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Jennifer Rubin, WaPo: Why not indict the Trump Organization?
https://www.washingtonpost.com/opinions/2018/12/19/why-not-indict-trump-organization/Legal scholars debate whether a sitting president can be indicted or only impeached. If the latter, it’s not clear given the statutes of limitation on most crimes whether he could ever be prosecuted for certain crimes. That surely seems wrong; the framers certainly did not intend to give the president a get-out-of-jail free card for crimes he might commit in office. (One solution might be to indict under seal.)
What is clear, however, is that to the extent the president has a safe harbor for prosecution during his time in office, that protection is personal to him. His relatives and his business empire don’t get that benefit.
Indict a corporation (or a foundation or an LLC)? That’s what happened to the accounting firm Arthur Andersen in connection with the Enron scandal. The firm itself was indicted on a charge of alleged widespread obstruction of justice.
The Justice Department actually has some fairly clear rules as to when an organization can be indicted. The Justice Department’s “Principles of Federal Prosecution of Business Organizations” state:
-snip-
In other words, going after a corporation is a big deal and generally should not allow individual wrongdoers to go free. If, however, we are talking about a unique case in which Justice Department policy says the key person cannot be indicted, then going after the corporation may be the only viable alternative.
How the interaction of rules regarding prosecution of business entities might interact with department policy regarding prosecution of a president is unclear. (We’ve never been anywhere near this situation because all modern presidents up to the current one disgorged their businesses.)
“Unless the Office of Special Counsel or the Southern District of New York [prosecution team] intends to indict Trump personally (or has already indicted him under seal), no claim could be made that indicting any of the Trump organizations would somehow be an abusive circumvention of what ought to be an indictment of Mr. Trump as the real party in interest and the real ‘brains,’ if you’ll pardon the expression in this context, behind those entities,” says constitutional scholar Laurence H. Tribe. In fact, he says, nothing prevents the “the Trump campaign committee, the Trump inaugural committee, or the just-dissolved (but still under investigation by the New York Attorney General) Trump Foundation” from being indicted, if evidence is warranted.
Former White House ethics counsel Norman Eisen adds, “Trump could be named as an unindicted co-conspirator in an action against the Trump Organization or the Trump campaign for conspiring to violate federal campaign finance laws, for example. If Mueller were worried that his report might be suppressed or take too long to get out, that would be a clever way of making some evidence against the president public.”
-snip-
What is clear, however, is that to the extent the president has a safe harbor for prosecution during his time in office, that protection is personal to him. His relatives and his business empire don’t get that benefit.
Indict a corporation (or a foundation or an LLC)? That’s what happened to the accounting firm Arthur Andersen in connection with the Enron scandal. The firm itself was indicted on a charge of alleged widespread obstruction of justice.
The Justice Department actually has some fairly clear rules as to when an organization can be indicted. The Justice Department’s “Principles of Federal Prosecution of Business Organizations” state:
-snip-
In other words, going after a corporation is a big deal and generally should not allow individual wrongdoers to go free. If, however, we are talking about a unique case in which Justice Department policy says the key person cannot be indicted, then going after the corporation may be the only viable alternative.
How the interaction of rules regarding prosecution of business entities might interact with department policy regarding prosecution of a president is unclear. (We’ve never been anywhere near this situation because all modern presidents up to the current one disgorged their businesses.)
“Unless the Office of Special Counsel or the Southern District of New York [prosecution team] intends to indict Trump personally (or has already indicted him under seal), no claim could be made that indicting any of the Trump organizations would somehow be an abusive circumvention of what ought to be an indictment of Mr. Trump as the real party in interest and the real ‘brains,’ if you’ll pardon the expression in this context, behind those entities,” says constitutional scholar Laurence H. Tribe. In fact, he says, nothing prevents the “the Trump campaign committee, the Trump inaugural committee, or the just-dissolved (but still under investigation by the New York Attorney General) Trump Foundation” from being indicted, if evidence is warranted.
Former White House ethics counsel Norman Eisen adds, “Trump could be named as an unindicted co-conspirator in an action against the Trump Organization or the Trump campaign for conspiring to violate federal campaign finance laws, for example. If Mueller were worried that his report might be suppressed or take too long to get out, that would be a clever way of making some evidence against the president public.”
-snip-
This is a long column, going into lots of detail about the law, but it's well worth reading.
Rubin also suggests at the end that indicting Trump Org might make Congress more likely to impeach Trump and remove him from office.
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