Trump (per usual) is all over the news. This week we asked our Civics reporter, Felipe De La Hoz, some questions about the charges against the former president to help us really understand what’s going on, what we can expect to happen going forward.
Exactly how did Trump break the law?
The charges themselves, as you probably know by now, are relatively complicated. We tend to think of a felony state criminal charge as something more or less straightforward: you steal something, sell a controlled substance, evade taxes. There’s a clear action that’s criminalized, and a person is charged for committing that action, and this case is no different except for the obvious notoriety of the defendant and the fact that the main issue at play — Donald Trump’s decision to pay porn actress Stormy Daniels $130,000 to not disclose their earlier alleged affair in the run-up to the 2016 presidential election — is not really the crime itself.
Let me explain: the payment of the so-called hush money itself is not illegal. Paying someone for their silence is generally allowed, but what makes this an alleged crime is the way the payment was made and recorded. Specifically, former Trump attorney Michael Cohen (who was already himself convicted for his role in this same scheme) paid Daniels $130,000, and then Trump allegedly reimbursed and compensated him with $420,000 total in payments that were falsely described as fees for legal work.
Cohen pleaded guilty in 2018 to a federal charge for excessive campaign contribution on the argument that the original payment itself was functionally an undeclared and unlawfully high campaign contribution, given that it was explicitly to keep the story from becoming a campaign issue. The charging of Trump, however, is under state law and only incidentally involves the campaign finance issue; instead, the charges involve falsification of business records, given that, per Manhattan District Attorney Alvin Bragg, the payments to Cohen were misreported as being for legal services when they were really to pay him for having made the payment to Daniels.
The statute requires not only that the records be falsified, but that this be done with “intent to defraud,” a hazy standard that has been the subject of much discussion over the last few days. One of the main misconceptions is that this requires an intent to commit financial fraud, i.e. reap some sort of financial benefit from the falsification. Yet that’s not what the statute requires, merely that the falsification be made with the intent of concealing material facts from people like tax authorities and auditors for some reason.
What upgrades this from a misdemeanor to a felony is if that reason is to conceal another crime, and that’s what Bragg is alleging Trump did. Therefore all 34 charges he’s been hit with are felony charges, because in each case Trump is alleged to have falsified records in order to conceal a separate crime. As things stand right now, one of the most significant questions is what exactly this other crime is. There’s a lot of back and forth about whether the federal campaign finance violations that Cohen had already been convicted of can be invoked in this state-level felony, though Bragg alluded rather vaguely to the possibility that they might actually be looking at some state-level election crimes that remain unknown. In any case, what exactly these other crimes are will have a big bearing on the strength of the case.
Why are there 34 charges?
This is an interesting question, and it appears to be a peculiarity of New York law in particular. As a defense attorney recently told me, a similar case in a federal setting probably wouldn’t have the 34 violations separately listed, because ultimately each charge is basically for the same thing: falsifying business records with intent to defraud. Yet each time that a record was falsified — 11 checks written for supposed legal expenses, 11 invoices submitted by Cohen, and 12 entries into business ledgers — is being included as a separate count in the indictment, which is standard practice for this particular type of law. So while every falsification ultimately relates to the same set of circumstances, the concealment of the hush money payment to Daniels, every falsification is being charged as its own crime, enhanced to a felony due to the concealment of another crime.
What happens next?
Now that the arraignment is over and Trump has pleaded not guilty to all counts, the case will presumably go to trial. The prosecution must now hand over to the defense the evidence it has compiled, including interview transcripts and documents, as part of the process known as discovery. This will allow the defense to prepare their defense. It will likely be a relatively voluminous file given that Bragg’s office has been investigating this case for about five years. As we mention above, the prosecution will have to establish not only that certain documents were falsified — really the easiest part of this, as they have the documents themselves, as well as Cohen’s and others’ acknowledgement that the payments were not for legal fees but for the Daniels payment — but why they were falsified, and prove Trump’s intent.
The case going to trial also means that, down the line, and before the trial can actually get underway, the parties will have to go through jury selection, which will probably be a bemusing process from the outside and bewildering one from the inside. Last year’s selection of the jury for the Trump Organization’s tax fraud trial, which didn’t even involve Trump personally, was already a relatively tall order, and finding 12 people and six alternates in Manhattan who can credibly claim to approach this case with a totally open mind to consider the evidence impartially is not going to be easy.
Before that, though, the next court date on the calendar is for December 4, which is the next time Trump is actually slated to be in the courtroom. On this date, Judge Juan Merchan will rule on motions in the case, which will almost certainly include a motion to dismiss by the defense. This motion is relatively unlikely to be successful.
Who are the players from a legal side?
Obviously Trump is the defendant, and he has a legal team made of the sort of high-priced white collar defense lawyers you would expect. This article from USA Today has a good breakdown of his legal team, including attorneys who had already been involved in prior Trump-orbit defense, including the Trump Organization and cases involving allies like Paul Manfort. On the other side is Bragg, a former federal prosecutor and state chief deputy attorney general who became Manhattan’s first Black district attorney, succeeding Cy Vance on Jan. 1, 2022 after winning contested primary and general elections in 2021.
