It’s hard to keep track of all the legal developments surrounding Donald Trump. There’s the FBI removal of documents from the former president’s Mar-a-Lago property in Palm Beach last week. In Atlanta, Fulton County District Attorney Fani Wills is investigating how Trump tried to overturn the presidential vote in Georgia in 2020. (Rudy Giuliani appeared before a Willis grand jury for six hours on Wednesday.) Meanwhile, on Thursday, Alan Weisselberg, the chief financial officer of the Trump Organization, pled guilty in New York State’s civil case against the company, not the man. Then there’s the Justice Department’s investigation into Trump and his allies trying to overturn the election, including their role in fomenting the January 6 insurrection. There are others, too, including the House January 6 Committee, which is planning more hearings, according to Liz Cheney, who was crushed on Tuesday in her bid to be reelected Wyoming’s sole member of Congress—a defeat stemming from her denunciations of Trump’s actions that triggered this legal maelstrom in the first place.
After the FBI search of Mar-a-Lago last week, I called my colleague Jennifer Taub—author, law professor, and expert on financial crimes. She is the author of Big Dirty Money: The Shocking Injustice and Unseen Cost of White Collar Crime and Other People’s Houses: How Decades of Bailouts, Captive Regulators, and Toxic Bankers Made Home Mortgages a Thrilling Business. She is also a contributing writer at the Washington Monthly. We caught up on the investigation over the phone and in subsequent emails, ending on August 18.
This conversation has been edited and shortened for clarity.
MC: You’ve been critical of Attorney General Merrick Garland about Trump. Feel the same after yesterday’s Mar-a-Lago search?
JT: Well, even before yesterday, I had put out a tweet saying my confidence had been restored. My friend Mary Trump said, “You know, it turns out that Garland is a ninja.” It reconfirmed my faith that Garland would do the right thing. I trusted Robert Mueller to dig into the facts and do an honest assessment of them. But at the end of the day, he was afraid to say that a crime was a crime. Unlike Robert Mueller, Garland is not afraid to say that, because he signed off on the warrant.
MC: Let me ask you about fake electoral slates. They seem to be a relatively straightforward case of fraud.
JT: Fraud is not the correct charge. It’s called conspiracy to defraud the United States, which isn’t the usual kind of fraud. It would be the argument that [Trump] conspired with [his lawyer] John Eastman and maybe others to interfere with the joint session of Congress counting the electoral votes. That’s one charge, and the second would be obstruction of a congressional proceeding. When Judge [David] Carter ordered Eastman’s materials to go to the January 6 Committee, he did so because he said that he believed it’s more likely than not that Trump and Eastman were engaged in crimes. So those are those two charges. And yes, I do think that is a fruitful path. But I also think the seditious conspiracy is one, and they shouldn’t back down from that.
MC: What Trump actions could trigger a seditious conspiracy indictment?
JT: The statute says “to put down or destroy by force, the government of the United States…or to oppose by force the authority thereof…to prevent, hinder or delay the execution of any law, of the United States.” So, the idea is that you’re using force to do that. So, the first avenue with the fake electors is part of an effort to conspire and obstruct in a nonviolent way, but the seditious conspiracy is trying to accomplish the same goal through force.
JT: These two streams of the investigation are parallel. Eastman and others were doing the fake electoral votes, and then people like Roger Stone did the others.
MC: Your area of expertise is financial crimes. So, the former president took the Fifth a gazillion times with New York Attorney General Tish James. Tell me what you think of the case the state of New York is putting together.
JT: I’ve always thought the case is strong, as is the overlapping case that the New York district attorney, Alvin Bragg, is investigating. It’s hard to know all the stuff she’s investigating, but my understanding is that she’s looking at state tax fraud at the civil level and at falsifying business records. Because of the civil case, the burden of proof is much lower. Because the business is incorporated in New York, one of the remedies is to dissolve that corporation.
MC: So Trump misrepresented the value of his assets?
JT: They treated assets as if they were extremely valuable when the value would benefit him and treated them as not as valuable when it wouldn’t. You want the property to look less valuable when you pay tax. If you’re getting a bank loan, you would like the collateral to seem more valuable. He was engaged in kindergarten cooking of the books, right? This is not Enron.
MC: What’s going on with Bragg? I mean, he’s keeping an eye on what James is doing from a criminal point of view. But we also had his kind of dropping the investigation earlier.
JT: So, just like I had somewhat of a change of heart about Garland, at first I was very angry and suspicious of Bragg’s motive because the previous Manhattan DA, Cy Vance, handed him the case. I think he got scared that he didn’t have some kind of smoking gun. You’re not going to get an email from Donald that says, “Let’s cook the books.” He doesn’t use email. I think [Bragg] wanted a slam dunk. Maybe he just didn’t want to be the person to go first.
MC: Trump’s accounting firm isn’t going to represent him anymore. Is that indicative of much?
JT: Yeah. Any firm that represented him all these years, knowing what a shady character he was, to decide not to suddenly is a red flag.
MC: Let’s shift to Atlanta. The Willis case. Thoughts?
