The filing should send panic rushing through the Trump empire. “The serious state crimes by Donald Trump and his enterprises that Cyrus Vance has indicated he is pursuing as Manhattan DA cannot be shielded from prosecution by any invocation of presidential immunity, nor are they beyond the reach of prosecution and punishment by virtue of time,” constitutional scholar Laurence Tribe tells me. “The ongoing pattern of financial fraud and deception quite plausibly establishes an inseparable criminal scheme that prevents the statute of limitations from taking even the earliest instances of felonious conduct by Trump and his co-conspirators off the table.”
On the issue of the statute of limitations, former House impeachment counsel Norman Eisen says, “Statutes of limitation can be held open by a variety of circumstances, such as ongoing conspiracies, concealment and other equitable considerations, although that is not easy to do.” He adds, “Still, if the evidence, for example, demonstrates a single continuous fraud by Trump, it might or might not overcome the normal time limits for prosecution.”
As of now, of course, no indictment has come, and Trump enjoys the presumption of innocence. The grand jury’s work is secret, so we do not know if it is at its beginning, middle or the end. “The question of whether to indict before Election Day — if it is even logistically possible — is an agonizing one. It will be viewed as politicizing the prosecution and criminalizing the election,” cautions Eisen. “If the prosecutors are in fact ready to go, better to do so after the election is settled.” He adds: “Whatever they do, the good news is that if they decide to prosecute, a presidential self-pardon won’t work both because it is unconstitutional and because federal pardons don’t apply to state offenses like these.”
A few points deserve emphasis: First, this news undercuts the notion perpetrated after the Supreme Court’s ruling that it was a partial victory for Trump. Vance will almost certainly get his evidence, and the timeline may be far shorter than some commentators fear. Second, we do not need nor should we want this to be the decisive issue in the election; Trump likely faces a broad repudiation by voters, which is highly preferable to an indictment before the election that Trump could blame for his loss. Finally, the genius of a federal system and an independent judiciary as a block against an executive seeking authoritarian powers has never been more evident — or appreciated.
