The (Possible) Charges Against Donald Trump, Explained

The Manhattan district attorney’s case likely would rely on tenuous legal reasoning.

By
48
Former President Donald Trump speaks with reporters in March 2023. (Photo by Jabin Botsford/The Washington Post via Getty Images)

[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.

Create a free account
Access additional articles and newsletters for no cost, no credit card information needed. Continue ALREADY HAVE AN ACCOUNT? SIGN IN
48
By
Comments (48)
Join The Dispatch to participate in the comments.
 
  1. Michael M

    Check out Sarah and David’s Mea Culpa on this then rethink.

    Collapse
  2. Avatar photo
    Todd T

    So updating a week old essay isn’t a hot take? This is your vehicle for comments at the Dispatch? I vote for Nick and Jonah to get their Corneresque platform. Discuss.

    Collapse
  3. R. James

    Fulton County really should've gone first. The strongest case imho.

    Collapse
    1. Avatar photo
      Rajeev

      I think that would've looked like collusion. The other cases may be more serious crimes but if they had all happened and then this one it might've felt the opposite way like tacking on with a kitchen sink approach.

      Collapse
    2. Retired Prosecutor

      I agree this is not a good case. Fulton County is good, or even better, obstruction on the classified documents search at Mar-a-Lago.

      Collapse
      1. Matt Stanley

        I think it is more accurate to say that the publicly available information suggest this is a weaker case (and the charges are certainly less grave) than FC, J6, or confidential docs.

        I’m trying to reserve judgment on Bragg’s actions until the trial plays out. If he doesn’t have anything stronger than what is known, I expect I’ll find myself on “team overreach”. If he has something substantially stronger than what is publicly available, it’s likely I’ll be supportive of the indictment. For now, I know too little to pass judgement. Tepid take, I know……

        Collapse
        1. Avatar photo
          Rajeev

          The evidence seems pretty overwhelming. However, it's definitely true that the magnitude of the crime is probably a lot less than it is being charged because of the connection between the charges. The reality is though Trump tried this for decades to evade justice so I have no sympathy for him. Especially when he is by far the favorite for the Republican nomination and this will help him a lot in a primary.

          Collapse
  4. Avatar photo
    CP

    These idiots. Prosecuting someone on dubious legal grounds will make him seem like more of a martyr and will unite the culture warriors who were drifting towards DeSantis—who isn’t good, but is the lesser of the two evils. Once again, the Left has made a Trump nomination inevitable.

    Collapse
    1. Avatar photo
      Mister D

      I might be wrong, but my sense is the Trump loyalists remain loyal. I don't know that anyone is putting their lawn signs back up for Trump, but those that have kept them up for more than 2 years now will likely keep them there and probably would have anyway.

      Collapse
    2. Retired Prosecutor

      It’s an amazing pattern. Trump breaks all the norms and then his opposition always follow suit. The other potential prosecutions offer more promise, but the need to “get him” in any way possible outweighs any prudential legal concerns. This gambit may in the end strengthen Trump politically. And politicizing the criminal justice system can be turned around to those who have started the process.

      Collapse
    3. Dan P.

      Agreed. And I halfway wonder if that’s the point—though they again risk overplaying their hand, in the event of a Joe Biden health scare or, heaven forbid, something worse.

      Collapse
  5. Avatar photo
    Chris Babcock

    So, as I think of this case, I've found it useful to frame it by a metric I call "The Al Capone Problem."

    The Al Capone Problem goes like this. It is undoubted that Al Capone is responsible for a number of grave illegal acts. It is also well established that no prosecutor will be able to charge him for these acts because he is known to have subverted the system - scaring or bribing jurors. What should we do? It seems we have three choices: (1) do nothing; (2) let Eliot Ness walk up to Al Capone and shoot him dead without trial; or (3) find a charge that does not need witnesses and that is not at all related to why we believe Al Capone should be lock up. What should the state do?

    Option 1 shows that the state is impotent. It cannot protect Chicago residents from a person they all know is a murder. Option 2 clearly is an act outside the law - to take this option is to say that "sometimes, the legal system and rules that we rely on break down and in these cases it is better to violate the law than follow it." Option 3 provides us with a facially lawful way to lock up Al Capone; and yet, it relies on expanding the force of law beyond its intended meaning and is clearly a pretext--no one really cares about Al Capone's taxes, and we know it.

