The revelation that the Manhattan District Attorney’s Office has informed Donald Trump’s lawyers that he may soon face criminal charges is a major twist in an investigation that has loomed over the former president for nearly five years.
It also raised a number of questions about the contours of the potential case against Mr Trump, who could become the first former US president to be indicted.
Alvin L. Bragg, the prosecutor, focuses on Trump’s involvement in paying an occult sum to a porn star who said he had an affair with him. Michael D. Cohen, Donald Trump’s right-hand man at the time, made the payment in the final days of the 2016 presidential campaign.
If the facts are spectacular, the case against Mr. Trump would likely rest on a complex set of laws. And a conviction is far from certain.
Here’s what we know, and what we don’t, about the oldest investigation into Mr. Trump.
How did it all start?
In October 2016, during the final weeks of the presidential campaign, porn star Stormy Daniels tried to sell her affair story with Mr Trump.
PHOTO MARKUS SCHREIBER, ASSOCIATED PRESS ARCHIVES
Pornstar Stormy Daniels in 2018
Initially, representatives of Mme Daniels contacted the National Enquirer to offer him the exclusive rights to his story. David Pecker, tabloid editor and longtime ally of Donald Trump, had agreed to be on the lookout for potentially damaging stories about him during the 2016 campaign, and at one point even agreed to buy the story of another woman’s affair with Donald Trump and never publishing it, a practice known as catch and kill (“catch and kill”).
But Mr. Pecker didn’t buy Mr.’s story.me Daniels. Instead, he and tabloid editor Dylan Howard helped broker a separate deal between Mr. Cohen and Mr.me Daniels.
Mr. Cohen paid US$130,000, which Mr. Trump then reimbursed by the White House.
In 2018, Mr. Cohen pleaded guilty to a number of charges, including federal crimes related to campaign finance involving hidden money. The payment, federal prosecutors concluded, amounted to an ineligible donation to Trump’s campaign.
Days after Mr. Cohen pleaded guilty, the prosecutor’s office opened its own criminal investigation into the case. While federal prosecutors focused on Mr. Cohen, the prosecutor’s investigation focused on Mr. Trump.
What could Donald Trump have done wrong?
When he pleaded guilty in federal court, Mr. Cohen pointed to his boss. According to him, it was Donald Trump who ordered him to pay Mr.me Daniels, a claim that prosecutors later corroborated.
PHOTOJEFFERSON SIEGEL, NEW YORK TIMES
Me Michael D. Cohen (right) was former President Donald Trump’s right-hand man at the time of the alleged events.
Prosecutors also raised questions about Mr. Trump’s monthly reimbursement checks to Mr. Cohen. They said in court papers that Mr. Trump’s company had “falsely accounted for” the monthly payments as legal fees and that the company’s documents showed a fee contract with Mr. Cohen. Although Mr. Cohen is a lawyer and became Mr. Trump’s personal attorney after taking office, there was no representation contract, and the reimbursement had no relation to the legal services provided. by Mr. Cohen.
Mr. Cohen said Mr. Trump knew about the fake representational contract, a charge that could form the basis of the case against the former president.
In New York, falsifying business documents can be a crime, even if it is a misdemeanor. For the charge to become a felony, Mr. Bragg’s prosecutors must show that Mr. Trump’s “intent to defraud” included an intent to commit or conceal a second crime.
If so, that second crime could be a violation of New York State election law. While bribes are not per se illegal, prosecutors could argue that the US$130,000 payment actually became an ineligible donation to Mr. Trump’s campaign, under the theory that he benefited his candidacy because he reduced Mme Daniels silenced.
Will the case be difficult to prove?
Even if Mr. Trump is indicted, it will be difficult to convict him or send him to prison. On the one hand, Mr. Trump’s lawyers are sure to attack Mr. Cohen’s credibility by citing his criminal record.
On the other hand, the accusation against the former president is probably based on an untested and therefore risky legal theory, involving a complex set of laws.
Combining the charge of falsifying business records with a violation of state election law would be a novel legal theory in a criminal case, let alone against the former president, raising the possibility that a judge or court appeal dismisses the case or reduces the serious offense charge to a minor offence.
And even if the charge is upheld, it is a low-severity offence. If Mr. Trump is ultimately found guilty, he would face a maximum sentence of four years, although jail time is not mandatory.
How did prosecutors make it known that prosecution was likely?
Prosecutors from the U.S. Attorney’s Office recently informed Mr. Trump’s lawyers that he could face criminal charges.
They did so by offering him to testify next week before the grand jury that is gathering evidence in the potential case, people with knowledge of the case said. Such offers almost always indicate that an indictment is near; it would be unusual for prosecutors to inform a potential defendant without seeking to charge him.
In New York, potential defendants have the right to answer grand jury questions before being charged, but they rarely testify, and Mr. Trump is likely to decline the offer.
Will Donald Trump definitely be charged?
It is still possible that Mr. Trump will not be charged. Mr. Trump’s lawyers could speak privately with prosecutors in the hope of avoiding criminal charges.
Although Mr. Bragg’s prosecutors have already questioned at least six other people before the grand jury, they have not finished presenting the evidence. Mr. Cohen, for example, has yet to appear before the grand jury.
PHOTO: SARAH BLESENER, NEW YORK TIMES ARCHIVES
Manhattan District Attorney Alvin Bragg Jr.
Prosecutors will then have to present the charges to the grand jurors, who will vote on an indictment.
By then, Mr. Bragg could decide to brake with four irons. At present, however, this seems unlikely.
What did Mr. Trump say in his defense?
Mr Trump called the investigation a “witch hunt” against him, which began before he became president, and called Mr Bragg, who is black and a Democrat, a politically motivated “racist”.
This article was originally published in the New York Times.
