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Trump’s Legal Immunity Has a Countdown Clock

This week provides a fresh reminder that the president may need to stay in office to stay out of the courtroom.

Brendan Smialowski/AFP via Getty Images

This week’s most intriguing news about President Donald Trump didn’t come from the House’s impeachment inquiry. It came from a ProPublica report on unusual discrepancies in the Trump Organization’s finances. Those revelations, in turn, show why the 2020 election—as well as the prospect of impeachment—are such a threat to not just his political future, but his personal one as well.

Trump’s business empire is privately owned by him and his family, so it’s not required by law to disclose the same level of financial information as a publicly traded company. But there are certain institutions to which it must tell the truth. When seeking loans from banks and other lenders, the Trump Organization is required to show that it makes enough money to repay the debts. When filing state and federal taxes, the company is legally obligated to provide similar details so agencies can tell whether it’s paying the correct amount.

What ProPublica found is that someone doesn’t seem to be getting the right information from the president’s company. The Trump Organization, for instance, told local tax officials that one of its Manhattan leases brought in $822,000 in revenue in 2017 while telling lenders that it had brought in $1.67 million that same year. “In eight years of data ProPublica examined for the Columbus Circle property,” the news outlet reported, “Trump’s company reported gross income to tax authorities that was typically only about 81% of what it reported to the lender.” Similar discrepancies can be found at other properties, according to ProPublica’s reporting.

Those differences don’t prove bank fraud or tax fraud on their own, of course. But they certainly fit within a larger pattern. Michael Cohen, Trump’s former lawyer, told Congress in February that the president had “deflated his assets to reduce his real estate taxes” in the past. Trump also used what The New York Times described as “dubious tax schemes” and “instances of outright fraud” to funnel more than $400 million from his parents to himself in the late 1980s and early 1990s. During that same time period, he reported such massive business losses to the IRS—more than $1.7 billion in all—that he didn’t pay income taxes for most of the decade-long stretch. Something isn’t adding up.

For now, the threat of legal peril seems distant. The Trump administration has forcefully argued in court this year that the president is largely above the law. When Manhattan’s district attorney obtained a subpoena for Trump’s tax returns earlier this year, the Justice Department argued that only Congress could scrutinize him. When the House invoked a provision of federal tax laws to obtain them, the Treasury refused to comply because the request lacked a “legitimate legislative purpose.” (The law requires no such purpose.) And when Speaker Nancy Pelosi announced an impeachment inquiry, the White House said it would not cooperate with subpoenas because they considered the Democratic-led effort to be illegitimate.

“As the court reads it,” Judge Victor Marrero wrote this month, “presidential immunity would stretch to cover every phase of criminal proceedings, including investigations, grand jury proceedings and subpoenas, indictment, prosecution, arrest, trial, conviction, and incarceration. That constitutional protection presumably would encompass any conduct, at any time, in any forum, whether federal or state, and whether the president acted alone or in concert with other individuals.” Marrero concluded that he “cannot endorse such a categorical and limitless assertion of presidential immunity from judicial process” and upheld the Manhattan subpoena.

Whether or not the Supreme Court will eventually agree with that conclusion on presidential immunity is unclear. They might not even get the opportunity, depending on how quickly other events move. All of the legal arguments that shield Trump from scrutiny and accountability have a built-in expiry date. “Trump is not the president for life, however, and current polling suggests he may not be a two-term president either,” I noted last December. “Unless he’s re-elected in 2020, his term of office expires at noon on January 20, 2021. Citizen Trump will then be constitutionally indistinguishable from you, me, Michael Flynn, Paul Manafort, and Michael Cohen.”

In that analysis, I concluded it was likelier that Trump would face indictment after leaving office than be impeached and removed from it first. Indeed, while special counsel Robert Mueller’s report this spring offered damning evidence of Trump’s attempts to obstruct justice, it failed to persuade the House Democratic leadership to launch impeachment proceedings. What I underestimated was Trump’s subsequent eagerness to commit so brazen an impeachable offense as his Ukraine scheme. His impeachment by the House is now virtually guaranteed. I tend to think his conviction and removal in the Senate is more likely than the conventional wisdom suggests, but I concede it’s still a long shot.

Either way, there’s a considerable chance that Trump won’t be the president in 15 months. At that point, the cocoon of legal arguments that insulates him from scrutiny will fall away. If a Democratic president is sworn in on January 21, 2021, the Treasury will stop resisting the House’s efforts to hand over his tax returns. The Justice Department won’t be intervening on his behalf in every investigative effort to obtain them. And federal prosecutors will no longer be constrained by the Watergate-era memos that argue a sitting president can’t be indicted, or by the practical hurdles posed by Attorney General Bill Barr’s presence atop the system.

This calculus may or may not be shaping Trump’s decision-making process about impeachment and the 2020 election. There’s nothing inherently wrong with wanting to be re-elected or avoid becoming one of three presidents to be impeached. At the same time, we already know he’s willing to bend the rules to achieve those goals. The Ukraine scheme indicates that he doesn’t trust the American people to re-elect him without coercing a foreign government to undermine his potential opponent. It also shows that he’s willing to go to extraordinary lengths to stay in power.

Even if Trump survives impeachment and wins re-election, his presidency would still end by January 2025. The Constitution, after all, only allows a president to serve two full terms. But every once in a while, Trump suggests that he’d like to stay in office past then. “I think it’s great,” he remarked after Chinese President Xi Jinping abolished term limits last year. “Maybe we’ll give that a shot someday.” At times, he’s even mused about being president for “ten or 14 years.” Trump, in fairness, often describes these remarks as jokes. They’re probably funnier if you’re not worried about being indicted after your term ends.