Why Trump (probably) won’t be indicted

Will Manhattan District Attorney Cyrus Vance, Jr. indict former President Trump as part of a broader investigation into Trump’s finances? The smart money says no. Unless something new emerges, despite all the speculation, there’s no bank fraud, no insurance fraud and no money laundering.

At Vance’s office, the mountain labored and brought forth a lamb. After years of investigation partnering with the New York State attorney general, all that Vance has come up with so far is an indictment of two corporate entities doing business as the Trump Organization, and Trump’s chief numbers man, Allen Weisselberg. Weisselberg was hired by Trump’s father as a bookkeeper years ago, and he is not even a certified public accountant (CPA). 

What Vance has charged would constitute federal crimes as well. But, curiously, the IRS and the United States attorney for the Southern District of New York have been deafeningly silent in the matter. Typically, aggressive about its turf when a federal crime is being investigated or even charged by the state, the Southern District has stood idly by, raising speculation that they don’t think it is much of a case that they really want to prosecute.

Trump has drawn attention to the omission, stating that Vance “is bringing a case involving employee benefits that neither the IRS nor any other district attorney would ever think of bringing. This is not justice; this is politics.”

But the evidence that a crime was committed appears to be overwhelming. Not a witch hunt. Not a mainstream media hoax. Trump likely cheated on his taxes. Big-time cheating, not minor league, although the law hardly distinguishes between major and minor league tax fraud. Vance has alleged a $1.7 million tax fraud scheme accomplished over a 15-year period in which the Trump Organization compensated Weisselberg, its chief financial officer, in a manner that allowed the company and the executive to evade taxes.

Donald Trump Jr. called the charges a “political persecution” that might happen in a “banana republic,” ignoring that, had Cy Vance not indicted on the evidence, we would have really become a banana republic. In our country no one, and certainly not a former president’s business organization, is above the law.

It is no answer to say that everybody cheats on executive compensation. First of all, everybody doesn’t cheat. And there is nothing wrong with a prosecutor making an example of a “high-profile” tax evader as a deterrent to others who might try to defeat the public fisc. After all, as Oliver Wendell Holmes said, “taxes are what we pay for civilized society.”

Vance’s lead prosecutor, Carey Dunne, said during an arraignment in the State Supreme Court in Manhattan, “To put it bluntly, this was a sweeping and audacious illegal payments scheme.”

But legal analysts such as former U.S. Attorney Preet Bharara and CNN commentator Elie Honig believe that, assuming no startling breaking news, there is little chance that Trump will be indicted. Prosecutors normally indict the corporate entity last and its guiding spirit first. Here, they began with the Trump Organization. Looks very much like the alpha and the omega rolled up in one indictment. 

The wild card is that Weisselberg may decide to turn state’s evidence against Trump to save his own skin. Accountants frequently turn state’s evidence in white-collar cases.

When I was a federal prosecutor going after white-collar criminals, I always looked for the accountant. He was the most likely witness for the government. 

But Weisselberg, who is 73 years old, is unlikely to face significant jail time on these charges, and so will have little motive to give evidence against his long-time employer. He has little to lose. Even if convicted after trial, he has no CPA certificate to protect.

The Brookings Institution issued a report concluding that any prosecutor worth his salt would indict Trump for at least five provable financial crimes. According to Norman Eisen, a senior fellow at Brookings: “When you read through the indictment, through all 15 counts and the 24-page indictment and the stunning level of detail, it really presents a sweeping tax fraud case.”

But there is a difference between a Brookings report and the stern and familiar requirement that the prosecutor prove guilt beyond a reasonable doubt. Vance has probably concluded that he can’t prove that Trump cheated on his taxes based on the evidence on his hard drive. 

Will Trump’s company and brand survive the criminal prosecution? Will Trump be damaged politically if Weisselberg is convicted? The jury is out in the court of public opinion even if Trump again escapes indictment.

James D. Zirin, a former federal prosecutor, is the author of “Plaintiff in Chief—A Portrait of Donald Trump ion 3500 Lawsuits.”