Supreme Court Poised to Limit Computer Fraud Statute

Suppose your employer prohibits using the company computer system for personal purposes. You’re aware of the policy but you’re also a little behind on your Christmas shopping, so while logged in at work you spend some time on Amazon buying gifts. If your boss found out you might expect to be reprimanded, maybe even fired. You probably wouldn’t think you were potentially subject to federal prosecution. But under a legal theory advanced by the government before the U.S. Supreme Court last week in Van Buren v. United States, your holiday shopping could indeed be a crime. Fortunately, the Court seems poised to reject the government’s approach.

computer hacker

The Computer Fraud and Abuse Act

The criminal law in question is called the Computer Fraud and Abuse Act, or CFAA, 18 U.S.C. §1030.  The CFAA is the primary federal statute used to prosecute computer-related crime. It’s a complicated statute with a number of different sections. But in general, the CFAA prohibits breaking into a computer to harm that computer or steal information, commonly known as hacking. It prohibits sending malicious code or viruses that damage a computer or that allow the sender to obtain information without authorization — including “phishing” schemes. The CFAA also prohibits trafficking in computer passwords and extortion by threats to harm a computer or the information it contains.

A high-profile recent case involving the CFAA was the July, 2018 indictment brought by special counsel Robert Mueller of twelve Russian intelligence officers for computer hacking related to the 2016 presidential election. The indictment charges that the Russian agents hacked into computers and email accounts used by scores of individuals and organizations associated with the Hillary Clinton campaign and other Democratic organizations. The lead charge in that indictment: conspiracy to violate various provisions of the CFAA.

Van Buren v. United States

The Van Buren case argued before the Court last week involves a particular subsection of the CFAA, 18 U.S.C. §1030(a)(2)(C). Under that subsection, a person commits a crime whenever he “accesses a computer without authorization or exceeds authorized access, and thereby obtains information” from that computer. The term “exceeds authorized access” is further defined to mean, “to access a computer with authorization and to use such access to obtain or alter information in the computer that the accesser is not entitled so to obtain or alter.” §1030(e)(6). The issue in Van Buren is the proper interpretation of the term, “exceeds authorized access.”

The defendant, Nathan Van Buren, was a police officer in Cumming, Georgia.  As part of an FBI sting, he ended up accepting several thousand dollars from Andrew Albo, an informant cooperating with the FBI. In exchange, Van Buren agreed to search a police database for a vehicle license plate number Albo gave him. (Albo told Van Buren the car belonged to a woman he had met at a strip club and he wanted to be sure she was not an undercover police officer.) Van Buren performed the search for Albo in the Georgia Crime Information Center database. He had been trained on the use of that database and knew he was allowed to use it only for legitimate law enforcement purpose.

Van Buren was convicted for violating section 1030(a)(2). There was no question he was authorized to access the police database. But the government argued Van Buren had exceeded his authorized access, and thereby obtained the license plate information, by performing the search for an improper purpose – namely, in exchange for a bribe. 

Image of US Supreme Court, which decided the Bob McDonnell case
United States Supreme Court

Van Buren’s Position

In their briefs to the Court, Van Buren and those amici who support him argued that Section 1030 is, at heart, a computer hacking statute. It is primarily aimed at conduct that is the electronic equivalent of breaking and entering. According to Van Buren, the prohibition against exceeding authorized access therefore criminalizes obtaining information only when a person has no right at all to access that information. An example would be a Pentagon employee who is authorized to use the Department of Defense computer system for limited purposes related to her job, but then uses a stolen password to gain access to a different part of that system she is not authorized to view.

Van Buren unquestionably had the right to enter the database and access license plate data. In this instance he did so for an improper reason: because he had been bribed. That might subject him to job discipline or some other legal sanction, but it does not, Van Buren argued, violate the CFAA.  “Exceeding authorized  access” does not apply to obtaining otherwise accessible information for an improper reason. It applies, he argued, only when the defendant had no right to access the information under any circumstances.

Van Buren cited a number of examples of the potential consequences of the government’s position. Suppose workplace policy prohibits an employee from using the company’s computer system for social media, but she uses that system to log onto Facebook. Or an employee has a work-provided Zoom account that is to be used only for business but uses it for a group family chat on the weekend. Or someone uses a dating website but, in violation of the site’s terms of services, lies in his profile about how tall he is or about his age and then obtains information about potential partners.

