Trump Fight Against Prosecutors May Rely on Adviser Defense
Trump Can Use Reliance on Tax Advisers to Fight Off New York Prosecutors
(Bloomberg) -- Donald Trump is likely to fight any criminal charges stemming from a New York investigation of his taxes by claiming he relied on his lawyers and accountants to prepare documents and approve transactions, legal experts said.
Should Trump be accused of a crime, he may also claim his conduct is too stale to prosecute or wasn’t improper in Manhattan’s sharp-elbowed real-estate industry, they said.
A case against Trump is “not going to be a slam dunk,” said Samuel Buell, a Duke University law school professor and a former federal prosecutor. “People think there’s going to be documentary proof of fraud, but documents almost never get you all the way there, and Trump is a guy who has been careful about where he leaves his fingerprints.”
It’s been two months since Manhattan District Attorney Cyrus Vance Jr. obtained Trump’s tax returns, intensifying an unprecedented criminal investigation of an ex-president.
Vance initially focused on the Trump Organization’s reimbursements of 2016 hush-money payments made by Michael Cohen, Trump’s personal lawyer and fixer, to women claiming to have had affairs with Trump. Since then, his probe has expanded into a broader review of the company’s dealings, including whether the Trump Organization lied to secure credit lines and tax breaks.
No charges have been filed, and they may never be because investigators may find no wrongdoing. But with Vance’s investigation in full force, legal experts have begun mapping out Trump’s potential defenses. Trump’s lawyers and a Vance spokesman declined to comment.
Trump’s strongest argument is likely a “good-faith reliance” defense, claiming his lawyers and accountants approved the filings and transactions in question and that he didn’t intend to defraud the government. Prosecutors are “always concerned about this particular reliance defense,” said Buell, who led the Enron Task Force’s 2002 obstruction-of-justice case against accounting firm Arthur Andersen.
“Trump has already floated this defense, saying that he has the biggest and best and most prestigious names around him and his business,” added Danya Perry, a former federal prosecutor.
To counter that, prosecutors would need an insider to testify about what Trump or his senior managers knew at the time of the deals and filings, some of which may be thousands of pages, experts said. In recent weeks, Vance’s prosecutors have stepped up efforts to gain the cooperation of Allen Weisselberg, the Trump Organization’s chief financial officer.
Prosecutors might also try to show that Trump hid information from his advisers, said Jacob Frenkel, a former lawyer at the Securities and Exchange Commission. In court, they might ask advisers whether, in hindsight, Trump provided them with all the information they needed to render a professional judgment.
Another tactic for Trump is to seek further delays in the case, hoping memories fade or prosecutors’ priorities shift. Trump’s 2019 challenge to Vance’s subpoena for tax records lasted until the Supreme Court ruled in February.
John Moscow, who headed the DA office’s complex crimes unit under Vance’s predecessor, said Trump’s lawyers will take aim at every aspect of a prosecution, asking even whether unauthorized persons attended grand jury sessions.
Trump lawyers may invoke the five-year statute of limitations on conduct that occurred before 2016, saying some acts can’t be prosecuted, Moscow said. The DA could respond that Trump’s absence from New York during his presidency extended the period under scrutiny to 2012 -- a back-and-forth that will chew up more courtroom time.
The complexity of a white-collar case may also work to Trump’s advantage, with competing expert testimony and arcane accounting or legal terms that can confuse a jury, said Daniel R. Alonso, a former top deputy to Vance. And as Cohen has said, Trump’s instructions are often ambiguous and he doesn’t use email, making it even harder to prove that he wanted someone to break the law.
“Prosecutors want to present a simple, coherent narrative for the jury,” Alonso said. “For the defense, it’s the opposite: the more complicated they paint the case, the more likely the jury will throw up its hands and find reasonable doubt.”
Trump has called the Vance investigation a partisan witch-hunt, a claim that might echo with sympathetic jurors. And he may also employ what Alonso calls the “everybody-does-it” defense, which, while not based purely on the law, can still be persuasive.
In Trump’s case, Alonso said, he could claim the Manhattan real-estate business is an anything-goes marketplace where competitors constantly hype the value of properties. “They could argue, ‘In some corners of the real estate industry, people exaggerate all the time. What’s the big deal?’”
Trump was trounced in Manhattan in last year’s election, losing 87% to 12%. But that won’t make a difference, as even unfriendly jurors won’t accept weaknesses in a case.
“My experience with jurors is that they deeply want to get it right,” Perry said. “There is no such thing as an easy conviction.”
©2021 Bloomberg L.P.