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:
Corporations should not be treated leniently because of their artificial nature nor should they be subject to harsher treatment. Vigorous enforcement of the criminal laws against corporate wrongdoers, where appropriate, results in great benefits for law enforcement and the public, particularly in the area of white collar crime. Indicting corporations for wrongdoing enables the government to be a force for positive change of corporate culture, and a force to prevent, discover, and punish serious crimes.
There are 10 factors to consider, in addition to usual guidelines about prosecutorial discretion, in deciding whether to indict a corporation, the Justice Department says:
1. the nature and seriousness of the offense, including the risk of harm to the public, and applicable policies and priorities, if any, governing the prosecution of corporations for particular categories of crime (see JM 9-28.400);2. the pervasiveness of wrongdoing within the corporation, including the complicity in, or the condoning of, the wrongdoing by corporate management (see JM 9-28.500);3. the corporation’s history of similar misconduct, including prior criminal, civil, and regulatory enforcement actions against it (see JM 9-28.600);4. the corporation’s willingness to cooperate, including as to potential wrongdoing by its agents (see JM 9-28.700);5. the adequacy and effectiveness of the corporation’s compliance program at the time of the offense, as well as at the time of a charging decision (see JM 9-28.800);6. the corporation’s timely and voluntary disclosure of wrongdoing (see JM 9-28.900);7. the corporation’s remedial actions, including, but not limited to, any efforts to implement an adequate and effective corporate compliance program or to improve an existing one, to replace responsible management, to discipline or terminate wrongdoers, or to pay restitution (see JM 9-28.1000);8. collateral consequences, including whether there is disproportionate harm to shareholders, pension holders, employees, and others not proven personally culpable, as well as impact on the public arising from the prosecution (see JM 9-28.1100);9. the adequacy of remedies such as civil or regulatory enforcement actions, including remedies resulting from the corporation’s cooperation with relevant government agencies (see JM 9-28.1200); and10. the adequacy of the prosecution of individuals responsible for the corporation’s malfeasance (see JM 9-28.1300).
Furthermore, “Another factor to be weighed by the prosecutor is whether the corporation has engaged in conduct intended to impede the investigation. Examples of such conduct could include: inappropriate directions to employees or their counsel, such as directions not to be truthful or to conceal relevant facts; making representations or submissions that contain misleading assertions or material omissions; and incomplete or delayed production of records.” Offering pardons, smearing prosecutors and lying (a lot) would surely qualify.
If a hypothetical corporation, over a long period of time has engaged in tax fraud, violations of campaign finance laws, money laundering, violations of laws protecting charitable giving, and/or mail or bank fraud (say, by paying a lawyer via phony invoices), could that meet Justice Department standards for indicting a company? A company that has done all that and acts entirely without concern for compliance with legal or accounting norms, makes no effort to disclose wrongdoing and refuses to own up to wrongdoing clearly would meet many of those criteria. If, say, the Constitution prevents prosecution of the company’s principal (or others can be pardoned to escape justice), then “the adequacy of the prosecution of individuals responsible for the corporation’s malfeasance” would be practically nonexistent.
Now, the Justice Department has made clear in recent years that the preferred practice is to prosecute individual wrongdoers. None other than former deputy attorney general Sally Yates wrote an important update to the rules governing prosecution of corporations. In 2015, she put out a memorandum that explained:
The guidance in this memo reflects six key steps to strengthen our pursuit of individual corporate wrongdoing, some of which reflect policy shifts and each of which is described in greater detail below: (l) in order to qualify for any cooperation credit, corporations must provide to the Department all relevant facts relating to the individuals responsible for the misconduct; (2) criminal and civil corporate investigations should focus on individuals from the inception of the investigation; (3) criminal and civil attorneys handling corporate investigations should be in routine communication with one another; ( 4) absent extraordinary circumstances or approved departmental policy, the Department will not release culpable individuals from civil or criminal liability when resolving a matter with a corporation; (5) Department attorneys should not resolve matters with a corporation without a clear plan to resolve related individual cases, and should memorialize any declinations as to individuals in such cases; and (6) civil attorneys should consistently focus on individuals as well as the company and evaluate whether to bring suit against an individual based on considerations beyond that individual’s ability to pay.
Essentially, the update in Yates’s memo also made it harder for corporations to get credit for cooperating. (“Under the new policies, a company must also provide all relevant facts, including any available evidence, and fully cooperate in federal criminal and civil actions against the individual wrongdoers to receive cooperation credit. A company must investigate the facts early in the process and accurately, reasonably, and promptly disclose those facts to the DOJ. According to the new policy, a company can no longer settle a case with favorable terms unless it assists in the prosecution of the individual wrongdoers from the beginning of the investigation. In light of the new policies, corporations should give thought to how they will deal with the DOJ if they become the subject of an investigation.”)
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.”
It bears repeating that most of the facts obtained in investigations by the Southern District of New York prosecutors, special counsel Robert S. Mueller III and the New York state attorney general remain hidden from view. We know very little (other than the scheme with Michael Cohen) about Trump’s involvement in possible crimes, although a series of public actions may be the basis for obstruction charges. We do not know the degree to which he might have used his corporation to facilitate crimes, if any were committed.
Going after the Trump Organization, if facts warrant, should be an arrow in Mueller’s quiver. The stronger the case for not prosecuting a president, the stronger the case, if evidence proves wrongdoing, to go after his corporate organization from which Trump operated. (Talk about crossing a red line, right?)
Granted, indictment of Trump’s eponymous company, a company so closely and completely identified with Trump personally, might increase Congress’s willingness to indict and remove Trump from office for conduct for which he couldn’t presently be prosecuted. (Mueller wouldn’t even need to put all his information in a report if the alleged crimes are detailed in a series of legal filings including indictment of Trump’s company.) That, however, is a matter of political speculation dependent on all sorts of future events.
For now, follow the money — and look for the entity or the people signing the checks and financial documents.