March 22, 2023 at 4:41 p.m
It appears that the Manhattan prosecutor will charge former President Donald Trump with financial fraud involving a hush money payment to a porn actress. It would be the first time that a former US head of state has been prosecuted. Here’s what we now know about the possible criminal case against Trump.
If Trump is indeed arrested (which has not yet been confirmed), it could happen in a few different ways. He can be taken away by the police, with or without handcuffs. In New York, suspects are then often led past the press – the so-called perp walk. Insiders say Trump likes that, because it would provide dramatic images that could give him political advantage.
Another, more plausible scenario is that his lawyers and security guards will agree with the police that Trump himself will report to a police station.
However the arrest goes, it is certain that Trump will have an arrest photo (commonly known as a mug shot) taken and his fingerprints registered.
A judge probably won’t classify Trump as a flight risk. Also because the possible charges against him are of limited severity, there is a good chance that Trump will be allowed to await trial in freedom after paying bail
The case against Trump revolves around the payment of hush money to porn actress Stormy Daniels, who says he had a brief affair with him in 2006. Her real name is Stephanie Clifford. In the tail end of Trump’s campaign for the White House in October 2016, Daniels tried to sell her story to the tabloid newspaper National Enquirer. The publisher of that magazine, David Pecker, is a friend of Trump. The men had agreed that Pecker would attempt to intercept and sweep under the rug stories that could damage Trump’s political ambitions.
Pecker did not buy Daniels’ story, but put her lawyer in touch with Michael Cohen, a lawyer who was acting as Trump’s legal fixer at the time. A deal was struck: Daniels was paid $130,000 in exchange for her silence.
Cohen himself advanced the hush money and was paid back by Trump in monthly installments. The latter happened after Trump was sworn in as president and appointed Cohen as his personal attorney.
Two years later, Cohen was sued, including for that payment to Daniels. In the summer of 2018, the lawyer pleaded guilty to eight counts, including tax evasion, making false statements to a financial institution and paying an excessive campaign donation at the request of a political candidate, “with the primary purpose of influencing an election.”
The lawyer immediately pointed to his boss in court. He would have instructed him to make the payment to Daniels. The prosecutors went along with it. Cohen was eventually sentenced to three years in prison.
Cohen was prosecuted by federal (read: state) prosecutors. At the same time, local prosecutors in Manhattan opened an investigation into Trump’s role. The current chief prosecutor’s predecessor, Alvin Bragg, decided not to prosecute Trump.
Bragg convened a new investigative jury early this year to review whether there is enough evidence to prosecute. The jury is about to make a decision.
Trump’s former attorney Michael Cohen testified to the Manhattan jury earlier this month. Photo: ANP/EPA
Paying hush money is not per se punishable, but the political sides of the matter complicate the story. Trump allegedly falsely listed the repayment of hush money to Michael Cohen as regular attorney fees on the books of his Trump Organization. So mess with the accounting. In the state of New York, this is punishable by law, but it is considered a minor offense, a misdemeanor. There is usually no prison sentence for this.
According to US media, Chief Prosecutor Bragg wants to aggravate the accusations against Trump by arguing that the former president also violated US electoral law. The payment to Daniels could be seen as a donation to Trump’s presidential campaign, as keeping Daniels quiet was important to his political ambitions.
Political donations are bound by certain rules, which would have been violated. In theory, such an offense qualifies as a felony under US federal law. And that carries a maximum prison sentence of four years.
If the Manhattan prosecutor does indeed go that route, the case against Trump will be far from easy. The former president’s lawyers will no doubt argue that a violation of electoral law around presidential elections is a federal matter that a local prosecutor should not be involved in at all.
Legal experts say New York prosecutors have never before combined a corporate fraud case with an election violation in a federal election. The question is whether a judge will go along with Trump being charged with a felony rather than a misdemeanor.
In addition, the prosecution would have to prove that Trump knowingly wanted to keep the hush money payment secret because of his political ambitions, and not because he was concerned about his personal reputation (which is not a criminal offence). In the absence of direct evidence for this, it is very difficult to demonstrate this 100 percent conclusively in court.
On social media, people entertained by asking chatbot ChatGPT what an arrest of Trump might look like. Photo: Elliot Higgins
Trump denies the affair with Stormy Daniels and the payment of hush money. According to him, Chief Prosecutor Bragg, a black Democrat, is a “racist” who is conducting a politically motivated “witch hunt” against him. Many other leaders in his Republican Party have also lashed out at the New York prosecutor.
It is possible that the jury will decide not to prosecute, but that is not very likely. Prosecutors have invited Trump to testify. Usually that is a sign that charges will follow. Trump did not accept that invitation.
The former president has called on his supporters to mass demonstrations if he is arrested. The police forces in New York and Washington are preparing for this, but there does not seem to be much enthusiasm among Trump supporters to take to the streets yet. Many of them say they fear that FBI infiltrators will cause such a demonstration to get out of hand and put them in a bad light.
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