New York’s attorney general says her three-year investigation into former President Donald Trump uncovered possible crimes in the way he ran his real estate empire, including allegations of bank and insurance fraud. So why isn’t Trump being prosecuted? Attorney General Letitia James did not seek to handcuff the Republican this week, as some of his critics had hoped. Instead, he announced a civil lawsuit seeking US$250 million and his permanent expulsion from doing business in the state. Like many things involving the law and Trump, the reasons why James, a Democrat, chose a lawsuit rather than a prosecution are complex. First, even if he wanted to prosecute Trump, he lacks jurisdiction under state law to bring a criminal case against him or any of the other defendants in the suit, including the Trump Organization and his three oldest children, Donald Jr. Ivanka and Eric Trump. In New York, the state attorney general’s office is allowed to prosecute only a limited range of offenses, such as bid rigging and payroll violations. Otherwise, the office must cooperate with a county attorney in a prosecution — as James’ office did with the Manhattan district attorney’s office in a case against Trump’s longtime finance chief — or receive what is known as a criminal referral by the governor or a government agency having jurisdiction over the alleged wrongdoing. Even then, establishing a fraud case is much more difficult than a civil action. In a criminal case, prosecutors would have to prove beyond a reasonable doubt that Trump intended to commit a crime. In the lawsuit—if it goes to trial—jurors would only need to be convinced that a violation occurred more than likely. Filing a civil suit while letting others settle potential criminal violations is a sound strategy, legal experts said, allowing James to seek remedies outside of prison time. It allows the attorney general to avoid the kind of internal debate over criminal charges that marred the Manhattan district attorney’s parallel investigation of Trump earlier this year. No former US president has ever been charged with a crime. The prospect of Trump, 76, behind bars as a result of criminal charges could give jurors pause, make judges more cautious and make it harder to win, said University of Richmond law professor Carl Tobias. “Even for Trump, people don’t like him, but they want him out?” Tobias said. “What would it take? What kind of punishment would be appropriate? So it’s more difficult everywhere.” A civil case, given the lower standard of the burden of proof, is “much easier to mount … and probably win,” Tobias said. Trump, a Republican who is laying the groundwork for another presidential bid in 2024, has derided James as “a fraud who campaigned on a ‘get Trump’ platform.” In an interview Wednesday night with Fox News Channel’s Sean Hannity, Trump suggested his company protected itself from potential fraud allegations by warning banks and potential business partners not to trust information in its financial disclosures. “We have a disclaimer up front,” Trump said. “You are at your own risk.” … “Be careful because it may not be accurate. It may be too far.” … “Get your own people. Use your own appraisers. Use your own lawyers. Don’t rely on us.” James said at a news conference Wednesday that her office referred its findings to the U.S. attorney’s office in Manhattan and the Internal Revenue Service, and would share evidence of possible violations of state law with the Manhattan attorney’s office if it requested. The U.S. attorney’s office in Manhattan said it was aware of James’ citation for possible criminal violations, but otherwise declined to comment. The Internal Revenue Service’s criminal investigations division said it “does not confirm the existence of investigations until court documents are released.” Manhattan District Attorney Alvin Bragg said his investigation into Trump was “active and ongoing.” The former prosecutor who led the Bragg investigation, Mark Pomeranz, resigned in February because he believed the office should have moved more quickly to bring criminal charges against Trump. In a resignation letter, Pomerantz wrote that he believes the former president is “guilty of many felonies.” He said he told Bragg that “there is sufficient evidence to prove Mr. Trump’s guilt beyond a reasonable doubt” of many of the same allegations that now appear in James’ lawsuit — including that Trump falsified financial statements to secure loans and burnish his image as a wealthy businessman. If no settlement agreement is reached, James’ lawsuit against Trump could take years to complete and may not be resolved before the 2024 presidential election. A fraud lawsuit filed by James against the National Rifle Association recently entered its third year, slowed by legal wrangling and efforts by the powerful gun advocacy group to have the case dismissed. No trial date has been set. The pending legal proceedings could hurt Trump’s businesses by making lenders and potential partners reluctant to make deals. But, if history is any guide, it’s not likely to be a crushing blow. Against the odds, and despite a lack of litigation in recent years, the company has managed to get new loans and raise money. In February, the Trump Organization received $100 million from a California bank to refinance commercial and retail space at the Trump Tower headquarters. That deal came just three days after Trump’s longtime accountants, the Mazurs, repudiated a decade of financial statements they helped prepare — a serious blow to his business reputation. That big loan also came after the Trump Organization had already been indicted for fraud by the Manhattan attorney’s office for allegedly helping executives evade taxes. That case is scheduled to go to trial next month. Another recent win for Trump as his legal troubles mount: He sold his Washington hotel for $375 million, far more than expected. Several lending experts said the new loan shows why much of Trump’s business is insulated from his political and legal storms: What matters most in real estate is the cash shed from rent and securing the buildings — not the reputation of the owner. __ Associated Press reporters Larry Neumeister, Bobby Caina Calvan and Jill Colvin in New York and Fatima Hussein in Washington contributed to this report.