    The American way is to go with Option 3. It's in part why "Three Felonies A Day" is a thing--Option 3 has lead to a massive expanse of laws that are easy to prove, but also easy to violate in ways that do not violate society's overall view of morality. (A - "society's view" is a terribly fuzzy term but this is an internet comment, not a thesis. Please bear with me. B. I highly recommend William Stuntz's book "Collapse of American Criminal Justice" which shows how by having a Constitution with high procedural standards of protection we ended up with overbroad laws relying only on prosecutorial discretion to protect most citizens.)

    This case to me, seems very much in line with Option 3. We can analyze the strength of the case, but at the end of the day, it's a method of restraining a bad actor who has learned how to exploit the system to prevent his restraint. I think it is a mistake to analyze this or treat these charges like an ordinary act. It is universally known that Donald Trump is willing to use non-constitutional means to try and claim power. Standing down and risking that he succeeds is civic suicide, and using extra legal force seems improper. Accordingly we stretch the system to stop the threat.

    Is it the right choice? Part of me worries about the tradeoffs here; but I worry about them as a tradeoff that has been made, not a new precedent set by this case.

    Collapse
  6. Avatar photo
    Andy Napoli

    I cannot understand the timing here. Is Bragg running up against the statute of limitations, accounting for the time Trump spent out of state as President? Why wouldn't Bragg just file his charges AFTER the other, far more important, indictments are filed (if any)? If Bragg wants to pile-on after Trump's already been charged more than once for more important things, I don't think I'd care.

    Collapse
    1. R. James

      Bragg already passed on these charges once and was facing internal pressure to seek an indictment. Possibly he also wanted to beat Fulton County to the punch.

      Collapse
    2. Avatar photo
      Stephanie

      Actually he hasn't brought any charges.

      The grand jury is still investigating. They'd have to wrap up and then vote on recommendations to bring indictments (or not).

      Collapse
      1. R. James

        Indictment filed today. Charges will be unsealed next week at the arraignment.

        Collapse
        1. Avatar photo
          Stephanie

          I find it hard to feel strongly about this. There are so many other legal cases pending, with much more at stake.

          Collapse
  7. Avatar photo
    Show Jay Janney the 🚪!

    I think the cost of alimony (should Melania leave him) would be substantially more than the $130k, hence he'd have pure financial motives to pay the hush money. Can he convince one juror that the personal reason was relevant?

    I also think tying anything to political campaigns leads into some future prosecutions by grandstanding DAs. Suppose a future POTUS candidate gives money to the campaign of someone who later endorses him, who also becomes aware of a hush money allegation. What's to stop an illegal campaign contribution charge then?

    I think going after Trump for a misdemeanor (falsifying business records) is sufficient, and, based on what I've read, merited. Beyond that is grandstanding.

    Collapse
    1. Avatar photo
      Chris Babcock

      One the other hand, wouldn't it be a better world if prosecutors could make a career throwing former presidents in jail? What if fraudsters and hucksters knew they'd be jailed so never ran? Imagine if the Clintons and the Trumps of this world were told that we don't want their kind in the White House!

      Collapse
    2. Avatar photo
      Andy Napoli

      I agree with your last statement 10000 percent. I don't understand why Bragg wouldn't just file a misdemeanor charge and leave it at that. PEOPLE GET ARRESTED FOR MISDEMEANORS!

      Collapse
      1. Avatar photo
        Iwasacrookedlawyer

        The misdemeanor for false business record would survive any dismissal of the enhancing charge on the campaign law. The remaining charge could proceed to a verdict. Conviction on the simple misdemeanor alone would be unlikely to result in incarceration IMHO. Prosecution will be viewed as a failure by many in that event.

        Collapse
        1. Avatar photo
          Andy Napoli

          I am trying to look at this through the lens of Bragg. If he's an elected official trying to please an angry, progressive voter base, nailing Trump on a misdemeanor for a "false business record" in theory should still help Bragg:

          (1) It would mark the very first time Trump had ever been personally charged (or convicted) for a crime (to the best of my knowledge). That's first blood for progressives and Never Trumpers (like me). That's not nothing.

