[UPDATE:, March 30, 2023: A Manhattan grand jury voted to indict former President Donald Trump Thursday, according to multiple published reports. The exact charges are unclear and will likely remain sealed for several days.]
A New York grand jury is considering indicting former President Donald Trump. Reporting suggests Manhattan District Attorney Bragg will make a circuitous argument that hush money paid to porn star Stormy Daniels in the weeks leading up to the 2016 election constituted an improper political donation.
If Trump is indicted, what challenges might lie ahead for the prosecution?
The possible charges.
The potential indictment looks to be centered around Article 175, Section 10 of the New York state penal code: falsifying business records in the first degree, a low-level felony punishable by up to four years in prison. (Trump, however, would not necessarily be sentenced to prison if convicted.)
To qualify as a violation of this law, a crime must first rise to the level of falsifying business records in the second degree, which generally involves making a false “entry” in a business’s records or removing a true entry “with intent to defraud.” On its own, this second-degree falsification would be a misdemeanor.
Prosecutors will likely argue Trump committed this kind of falsification when he paid attorney Michael Cohen for “legal services” that weren’t actually legal services. Instead, they were reimbursement for payments Cohen made to Daniels to keep her quiet about her alleged affair with Trump. (In 2018 Cohen pleaded guilty to a bevy of federal charges, including campaign finance charges stemming from the hush money payments, and was sentenced to three years in prison.)
To be considered falsification in the first degree, and thus a felony, the crime must include “an intent to commit another crime or to aid or conceal the commission thereof.”
On the logic that keeping Daniels’ story under wraps was beneficial to Trump’s presidential campaign, Bragg could say the hush money Trump paid to her through Cohen was an illegal campaign contribution to himself—qualifying as the other crime needed to bump the charge to a felony.
But federal campaigns are largely governed by federal law, making the questions of which campaign finance laws Trump might have broken—and whether a New York district attorney has the authority to prosecute him for breaking them—murky.
Because the alleged criminal action—Trump’s reimbursement of Cohen—dates back to 2017, the statutes of limitation for the felony (five years) and the misdemeanor (five years) would have both run out already—except that periods of time in which the defendant was continuously out-of-state don’t count against the clock in New York.
Preemption problems.
Bragg could run into thorny issues related to “preemption”—the idea, rooted in the supremacy clause in Article VI of the Constitution, that federal law displaces state law when they come into conflict.
On one hand, if he were to allege that the second crime was a violation of federal election law, he would essentially be giving a New York jury the ability to decide whether a federal crime was committed—a newfound power that the federal government likely wouldn’t be too keen on yielding to the state. And using federal election law as a tool to enforce the New York penal code might be a tough sell for a state judge if the case goes to trial.
On the other hand, if he were to rely on state election law, he could risk trespassing on federal legal territory by claiming jurisdiction over an area—federal elections—that Congress has already comprehensively covered.
“The idea of state law coming in and having different rules than what Congress has adopted could be inconsistent with preemption,” said Edward Foley, the director of the election law program at the Ohio State University.
Preemption can be complicated—states are typically allowed to adopt environmental regulations that go beyond federal law, for example—but using federal election law as a tool to enforce the New York penal code might be a tough sell for a state judge if the case goes to trial.
The purpose of the payments.
The argument that the hush money payments violated election law also requires prosecutors to prove Trump’s motives in making the payments, not just establishing the fact that he made the payments.
“Usually, criminal law governs intent—like you intended to kill somebody, you intended to rob them, you operated your car recklessly,” said Robert Leider, a law professor at George Mason University. “It does not usually govern motive.”
While intent “means conscious objective or purpose,” motive is “the reason why a person chooses to engage in criminal conduct,” according to a resource for New York judges.
In this case, Trump’s alleged record-falsification would only amount to a felony because of the “other crime,” the election law violation. And the payments would likely only violate election law if they were made for the purpose of buoying his election prospects.
Given that Cohen was already convicted for making the payments to influence the outcome of the election, it’s conceivable the same thing could happen to Trump. But his lawyers could also argue that he had a different purpose in mind. In a 2012 federal case, lawyers for onetime Democratic presidential candidate John Edwards successfully argued that his scheme to hide an extramarital affair with donated money was not a campaign finance violation because it also had a non-campaign purpose: keeping the information from Edwards’ wife. Trump’s lawyers could attempt a similar defense.
A piece of hay in a needle-stack?
One of the criticisms of the New York case against Trump is that its political ramifications could obscure the other legal cases authorities are pursuing against Trump. And there are several.
In Georgia, a grand jury has investigated his efforts to overturn the results of the 2020 presidential election in the state, including by calling Gov. Brian Kemp and Secretary of State Brad Raffensperger and asking them to find him extra votes. Fulton County DA Fani Willis has said she hopes to reach a decision on whether to pursue an indictment soon, although Trump’s lawyers have filed a motion to disqualify Willis and throw out the grand jury’s report.
At the federal level, special counsel Jack Smith is looking into Trump’s efforts to interfere with the counting of the 2020 electoral votes on January 6, 2021, as well as his handling of classified documents after his presidency. In the latter case, Chief Judge Beryl Howell recently ruled that Trump’s attorney, Evan Corcoran, must comply with a subpoena to testify before a grand jury.
In light of these cases, commentators across the political spectrum have suggested that Bragg’s tenuous case wouldn’t be the best use of his prosecutorial discretion.
Normally, Leider said, the strong risk of acquittal before a jury would keep a district attorney from bringing “weak charges.” But that may not be the case here.
“We count on various checks and balances within the criminal justice system to keep prosecutors from charging trivial things,” Leider said. “And I think the big thing here is you’re seeing the failure of the ordinary checks.”
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