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NY Probe Is Newest Criminal Investigation of Trump

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NY Probe Is Newest Criminal Investigation of Trump; An Additional Signal of Growing Legal Problems and Possible Indictment

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Criminal Investigation Of The Trump Organization

WASHINGTON, D.C. (May 19, 2021) - In only the latest in a growing number of signs pointing to the possible if not probable indictment of the former president, New York Attorney General Letitia James has made public an earlier warning sent to Donald Trump and his associates that her office's investigation of the Trump organization is now criminal in nature, notes public interest law professor John Banzhaf.

"We have informed the Trump Organization that our investigation into the company is no longer purely civil in nature," said a spokesperson for the attorney general's office. "We are now actively investigating the Trump Organization in a criminal capacity, along with the Manhattan DA. We have no additional comment at this time."

This development is important because James has pledged to hold Trump accountable for wrongdoings, and frequently challenged him which he was president. In the fall, a judge ruled that Trump's son Eric can be examined under oath in support of an ongoing investigation.

The other formal criminal investigation is being conducted by the office of Fulton County District Attorney Fani Willis as the result of a formal criminal complaint Banzhaf filed.

After receiving Banzhaf's complaint, Willis announced an investigation which includes "but is not limited to, potential violations of Georgia election law prohibiting the solicitation of election fraud, the making of false statements to state and local government bodies, conspiracy, racketeering, violation of oath of office, and any involvement in violence of threats related to the election’s administration.”

James' warning to Trump, which was just made public, is only the latest is a growing series of signs and signals that Trump might be indicted for one or more crimes.

GSA Turns Over Records

In another recent sign of the ever-escalating legal problems of former president Donald Trump, the Biden administration's General Services Administration [GSA] has provided House Democrats with documents related to former President Donald Trump's Washington hotel. This is the second case just this week, notes professor Banzhaf.

In another, the GSA said it would turn over many of the records requested by House Transportation Chairman Peter DeFazio related to the Trump International Hotel lease of the Old Post Office Building.

In both cases, similar requests had been turned down during the Trump administration.

In a somewhat related development, which could also harm Trump, the Justice Department agreed to have former Trump White House counsel Don McGahn testify before the House Judiciary Committee.

So, in addition, there's ever growing evidence that the noose is tightening around Trump, and that a criminal indictment against him is increasingly likely, says Banzhaf.

For example, it appears that prosecutors in New York have subpoenaed records of a private school in an effort to prove that the Trump Organization’s CFO Allen Weisselberg evaded taxes on some $500,000 which was paid in tuition by the Trump's organization for his children's tuition.

This appears to be part of an effort to pressure him to flip on his former boss, says Banzhaf. As the Wall Street Journal explains the tactic:

"Prosecutors often seek the cooperation of someone possibly involved in a crime to obtain confidential information and provide a potential road map to records or documents. Typically, prosecutors offer a potential defendant leniency in exchange for their help. Putting pressure on a possible defendant’s family is one way to encourage cooperation."

Jen Weisselberg Cooperating With Both Probes

Indeed, and as an example, says Banzhaf, Jen Weisselberg, who is the former daughter-in-law of Weisselberg, has said she is cooperating with both probes.

These new developments are still more signals of growing legal trouble for the former president, suggests Banzhaf.

Cyrus Vance Jr., the District Attorney in Manhattan, is "signaling" that "there's a good likelihood of a [criminal] charge" against former President Donald Trump, says former U.S. Attorney Preet Bharara.

According to Bharara, something is coming down the pike, and it is not good for Trump. Among the signals - Vance has hired an outside forensic accounting firm.

Perhaps more importantly, he has also hired an outside very-distinguished and well-respected lawyer, Mark Pomerantz, to assist in the investigation. As Bharara explained, "it seems like the kind of move you make when you believe that there's going to be a charge or there's a good likelihood of a charge, because it's a pretty public thing to do."

Bharara also notes that "Cy Vance is not running for reelection. Vance is, as they say, a lame duck." This means that he is not going to be subject to the traditional pressures a person seeking reelection might face against prosecuting a major public figure with very considerable political clout, notes Banzhaf.