          (2) You still get an arrest, booking, a mug shot, prints, and maybe even a "perp walk." That's not nothing. Being a DA or prosecutor who delivers to his voter base an arrest, mug shot, prints, and a perp walk is a pretty big deal.

          (3) The misdemeanor goes on Trump's permanent record. And because it's a "false business record" charge, it might well harm his access to credit and financing. It will come up every time he seeks a loan, credit, financing, etc.

          (4) Trump being Trump, he would refuse to plead guilty like a normal person and would fight it with everything he's got. Not only does this further bleed Trump's money, energy, focus, etc., but there's a good chance Trump will screw up his defense by being undisciplined, overly aggressive, lying, etc. He might even perjure himself or obstruct justice in the process, opening up a felony charge opportunity.

          (5) When Bragg scores a conviction, despite Trump throwing a kitchen sink defense, what is nothing more than a simple misdemeanor would be portrayed in the media as a crushing defeat for Trump. Trump fighting and losing makes Bragg look like a genius and a hero in the end.

          (6) Trump's bad-faith, incompetence, obnoxious behavior, etc., would likely annoy the judge or jury so badly that they might well give him the maximum possible sentence allowable.

          Seems to me like the obvious and smart play here is to just file charges for the misdemeanor and let Trump hang himself.

          Collapse
          1. Retired Prosecutor

            I was a prosecutor for 40 years and, as a matter of legal ethics, in filing a charge the need to “please a voter base” was never a proper consideration. Weaponizing the criminal law is a dangerous thing that can and will be turned around on those who have done it.

            Collapse
          2. Avatar photo
            Sharon Kersten

            I agree 1000 percent with you, and it makes more sense than I’ve heard in a long time… Trump has always made me sick to my stomach in everything that he says and does… He’s been hanging himself, trampling our morals, which he has none, and somehow gets away with it? He especially is not above the law, and is a Toxic Bully, and Lying Disgrace. I’m trying to hold back…

            Collapse
          3. Avatar photo
            Stephanie

            I like your point #5.

            Re: #2, Trump supposedly wants to have handcuffs, perp walk, the works, in order to splash video all over the internet and raise money.

            I just listened to Preet Bharara's podcast, "Stay Tuned." The latest episode is an excellent analysis and discussion by Preet and 3 other former Federal prosecutors. They all appear on CNN & MSNBC as legal commentators, but this is quite balanced.

            They bring up issues that prosecutors are expert on, so it's complementary to Price's article.

            One thing they all agreed on is that the statute of limitations being tolled is correct and lawful.

            Collapse
  8. Avatar photo
    Bill Dyer (aka Beldar)

    I'm re-posting here a comment I just left on the Dispatch page linking the YouTube Dispatch Live podcast from last night, in which Ms. Isgur et al. discussed many of these same issues, to point out something I think Ms. Isgur knows but neglected to mention, and that Mr. St. Clair's fine essay here neglects to mention as well:

    ====

    I recall Ms. Isgur mentioning the name of DoJ Special Counsel Jack Smith at one point in this podcast as an aggressive prosecutor, and elsewhere there was much discussion of how hard it would be to get a conviction against Trump in the expected NY State prosecution regarding the accounting for the Stormy Daniels hush money, as part of which Ms. Isgur also discussed the unsuccessful attempt to prosecute former Sen. John Edwards (D-NC) for campaign finance law violations.

    But I don't think I heard it mentioned — was it there, and I just missed it? I'm 99.9998% sure Ms. Isgur knows this from her time at DoJ— that the self-same Jack Smith was the prosecutor atop the DoJ's Public Integrity Unit who (1) charged but then failed to convict John Edwards, but (2) decided not to charge or further pursue the federal investigation into former House leadership member Tom DeLay (R-TX). Link: https://www.cnn.com/2022/11/18/politics/jack-smith-special-counsel/index.html

    When AG Garland announced Smith's appointment, I presumed it was in part Garland's efforts, as another old hand and career lawyer at the DoJ (before he was appointed to the D.C. Circuit), to make the best possible institutional use of the knowledge Smith and the Department had gained from the failed Edwards prosecution, which in hindsight was the proverbial "one hill too far":

    Some defendants are guilty, but not — in the real world, and in at least some locations, on at at least some times and on some charges — convictable. And their acquittals after charges have been pursued anyway by prosecutors who've misjudged that convictability do harm to public confidence in the Rule of Law, as the failed Edwards prosecution made the federal campaign finance laws seem even more toothless and ineffective.

