A former president has never been prosecuted in the history of the United States. As early as this week, that may change.
Donald Trump, who faces possible criminal charges in New York relating to a hush money payment to porn star Stormy Daniels, maintains he has committed no crime and his attorneys argue he was the victim of extortion. The Manhattan district attorney's office, run by Democrat Alvin Bragg, isn’t commenting and no charges have been announced. But if in fact Trump is indicted, it would be a remarkable moment in the country’s history in a case with a legal underpinning that appears far from open-and-shut.
What’s the possible crime?
Factually, the case is straightforward. Trump’s former lawyer and fixer Michael Cohen paid 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. But the payment of the hush money, by itself, wouldn't be the crime. In this case, the possible crime is how the payments were documented on the books of the Trump Organization.
New York law enforcement preparing for possible Trump indictmentMarch 17, 202302:09
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.
Is the case a slam dunk legally?
No. The prior district attorney’s office run by Bragg's predecessor, Democrat Cy Vance, previously investigated the false business records charge (and limitations) at length. According to sources familiar with the investigation, Vance even commissioned outside lawyers to look at the legal issues involved, but ultimately opted not to move forward with a prosecution. It was viewed as a gamble at the time and still is by many legal experts.
If the grand jury indicts, then the key will be what’s the prosecution’s theory about the “second crime” mentioned above. Is it a state crime? Some have pointed to a possible conspiracy charge under New York law, with the idea being that Trump conspired with others to make sure the affair didn’t come to light before the 2016 election. Others have suggested that a federal campaign finance violation could be in play. That’s what Michael Cohen pled guilty to back in 2018, along with other charges, stemming from a probe of Cohen led by the office of the U.S. Attorney for the Southern District of New York working with the FBI and the IRS.
But state prosecutors potentially hitching their case to a federal crime is viewed as legally risky and untested ground.
With no robust legal precedent on point here, the gamble for prosecutors is that a judge or appellate court might throw out the charge or conviction against the former president.
What would be Trump's legal defense in court?
Trump has cast the investigation as politically motivated because Bragg is a Democrat, but the arguments made by his lawyers in court will likely be different and could hinge on Trump’s intent at the time the payments were made.
New York law requires an “intent to defraud” in order for a jury to convict on a false business records charge. Trump’s attorneys could argue there was never any intent to defraud the Trump Organization — he is the company.
Trump suggested on social media Monday that even if a crime had been committed, the statute of limitations would be up by now. But that’s unlikely to be a major sticking point.
The statute of limitations on a felony charge related to false business records normally requires an indictment to happen within five years, but the statute of limitations is “tolled” — meaning paused — when the defendant is not continuously present in New York. Given that Trump was only rarely in the state while serving as president, this is likely a hurdle the prosecution can overcome if it moves forward with the case.
Trump’s attorneys may also point to Pomerantz’s book to bolster their arguments. Pomerantz explains the potential legal problems with mounting a successful false business records case and so Trump’s attorneys may argue that even an insider didn’t believe the case was strong enough for prosecution.
Is prison time a possibility if Trump is indicted and convicted?
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 convicted, a judge would decide the appropriate sentence.
What happened to the federal investigation of all this?
The Southern District of New York obtained a guilty plea from Cohen and investigated Trump years ago, referring to him as “Individual-1” in court papers when discussing the campaign finance violations. But the Justice Department’s current policy of not indicting a sitting president complicated matters. According to a book written by CNN’s Elie Honig, citing multiple sources, federal prosecutors considered charging Trump once he was no longer in office, but ultimately decided against it. Honig writes that case wasn’t viewed as a “slam-dunk.”
So why is this happening now?
It’s hard to know. Within the district attorney’s office, the Stormy Daniels investigation was referred to as the “zombie” case, according to Pomerantz, because it would die only to be resurrected several times over the years. Bragg's office is an elected position, and so some have argued that moving forward with a Trump prosecution could help his re-election efforts, while others have suggested that if, in fact, Trump broke the law, Bragg has a duty to bring the case and assure the public no one is above the law.
If Trump is indicted, what happens next?
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 will 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 suggested 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.