Like any Manhattan D.A., Bragg has had controversies of his own, including efforts to stop prosecuting low-level offenses like fare evasion, which prompted absurd calls from people like GOP congressman and then-gubernatorial candidate Lee Zeldin for Bragg to be removed from his post, which a governor is technically empowered to do. Bragg also faced controversy from within his own office, most notably when two prosecutors in his office publicly resigned after expressing frustrations about Bragg’s supposed reluctance to move forward with indictments against Trump.
On the bench is Judge Merchan, a Colombian-born immigrant who grew up in Jackson Heights, Queens, and has served as an acting State Supreme Court judge since 2009 (remember that, oddly, New York calls its lower courts Supreme Courts, with the higher division being the Court of Appeals). Merchan served as an assistant district attorney in Manhattan and worked with the state attorney general’s office before moving to the bench.
We love the diversity of it all. Seems his worst nightmare. Thoughts on how their (our) identities might manifest in seeking law and order?
I assume you mean people like Bragg and Merchan, who are going to be intimately involved in the legal proceedings. I think the question now is less how their identities will affect their own process and more how they’ll affect Trump and the defense. Actually, we don’t need to speculate much, as Trump has already predictably launched into some of his racially charged ravings about the two, including calling Bragg an “animal” in a since-deleted post on his Twitter-knockoff Truth Social platform.
He has attacked Merchan as being a “Trump Hating Judge” (with his typically idiosyncratic capitalization and tenuous grasp of grammar and syntax) and insinuated that the fact that his daughter seems to have been involved in some Democratic causes means that he can’t be impartial. Merchan warned Trump on Tuesday about continuing to try to gin up outrage and attacking the judge and the prosecutors, only for Trump to continue doing so right after the hearing, raising speculation that Merchan might issue a so-called gag order actually barring him from continuing to talk about the trial as it moves forward.
Why will it take a year or more for a trial?
It’s not clear yet when a trial would actually take place, but at minimum the prosecution must turn over all the evidence for the defense to review, which could take some two months, and then the defense must have time to review the materials and file motions, with those motions being ruled on at the aforementioned December hearing. After that, presuming the case is not dismissed, it will take some time to move forward, with the defense probably insisting it will need more time to prepare and antecedent processes like jury selection likely taking up more time than they normally would. Obviously, this all means that this trial may very well be ongoing right in the middle of the 2024 primary season, which will certainly lend an interesting dimension to the whole spectacle.
A lot of people who don’t support Trump (i.e. Mitt Romney) are saying the charges are political. What’s up with that?
These defenses are themselves political. It’s important to note here that there are, basically, three distinct camps of people who don’t think Bragg should have brought the charges. Let’s take each one at a time:
- Case too complicated/insignificant/unwinnable — these are people who don’t necessarily agree that Trump shouldn’t be criminally charged as a general principle, but believe that this specific case, with all its particularities, questions of intent, legal uncertainties, and relatively small-bore allegations in comparison to the totality of crimes and wrongdoing Trump is accused of, was not worth bringing. This group typically believes that Trump should have been charged first with one of the more serious crimes he is being investigated for.
- Sets bad precedent — these are people who aren’t grappling with the particulars of the case or even the figure of Trump himself, but argue that the criminal prosecution of any former president for practically any reason is a bad precedent, as it will presumably open the floodgates for routine prosecutions on political principle. These arguments are often countered by pointing out that nations like South Korea have prosecuted former heads of state and their democracies have not collapsed.
- “Witch hunt” — this camp is probably the most politically motivated of the three, and it holds that Trump is being specifically targeted here with basically made-up charges as political retaliation. This group doesn’t believe that it is inherently bad to charge a former president (a good number of them would probably be all too happy to investigate Obama), nor are they concerned about the technical difficulty of winning the case, but are arguing that the charges themselves are essentially a pretext to get Trump.
Romney is closest in position to this third camp, and the simple reason for that is that, setting aside the divisions within the Republican party, Trump remains a pretty popular figurehead among a significant portion of the GOP primary base. That’s why Florida Governor Ron DeSantis, who is currently running against Trump for the 2024 nomination (he hasn’t formally announced, but everyone knows he is) has been so vocal in defending Trump in this particular instance, even as Trump attacks him. It is a political calculation.
In the near future, officials in Georgia might also file charges against Trump. Can you remind me what that’s about?
We’re getting a little long-winded here so I won’t get into granular detail about what’s going on here, but very basically, this investigation centered on Trump’s effort to change the 2020 presidential election results in Georgia, a state that helped hand the victory to President Joe Biden. You’ll notice I’m not even bothering to say the “alleged effort,” because there’s literally a recording of a phone call Trump made to Georgia Secretary of State Brad Raffensperger where the then-president told the state official to “find” enough votes to switch the state’s result.
We don’t yet know exactly what charges could be brought down, as the grand jury’s recommendations will remain secret if and until Fulton County District Attorney Fani Willis brings the charges, but some sources have pointed to the possibility of racketeering and conspiracy charges associated with that effort.
What’s the maximum sentence Trump could face?
If Trump were to ultimately be convicted of all 34 charges, the absolute max sentence would be 136 years behind bars, but that is very, very unlikely to happen.