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Trump’s court losses reveal weakness of post-presidency defenses

Dec. 7, 2022 Updated Wed., Dec. 7, 2022 at 1:04 p.m.

By Zoe Tillman,Erik Larson,Patricia Hurtado and Greg Farrell Washington Post

A New York jury’s guilty verdict for two of Donald Trump’s companies on criminal tax fraud charges marked the latest blow to the former president, as he has watched his legal exposure increase since he left the White House.

Trump wasn’t a defendant in the trial of his eponymous business, but the jury heard testimony and arguments about what prosecutors described as his role in the scheme. Manhattan District Attorney Alvin Bragg’s investigation of Trump continues; he recently added a former senior Justice Department official to the team.

Trump’s weakened post-presidency legal defenses have factored into a string of setbacks in court. Trump has leaned into his status as a former officeholder, political figure and, most recently, presidential candidate to attack the investigations swirling around him. But those arguments have largely failed in court and don’t provide the same level of protection he enjoyed as the top U.S. executive.

His position as president offered a powerful barrier against prosecution during former special counsel Robert Mueller’s investigation into Russian interference in the 2016 election and whether Trump engaged in obstruction. Mueller would later explain that his office didn’t reach a conclusion about whether Trump committed crimes because charges simply weren’t an option - longstanding Justice Department policy didn’t allow prosecuting a sitting president.

The latest special counsel to explore Trump’s conduct is operating in a different environment. Jack Smith was appointed by Attorney General Merrick Garland last month to oversee investigations into the handling of government records at Trump’s Mar-a-Lago home and the events surrounding the January 2021 attack on the U.S. Capitol.

Any decision to charge Trump would still be politically explosive and legally fraught. Depending on the timing, the Mar-a-Lago and Jan. 6 probes could run into separate Justice Department policies that counsel against actions that might be seen as interfering in an election.

But as long as Trump is a private citizen, it’s no longer a given that federal charges are off the table.

A Trump spokesperson didn’t immediately respond to a request for comment on Trump’s ongoing legal liability. Lawyers for the two convicted Trump companies have said they will appeal the verdict.

In New York, Bragg’s pursuit of Trump seemed to stall earlier this year after its two senior prosecutors left, with one claiming Bragg had stopped supporting an aggressive push to bring criminal charges against Trump. Bragg said the probe would continue. He recently hired Matthew Colangelo, who previously worked on New York Attorney General Letitia James’s civil investigation of Trump’s charitable foundation, which uncovered abusive practices and resulted in the charity’s dissolution.

In a host of other pending civil cases against Trump, he’s on his own. Those include efforts to hold him liable for the violence at the Capitol and disruption of Congress during the Jan. 6 attack and civil rights claims related to his efforts to undermine the 2020 election results. Judges so far have rejected his presidential immunity arguments as a defense.

The New York attorney general’s $250 million civil fraud suit against the former president and the Trump Organization will go to a jury in October 2023. Jurors will be presented with evidence culled from millions of pages of internal documents outlining what the state describes as a long-running scheme to manipulate the value of real estate assets to deceive banks and insurers.

Trump has been able to delay some investigations through court challenges to subpoenas, other document demands and the seizure of materials from his Florida home. But when judges have reached the point of handing down rulings, he has often lost.

Earlier this month, a federal appeals court tossed out a monthslong fight over the fate of the Mar-a-Lago records. Trump’s lawyer insisted that he wasn’t asking for special treatment but still urged the court to consider the unusual circumstances and political context of the case.

The 11th US Circuit Court of Appeals panel, which included two of Trump’s own nominees to the court, was unpersuaded, ordering an end to a review by an outside special master that had kept the records out of the criminal probe.

“To create a special exception here would defy our Nation’s foundational principle that our law applies ‘to all, without regard to numbers, wealth, or rank,’” the judges wrote.

Trump unsuccessfully tried to invoke his former office in arguing to stop the IRS from turning over his federal tax returns to a House committee. And in January, the Supreme Court cleared the way for the congressional committee exploring the Jan. 6 attack to get White House records that Trump had maintained should be covered by executive privilege.

One of the few areas where Trump continues to get support from the Justice Department is in his defense against a case brought by the writer E. Jean Carroll. Carroll alleged Trump defamed her when he denied her claims that he raped her in a department store dressing room decades ago. Trump argued he was acting within the bounds of his official duties when he publicly addressed Carroll’s accusation in 2019 and couldn’t be sued.

The Justice Department backed that position when Trump was in office and then under Biden. A Manhattan federal judge rejected the theory wholesale, but an appeals court revived the case, finding Trump was a government employee potentially entitled to legal protection but unsure of whether the comments about Carroll fell within his presidential role.

A D.C. court has been asked to weigh in on that question and is set to hear arguments in January.

Carroll’s defamation suit is set to go to trial in April. The New York judge hasn’t yet decided on Carroll’s request to merge that case with a civil battery suit she filed last month, which also includes a fresh claim of defamation, and hold a joint trial.

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