Former President Trump could face a wide variety of charges if he is indicted in connection with an investigation by Manhattan District Attorney Alvin Bragg (D) over his role in organizing hush-money payments to an adult-film star.
Trump has said he expects to be arrested soon in the probe, which comes after his fixer, Michael Cohen, made a $130,000 payment to Stormy Daniels shortly before the 2016 election as she was prepared to go public with a story about her sexual relationship with Trump — an affair he denies.
Hush-money payments themselves are not illegal. But it’s the manner in which Trump and Cohen concealed the payments that resulted in jail time for Trump’s former attorney and could also mean legal trouble for Trump himself.
Cohen used a home equity line of credit in order to pay Daniels, making the payment shortly before the 2016 election to quash a story alleging an affair a decade earlier.
Trump reimbursed Cohen in monthly installments couched as payments for legal services, and it was never disclosed as a campaign expense.
The arrangement spurred federal prosecutors to go after Cohen, who pleaded guilty and ultimately served jail time on charges related to campaign finance violations as well as tax fraud.
Bragg picked up the case after the Justice Department declined to prosecute Trump while he was in office, pointing to internal guidance limiting prosecuting of a sitting president. Bragg’s prosecution would rely on state statutes.
“That seems unfair, right, that Cohen went to prison for something that he was directed to do and the actual ringleader in this case would escape any prosecution,” said Joshua Stanton, an attorney with Perry Guha, who recently penned an analysis of the case.
“At the state level, though, there are more factual and legal risks.”
Legal observers suggest an indictment of Trump would likely focus on charges of falsifying business records, but bumping that up from the misdemeanor to a felony could prove difficult.
A felony charge requires a connection to a second crime and would augment the maximum jail time from one year to four years.
State laws prohibit making “a false entry in the business records of an enterprise” — something Trump and Cohen may have violated by claiming the payments were for legal services that were never rendered.
It’s not an uncommon charge by New York prosecutors.
A review of 15 years of criminal cases found the statute has been used in a variety of cases where business owners falsified records in an effort to dodge taxes, gain workers compensation or obtain unemployment benefits.
In January, Bragg’s office indicted a carpentry company owner on the felony charge by connecting the allegedly falsified records to insurance fraud and conspiracy charges.
But attempting to upgrade falsification of business records to a felony by connecting the hush-money payment to Cohen’s campaign finance violation — a federal crime — would get into tricky territory for a local prosecutor.
Though Cohen pleaded guilty to making excessive campaign contributions — a sign the Justice Department viewed the payment to Daniels as a campaign expense — connecting them to this case would kick off wrangling over whether any federal campaign violations could be considered an “offense” under New York law.
“I don’t see it as a concern because the statute does not require that it be a state crime. It just says intent to commit another crime,” said Anna Cominsky, director of New York Law School’s Criminal Defense Clinic.
Bragg has a number of state statutes, like state tax and campaign finance laws, at his disposal for a potential prosecution of Trump.
If he pursues the tax route, Bragg would likely look to see if Trump took a tax deduction on the reimbursements by deeming them a legal expense.
Manhattan District Attorney Alvin Bragg exits the courtroom after the jury found the Trump Organization guilty on all counts in a criminal tax fraud case, Tuesday, Dec. 6, 2022, in New York. (AP Photo/Julia Nikhinson, File)
“If that was taken as a deduction as a business expense for paying legal fees by Donald Trump, that could be false statements on his taxes. We don’t know all the facts on that, but that might be actually easier to prove than some of the campaign finance offenses,” said Noah Bookbinder, president of Citizens for Responsibility and Ethics in Washington, which penned a memo on a potential prosecution.
Pursuing a felony through state campaign laws could present other complications. State campaign finance laws are preempted when federal campaign finance provisions apply.
While state law bars any evasion of campaign contribution limits, using those statutes is not straightforward, as another campaign finance statute deems that they “shall not apply to any candidate” when they are also required to file statements at the federal level.
That leaves a statute barring “conspiracy to promote or prevent election,” something experts say Trump may have violated, as well as a catch-all statute in New York code for election violations “not specifically covered” elsewhere.
“The trick here is that we’re guessing,” Cominsky said of the potential charges. “We don’t know what has actually been presented to the grand jury.”
Bookbinder said without seeing the evidence, it’s difficult to know whether tax or campaign charges provide a better pathway. Still, he noted Bragg’s slow and steady pursuit of the case suggests he wouldn’t move forward without carefully weighing each of Trump’s possible defenses.
“It seems like there were federal criminal offenses. The Department of Justice didn’t pursue them, in part because you had Attorney General Bill Barr who was doing a lot of things that served Donald Trump’s interests,” he said.
“So you have the Manhattan D.A. coming in and trying to figure out if there’s something here that can be brought at the state level. And that’s where we’re having to do a fair amount of guesswork. My general feeling is that he wouldn’t be going forward unless he had really good evidence to sort of overcome the defenses on at least one of those theories.”
Trump has dismissed the validity of any potential charges brought against him, writing repeatedly on his social media site that “THERE WAS NO CRIME!!!”
“There was no ‘misdemeanor’ here either,” he said in another post.
Although convening a grand jury suggests Bragg’s office is eyeing a felony, it is possible that Bragg could settle on just pursuing misdemeanor charges for Trump.
If the grand jury finds there wasn’t enough evidence for the felony, they could also direct Bragg to file a misdemeanor instead.
Stanton pushed back on the idea from some commentators that “you shouldn’t just charge Trump with a misdemeanor.”
“Even if it is just a misdemeanor in the end, this is still a big deal. Because like, that’s the thing that most people get charged with in the criminal legal system,” he said.
“I don’t think it’s reasonable to say, ‘Oh, that’s political retribution.’ Or like, ‘This must be politically motivated just to charge him with a misdemeanor.’ I’d say it’s exactly the opposite. It would be treating him differently not to charge a misdemeanor when anybody else, when there’s evidence beyond a reasonable doubt that they committed a misdemeanor, gets charged.”