An unusual scheduling request was made at a court appearance this week involving the New York attorney general’s lawsuit against the Donald J. Trump Foundation. Foundation lawyer Alan Futerfas asked that a hearing related to the complaint, which accuses Trump of using the charity’s funds as a personal piggy bank, be postponed until “after Nov. 6.”
That date, perhaps not coincidentally, is the day of the midterm elections.
Acknowledging that “people are busy,” Manhattan Supreme Court Judge Saliann Scarpulla denied the request, saying she had cleared her calendar to handle the Trump Foundation case. Scarpulla set the next conference in the case for Oct. 11, ensuring fresh headlines about the alleged violation of state and federal law by the President and his three eldest children in the weeks before voters go to the polls.
This is only one of several serious legal matters hanging over Trump. There are also defamation suits from two women whom the President denied having sexual contact with: former “Apprentice” star Summer Zervos, who says Trump groped her without consent, and former adult film star Stormy Daniels, who claims they carried on a months-long affair. Trump’s longtime personal attorney Michael Cohen is under federal criminal investigation for his business dealings. Then there’s the biggie: special counsel Robert Mueller’s sprawling investigation into whether Trump’s 2016 campaign colluded with Russia to win the White House.
Legal experts tell TPM there’s no practical reason for any of those matters to be resolved before the midterms.
“It would be an extreme reach to suggest that an otherwise proper legal case, civil or criminal, should be delayed simply because a political party associated with one of the named parties has an election coming up,” Pat Cotter, a former federal prosecutor and white-collar defense attorney, said.
Major developments in the Mueller probe are expected over the next few months. Criminal trials for Trump’s 2016 campaign chairman Paul Manafort will begin in Virginia in July and in Washington, D.C. in September. Former campaign aide George Papadopoulos will be sentenced for lying to the FBI about his Russia contacts that same month.
A source familiar with the probe told Bloomberg this week that Mueller is also “accelerating” his probe into collusion and obstruction of justice in the hopes of issuing reports on those topics by the fall.
Longstanding Justice Department policy prohibits investigative steps that might influence an upcoming election, as Mueller is well aware. But Trump himself is not up for reelection this year, making the application of that rule murkier in this case. In the civil matters, judges are unlikely to give much credence to arguments that the President will be too busy campaigning for GOP candidates to sit for depositions or produce documents.
“As far as I can tell, [the Mueller probe] is not an investigation of all Republicans or even the Republican Party,” Cotter continued. “It’s an investigation of the president and people around him. Whatever Mr. Mueller wants to do, even under the old DOJ policy, shouldn’t be impacted one way or another.”
Trump has made the opposite case.
“The 13 Angry Democrats (plus people who worked 8 years for Obama) working on the rigged Russia Witch Hunt, will be MEDDLING with the mid-term elections, especially now that Republicans (stay tough!) are taking the lead in the Polls,” Trump tweeted in late May. “There was no Collusion, except by the Democrats!
Trump’s attorney in the Russia probe, Rudy Giuliani, also suggested Mueller would be “clearly doing a Comey” and disrupting the midterm race if he fails to complete and file all reports on his investigation by “Sept. 1 or mid-September.” (A source familiar with the probe called Giuliani’s deadline “entirely made-up.”)
Former FBI Director James Comey radically departed from DOJ precedent during the 2016 race by publicly commenting, in both July and October, on developments in the probe into Hillary Clinton’s use of a private email server. But experts emphasized that while both Clinton and Trump were under federal investigation in that election year, the sprawling Russia probe has little to do with congressional campaigns.
“I don’t think there’s anyone that has legitimate authority—nor would want to exercise such claimed authority—to defer the issuance of the report or affect the issuance of the report for purposes of politics,” Douglas Kmiec, a former senior DOJ lawyer during the Reagan and George H.W. Bush administrations, told TPM.
Cotter said Giuliani’s comments reminded him of remarks he used to hear while working mob prosecution cases in New York City.
“Periodically one of their mouthpieces would go on TV or in the newspapers, and they’d have all sorts of helpful suggestions on how to conduct our investigation,” he said. “The phrase ‘witch hunt’ came up more than once. I can honestly say that I don’t believe that any—any—prosecutor ever spent a second worrying about what those people were saying or their helpful suggestions or their self-created deadlines.”
But the intense criticism Comey and the FBI for influencing the 2016 race is still raw. With that in mind, former FBI counterintelligence agent Asha Rangappa told TPM, he’s unlikely to broadcast major investigative steps in the immediate lead-up to the midterms.
“It kind of highlights the predicament that the Department of Justice is in,” Rangappa added, noting that Mueller would face criticism for taking major public action either before Nov. 6 or in the weeks after.
“It’s one of those things where I think it has the potential to look political one way or another,” she said. “Given the choice, he’d probably prefer to do it after the election rather than before, if it [involves anyone] close to the President. I think you could still see indictments of people who are a little bit more removed.”
Despite the gravity of the issues Mueller is investigating, legal experts say Trump faces more immediate exposure in the civil cases, where he may be deposed under oath.
The precedent allowing these cases to proceed is Clinton v. Jones, the landmark Supreme Court ruling determining that a current president has no immunity from civil cases related to acts done before taking office.
In the New York suit, Trump is accused of “persistent illegal conduct” for using his charity to support his presidential campaign and using the foundation’s funds as a personal “checkbook.” Though Judge Scarpulla reportedly urged a lawyer for the Trump’s three eldest children, who are also defendants in the suit, to settle out of court at this week’s proceeding, the President has insisted via tweet that he “won’t settle this case!”
At the Oct. 11 status conference, Scarpulla will announce whether she’ll decide the case based on the filings submitted by each party, or order a hearing—which could be held as early as mid- to late October.
Trump may also be called to testify in the ongoing Zervos or Daniels defamation suits about his relationships with the two women—a potentially embarrassing and perilous situation for a sitting president. Lying under oath about his sexual conduct was one of the articles of impeachment against Bill Clinton.
Looking to November, Trump and his legal woes are not on the ballot. But new details in all of these cases will be spilling out in the coming months, providing fodder for Democrats eager to paint the entire GOP as hopelessly in thrall to a corrupt leader with no regard for the rule of law.