Presidential Lawbreaking: How Many Laws Were Broken?

The US Supreme Court has granted former President Donald Trump immunity for a wide range of criminal conduct committed while in office, setting a precedent that presidents are above the law. The court's decision to grant Trump immunity from prosecution for criminal acts committed while in office not only absoles him of accountability for past crimes but also sets a dangerous precedent for future presidents.

The House Jan. 6 committee has urged the Justice Department to consider prosecuting Trump for four different crimes, including obstruction of an official proceeding, conspiracy to defraud the United States, conspiracy to make a false statement, and inciting or aiding an insurrection. While these referrals carry no legal weight, the committee's report provides a roadmap to justice, and the focus now shifts to the Justice Department's decision on whether to pursue charges.

Trump's actions during his presidency and the insurrection at the US Capitol on January 6, 2021, have sparked debates about presidential accountability and the rule of law in the United States.

Obstruction of an official proceeding

Corruptly obstructing, influencing, or impeding an official proceeding is a felony under U.S. federal law. The term "official proceeding" refers to proceedings before federal judges, Congress, federal government agencies, and regulators of insurance businesses. The law was enacted as part of the Sarbanes-Oxley Act of 2002 in response to the Enron scandal, which closed a legal loophole regarding who could be charged with evidence tampering.

In 2019, Roger Stone, an associate of former President Donald Trump, was convicted of obstructing an official proceeding as part of the Mueller Special Counsel investigation for lying to the U.S. House Committee on Intelligence and encouraging another witness to lie. Stone was later pardoned by Trump.

In 2021, Trump was charged with attempting to obstruct the Electoral College vote count following the 2020 U.S. presidential election. As of December 2022, about 290 out of over 910 defendants associated with the Capitol attack had been charged with obstructing an official proceeding, with over 70 convicted.

In August 2023, Trump was indicted on two counts of obstructing an official proceeding and conspiracy to obstruct an official proceeding for his conduct following the 2020 election. This indictment came as a result of the Smith special counsel investigation.

The obstruction of an official proceeding charge has been applied in a variety of contexts, including interfering with a grand jury investigation, tipping off drug dealers about an ongoing investigation, and concealing or destroying documents sought in a federal investigation.

In June 2024, the Supreme Court narrowed the interpretation of the obstruction statute, ruling that it could only be applied when the defendant impaired or attempted to impair a physical document or object used in an official proceeding. This raised the bar for conviction and may lead to the dismissal of charges or overturning of convictions in some cases.

Conspiracy to defraud the United States

The Supreme Court of the United States, in the 1924 case of Hammerschmidt v. United States, defined "to conspire to defraud the United States" as "primarily to cheat the government out of property or money, but it also means to interfere with or obstruct one of its lawful governmental functions by deceit, craft or trickery, or at least by means that are dishonest".

The law further states that "it is not necessary that the Government shall be subjected to property or pecuniary loss by the fraud, but only that its legitimate official action and purpose shall be defeated by misrepresentation, chicane or the overreaching of those charged with carrying out the governmental intention".

The United States Department of Justice summarises the intent required for a conspiracy to defraud the government as the defendant possessing the intent:

• To defraud
• To make false statements or representations to the government or its agencies in order to obtain property of the government
• To perform acts or make statements that the defendant knew to be false, fraudulent or deceitful to a government agency, which disrupted the functions of the agency or of the government

It is important to note that the government is not required to prove that the defendant's statements ultimately resulted in any actual loss to the government in terms of property or funds. Instead, they must demonstrate that the defendant's activities impeded or interfered with legitimate governmental functions.

Examples of Conspiracy to Defraud the United States

The statute has been applied in a diverse range of contexts, demonstrating its broad applicability. For instance, charges have been brought against al-Qaeda terrorist attack plotters, as well as Volkswagen AG executives in connection with the Volkswagen emissions cheating scandal.

In another case, a businessman who used a front company to gain federal subcontracts for bridge construction meant for disadvantaged businesses was convicted under this statute.

In 2018, Donald Trump's campaign chairman, Paul Manafort, and his associate, Rick Gates, were indicted and pleaded guilty to conspiracy to defraud the United States, following an investigation by special counsel Robert Mueller. Gates also pleaded guilty to one count of making false statements, and Manafort pleaded guilty to one count of witness tampering.

Supreme Court Decision on Presidential Immunity

In the case of Trump v. United States, the Supreme Court granted presidents immunity from prosecution for criminal acts committed while in office, setting a precedent that many critics argue gives presidents a "blank check" to break the law. This decision has sparked widespread concern and debate about the balance between presidential power and accountability.

Conspiracy to make a false statement

The operative language is the so-called "defraud clause," that prohibits conspiracies to defraud the United States. This clause creates a separate offense from the "offense clause" in Section 371. Both offenses require the traditional elements of Section 371 conspiracy, including an illegal agreement, criminal intent, and proof of an overt act.

The word "defraud" in Section 371 not only reaches financial or property loss through the use of a scheme or artifice to defraud but also is designed and intended to protect the integrity of the United States and its agencies, programs, and policies.

The U.S. Department of Justice's United States Attorneys' Manual summarizing case law on the statute states that activities that defraud the United States affect the government in at least one of three ways:

• They cheat the government out of money or property
• They interfere or obstruct legitimate government activity
• They make wrongful use of a governmental instrumentality

The intent required for a conspiracy to defraud the government is that the defendant possesses the intent to defraud, to make false statements or representations to the government or its agencies in order to obtain property of the government, or that the defendant performed acts or made statements that he/she knew to be false, fraudulent, or deceitful to a government agency, which disrupted the functions of the agency or of the government.