 In each of these examples, the person has the right to access the information that was obtained, but did it in ways or for reasons that were not authorized. That is Van Buren’s situation as well. If the government is correct, he argued, then all of the people in those examples are criminals: they exceeded their authorized access by violating workplace policies or website terms of service.

Computer law expert Professor Orin Kerr, who filed an amicus brief, agreed with Van Buren and framed it this way: the CFAA prohibits someone circumventing technological barriers, such as a password requirement, to obtain information the person is not otherwise authorized to obtain. It does not apply to someone who merely ignores verbal or written barriers, such as instructions from an employer or requirements in a website’s terms of service. Here Van Buren violated police department policy, but he did not breach any technological barriers to obtain the information. Accordingly, the CFAA should not apply.

US Dept of Justice
U.S. Department of Justice

The Government’s  Response

The government responded that Van Buren’s argument ignores the plain text of the statute, and that the text is enough to decide this case. The statute prohibits exceeding authorized access and thereby obtaining information “that the accesser is not entitled so to obtain.” The key, the government argued, is the word  “so.” If Van Buren is right, that “so” is unnecessary. Congress would have just written “that the accesser is not entitled to obtain,” and Van Buren would be in the clear. But the word “so” in the phrase “so to obtain” means that the manner or circumstances of obtaining the information matters: “so” means that the defendant was not entitled to obtain the information under the circumstances in which he did, even if he could have properly obtained it under other circumstances. The statute therefore governs insiders who have some limited authority to access the relevant computer information but exceed those limits.

As for Van Buren’s hypotheticals about everyday computer users suddenly becoming criminals, the government argued those concerns are wildly exaggerated. Such cases are not being prosecuted, and Van Buren has not identified any such cases in the past that led to a sustained conviction. Potential cases involving people using Facebook at work are just a fantasy. They would never be brought in the real world.

The government also suggested that the hypothetical cases posed by Van Buren might not violate the statute because of other statutory terms. For example, the government argued that the term “authorization” means a user has been granted specific, affirmative, individualized permission to use the system. It might not apply to websites such as Facebook that simply take all comers who are willing to open an account.

The  Oral Argument – Reviewing the Parade of Horribles

During the oral arguments on November 30, several of the Justices appeared skeptical of the government’s arguments and concerned about the potential breadth of the statute.

The Court spent a good deal of time discussing Van Buren’s “parade of horribles,” the hypotheticals about all those who might be ensnared by the government’s interpretation. Justice Thomas wondered whether the parade was real, asking whether there were any real-world examples of the types of cases Van Buren was warning against. Jeffrey Fisher, counsel for Van Buren, admitted there were no recent examples. But he pointed out that the Court has repeatedly held it can’t approve a sweeping interpretation of a criminal statute based on the government’s promise that it will enforce it benevolently.

Chief Justice Roberts and others raised the idea of a different parade of horribles: bad actors who could NOT be prosecuted if Van Buren’s interpretation is adopted.  What about a bank employee, for example, who has legitimate access to computer files containing customer social security numbers but then accesses those files to steal the numbers and sell them? Fisher responded that other criminal laws would cover most such misconduct. Justices Gorsuch and Sotomayor appeared to agree that, given the number of federal and state criminal laws available, any such misconduct not covered by the CFAA could likely still be prosecuted.

Justice Sotomayor and others pressed the Assistant Solicitor General Eric Feigin on his suggestion that other terms, such as the definition of “authorization,” could control the sweep of the CFAA. She said the government was relying on narrower definitions that did not appear in the statute itself. Fisher also had noted in his briefs that there was no precedent for those narrower interpretations and that the government was merely raising them as hypotheticals, not committing to follow them.

Justice Kagan pressed both attorneys on the role of the word “so.”  She noted it requires an antecedent and asked each side what they thought “so” referred back to. Fisher replied that “so to obtain” merely refers to using a computer to obtain the information. That means it would not be a defense for an employee who hacked into a portion of the office computer to argue that he could have gotten the same information by some other means anyway. Even if that were true, he was not entitled “so” to obtain it – in other words, by hacking the computer.

Feigin argued that “so” referred back to the circumstances under which the defendant was obtaining the information. Van Buren was not authorized “so to obtain” the license information because the way he obtained it violated the workplace restrictions covering his use of the database.

