Donald Trump May Face Criminal Charges

by Sonia Hickey & Ugur Nedim
Donald Trump

Former United States President Donald Trump is currently defending 29 civil lawsuits, and he’s also the subject of multiple criminal investigations, including one into whether he personally, along with the Trump Organisation, committed various offences of fraud – including bank, tax and insurance fraud.

An investigation into Mr Trump’s business and personal financial affairs began when he was still president.

In 2018, his former personal lawyer Michael Cohen was imprisoned for his role in paying hush-money during the 2016 presidential campaign to two women who said they had had affairs with Mr Trump.

He was sentenced to three years behind bars for making the payments, which violated campaign finance law, and for making  false statements to Congress.

He has since turned on Mr Trump, saying his former client not only had intimate knowledge of, but also directed the payments.

Criminal investigation

Criminal prosecutors began looking into the financial affairs of Donald Trump around this time.

Subsequently, they have been in a four year stand-off with the former president as his legal team, who battled to keep his tax returns private.

But in what is being considered a significant win for investigators, they been successful in obtaining an order to subpoena the relevant documents.

New York prosecutors are also seeking Mr Trump’s other financial documents in order to “compare details” against the information his company provided to its lenders and local tax authorities, with a view to determining whether he fraudulently misled them.

Mr Trump steadfastly denies any wrongdoing, asserting that the investigation is a politically motivated “witch hunt”. And there is still a long way to go. It has been reported that investigators have eight years of documents to examine before deciding whether there is a case that warrants criminal prosecution.

Prosecutors say that if their investigation finds sufficient evidence of criminality, the former president as well as his staff and/or business partners may end up facing felony charges.

Lawsuits for incitement

In addition to the criminal investigation, Mr Trump is being sued by two Capitol Police officers, who were involved in the riots at the United States Capitol Building in January 2021, which led to five people being killed.

In a federal lawsuit, officers James Blassingame and Sidney Hemby are seeking damages for the physical and emotional injuries they suffered during the violent clashes with protesters.

Trump was acquitted of incitement of insurrection in a second Senate impeachment trial, but a number of his supporters including Jake Angeli, also known as the QAnon Shaman who stormed the building in horns and face paint carrying a spear, were charged with criminal offences and are  in prison awaiting trial.

Defamation and sexual harassment

Mr Trump faces multiple other lawsuits — including a defamation claim by writer E. Jean Carrolls, who accused him of sexually assaulting her in Bergdorf Goodman in late 1995 or early 1996, only for him to deny her allegations and accuse her of lying to drum up sales for a book.

Another lawsuit involves a former ‘Apprentice’ contestant Summer Zervos, who came forward in the lead-up to the 2016 election, alleging Mr Trump groped and kissed her without her consent in 2007.

In 2017, Ms Zervos sued Mr Trump for defamation after he denied the allegations and called her story a “hoax”.

During his term in the White House, Mr Trump’s lawyers fought to have the proceedings dismissed on the basis he was the president, but the case was kept on foot and can now proceed given he is no long at the country’s helm.

Legal battles are nothing new to the former president, as he is known for being quick to launch action against others. But the number and gravity of the proceedings he is currently facing could impede his chances of successfully running for president in the next election.

If Mr Trump had successfully been impeached earlier this year, he would never have been able to run for public office again. But as it stands, he is currently free to do so and, where there is a will, there is a way for him.

It’s understood that Trump is seriously considering running for US Presidency again in 2024.

The offence of Fraud in NSW

Section 192E of the Crimes Act 1900 (NSW) makes it a criminal offence to dishonestly obtain property belonging to another, or obtain any financial advantage or cause a financial disadvantage to another, where this is done by any deception.

To establish the offence, the prosecution must prove that:

  • By a deception, the defendant acted dishonestly, and
  • These actions created a financial advantage over another person’s property, or caused them to suffer a financial disadvantage, and
  • The actions were intentional or reckless.

If the prosecution is unable to prove each of these elements beyond a reasonable doubt, the defendant is entitled to an acquittal.

What are the penalties for fraud?

The maximum penalty for the offence is 10 years in prison when the matter is referred to the District Court, or 2 years if it remains in the Local Court.

However, the sentencing magistrate or judge is at liberty to impose any of a number of other penalties, including:

What is ‘dishonesty’ in the context of fraud charges?

Section 4B of the Crimes Act makes clear that whether the conduct amounts to ‘dishonesty is to be determined by the trier of fact – whether the magistrate in the Local Court or the jury or judge sitting alone in a higher court – according to the standards of ordinary people and known by the defendant to be dishonest according to the standards of ordinary people.

What is a ‘deception’ in the context of fraud charges?

Section 192B of the Crimes Act defines ‘deception’ as any intentional or reckless  deception, by words or other conduct, as to fact or as to law, including:

(a)  a deception as to the intentions of the person using the deception or any other person, or

(b)  conduct by a person that causes a computer, a machine or any electronic device to make a response that the person is not authorised to cause it to make.

What are the defences to fraud charges?

In addition to having to prove the essential elements of fraud beyond reasonable doubt, the prosecution is also required to disprove any legal defence that is validly raised on the evidence.

It must disprove any such defence beyond a reasonable doubt.

The most common legal defence to fraud charges is duress, which is where:

  1. The defendant received a threat of death or serious injury to him or herself, a member of his or her family or another person he or she might reasonably feel responsible for,
  2. The threat was of such a nature that a person of ordinary strength and will, of the same sex and strength as the defendant would have yielded to it, and
  3. The defendant committed the act which would otherwise constitute the offence as a result.

Other defences to fraud include self-defence and necessity.

What are the factors relevant to sentencing if a person pleads guilty?