In 2018, Donald Trump's campaign chairman, Paul Manafort, and Manafort's associate Rick Gates, were indicted and pleaded guilty to this crime, following an investigation by special counsel Robert Mueller. Gates also pleaded guilty to one count of making false statements, and Manafort also pleaded guilty to one count of witness tampering.

Inciting or aiding an insurrection

On January 16, 2021, President Trump was impeached for the second time on the charge of "incitement of insurrection". This charge is based on Section 3 of the 14th Amendment, which prohibits any elected official who has sworn an oath to support the Constitution of the United States from engaging in "insurrection or rebellion". This amendment provides Congress with a means to permanently ban individuals from holding any further elected office at both the state and federal levels.

The evidence presented to support the charge of insurrection includes the President's unsubstantiated claims that he won the 2020 election, as well as his attempts to subvert the election results in Georgia. Additionally, the President's speech on January 6th, in which he encouraged the crowd to "fight like hell", was seen as inciting violence and lawless action at the Capitol.

It is important to distinguish between "incitement of violence" and "incitement of insurrection". The test for incitement of violence under constitutional law is strict and requires that the speech be direct and likely to produce imminent lawless action. On the other hand, incitement of insurrection is defined by 18 U.S.C. § 2383 as "rebellion or insurrection" against the authority of the United States. This statute imposes penalties of fines, imprisonment of up to ten years, or both, as well as disqualification from holding any office under the United States.

The Supreme Court's decision in Trump v. United States granted immunity to the President for criminal acts committed while in office, setting a dangerous precedent. This decision has been criticised by legal experts and civil rights organisations, who argue that it places the President above the law and removes an important incentive for presidents to abide by the law.

Despite the grant of immunity, other forms of accountability remain available, such as civil lawsuits, elections, and congressional oversight. The impeachment of President Trump for inciting insurrection demonstrates Congress's role in holding the President accountable and sends a strong message about the seriousness of the offence.

Violating the Fifth Amendment privilege against self-incrimination

The Fifth Amendment of the U.S. Constitution, adopted in 1791, states that "no person shall be held to answer for a capital, or otherwise infamous crime... nor shall [a person] be compelled in any criminal case to be a witness against himself". This right against self-incrimination is a vital element of the Bill of Rights, safeguarding individuals from the misuse of authority by state and federal governments during legal proceedings.

The right to silence is at the heart of the Fifth Amendment, ensuring that people are not forced to provide incriminating evidence. The landmark case of Miranda v. Arizona (1966) reinforced this protection, requiring law enforcement to inform individuals of their rights upon arrest, including the right to remain silent and the right to legal representation. This led to the establishment of "Miranda Rights" or the "Miranda warning", which plays a crucial role in upholding the Fifth Amendment.

The Trump administration has been accused of undermining the Fifth Amendment's privilege against self-incrimination in several instances:

The Muslim Ban

On January 27, 2017, Trump signed an executive order imposing a ban on citizens of Muslim-majority countries, which was seen as discriminatory and a violation of civil rights. The ban was expanded to additional countries in March 2020.

Voter Suppression

The Trump administration has been accused of voter suppression and intimidation by sending subpoenas to election boards and purging voter rolls. In June 2018, the Supreme Court upheld Ohio's voter purges, and in 2020, the Department of Justice reversed its position in a Texas voting rights case, saying that the state did not need federal approval for its voting changes.

Family Separation Policy

In April 2018, the Trump administration implemented a "zero-tolerance" policy that led to the inhumane separation of hundreds of children from their families at the US-Mexico border. This policy was widely condemned as a violation of human rights and international law.

LGBTQ+ Rights

The Trump administration has rolled back protections for LGBTQ+ individuals, including attempting to ban transgender individuals from serving in the military and allowing discrimination against LGBTQ+ people by religious groups and federal contractors. In May 2020, the Department of Health and Human Services issued a final rule allowing health workers to deny care to patients based on religious or moral objections.

Immigration and Asylum

The Trump administration has taken a hardline approach to immigration and asylum, with policies that have been widely criticised as inhumane and violating international law. This includes the "Remain in Mexico" policy, which forces asylum seekers to wait in Mexico while their claims are processed, and the "public charge" rule, which makes it more difficult for immigrants to obtain permanent residency if they have used public benefits.

Reproductive Rights

The Trump administration has restricted reproductive rights, particularly for low-income women and women of colour. This includes attempts to defund Planned Parenthood and the Title X family planning program, as well as the implementation of the "gag rule", which prohibits health care providers from discussing abortion as an option with their patients.

Criminal Justice

The Trump administration has been criticised for its approach to criminal justice, including the resumption of federal executions and the creation of a "Denaturalization Section" within the Department of Justice to strip citizenship from naturalized immigrants convicted of certain crimes. Additionally, the administration has rolled back police reform efforts and opposed race-based affirmative action in university admissions.

COVID-19 Response

During the COVID-19 pandemic, the Trump administration was criticised for its response, particularly regarding the distribution of federal aid and the protection of vulnerable communities. The administration also attempted to end the census count early and cut funding for the Centers for Disease Control and Prevention.

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