    I therefore continue to expect that if Special Counsel Smith secures an indictment of Trump, it will be only on the confidential documents part of his remit, and won't include anything directly relating to January 6th.

    Collapse
    1. Avatar photo
      Sharon Kersten

      OhMyGod, as the stomach churns…I pray that trump is made responsible and accountable? Please, please, please?

      Collapse
    2. Drsterrett

      As far as I can see, there is no "confidential documents part" of his remit:

      https://www.justice.gov/opa/press-release/file/1552896/download

      Collapse
      1. Avatar photo
        Bill Dyer (aka Beldar)

        Good on you for linking that particular source document! I adore source documents.

        In subparagraph (c) of that one, Smith "is further authorized to conduct the ongoing investigation referenced and described in the United States' Response to Motion for Judicial Oversight and Additional Relief, Donald J Trump v. United States, No. 9:22-CV-81294-AMC (S.D. Fla. Aug. 30, 2022) (ECF No. 48 at 5-13) ...."

        That's the confidential documents part of his remit.

        As downloaded by me just now from the Southern District of Florida's PACER Electronic Case Filing system (per the reference to "ECF No. 48," the docket sheet number for this court filing) — and then uploaded to my own blogspace, so that you can view it without incurring PACER's four-bucks-and-change download fees — here's the source document that was cross-referenced in, and thus incorporated by reference (specifically, page numbers 5 through 13) into, Smith's appointment order:

        Link: https://www.beldar.org/2022/2022-08-30_Govt_Resp_to_Trump_Motion_for_Judicial_Oversight.pdf

        It's worth noting — as so many, including most painfully, Andy McCarthy, DIDN'T note or apparently even consider when they were arguing about the Mueller appointment order and the scope of his remit — that such orders can be, and frequently are, amended and expanded without the DoJ issuing a new press release. Such was done, we know from another court filing by the DoJ, as part of the expansion of Mueller's remit to include all of the crimes upon which Paul Manafort was eventually convicted.

        So there may be MORE, or NEWER, parts of Smith's remit than is revealed in this initial order appointing him.

        Collapse
        1. Drsterrett

          Sorry Bill - I read "confidential documents" I thought you were referring to the documents at issue in NY; not the FLA classified documents.

          Collapse
          1. Avatar photo
            Bill Dyer (aka Beldar)

            Yes, I ought have written "classified documents," probably, to avoid confusion. No worries!

            Collapse
  9. F d'Anconia

    WE'RE GOING TO INDICT TRUMP!!!

    So "they" said in 2016, 2017, 2018, 2019, 2020, 2021, 2022 and now 2023.

    This is the most investigated man in US history.

    Silliness, all of it. We deserve better in so many ways...

    Collapse
  10. Avatar photo
    Stephanie

    Thanks for the detail on the convoluted legal theory.

    At some point, I hope we'll get some info on just exactly what was really going on when Bill Barr forced Geoffrey Berman out (SDNY US Attorney when the SDNY was pursuing the Stormy Daniels case & indicted Michael Cohen) and tried to put a tax attorney who was Trump's golf buddy (I think!) into the position. Barr also killed the investigation, and Berman called it political interference, in his book.

    For now, if anyone cares, there is a Vox explainer:
    https://www.vox.com/2020/6/22/21298917/geoffrey-berman-sdny-fired-barr

    This is the case that the Manhattan DA took up.

    Collapse
    1. Avatar photo
      Logical

      Yes. Trump couldn't be indicted as POTUS.

      Garland passed on it. Bragg's prior passed on it.

      Bragg waited, while charging Trump Org and Org CFO for accounting fraud. He won.

      They keep harping on "but...but...this is old....ipso political."

      I don't buy that. Now that Bragg proved in court Trump Org commited fraud, it's time. TD, and most others, omit this critical part and sequence.

      If Bragg can, he should. Na..he must.

      Collapse
Load More