Justice  Neil Gorsuch
Justice Neil Gorsuch

A Pattern of Government Overreach

I think the Court is likely to rule in Van Buren’s favor and reject the government’s sweeping interpretation of the CFAA. The battles over the significance of the word “so” are fascinating (at least to legal nerds), but in the end I don’t think they yield a clear winner. In light of that, the Court is likely to adopt the reading that avoids vastly increasing the scope of federal criminal law.

During his questioning of Feigin, Justice Gorsuch raised what I think is a key point. He noted there has been a string of cases in recent years where prosecutors have sought to expand the scope of federal criminal law in pretty sweeping ways. In each case, the Court has rejected the government’s position. I wrote about that trend in this post: White Collar Crime, Prosecutorial Discretion, and the Supreme Court. It stems both from the Court’s approach to federal criminal law in general and from a characteristic of white collar statutes like the CFAA in particular.

In general, the Court is reluctant to read federal criminal laws expansively, at least absent a clear sign of Congressional intent. In McNally v. United States in 1987, where the Court first rejected the theory of honest services fraud, part of its rationale was a concern that the government’s interpretation would dramatically increase the scope of federal criminal law. Just last year in Kelly v. United States, the Court reaffirmed that  principle when it unanimously rejected the government’s attempt to use federal fraud statutes to prosecute the defendants in the Bridgegate scandal. The Court noted that the defendants’ behavior was deplorable, but that not every instance of political misconduct amounts to a federal fraud.

White collar statutes in particular often raise concerns about their potential scope. They are written broadly to avoid loopholes that may be exploited by clever criminals. They deal not with clear crimes like assault or robbery but with fuzzier concepts such as fraud and corruption whose parameters are less well-defined. As a result, they often sweep within their terms conduct that most would agree does not merit  a federal prosecution.

For example, if I call in sick and lie to my employer so I can go to the ball game, that fits all the legal requirements for federal wire fraud. Fortunately, we don’t see cases of such truant employees clogging the federal courts. That’s because of prosecutorial discretion: prosecutors exercising good judgment about which cases are actually worth bringing and which should not be pursued even if they technically violate the statute.

But that discretion must be exercised wisely. In cases raising concerns about the scope of federal criminal statutes, the government’s response often has been, essentially: “Trust us. You should interpret the statute broadly, to allow us flexibility to pursue the appropriate cases. We’d never bring the trivial or outrageous cases that the defendant is claiming would result.”

That’s also what the government is saying in Van Buren: trust us, we’d never prosecute the employee who does holiday shopping at work. But in recent years the Court has been increasingly unwilling to take the government at its word. Instead, it has narrowed the statutes in question to limit prosecutors’ discretion.

Consider, for example, the Court’s 2016 decision in McDonnell v. United States, the corruption prosecution of the former governor of Virginia. McDonnell and his allies presented their own parade of horribles to the Court. They argued that if the government’s sweeping interpretation of “official act” in bribery law were adopted, federal officials would be at the mercy of prosecutors who might charge bribery based on politicians engaging in routine political courtesies. Part of the government’s response was, essentially, “we won’t bring those kinds of cases and never have.” That wasn’t enough for the Court: it unanimously rejected the government’s argument, threw out McDonnell’s conviction, and drastically narrowed the scope of bribery law.

To explain this Supreme Court trend, at least in part, the Justice Department need only look in the mirror. These are often self-inflicted wounds. The “trust us” argument becomes harder when the case that lands before the Court seems to involve a poor exercise of prosecutorial discretion.  This was true, for example, Yates v. United States, where prosecutors used an obstruction of justice statute with a twenty-year penalty to prosecute a captain who threw undersized fish overboard to avoid a civil fine. Or Bond v. United States, where a woman put Drano on the doorknob and mailbox of her romantic rival, causing a minor skin irritation, and was charged with a chemical weapons offense carrying up to life in prison.

When such cases make it to the Supreme Court, it becomes harder for the government to argue the Court should entrust prosecutors with criminal statutes that sweep as broadly as possible. That’s what led Justice Gorsuch to remark during the Van Buren argument that the Solicitor General’s office should not act as a mere “rubber stamp” when questionable cases stretching the boundaries of federal criminal law are brought by U.S. Attorneys.   

