What to know about a possible Trump indictment
- Former President Donald Trump faces possible criminal charges in New York relating to a hush money payment to adult film star Stormy Daniels in 2016.
- The possible crime Manhattan District Attorney Alvin Bragg is investigating is whether Trump falsified business records. The key witness before the grand jury has been Michael Cohen, Trump's former attorney and fixer, who made the payments to Daniels.
- Trump maintains he has committed no crime, and his attorneys argue he was the victim of extortion.
- The indictment of a former president would be a remarkable moment in the country’s history in a proceeding with legal underpinnings that appears far from open and shut. Read more on that here.
Could Trump go to jail?
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.
How New York’s ‘quirky law’ could affect the Trump investigationMarch 21, 202305:37
Trump supporters shrug off possible indictment
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."
Law enforcement agencies discuss potential Trump travel plans to NYC if indicted
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.
5 things to look for in a possible Trump indictment
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 asks him to stop going on TV
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.
What happens if Trump is indicted?
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.
What crime is the Manhattan DA investigating?
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.
McCarthy casts N.Y. case as 'political,' says Trump used 'personal money'
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.
Could Trump become the first ex-president to be arrested? Hold your horses ...
Debates over whether former President Donald Trump could become the first ex-president to be arrested hinge on a 1908 report of one president getting arrested about 35 years earlier for speeding — in a horse-drawn carriage.
A 1908 article in the Washington Evening Star detailed a policeman's account of arresting Ulysses S. Grant, America's 18th president. The article says that Grant was arrested in 1872 and taken to the station house on charges of speeding in his carriage.
Grant had a penchant for galloping and was known to stir up trouble. He paid a $20 fine, but skipped out on his court appearance, the article says.
But NBC News presidential historian Michael Beschloss said he was skeptical of the story's sourcing, as it was based on a single account from decades after the alleged arrest took place.
"It’s always possible that some irrefutable long-lost record may turn up that proves that some earlier president was indicted or that Grant was definitely arrested in 1872," he said. "But obviously we don’t have either of those things as of this moment."
Beware of AI-generated pictures of a fake Trump arrest
If you're seeing pictures of an arrest of Trump, greet them with a healthy dose of skepticism.
Plenty of fake pictures generated by now-common artificial intelligence programs are floating around purporting to show the former president getting arrested.
The proliferation of AI technology that can generate hyperrealistic pictures based on simple text prompts has opened the door for plenty of misleading images to circulate online. It can be hard to tell the real ones from the fake ones.
Stormy Daniels says she'll 'dance down the street' if Trump were to go to jail
Adult film star Stormy Daniels said Tuesday she would "dance down the street" if the former president were indicted and sentenced to prison time.
Daniels, who is at the heart of the New York grand jury's investigation into Trump, was retweeting someone who claimed she accepted money to frame Trump.
"Sooo...tiny paid me to frame himself? You sound even dumber than he does during his illiterate ramblings. And I won’t walk, I’ll dance down the street when he is “selected” to go to jail," she tweeted.
While the grand jury is expected to make a decision in its probe soon, which could return an indictment for Trump, prison time for the former president is highly unlikely.
Daniels claimed she had an affair with Trump, which he has denied.
Trump continues his criticism of Cohen
Trump has continued to publicly criticize his former lawyer Cohen, arguing the key witness who already went before the grand jury shouldn't be believed.
"It is being said that disbarred lawyer Michael Cohen was put out to dry today after his highly respected former attorney and legal adviser, Robert Costello, made a great impression not only on the D.A.’s Office, but the grand jury itself. He is known to be a great lawyer and highly honorable man. He stated to the media that he could no longer listen to the lies that Cohen was spreading. He told the TRUTH, with papers, documents, and backup. He left ZERO doubt.THE D.A. WILL DO THE RIGHT THING!"Trump on Truth Social
Experts: Don't expect DeSantis to ride to Trump's rescue
Some on the far right have taken to social media calling on Ron DeSantis to block Trump from getting extradited to New York if he decides not to surrender on a possible criminal charge, but legal experts tell NBC News there’s little to nothing that the Florida governor could do in that unlikely event — even if he wanted to.
While interstate extradition requests do have to go through governors’ offices, the U.S. Constitution gives them little choice but to comply: “A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime.”
New York defense lawyer Ron Kuby, who was involved in a 1991 case seeking to block a person accused of murder from being extradited from New York to Florida, recounted that an appeals court quickly shut the door.
Governors can order reviews into whether the paperwork is in order, which can slow the process down for a finite period of time, but “they have absolutely no authority to stop extradition,” he said.
Attorney Daniel Horwitz, a former prosecutor in the Manhattan District Attorney’s Office, agreed. He called the idea that DeSantis could block extradition “inane.”
The scenario is also unlikely because the relationship between DeSantis and Trump appears to be at an all-time low. Asked Monday if he’d play a role in Trump’s possible extradition, DeSantis said he is “not going to be involved in it in any way,” and Trump lawyer Joe Tacopina told NBC News last week that his client plans to surrender if indicted.
The liberal Kuby predicted Trump would want to come to court. “The show will be here. He’ll be the star,” he said.
What has Michael Cohen said under oath?
Michael Cohen has testified under oath before — in 2019 at the House Oversight Committee. He discussed the payment to Daniels.
"In 2016, prior to the election, I was contacted by Keith Davidson, who is the attorney — or was the attorney for Ms. Clifford, or Stormy Daniels. And after several rounds of conversations with him about purchasing her life rights for $130,000, what I did, each and every time, is go straight into Mr. Trump’s office and discuss the issue with him, when it was ultimately determined, and this was days before the election, that Mr. Trump was going to pay the $130,000, in the office with me was Allen Weisselberg, the chief financial officer of the Trump Organization. He acknowledged to Allen that he was going to pay the 130,000, and that Allen and I should go back to his office and figure out how to do it.Michael Cohen in 2019 before the House Oversight Committee
Capitol Police prepare for possible protests if Trump is indicted
U.S. Capitol Police will be taking security precautions in case there are demonstrations over an indictment of former President Donald Trump, the Senate sergeant at arms said Monday in a notice to senators’ offices.
“While law enforcement is not tracking any specific, credible threats against the Capitol or state offices, there is potential for demonstration activity,” the sergeant at arms said in an email to Senate staff members. Capitol Police are “working with law enforcement partners, so you may observe a greater law enforcement presence on Capitol Hill.”
Trump indicated Saturday that he would be arrested Tuesday, citing “illegal leaks” in the New York County district attorney’s hush money probe, and called for his supporters to protest.
Porn stars and grooming allegations: How the Trump-DeSantis cold war turned hot
The political world waited over the weekend for Ron DeSantis to weigh in on the possible indictment of Donald Trump. And then waited. And waited some more.
In the meantime, Trump world social media influencers and acolytes raked DeSantis over virtual coals, pointing to his silence as complicity in — or at least indifference to — New York County District Attorney Alvin Bragg’s pursuit of Trump, the GOP’s top leader.
Behind the scenes, Trump aides fanned the flames, targeted the Florida governor in news releases and cheered as the Trump world influencers slammed him on Twitter and Truth Social.
When DeSantis finally spoke Monday at a news conference in Tallahassee, Florida, he took shots at Bragg — and at Trump.