’s also an ongoing criminal investigation in Manhattan, though it looks like the new district attorney there, Alvin Bragg, is pulling back. Then we have a civil case in the state of New York relating to Trump’s taxes and alleged misstatements to banks.

But the most overarching investigation is the January 6 Committee’s. They don’t have the authority to bring a criminal indictment, but Jamie Raskin—a Democratic member of the U.S. House of Representatives who was a brilliant constitutional scholar before taking office—has said that the revelations will blow the lid off the House. I assume that means we will hear new information that didn’t have in the second impeachment trial, and the Justice Department will be hearing it, as well. I have a hunch that the Department is waiting to see the public reaction to the January 6 revelations before pursuing a case against Trump.

Bluhm: When do you expect decisions on charges?

Wehle: Impossible to say. Frankly, I’m surprised that the grand-jury investigation into the infamous call in Georgia—where Trump got on the phone with Georgia Secretary of State Brad Raffensperger and asked him to find enough votes to swing the election there—is taking so long.

It’s rare that there’s an audiotape of the alleged wrongdoing. I hope we see charges in the next year, but the wheels of justice can move slowly when these cases are complicated. And we just don’t have any historical precedent for something like this involving a former president.

Bluhm: New York State Attorney General Letitia James is investigating the Trump Organization, and Trump himself, in the civil case you mention. A New York State judge recently ruled that he and his children have to give depositions under oath in the case. What’s going on with this case?

Wehle: In any legal action, there’s first a fact-gathering process. Based on the facts, there might be a civil complaint filed against a defendant. Tish James is still in the fact-gathering process. There’s been no lawsuit filed against Donald Trump. Even if there were a lawsuit filed against Donald Trump, it couldn’t produce anything other than back pay of taxes and perhaps what we call injunctive relief—directing him to act in a certain way in the future.