Trump news: N.Y. grand jury could render an indictment in hush money case

In theory, yes. The charge of falsifying business records in the first degree is a low-level felony carrying up to four years in prison. In reality, it’s uncertain whether Bragg would recommend Trump serve time behind bars. In the end, if Trump were to be convicted, a judge would decide the appropriate sentence.

Today was the day Trump believed he was going to be arrested, according to one of his Truth Social posts over the weekend, when he also urged supporters to “protest” in his behalf.

Tuesday saw a few dozen Trump supporters gathered, as they’ve done almost every weekend since the FBI’s August search of Mar-a-Lago, on Florida’s Bingham Island, at the foot of the bridge that connects West Palm Beach to Palm Beach. Men and women of all ages waved Trump and QAnon flags, played country music and said that no, this wasn’t a protest. And no, a possible indictment didn’t bother them one bit.

“We’ll just have a big party and laugh it off, because it’s ridiculous,” said Debbie Macchia, of West Palm Beach.

Another supporter, who declined to be identified by name, said, “I’d be arrested for President Trump — he’s that great of a man."

Two senior officials said Secret Service agents have not yet done a security review of the 100 Centre Street Courthouse, where Trump could face a judge if he's indicted. The review would cover entrances, booking areas, hallways, courtrooms and surrounding streets. The officials said such a review would be done only if an indictment is handed down.

The officials also said numerous law enforcement agencies have had additional security meetings, where officials have discussed potential arrival sites — La Guardia and Teterboro airports were mentioned as possibilities should Trump be flown to New York to face charges — and varying routes to and from the courthouse.

The question has been raised at the security meetings about whether a virtual arraignment would be possible if one were needed, but it does not appear that the question has been put to the court or the DA’s office directly, because no charges have been filed, the officials said.

If — and this is still an if right now — there’s an indictment of former President Donald Trump related to the $130,000 hush money payment to Stormy Daniels, here are five legal questions to look out for in the court papers.

What’s the legal hook? If Manhattan prosecutors file charges against Trump alleging false record keeping — which he denies — what is their hook to elevate what is normally a misdemeanor crime to felony? New York law makes it a crime to falsify business records in order to conceal or commit “another crime” — so what’s that second crime in this case?

Are there crimes unknown to the public? The false business records issue has now been widely reported, but are there other charges the district attorney has up his sleeve? The New York law on point also requires an “intent to defraud,” but who was defrauded in this case? New York prosecutors have brought a number of past cases involving phony business records, but those cases mostly involved an individual submitting the fake records to a third party, like an insurer or tax agency. Did Trump’s business records, listing the checks paid to Cohen as “legal expenses,” ever see the light of day? If not, what’s the prosecution’s theory about who was harmed? 

Was there a conspiracy? Do prosecutors believe Trump illegally acted in concert with others? Michael Cohen, Trump’s former lawyer and fixer, was involved in making the $130,000 payment to Daniels’ lawyer on the eve of the 2016 election, but do prosecutors believe others broke the law?

Is Cohen vindicated? It will be important to see how any indictment describes the additional evidence that bolsters Cohen’s side of the story. At times, Trump’s attorneys have suggested Cohen acted without Trump’s knowledge or blessing, or that Trump was simply following his then-lawyer’s advice — but federal prosecutors said Cohen “acted in coordination with and at the direction of” Trump. What do the contemporaneous documents say? 

Is it a “speaking” indictment? Sometimes prosecutors file a bare bones charging document that doesn’t reveal much. In other cases, prosecutors paint a far more vivid picture of their allegations (with detail that isn’t required to meet the elements of the crime), known as a speaking indictment. What route do they take here?

Michael Cohen's lawyer Lanny Davis has asked him to stop going on television as the nation waits for a possible indictment based, at least in part, on his testimony.

"Given the sensitivity of the time period I have advised Michael to not do any more TV appearances until further notice," Davis said.

In the usual case, the prosecution’s office would instruct the grand jury on the charges and the law, and then the jurors would vote. The grand jury is usually made up of 23 people, and at least 16 who have heard the evidence need to be present to vote, but the decision does not have to be unanimous.

If 12 members of the grand jury vote to indict, then the prosecution would draft up an indictment and the jury foreperson would sign it. The indictment gets filed under seal with the court, so initially the public would not see it. Once the indictment is filed, the prosecution team would typically reach out to the defense attorneys to coordinate a time for the defendant to voluntarily surrender.

Despite Trump’s post on social media Saturday suggesting that he would be arrested imminently, a Trump spokesperson said that his attorneys have not been informed of any charges so far.

If the case proceeds as other high-profile cases have in the past, and if Trump turns himself in, he could be processed someplace within the district attorney’s office, according to sources familiar with the office.

That would normally include paperwork, fingerprinting, a mug shot and a cross-check of any outstanding criminal charges, which would all happen behind closed doors. Sometime soon thereafter he would be arraigned on the charge (or charges) in court in front of a judge. That would be public.

At that point, Trump or his attorney on his behalf would enter a plea, and he would then be released with another court date. Trump would not have to post bail given the nature of the charges.

Trump’s former lawyer and fixer Michael Cohen paid porn star Stormy Daniels $130,000 just days before the 2016 election. In Cohen’s version of events, this was done at the direction of his boss because Daniels was on the cusp of going public about an affair she alleges she had with Trump in 2006.

Trump, while he was in the White House, reimbursed Cohen, but has consistently denied the affair.

The payment, by itself, wouldn’t be the crime, but how the payments were documented in the books of the Trump Organization is the focus.

According to Mark Pomerantz, a former prosecutor who worked closely on the case and recently published a book about his experience, Cohen submitted phony invoices throughout 2017 referencing a “retainer agreement” and requesting payment. Then, Cohen received a series of checks, hand-signed by Trump while he was in the White House. The legal problem is there was no retainer agreement — according to Pomerantz, it was all done to cover up the hush money scheme. The fake documentation of “legal expenses” on the Trump Organization’s books could trigger a charge under New York state law, which makes falsifying business records a crime.

Normally, the false business records charge would be a misdemeanor. In order to elevate it to a felony, the defendant needs to have created the fake records with an intent to commit or conceal “another crime.” Here, it’s unclear what the Manhattan District Attorney’s Office plans to argue is the second crime. Some legal commentators have suggested that perhaps the DA is only prosecuting the misdemeanor charge. Others have argued that would be a huge waste of time and resources, and give Trump the power to paint the case as weak.

If the grand jury doesn’t vote in favor of prosecuting this case as a felony, it could direct the prosecutor to file a misdemeanor case instead.

House Speaker Kevin McCarthy, addressing reporters in Orlando, Florida, on Tuesday, continued to defend Trump ahead of a possible indictment. He rattled off a list of defenses: It was "personal money," the statute of limitations and that Trump wasn't trying to hide anything.

"And I think in your heart of hearts, you know too, that you think this is just political," he said.