In this case Van Buren’s conduct does seem worthy of prosecution. But it also seems clear there were other ways  to punish him, either with other federal statutes (he was also charged with honest services fraud, but that charge may face a McDonnell issue) or with a Georgia state prosecution for bribery or other crimes. There is no need for the Court to stretch the boundaries of the CFAA based a concern that there is otherwise no way to punish someone like Van Buren.

In Van Buren’s case, the Court is likely to continue the trend identified by Justice Gorsuch. It will likely reject an expansive interpretation of the CFAA that turns almost all ordinary Americans into potential criminals. In this case, that’s the right result.

You may now return to your Amazon shopping.

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Tax Return Fight Indicates Trump May Face State Criminal Charges

Update: On August 20, District Court Judge Marrero granted Vance’s motion to dismiss the new complaint. The Second Circuit granted a stay of that order, but on October 7 it affirmed the dismissal. Absent intervention by the U.S. Supreme Court, the grand jury should have the records soon.

Manhattan District Attorney Cyrus Vance, Jr. appears close to obtaining president Trump’s tax records. Vance first subpoenaed the records about a year ago. Last month the U.S. Supreme Court rejected Trump’s claim that the subpoena should be rejected because the president is absolutely immune from state criminal investigations. Trump’s attorneys then filed a new complaint once again challenging the subpoena, claiming it is overbroad and was issued in bad faith. Vance has now moved to dismiss that complaint. The DA seems likely to prevail and ultimately get the records. And although it’s unlikely that anything contained in the returns will be made public before the election, Vance’s pleading filed last Monday suggests that Trump could be facing a range of New York state criminal charges if he leaves office in 2021.

Manhattan DA Cyrus Vance Jr.
Manhattan DA Cyrus Vance, Jr.

The Vance Subpoena and Trump’s Lawsuit

Vance’s office opened an investigation in the summer of 2018 into unspecified financial crimes by New York businesses and individuals. Initially, at least, it appeared the investigation was prompted by reports of “hush money” payments by Trump and/or his campaign to two women, Karen McDougal and Stormy Daniels, shortly before the 2016 presidential election. In August of 2018 Trump’s personal attorney, Michael Cohen, pleaded guilty to a campaign finance crime related to those payments. During his plea Cohen said he had made the payments at the direction of candidate Trump himself. Vance’s office apparently began an investigation into whether the payments, and how they were documented in corporate records, may have violated New York law.

In August of 2019 the prosecutors, acting on behalf of a grand jury, issued a subpoena for documents to Mazars USA, LLP, Trump’s personal accounting firm. The subpoena directed Mazars to produce financial records relating to Trump and his businesses, including copies of the president’s tax returns for the past eight years.

In September 2019 the president filed a lawsuit in federal district court in New York, seeking an injunction against Vance and Mazars to prevent enforcement of the subpoena. Trump claimed that under the U.S. Constitution a sitting president is absolutely immune from state criminal process. He also argued the subpoena was overbroad and that Vance was acting in bad faith and for political reasons. (Throughout the litigation Mazars has taken the position that the fight is between Vance and Trump and that Mazars stands ready to honor the subpoena if that’s how the courts rule.)

The district court judge rejected the president’s arguments. The judge found there was no basis for the president’s sweeping claim of immunity and that Mazars complying with the subpoena would not impair the president’s ability to fulfill his constitutional duties. The judge also rejected the president’s claims of overbreadth and bad faith.

The Second Circuit Court of Appeals affirmed the trial judge, finding that immunity was not constitutionally required. It noted that Trump had failed to identify any constitutional harm or interference with his duties because the subpoena, directed to Mazars, did not “require the President to do anything at all.” An appeal from the Second Circuit decision was fast-tracked to the U.S. Supreme Court.

Image of US Supreme Court

The Supreme Court Decision

On July 9, 2020, the U.S. Supreme Court, in an opinion by Chief Justice Roberts, also rejected Trump’s claims. Reaching back to an early dispute involving Aaron Burr and president Thomas Jefferson, the Court traced a long history of cases finding that presidents, like other citizens, are not above the law and may be subpoenaed to provide testimony or evidence. Although this was the first time the Court had confronted the question in the context of a state proceeding rather than a federal one, the Court concluded that did not compel a different result.

