US election: why Donald Trump can go to prison if he...

• Luis Fajardo
• BBC Monitoring

For Donald Trump, a loss in Tuesday’s election would not only frustrate his political career. There is much more at stake.

If he is to leave the White House on January 20, 2021, the current president will lose the immunity from criminal prosecution conferred by the position, facing a complex financial situation and several investigations into his past businesses and acts.

“I believe there is a possibility that Trump could be accused of crimes,” sums up Bennett Gershman, a professor of constitutional law at University Pace who served for a decade as a prosecutor in New York State.

“The charges the president could face are related to money laundering and banking, tax and electoral fraud,” among others, Gershman tells BBC News Mundo, the BBC’s Spanish service.

As if that were not enough, Trump faces a delicate financial situation, including, according to the American press, large personal debts and difficulties with his business conglomerate.

The New York Times reported that in the next four years, Trump will have to pay more than $ 300 million in loans – this at a time when some of his personal investments are not in the best shape.

And if Trump is defeated in the election, his creditors may be less flexible in demanding payment of those commitments.

The president, for his part, says he was the victim of numerous conspiracies produced by his enemies, which would have created false accusations of crimes committed before and during his term.

He categorically denies any wrongdoing and also often highlights the success of escaping investigations by the Department of Justice and the impeachment trial in Congress this year.

Investigations, however, have run into presidential immunity from criminal prosecution. The Justice Department has repeatedly stated that a president cannot be prosecuted criminally while in office.

However, these investigations could be the basis for new lawsuits against Trump, experts tell BBC News World.

“We already know that he can face charges of electoral fraud, since a southern Manhattan attorney has already charged [tacitamente a Trump] as an accomplice to Michael Cohen, “said Gershman.

The expert refers to the federal investigation against former Trump personal lawyer Cohen, who in 2018 pleaded guilty to electoral irregularities in the 2016 campaign involving payments made to actress Stormy Daniels, who claimed to have had an extramarital affair with the president.

During the investigation against Cohen, one of the prosecution documents mentioned a candidate for the presidency who would be involved in the criminal activity, designating him as “Individual 1”. The American press assumed that the prosecution was referring to Trump.

On December 7, 2018, the New York Times titled: “Prosecutors say Trump commanded illegal payments during the campaign.”

Gershman says the so-called Mueller report can also generate “other charges of obstructing justice”.

In 2019, then-special prosecutor Robert Mueller delivered the results of his investigation into supporting Russian interference in the 2016 election campaign.

The report found no conclusive evidence that the Trump campaign was deliberately collaborating with the Russian government.

However, the investigation did not reveal an unblemished Trump either: several controversial acts by the president were demonstrated throughout the investigation.

Mueller recommended that the US Congress decide whether or not to open an impeachment process for alleged obstruction of justice by the president – since, in criminal justice, Trump had immunity.

At the time, Congress refrained from opening a political trial against Trump, although it did so months later in a different case – on the charge that the president had induced the government of Ukraine to investigate alleged irregularities committed by the candidate’s son Hunter Biden Democrat Joe Biden.

In December 2019, the Democratic House of Representatives indicted Trump. Then, in February, the Senate, with a Republican majority, acquitted him.

In the United States, a president at risk of criminal charges has stepped down and is pardoned by his successor.

It happened in 1974, when Richard Nixon resigned after the Watergate scandal and his then vice president and successor in office, Gerald Ford, granted him full judicial pardon.

Trump could also “forgive himself” for possible violations of federal laws, although something like this has never been done in the past.

Norman Ornstein, a specialist at the American Enterprise Institute, a conservative online research center, believes this is a possible scenario.

“There is very little likelihood that Trump will face charges at the federal level, as he is expected to forgive himself,” Ornstein points out to BBC News Mundo.

In a scenario of electoral defeat, if Trump does not resort to self-forgiveness, says Ornstein, the president would still have the alternative of resigning before the end of his term.

In this extreme hypothetical scenario, current Vice President Mike Pence would take over and could forgive Trump in advance for any federal crimes.

But Trump’s possible difficulties in court don’t stop there, says Ornstein.

Trump may also face criminal charges at the local level, recalls former prosecutor Gershman.

New York City attorney Cyrus Vance has been poring over the president’s past as a real estate tycoon.

“There are aggressive investigations underway by the New York State Attorney General and the New York City District Attorney about taxes and other irregularities potentially committed before Trump became president,” adds Nisso Ornstein.

Unlike federal penalties, those at the local level are not eligible for presidential pardon.

Experts insist there is no certainty that the authorities will decide to pursue these actions against Trump, even if they believe there is evidence to justify them.

In 1974, the government justified that prosecuting Nixon would only increase the instability caused by the Watergate scandal and therefore chose to forgive him.

In this regard, Joe Biden said in August during an interview that, if elected, he would not oppose or encourage criminal prosecution against Trump – leaving that decision entirely to prosecutors.

If federal prosecutors, or those in New York State, decide to pursue a case against Trump, it could take months or even years.

Then, eventually being found guilty, Trum could face a sentence of “years, not months” in prison, says Gershman.

Ornstein, for his part, suspects that New York prosecutors will continue their investigations against Trump.

“I don’t think they will end their efforts against Trump when he leaves office. Trump is vulnerable and he knows it.”

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