President Trump potentially faces a torrent of criminal charges when he leaves office, including charges linked to the deadly insurrection at the U.S. Capitol, making prosecutors worry that he is a flight risk.
Mr. Trump’s real estate empire extends to multiple luxury properties in countries that don’t have extradition treaties with the United States. And Mr. Trump himself publicly mused in October that he’d leave the country if he lost to Democrat Joseph R. Biden.
Douglas McNabb, a private attorney with expertise in international extradition defense, said that if criminal charges are brought, Mr. Trump fits the bill for becoming a fugitive from justice.
“He’s got money. He’s got property. He’s got access,” Mr. McNabb said. “The government would argue that he’s a flight risk.”
The White House did not respond to requests for comment.
If charged, Mr. Trump could flee to any number of properties he owns around the world. He owns a luxury hotel and tower in the United Arab Emirates and an unfinished hotel project in Azerbaijan, two countries that don’t have extradition treaties with the United States.
SEE ALSO: Impeachment proxy voting opens potential legal loophole for Trump
But Mr. Trump may also be protected if he goes to his country club in Scotland or his resort in Ireland. Extradition is a notoriously difficult process even when countries have a solid agreement.
“He’s not going back to New York and he is not going to enjoy the comfort at Mar-a-Lago he would have in the pre-Capitol-ransacking world,” said retired Brig. Gen. Peter Zwack, a former Army intelligence officer. “I’ll bet the feasibility of fleeing has come up because, in my mind, it is the only way to avoid instant accountability and reckoning.”
While several world leaders have fled to other countries, usually in the wake of the coups or revolutions that overthrew them, no U.S. president has ever taken flight to escape the law.
Claire Finkelstein, director of the Center for Ethics and the Rule of Law at the University of Pennsylvania Law School, said the prospect of a former president on the lam is “extremely embarrassing.”
“It would make us look like a Middle Eastern dictatorship. But the whole thing is embarrassing. The insurrection at the Capitol is deeply embarrassing,” she said.
The president was already facing a legal onslaught from prosecutors in New York. Both the New York Attorney General and Manhattan District Attorney are probing a myriad of accusations, including possible charges related to Mr. Trump’s financial dealings and hush money paid to two women with whom he reportedly had sexual relations.
Those investigations predate last week’s riot at the Capitol, which began after the president told supporters at a rally to march on Congress.
Karl Racine, the attorney general for the District of Columbia, said he’s looking at a charge of inciting violence, against anyone who spoke at the rally.
Washington’s U.S. Attorney Michael Sherwin pointedly refused to rule out charging Mr. Trump in connection to the riot. He said “anyone who had a role” could face criminal liability.
If he left for Scotland, Mr. Trump would be subject to one of the strongest extradition treaties in the world. That U.S.-U.K. agreement nevertheless has loopholes and is not immune from political considerations.
A British judge this month refused to extradite WikiLeaks founder Julian Assange to the United States, despite finding legal merit in the U.S. government’s claims, ruling that his mental health problems would create a suicide risk if he were turned over.
The United Kingdom last year also refused to extradite two Islamic State terrorists who killed aid workers in Syria unless the U.S. dropped plans to execute them.
“It would be a very complicated thing to get a country to turn Donald Trump over to U.S. authorities,” Ms. Finkelstein said. “It is really extraordinary that Julian Assange is sitting in the U.K. and we couldn’t get him on an extradition agreement.”
Once overseas, Mr. Trump would have an array of legal protections he could raise to block extradition.
One rarely used defense that could apply to a former president is the political offense exception.
Under the political offense exception, an exiled world leader can claim his alleged crimes were in the context of a political struggle and should not be treated like ordinary crimes.
Mr. McNabb said the potential charges in Washington may be avoided under that exemption.
“The exception is often raised by politicos, but they don’t fall within it,” he said. “President Trump could fall within because to qualify, an individual has to show there was an immediate physical riot or uprising and their charges arise out of that uprising.”
To raise that exception, however, Mr. Trump would be forced to acknowledge he played a role in the uprising.
The president could also seek political asylum, arguing that he would be a political prisoner if he returned to the U.S.
It would be up to the country whether or not to grant asylum. Some countries could reject the request fearing alienating themselves from the Biden administration, while other countries might enjoy the opportunity to thumb their nose at the U.S.
“This is a guy that will fashion himself as the exile-in-chief,” Mr. Zwack said. “I don’t think a lot of countries are going to want to take the heat for that unless it is a true adversary.”
As an ex-president, Mr. Trump is entitled to Secret Service protection. While federal law would bar agents from leaving the country with him if he fled to escape justice, agents could accompany him if he legally visited another country.
If an arrest warrant or criminal charges are issued while he’s overseas, the foreign country’s law enforcement would be required to carry out the arrest. Under that scenario, the Secret Service would be required to stand down.
“The Secret Service would have to step back, but it would be an interesting situation,” Mr. McNabb said. “If they continued to protect President Trump that would make them part of a conspiracy to prevent a criminal defendant from returning to the United States.”