Reports Friday noted that Donald Trump was more concerned/worried about the raids on his lawyer’s office and home than he is by the Mueller Russia investigation. There may be several reasons that Trump is concerned, including what it might mean for his organization.
On June 16, 1999, then-Deputy Attorney General Eric Holder issued a memo, “Bringing Criminal Charges Against Corporations,” setting forth factors to take into account when charging a corporation. The memo states: “Corporations are ‘legal persons,’ capable of…committing crimes. Under the doctrine of respondeat superior, a corporation may be held criminally liable for the illegal acts of its [representatives].” The memo recognized that corporations are artificial, acting through their agents, including employees.
The Holder Memo has been amended several times over the years by subsequent Deputy Attorney Generals, including most recently Yates, but the basics remain. The corporation may be indicted, considering the “pervasiveness of wrongdoing.” Michael Cohen has been the Executive Vice President of The Trump Organization.
In a recent excellent book, We The Corporations, Adam Winkler describes the development of rights that corporations have achieved under the Constitution. Like people, corporations are subject to criminal indictment and conviction, and nothing in the developments Winkler describes changes that reality.
Recall that in 2017, one of Attorney General Jeff Sessions’ first initiatives was a resurged focus on civil-asset forfeitures, which allows law enforcement to seize assets with provable ties to crime without conviction and many argue without due process. There is also the Foreign Corrupt Practices Act, which makes it criminal for “certain classes of person and entities to make payments to foreign government officials to assist in obtaining or retaining business.”
While the investigation of Cohen and his potential criminal activity is ongoing, one reason Trump might be sweating this investigation is the potential consequences it holds for his namesake entity. If evidence gained from the Cohen search warrants (which revealed he does little if any legal work) shows criminal conduct of the entity, could Trump Organization be next? Mueller has indicted several Russian entities in his investigation, so we know the Feds are not afraid to pursue corporate wrongdoing.
Daniel Cotter is a lawyer writing and teaching about SCOTUS, and married father of two boys living in Chicago, Illinois.