It made me realize something has been missing from every analysis of the indictment question I’ve seen: whether you can indict a sitting President’s eponymous corporate entities. Under Dellinger’s analysis, you’d have to include the Trump Organization in any conspiracy involving a Trump Tower in Moscow — it was the entity that signed the Letter of Intent, would be the entity that would obtain funding, and would be the entity that would profit.
But the Trump Organization did not get elected the President of the United States (and while the claims are thin fictions, Trump has claimed to separate himself from the Organization and Foundation). So none of the Constitutional claims about indicting a sitting President, it seems to me, would apply.
If I’m right, there are a whole slew of implications, starting with the fact that (as I laid out on
a Twitter rant this morning), it utterly changes the calculation Nixon faced as the walls started crumbling. Nixon could (and had the historical wisdom to) trade a pardon to avoid an impeachment fight; he didn’t save his presidency, but he salvaged his natural person. With Trump, a pardon won’t go far enough: he may well be facing the criminal indictment and possible financial ruin of his corporate person, and that would take a far different legal arrangement (such as a settlement or Deferred Prosecution Agreement) to salvage. Now throw in Trump’s narcissism, in which his own identity is inextricably linked to that of his brand. And, even beyond any difference in temperament between Nixon and Trump, there’s no telling what he’d do if his corporate self were also cornered.
In other words, Trump might not be able to take the Nixon — resign for a pardon — deal, because that may not be enough to save his corporate personhood.
For virtually every other legal situation, it seems to me, existing in both natural and corporate form offers protection that can save both. But if you’re the President of the United States, simultaneously existing — and criminally conspiring — in corporate form may create all sorts of additional exposure any normal President would normally be protected from.
Update, 12/9: I’ve changed the title of this post, in part because comments here and on Twitter have convinced me that Mike Pence could pardon Trump Organization. The central point — that Trump seems to be ignoring the risk to his eponymous businesses — remains.
While it appears the Southern District is assembling a powerful criminal case against Trump, one of the targets for prosecution may be not the president himself, but the Trump Organization.
A stubborn obstacle stands in the way of presenting a case against the president in court. A memorandum, written in the fall of 1973 by attorneys at the Department of Justice’s Office of Legal Counsel amid the Watergate scandal concluded that constitutional principles forbid indicting or criminally prosecuting a sitting president for federal crimes. That conclusion was reaffirmed in 2000 and amounts to a Justice Department-wide policy against bringing criminal charges against the president.
Even though the Manhattan-based division is often cheekily referred to as the “Sovereign District of New York,” former prosecutors who worked there agreed that its vaunted independence would not extend to disregarding the Office of Legal Counsel’s written guidance on indicting and prosecuting the president.
“There’s no question that, as long as the [Office of Legal Counsel] memo is in place, they’re going to follow that,” said Rocah. “Even the ‘Sovereign District’ is not going to just ignore that.”