JT: Up until Monday’s Mar-a-Lago search, I thought Fani Willis would be the person first to indict Trump because she is investigating the attempt to interfere in the election, not the fake electors, through these phone calls made by Trump, Lindsey Graham, Rudy Giuliani, and others. The famous recorded phone call with the Georgia secretary of state: I think her investigation is the most promising because there is a smoking gun, the audiotape where you have Donald Trump on the phone. I think federal charges could come out of that, too.
MC: Willis has put together a highly complex case before, a big school fraud case with lots of finances and witnesses. She’s well equipped for this.
JT: Yeah, I think that was a very brave case to bring. It’s tough to bring a case against teachers and administrators orchestrating a complex plan to cheat on these standardized tests. But if you’ve used the [Georgia RICO] statute before and gotten pleas or guilty verdicts, then you’re going to understand how to use that statute, what evidence to gather, and what things will convince a jury. Having that hands-on experience is invaluable.
MC: A Black woman with a grand jury may be Trump’s worst nightmare.
JT: Ha. I think his worst nightmare would be a mug shot without his comb-over. They call it “Club Fed.” But I have looked at the commissary list at Club Fed, and there are a lot of things. You can get Twizzlers, and you can get sunglasses. You can play bocci, but there is no hair and makeup. None, Matt. None.
MC: Let me move to the January 6 Committee.
JT: I think one of the most effective things I saw in the entire time was when they had a model of the White House—the dining room off the Oval Office, the physical model—and they showed us a television screen on the wall with Fox News on. [Trump] could see how riled up the crowd was. He could see the shouting; he knew what was happening. And we know what he was doing: He was watching, and he was enjoying it and not stopping it. The last hearing was spectacular because it brought all the threads into the main question. No one doubts that there was violence at the Capitol. The question has always been the link between what Trump said at the Ellipse and did at the Ellipse and what he said and did or didn’t do at the White House. All came together in that last hearing. It was mind-blowing.
MC: The model of the dining room and Fox News? Was it just shocking for the audience? Or did it carry some legal weight in a possible referral?
JT: Merrick Garland is thinking about how you can secure a conviction, and what I saw they could use before a jury. Plus, having Cassidy Hutchinson testify was a game changer; she would be an excellent witness before a jury. What you find out from her is that everybody expected things to get out of hand—and to come through from someone who has a completely unimpeachable character who has no reason to lie about this.
MC: What about the plea deal of Allen Weisselberg?
I have mixed views about the Allen Weisselberg plea. On the one hand, as part of Weisselberg’s plea, he did not agree to implicate Trump or the family members. This is very disappointing. It’s equally disappointing that Trump, as head of the organization, was not himself indicted. On the other hand, it’s good that he will be a cooperating witness in the October criminal trial against the Trump Corporation and the Trump Payroll Corp. (which do business as the Trump Organization). As CFO, Weisselberg is a “high managerial agent” under New York law, and his crimes can now be imputed to the businesses themselves. Furthermore, his plea involves conspiring with the organization. That’s good. With a conviction, the New York attorney general would have the authority to dissolve these corporations.
MC: What about the hearing to release the affidavit related to the search?
JT: Much to my surprise and the delight of many news organizations, the magistrate, [Bruce] Reinhart, ordered the Department of Justice to produce a redacted version of the warrant affidavit used to justify the search of Mar-a-Lago last week. The DOJ has until Thursday, August 25, to provide the proposed redaction. Then the judge will look through the suggestions and decide whether they make sense to excise or not. We may see some version of the affidavit as soon as Thursday night or Friday. However, there could be an appeal.
At the very least, the name of the FBI agent who signed the affidavit, as well as anyone named as a witness or target in it, will be hidden. Beyond that and related identifiable information for witnesses and any information that could jeopardize national security, I’m not sure what else will be out of our sight. Though the DOJ objects, I believe transparency here will go a long way to giving confidence in the process.
MC: For five years, we’ve heard, “The walls are closing in on Trump.” You know, “It’s the Mueller report, the servers at Trump Tower, Carter Page, the first impeachment, the second impeachment, the tax returns, the pee tape.” Do you think this time they’re closing in?
JT: The walls were closing in, but when you’re a wealthy, white, well-connected man, the walls are farther away for you. The walls move a bit, imperceptibly. If you were an ordinary person, you would have been trashed, compacted, like Princess Leia. You wouldn’t have gotten out. So, here’s the deal. I think the walls are closing in on him. But even if he’s indicted, this man is not going to prison. Right. We’ve never had an indictment of the U.S. president. We’ve never had a search warrant, let alone an indictment.
MC: I assume they’ll settle if it comes to that.
JT: I don’t know if they’ll settle, because there might be a conviction of some kind, and I don’t think there’ll be incarceration in the traditional sense. But will Trump ultimately be indicted? Yes, he will.
I don’t think he’s ever going to have a mug shot without his comb-over. He will have hair and makeup. But he will be indicted for something.
MC: And if you had to bet, what’s the most likely indictment? And from whom?
JT: And yeah, I just have no idea. I’m not sure we even know what it will be. I have no idea what’s beneath the surface of the lake or under the surface of the ocean, but there are a lot of birds diving down.