Trump is still getting off easy

Finally—there are criminal charges.

Five years into a criminal probe, the Manhattan district attorney has charged former President Donald Trump with 34 counts of falsifying business records while making illicit payoffs during the 2016 presidential elections. Those charges mostly relate to the now-familiar effort to silence two women claiming to have had sexual encounters with Trump before he was running, while he was married to his current wife Melania.

But Trump faces the mildest charges the Manhattan DA considered in its long-lasting probe. What’s missing are allegations of financial crimes prosecutors believe Trump committed, including business fraud, tax fraud, insurance fraud, and bank fraud. While he faces a boatload of legal problems—including some probably more perilous than the hush-money charges—Trump may never have to account for alleged business crimes that prosecutors say have been an inherent part of his business model for years.

The hush-money charges are serious enough, and they represent the first time any current or former president has faced criminal allegations. Manhattan District Attorney Alvin Bragg says the payoffs were crimes because Trump accounted for the money as a business expense, which it wasn't. There are 34 charges because some of the payments went through Trump's former lawyer, Michael Cohen, in installments, and each transaction is a unique criminal charge. Trump pleaded not guilty to all the charges.

The payoffs first came to light in 2018, with prosecutors ever since weighing what to do about them. Later that year, Cohen, the lawyer, pleaded guilty to federal campaign-finance violations related to the payments, as part of a broader settlement with the Justice Dept. Court papers referred to Trump, then president, as “Individual 1,” or the person authorizing the payment, via Cohen. So if Cohen was guilty, logic suggests Trump must be guilty, as well.

The dog that isn’t barking, however, is a pile of evidence that Trump committed financial crimes not mentioned in the Manhattan DA’s indictment. That office could file additional charges against Trump, but it seems unlikely given how long the probe has been underway. There’s no sign federal prosecutors are looking into Trump’s financial improprieties, either, despite public evidence of possible tax fraud, bank fraud and other illegalities. Trump has long said he abides by all laws and called prosecutions of him and his business practices politically motivated “witch hunts.”

Trump is embroiled in many lawsuits and judicial probes, and a few of them have begun to pierce the Teflon exterior Trump has long been known for. Last August, Allen Weisselberg, chief financial officer of Trump’s real-estate company, pleaded guilty to 15 financial felonies including tax fraud, which earned him a 5-month jail sentence. In December, a jury convicted the Trump Organization of 17 related charges that exposed the firm’s practice of granting Weisselberg and other employees valuable perks that should have been reported and taxed as income but weren’t.

Trump himself has always dodged the bullet, and he may do so once again in the hush-money case. Prosecutors have a high legal bar to meet to prove the hush-money payment was a serious crime. While Cohen pleaded guilty to a felony for his involvement in the payment, that was at the federal level. Bragg, the Manhattan DA, has to charge Trump under New York law, which is trickier.

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Bragg has also implicitly decided not to pursue a variety of financial charges against Trump. Prosecutor Mark Pomerantz, who worked on the DA’s Trump case from 2020 to 2022, writes in the new book “People versus Donald Trump” that “we had evidence that Trump had grown the business, and augmented his wealth, reputation, and power, through a pattern of criminal activity … There were so many areas to look at because neither Trump nor the Trump Organization seemed to care about stepping over legal lines.”

A recurring theme emerged as Manhattan prosecutors reviewed thousands of pages of Trump’s financial statements: Trump routinely overvalued properties such as hotels, golf courses, and personal residences to aggrandize his wealth and get the most favorable loans from banks, while undervaluing the same properties for tax purposes.

Cohen, who testified before Congress about these practices in 2019, told Manhattan prosecutors that each year Trump would come up with a bottom-line net-worth figure for himself, while Cohen and Weisselberg would then “phony up” asset valuations to match Trump’s figure. These were not small rounding issues. As one example, Pomerantz says the DA’s office figured Trump overstated the value of his Mar-a-Lago estate by 1,000% during a seven-year stretch of records they examined.

This type of activity could involve several types of crime, including falsifying business documents, defrauding banks and evading taxes. Many such charges appear in the civil lawsuit New York State Attorney Letitia James filed against Trump last year, which is ongoing. James is seeking $250 million in restitution from the Trump Organization, and she wants to ban Trump plus his three adult children from running any business in New York. Since it’s a civil suit, however, there wouldn’t be any criminal conviction or penalties such as jail time.

In his book, Pomerantz described several difficulties Manhattan prosecutors saw in charging Trump with financial crimes. For one, there was no “flesh and blood victim” to build a narrative around, since they couldn’t highlight any individuals who lost money or suffered because of anything Trump did. Banks might have suffered, and governments may have lost tax revenue, but that doesn’t mean jurors would have sympathized. Trump’s sprawling web of companies, subsidiaries and sub-subsidiaries also overwhelmed a relatively small staff of prosecutors with mounds of complex paperwork.

The Justice Dept. would have been in a better position to examine these possible crimes, with far more resources and fewer jurisdictional barriers—especially since they got the ball rolling by going after Cohen and establishing baseline evidence they could have applied to Trump, as well. The Trump-era attorney general, William Barr, declined to do so, perhaps to protect his boss. There was also the longstanding Justice Dept. policy that a sitting president is essentially immune from federal prosecution.

That policy no longer applied when Trump left office in 2021, yet the current attorney general, Merrick Garland, hasn’t begun an investigation into possible Trump financial crimes either, as far as anybody knows. The New York attorney general sent a criminal referral to the Justice Dept. and the Internal Revenue Service last year, pointing to evidence of possible Trump crimes in the evidence mounted as part of that civil lawsuit. Garland won’t say why the Justice Dept. remains unmoved on those issues.

On the other hand, the Justice Dept. is clearly investigating Trump for the unauthorized possession of sensitive classified documents after he left office, under the aegis of special counsel Jack Smith, whom Garland appointed late last year. Special counsels have wide-ranging authority, and Smith may also look into whether Trump could be charged for encouraging rioters during the January 6, 2021, uprising at the U.S. Capitol, or other potential infractions. There’s no sign Smith is looking into possible financial crimes though, such as interviews with witnesses who would know about Trump’s business dealings. Maybe Garland feels the federal probe into Trump is expansive enough.

Then there’s the investigation into whether Trump committed election fraud in Georgia, being pursued by Fulton County District Attorney Fani Willis. That case came from a recorded phone call on which Trump told Georgia election officials to “find votes” after he was on the verge of losing Georgia in the 2020 presidential election, and it’s considered one of the most serious legal threats Trump faces. Charges may be imminent. Trump may survive the Manhattan DA, but other prosecutors are lining up right behind.

Rick Newman is a senior columnist for Yahoo Finance. Follow him on Twitter at @rickjnewman

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