Former President Donald Trump has survived two impeachment trials and multiple federal investigations, but this week he faces a legal threat of historic proportions.
Never before has a current or former president been indicted for allegedly committing a crime. However, it now appears likely that Trump will be the first. Manhattan District Attorney Alvin Bragg is reportedly ready to bring criminal charges against the former president soon, apparently over hush-money payments made by Trump lawyer Michael Cohen to porn star Stormy Daniels in 2016 to cover up an alleged affair.
The first details of the payments came to light in 2018, and Daniels then went public. Cohen pleaded guilty to campaign finance violations and other charges, saying that he made payments to Daniels and another porn star, Karen McDougal, at Trump’s request. Cohen also told Congress in 2019 that Trump ordered him to mislead the public about the payments.
At first, federal prosecutors in the Southern District of New York handled the case but never brought an indictment against Trump. The U.S. Justice Department has long held that indicting a sitting president for a crime is unconstitutional.
After Trump left office, federal prosecutors decided not to pursue charges on the belief that a campaign finance case was too difficult to win. They also believed Cohen was not a reliable witness.
A DA Steps in
Although the feds dropped the case, that didn’t mean state prosecutors couldn’t pick it up. In January, Bragg convened a grand jury in New York to consider an indictment against Trump. The grand jury heard numerous witnesses, including Cohen. Trump was invited to testify but refused the grand jury’s invitation.
Trump has been preparing for the possible indictment by attempting to rile up his base with the claim that he may be “arrested.” An indictment and an arrest are, of course, two different things. An indictment means that prosecutors are bringing charges based on the grand jury’s findings; an arrest would only occur if Trump refuses to surrender to officials.
If Trump arranges to surrender, either at the DA’s office or in court, he would be fingerprinted and have his mugshot taken. Then the case moves through the judicial system.
If Trump is indicted, the legal and political waters ahead are uncharted territory full of unanswered questions.
The core of the case is the assertion that the Trump Organization’s recording of the payments to Cohen was a falsification of business records, a misdemeanor. To get a felony conviction, Bragg’s prosecutors will need to show that Trump’s “intent to defraud” must include an intent to commit a second crime. In this case, that could be a violation of election law. While hush money is not technically illegal, prosecutors could argue that the payouts became an improper donation to Trump’s campaign on the theory that it benefited his campaign because it silenced Daniels.
Will that theory work? It’s anybody’s guess.
What About Politics?
What will the political impact be? Trump’s supporters could be galvanized; law enforcement is already making plans to deal with possible trouble stemming from Trump’s call for “protesters” if the indictment does transpire. And Trump’s own campaign team is planning a multi-pronged attack.
And what about his own plans to seek reelection in 2024? Will an indictment matter?
In fact, there is nothing to prevent anyone under indictment from running for, or serving as, president.
Even felons have run for president.
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