The Court was unanimous in rejecting Trump’s claim of absolute immunity. Trump argued that immunity was required because complying with such a subpoena would impermissibly distract him from fulfilling his constitutional duties. But the Court noted that it had already rejected immunity based on purported presidential distraction, most notably in the unanimous 1997 decision in Clinton v Jones that president Clinton was not immune from a civil suit based on actions before he took office. Similarly, the Court concluded, “two centuries of experience confirm that a properly tailored criminal subpoena will not normally hamper the performance of the President’s constitutional duties.” The Court also rejected Trump’s claims that immunity was required in order to avoid the “stigma” of being under investigation and to prevent presidential harassment by state prosecutors.

The majority also rejected the alternative argument, advanced by the U.S. Solicitor General, that a subpoena directed at a sitting president should have to meet a higher standard of justification before it can be enforced. The Court noted these arguments were based primarily on cases involving Executive privilege. But such cases were not relevant here because this subpoena was directed at the president’s personal records. Requiring a higher standard, the Court held, would improperly “extend protection designed for official documents to the President’s private papers.”

Although the Court rejected the president’s claims, it did not leave Trump with no possible remedy. Given his constitutional position, the Court held, a president may challenge a particular subpoena as an improper attempt to influence or impede his performance of his official duties. And the president also has the remedies available to any person to challenge a grand jury subpoena, including arguing that the subpoena is unduly burdensome, overly broad, or based on bad faith. But any such claims were not part of the appeal to the Supreme Court.

The Court concluded:

Two hundred years ago, a great jurist of our Court established that no citizen, not even the President, is categorically above the common duty to produce evidence when called upon in a criminal proceeding. We reaffirm that principle today and hold that the President is neither absolutely immune from state criminal subpoenas seeking his private papers nor entitled to a heightened standard of need.

The President’s New Complaint

The Supreme Court’s decision did not end the matter. With the case back in the trial court, the president quickly moved to bring some of the other challenges the Supreme Court said were still available. On July 27 the president filed a Second Amended Complaint, seeking once again to enjoin compliance with the subpoena. That complaint alleges, once again, that the subpoena is overbroad and that Vance is acting in bad faith.  Notably, the complaint does not raise any of the potential claims unique to the president that were identified by the Supreme Court; for example, that complying with this particular subpoena would influence or impede Trump’s performance of his presidential duties. Presumably the president’s attorney concluded such an argument would be futile because, as the Second Circuit noted, the subpoena to Mazars actually doesn’t require the president to do anything at all.

Vance’s Motion to Dismiss

This past Monday, Vance filed a motion to dismiss the Second Amended Complaint, arguing that the complaint does not state any grounds for relief. It claims the subpoena is overbroad or was brought in bad faith, but as Vance notes, the trial judge has already rejected those same arguments in the earlier proceedings. In short, according to Vance: nothing new here.

One section of Vance’s pleading attracted considerable attention. Concerning the claim that the subpoena is overbroad, Vance notes this claim depends on the assumption that the investigation is limited to the so-called “hush money” payments in 2016. But Vance says this is incorrect: “at the time the Mazars Subpoena was issued, there were public allegations of possible criminal activity at Plaintiff’s New York County-based Trump Organization dating back over a decade.” Vance notes that his office earlier filed a redacted declaration describing the full scope of the investigation, and that based on that declaration the court had already ruled the subpoena is not overbroad.

Vance’s pleading cites newspaper articles referring to allegations by Michael Cohen and others that Trump may have manipulated the values of his holdings when dealing with banks and insurance companies and may have engaged in other questionable financial practices. These allegations could potentially lead to New York state criminal charges for crimes such as bank fraud, insurance fraud, or tax fraud. That is why the subpoenaed records are relevant, even though they extend back much further than 2016.

The Standard for Challenging a Grand Jury Subpoena

The president is facing an uphill battle in challenging the grand jury subpoena. A properly issued grand jury subpoena is presumed to be reasonable. Because it is an investigative body, a grand jury is allowed to cast a wide net when gathering information about possible crimes. It may investigate based on news reports, anonymous tips, or other investigative leads that fall far short of establishing probable cause or actual criminality. As the Supreme Court held in the leading case of United States v. R. Enterprises, the government cannot be required to establish probable cause to justify a grand jury subpoena because the very purpose of the grand jury investigation is to determine, at the conclusion of that investigation, whether probable cause exists.