Ending Career With A Bang

Moreover, Vance just might want to end his already-illustrious career with a bang - by bringing possibly the biggest and most unprecedented criminal case of all time - suggests Banzhaf, who also notes that there are signs that the criminal investigation of Trump by Fulton County District Attorney Fani Willis is also moving forward.

For example, it has been reported that two different grand juries have been convened to investigate Trump's alleged and apparently criminal role in trying to influence the presidential election in Georgia, and that they are to be asked to subpoena not only documents but also recordings "in the very near future." There are also other signs of progress, and concerns by others, about her investigation.

In what a person within Willis' office termed "lawyering up," Georgia Governor Brian Kemp appointed a special counsel to represent Georgia Secretary of State Brad Raffensperger when Attorney General Chris Carr, who would typically represent the state in this criminal investigation of former president Donald Trump, refused to do so.

This move follows reports of conflicts - more specifically, problems in obtaining documents and other cooperation - between the DA and the Secretary of State, says Banzhaf, who notes that one doesn't ordinarily hire a special counsel simply to facilitate the transfer of documents from a cooperating party.

It also follows another unusual appointment by Willis, who has hired a special counsel.

The special counsel, Jack Sharman, who specializes in white-collar criminal defense, has served as a special counsel to the U.S. House Financial Services Committee during the Whitewater investigation involving President Bill Clinton. He also served as a special counsel in the Alabama House during the impeachment probe of then-Gov. Robert Bentley.

The Criminal Investigation Is Heating Up

As previously reported, the criminal investigation of Trump - and also against U.S. Senator Lindsey Graham - is heating up, with Willis issuing an open records demand for all audio recordings and other communications between Trump and the office of Brad Raffensperger.

This comes as her criminal investigators have reportedly grown frustrated with the alleged lack of full cooperation by Raffensperger's office; a refusal to cooperate which might even rise to the level of a criminal obstruction of justice sufficient to require the issuance of subpoenas to force some of the Secretary's staff members to provide testimony under oath and to share other important information, says Banzhaf.

In any event, it appears that her office will begin issuing formal subpoenas to many involved in the matter before the end of May.

Willis' decision to investigate whether the former president might be guilty of a criminal conspiracy came as a surprise to many, but not to those familiar with her litigation record.

Indeed, she recently hired one of the country's leading experts on state racketeering cases to help conduct the investigation; a further signal that the DA in hoping to bring a RICO case against him, says Banzhaf.

Georgia's RICO Statute

Although Willis is already very familiar with Georgia's far reaching RICO statute as a result of winning an unusual RICO case against some teachers who had cheated, she has nevertheless engaged the lawyer who literally wrote the book on state RICO prosecutions - “RICO State by State: A Guide to Litigation Under the State Racketeering Statutes” - to help her carry out a wide ranging investigation which she had earlier said would include possible racketeering activity.

Prof. Banzhaf, who is familiar with the federal RICO statute since he produced the memo which led to the federal government's successful RICO prosecution against the major tobacco companies, points out that the Georgia RICO statute is even more powerful and far reaching than the federal one.

Among other things, it defines racketeering more broadly than the federal law does, takes less to prove a pattern of racketeering activity, and does not always require the existence of an enterprise - especially an illegal or criminal enterprise - to constitute racketeering. For example, the "enterprise" she successfully used in her RICO teacher-cheating case was a school.

Also, notes Banzhaf, although RICO requires at least two independent illegal racketeering activities - "predicate acts" - to prove a pattern of corruption by Trump and his alleged co-conspirators, making false statements such as Trump and some of his allies are alleged to have made would satisfy Georgia's RICO law.

Racketeering, which is a felony in Georgia, can carry penalties of up to 20 years in prison, a hefty fine, and disgorgements of ill-gotten gains. Most felons in Georgia convicted of racketeering offenses do serve time in prison, Banzhaf notes.

This RICO probe is probably the most serious legal threat Trump faces now that he no longer enjoys any protection as president, notes Banzhaf.

It is a very far ranging statute which permits wide disclosure and has a very heavy penalty.

It is also in the hands of a prosecutor who is a Democrat in a heavily Democratic county. Therefore, most members of a grand jury, and of any criminal trial juries in this county, are likely to be very unfriendly to Trump, especially now that he has lost a lot of his clout, and his ability to reach out easily on social media with most of his followers, Banzhaf suggests.

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John F. Banzhaf

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