How Trump could be indicted: What to know about the hush money case
Trump has repeatedly denied wrongdoing in the case involving a payment his former lawyer and fixer, Michael Cohen, made to adult film star Stormy Daniels before the 2016 election.
In the history of the United States, no former president has ever been prosecuted. That could change as soon as this week.
Donald Trump, who is facing criminal charges in New York in connection with a hush money payment to porn star Stormy Daniels, maintains he has committed no crime and that he was the victim of extortion.
The district attorney's office in Manhattan, led by Democrat Alvin Bragg, has declined to comment, and no charges have been filed.
But, if Trump is indicted, it will be a watershed moment in American history in a case with a legal foundation that appears far from clear.
What’s the possible crime?
In reality, the situation is straightforward. Just days before the 2016 election, Trump's former lawyer and fixer Michael Cohen paid Daniels $130,000.
According to Cohen's version of events, this was done at the request of his boss because Daniels was about to go public about an affair she claims she had with Trump in 2006.
Trump reimbursed Cohen while in the White House, but has consistently denied the affair.
However, paying the hush money would not be a crime in and of itself. The possible crime, in this case, is how the payments were recorded on the Trump Organization's books.
Cohen submitted phony invoices throughout 2017 referencing a "retainer agreement" and requesting payment, according to Mark Pomerantz, a former prosecutor who worked closely on the case and recently published a book about his experience.
Then Cohen received a series of checks that Trump personally signed while he was in the White House. The legal issue is that there was no retainer agreement; according to Pomerantz, everything was done to conceal the hush money scheme.
The falsification of "legal expenses" on the Trump Organization's books could result in a criminal charge under New York state law, which makes falsifying business records a crime.
The charge of falsifying business records is normally a misdemeanor. To make it a felony, the defendant must have created the fake records with the intent to commit or conceal "another crime."
It's unclear what the Manhattan district attorney's office intends to argue as the second crime. Some legal commentators have speculated that the DA may only be prosecuting the misdemeanor charge.
Others have argued that doing so would be a huge waste of time and resources and would give Trump the power to portray the case as weak.
If the grand jury does not vote in favor of prosecuting this case as a felony, the prosecutor may be directed to file a misdemeanor case instead.
Is the case a slam dunk legally?
No. The previous district attorney's office, led by Bragg's predecessor, Democrat Cy Vance, had previously conducted a thorough investigation into the false business records charge (and its limitations). According to sources familiar with the investigation, Vance even hired outside lawyers to examine the legal issues involved but ultimately decided not to pursue prosecution. Many legal experts considered it a gamble at the time, and many still do.
If the grand jury issues an indictment, the prosecution's theory about the aforementioned "second crime" will be crucial. Is it a crime? Some have speculated that Trump could face a conspiracy charge under New York law, claiming that he and others conspired to keep the affair hidden until the 2016 election.
Others have speculated on the possibility of a federal campaign finance violation. That is what Michael Cohen pleaded guilty to in 2018, along with other charges stemming from an investigation led by the United States Attorney's Office for the Southern District of New York in collaboration with the FBI and the IRS.
However, state prosecutors potentially linking their case to a federal crime is regarded as legally risky and untested territory. With no solid legal precedent on the table, prosecutors are betting that a judge or an appellate court will overturn the former president's charge or conviction.
What would be Trump's legal defense in court?
Trump has portrayed the investigation as politically motivated because Bragg is a Democrat, but his lawyers' arguments in court will most likely differ and may hinge on Trump's intent at the time the payments were made.
A jury in New York must find "intent to defraud" in order to convict on a false business records charge. Trump's lawyers may argue that there was never any intent to defraud the Trump Organization — he is the company.
On Monday, Trump suggested on Twitter that even if a crime had been committed, the statute of limitations would have expired by now. However, this is unlikely to be a major sticking point.
A felony charge involving false business records normally requires an indictment 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 most likely a hurdle that the prosecution can overcome if the case proceeds.
Trump's lawyers may also use Pomerantz's book to support their case. Because Pomerantz explains the potential legal issues with bringing a successful false business records case, Trump's attorneys may argue that even an insider didn't believe the case was strong enough to prosecute.
Is prison time a possibility if Trump is indicted and convicted?
Yes. Falsifying business records in the first degree is a low-level felony punishable by up to four years in prison. In reality, it's unclear whether Bragg would advise Trump to serve time in prison. If convicted, a judge would determine 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 for years, referring to him in court papers as "Individual-1" when discussing campaign finance violations.
However, the current Justice Department policy of not indicting a sitting president complicated matters.
According to a book written by CNN's Elie Honig, which cites multiple sources, federal prosecutors considered charging Trump after he left office but ultimately decided against it. According to Honig, the case was not considered a "slam dunk."
So why is this happening now?
According to Pomerantz, the Stormy Daniels investigation was dubbed the "zombie" case within the district attorney's office because it would die only to be resurrected several times over the years.
Because Bragg's position is an elected one, some have argued that moving forward with a Trump prosecution could help his re-election chances, while others have argued that if Trump did break the law, Bragg has a duty to bring the case and assure the public that no one is above the law.
If Trump is indicted, what happens next?
In most cases, the prosecution would instruct the grand jury on the charges and the law before the jurors voted. The grand jury is usually composed of 23 people, and at least 16 of them must be present to vote, but the decision does not have to be unanimous.
If 12 members of the grand jury vote to indict, the prosecution will draft an indictment, which will be signed by the jury foreperson. The indictment is filed under seal with the court, so the public will not see it at first.
Once the indictment is filed, the prosecution team will typically contact the defense attorneys to schedule a time for the defendant to voluntarily appear in court.
Regardless of Trump's social media post on Saturday implying that he would be arrested soon, a Trump spokesperson said that his attorneys have yet to be informed of any charges.
According to sources familiar with the district attorney's office, if the case proceeds as other high-profile cases have in the past, and Trump turns himself in, he could be processed somewhere within the office.
Paperwork, fingerprinting, a mug shot, and a cross-check of any outstanding criminal charges would normally take place behind closed doors. Soon after, he would be arraigned in court in front of a judge on the charge (or charges).
That would be open to the public. At that point, Trump or his attorney would enter a plea on his behalf, and he would be released with another court date. Given the nature of the charges, Trump would not be required to post bail.
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