A Manhattan grand jury voted yesterday to indict Donald Trump. The case relates to his involvement in paying hush money to a porn star to bury a sex scandal in the final days of his 2016 presidential campaign.
There is still a lot we don’t know, including the exact charges. The indictment is under seal and will likely be released in the coming days. Trump has not yet been arrested, a delay that is common in white-collar criminal cases. He is expected to turn himself in on Tuesday and will probably travel to New York from his home in Florida. (Here’s more on what to expect when Trump is taken into custody.)
Regardless, a conviction in this case would not legally prevent Trump from continuing to run for president. An impeachment conviction could have barred Trump from future federal office, but the Senate acquitted him in both of his trials there.
Trump continued to paint the case as partisan and biased last night. “This is political persecution and election interference at the highest level in history,” he said in a statement. He has long feared the possibility of being arrested, according to my colleague Maggie Haberman. Today’s newsletter will explain the allegations against Trump, why some legal analysts applaud the charges but also why even some of his critics worry about the potential consequences of an indictment.
What’s in the case?
Even though the indictment is still under seal and the specific charges remain unknown, reporters have learned the broad strokes of the investigation.
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One possibility is that the Manhattan district attorney, Alvin Bragg, is combining state laws to accuse Trump of falsifying business records. The prosecution would focus on Trump’s reimbursements to his lawyer at the time, Michael Cohen, for the $130,000 payment to the porn star, Stormy Daniels.
A charge of falsifying business records is common in white-collar cases. The unusual part of the charge would be how it’s elevated to a felony from a misdemeanor. In New York, falsifying records can rise to a felony if the fraud helped commit or conceal another intended crime.
In this case, Bragg could argue that Trump falsified records to cover up the hush money in the final weeks of the 2016 race, potentially making it an illegal campaign contribution. Supporters of Trump’s prosecution argue that a successful conviction would show that no one, not even a president, is above the law. “If the rule of law is to be applied equally — & it must — it must apply to the powerful as it does to everyone else,” tweeted Representative Adam Schiff, a California Democrat.Prosecutors try creative tactics all the time, and sometimes they work. But some experts worry that a case involving a former president is not the time for creative tactics. “Is this really the case where you want to be stepping out on a limb legally or factually in your charges, given the weight of this politically, socially, culturally and for democracy?” said Rebecca Roiphe, a professor at New York Law School and a former prosecutor.
Is there precedent?
Presidents have gotten in legal trouble before. Many historians believe Richard Nixon would have been charged over the Watergate scandal had his successor, Gerald Ford, not pardoned him. And Bill Clinton, in a deal to avoid prosecution after he left office, admitted to lying under oath about his affair with Monica Lewinsky, paid a fine and agreed to give up his law license.
Trump also faces other investigations — into his involvement in the Jan. 6 attack on the U.S. Capitol, his efforts to overturn the 2020 election and his handling of classified documents.
There is also one less serious example of a president being arrested: A Washington, D.C., police officer arrested Ulysses S. Grant in 1872 for speeding in his horse and buggy before letting him go.
Will it stick?
Creative legal tactics are inherently risky. Courts typically draw on past cases to decide current ones. But Trump’s case is the first of its kind, both in terms of charging a former president and potentially attempting a new legal strategy.
It also has weaknesses. In 2012, federal prosecutors dropped charges against John Edwards, a former Democratic presidential candidate, after jurors voted to acquit him of one charge and deadlocked on others. In that case, prosecutors argued Edwards violated federal campaign finance laws to pay for a scheme to cover up an affair. The jury evidently did not believe there was enough evidence to tie Edwards to the scheme.
In Trump’s case, some conditions do favor the prosecution. It will come before a judge and jury in a very Democratic city. And the judge who is expected to preside over the case, Juan Merchan, previously oversaw the conviction of Trump’s family business.