In his dissent in the Supreme Court case, Justice Alito noted how difficult it would be for the president to establish that Vance’s subpoena is improper: “In New York, a grand jury subpoena need not be supported by probable cause . . . and a party seeking to quash a subpoena must show that the documents sought ‘can have no conceivable relevance to any legitimate object of investigation.’” (citations omitted). But this standard is not unique to New York; in fact, this is the general law governing all grand jury subpoenas and basically mirrors the Supreme Court’s holding in R. Enterprises.

Grand jury secrecy makes it tough for any litigant to successfully argue that information sought by a subpoena could not possibly be relevant to the grand jury’s work. As Vance argues, the president can’t plausibly claim the subpoenaed materials are outside the scope of the grand jury’s investigation because he doesn’t know what the full scope of that investigation is – and isn’t entitled to know.

It’s possible that after reviewing the documents the grand jury will conclude that no charges are appropriate, or that it does not have jurisdiction over certain offenses, or that certain crimes are time-barred. But the recipient of a subpoena – including the president – generally cannot prevent the grand jury from even examining the documents it needs in order to reach such conclusions.

Under the law governing grand jury subpoenas, Vance should prevail and ultimately get the documents. How quickly that will happen depends on the almost certain further appeals by the president and how long it takes to get those resolved. If the trial judge rules in Vance’s favor, the court of appeals may be reluctant to grant a stay, which would mean Mazars would be free to comply and turn over the documents. That could potentially happen within the next month or so.

Stalling for Time

It seems pretty clear at this point that the primary purpose of this litigation by the president is to stall for time. As Vance notes, the president has already succeeded in delaying compliance with the subpoena for nearly a year. This has prevented the grand jury from potentially completing its work prior to the upcoming presidential election. Perhaps more significantly, delay creates the risk that the statute of limitations will expire as to some charges. As Vance argues: 

Every day that goes by is another day Plaintiff effectively achieves the ‘temporary absolute immunity’ that was rejected by this Court, the Court of Appeals, and the Supreme Court. Every such day also increases the prospect of a loss of evidence or expiration of limitations periods – the precise concerns that that the Supreme Court observed justified its rejection of Plaintiff’s immunity claim in the first place.  

When it comes to statutes of limitations, Vance may have some options. If he finds an ongoing conspiracy or other continuing offense, for example, then the statute of limitations will not start to run until the most recent act in furtherance of the conspiracy, even if other criminal acts involved are too old to be charged. But it’s undeniably true that delay hurts his investigation and that potential charges could be foreclosed.

What Happens When Vance Gets the Documents?

Assuming Vance prevails and gets the documents, the public shouldn’t expect to see the tax records any time soon, if at all. They will be protected by grand jury secrecy, and as the Supreme Court noted, improper disclosure of grand jury materials is punishable as a felony in New York. During the Supreme Court arguments Justice Alito suggested he believes there is some kind of a pipeline between the DA’s office and the New York Times and that a leak is virtually inevitable, but I don’t think we should expect that to happen. If there ultimately are indictments, then depending on the nature of the charges some of the information contained in the tax records could end up being revealed.

As far as timing, many have assumed that Vance, a Democrat, is politically motivated and will try to bring a case prior to the election in order to damage Trump. But even if that were his goal, things would have to move awfully fast. Vance’s office would have to complete all court battles over the subpoena, get the documents (which are undoubtedly voluminous), review them, complete any additional required investigation, and obtain indictments in just three months. That seems very unlikely to me.

Practicality aside, it would of course be improper for Vance to act based on political motives. And if he actually has a case, he’d be much better off waiting until after the election.  Any “October surprise” indictments, regardless of their merits, would be attacked and discredited as politically motivated. And if Trump leaves office in 2021, Vance could act at that time without facing any of the constitutional issues that would arise from a state prosecution of a sitting president. If a statute of limitations expiring before November is a concern, Vance could obtain sealed indictments and then wait to reveal them until after the election. He could even seek a waiver of the statute of limitations by the president, as is sometimes done during lengthy investigations.

The real significance of this subpoena battle lies not in how it might affect the election but in what happens after November if Trump is defeated. Vance’s filing demonstrates that Trump and his organization are in some real criminal peril. And even if Trump were to try pardoning himself for any crimes on the way out the door of the White House — as many expect — presidents cannot grant pardons of state charges. New York would remain free to act.

This all suggests a real possibility of yet another unprecedented event: a new president being sworn in, and the former president facing state criminal prosecution shortly thereafter.

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