If a person is guilty of a criminal offence in New South Wales, the court is required to consider a range of potentially relevant ‘aggravating’ and ‘mitigating’ factors when deciding the appropriate penalty.

Aggravating factors are those which make the particular offence more serious, while mitigating factors may be relied upon to achieve a more lenient penalty than that which would otherwise apply.

These factors are listed in section 21A of the Crimes (Sentencing Procedure) Act 1999 are:

21A(2) Aggravating factors

(a)  the victim was a police officer, emergency services worker, correctional officer, judicial officer, council law enforcement officer, health worker, teacher, community worker, or other public official, exercising public or community functions and the offence arose because of the victim’s occupation or voluntary work,

(b)  the offence involved the actual or threatened use of violence,

(c)  the offence involved the actual or threatened use of a weapon,

(ca)  the offence involved the actual or threatened use of explosives or a chemical or biological agent,

(cb)  the offence involved the offender causing the victim to take, inhale or be affected by a narcotic drug, alcohol or any other intoxicating substance,

(d)  the offender has a record of previous convictions (particularly if the offender is being sentenced for a serious personal violence offence and has a record of previous convictions for serious personal violence offences),

(e)  the offence was committed in company,

(ea)  the offence was committed in the presence of a child under 18 years of age,

(eb)  the offence was committed in the home of the victim or any other person,

(f)  the offence involved gratuitous cruelty,

(g)  the injury, emotional harm, loss or damage caused by the offence was substantial,

(h)  the offence was motivated by hatred for or prejudice against a group of people to which the offender believed the victim belonged (such as people of a particular religion, racial or ethnic origin, language, sexual orientation or age, or having a particular disability),

(i)  the offence was committed without regard for public safety,

(ia)  the actions of the offender were a risk to national security (within the meaning of the National Security Information (Criminal and Civil Proceedings) Act 2004 of the Commonwealth),

(ib)  the offence involved a grave risk of death to another person or persons,

(j)  the offence was committed while the offender was on conditional liberty in relation to an offence or alleged offence,

(k)  the offender abused a position of trust or authority in relation to the victim,

(l)  the victim was vulnerable, for example, because the victim was very young or very old or had a disability, because of the geographical isolation of the victim or because of the victim’s occupation (such as a person working at a hospital (other than a health worker), taxi driver, bus driver or other public transport worker, bank teller or service station attendant),

(m)  the offence involved multiple victims or a series of criminal acts,

(n)  the offence was part of a planned or organised criminal activity,

(o)  the offence was committed for financial gain,

(p)  without limiting paragraph (ea), the offence was a prescribed traffic offence and was committed while a child under 16 years of age was a passenger in the offender’s vehicle.

The court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence.

21A(3) Mitigating factors

(a)  the injury, emotional harm, loss or damage caused by the offence was not substantial,

(b)  the offence was not part of a planned or organised criminal activity,

(c)  the offender was provoked by the victim,

(d)  the offender was acting under duress,

(e)  the offender does not have any record (or any significant record) of previous convictions,

(f)  the offender was a person of good character,

(g)  the offender is unlikely to re-offend,

(h)  the offender has good prospects of rehabilitation, whether by reason of the offender’s age or otherwise,

(i)  the remorse shown by the offender for the offence, but only if:

(i)  the offender has provided evidence that he or she has accepted responsibility for his or her actions, and

(ii)  the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both),

(j)  the offender was not fully aware of the consequences of his or her actions because of the offender’s age or any disability,

(k)  a plea of guilty by the offender (as provided by section 22 or Division 1A),

(l)  the degree of pre-trial disclosure by the defence (as provided by section 22A),

(m)  assistance by the offender to law enforcement authorities (as provided by section 23),

(n)  an offer to plead guilty to a different offence where the offer is not accepted, the offender did not plead guilty to the offence and the offender is subsequently found guilty of that offence or a reasonably equivalent offence (this circumstance, among others, is provided for by section 25E (1)).

What are the sentencing considerations of greatest significance to fraud cases?

When it comes to fraud offences, the courts have found that the most significant sentencing considerations when assessing the seriousness of the specific offending conduct are:

  1. The amount of money involved and whether the loss is irretrievable:

Repayment of the debt can be a significant mitigating factor on sentencing.

  1. The length of time over which the offences took place:

Protracted offending will generally be considered as more serious than that which occurred over a short period of time.

  1. The motive for the crime:

Offending may be seen as more serious where it is solely for greed rather than need. Examples of need may be a desperate financial situation or addiction.

  1. The degree of planning and sophistication:

Well-planned and executed fraudulent schemes may be seen as more serious than simplistic and opportunistic ones.

  1. Breach of trust:

Offending may be seen as more serious when a person is in a position of trust, such as where he or she was given the responsibility for managing accounts.

Other important considerations include the impact of the offending conduct on public confidence in the integrity of the defrauded entity or person, as well as the impact on the victim or victims.

Going to court over allegations of fraud?

If you are going to court over allegations of a fraud offence, call Sydney Criminal Lawyers anytime on (02) 9261 8881 to arrange a free initial appointment with an experienced defence lawyer who will advise you of your options and the best way forward, and fight for the best possible outcome.

Together with our head office in the Sydney CBD, we have experienced criminal defence lawyers in Parramatta, Liverpool, and other convenient office locations across the Sydney Metropolitan area, and beyond.

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Authors

Sonia Hickey

Sonia Hickey is a freelance writer, magazine journalist and owner of 'Woman with Words'. She has a strong interest in social justice, and is a member of the Sydney Criminal Lawyers® content team.

Ugur Nedim

Ugur Nedim is an Accredited Criminal Law Specialist with over 20 years of experience as a criminal defence lawyer. He is the Principal of Sydney Criminal Lawyers®.

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