Former President Donald Trump said on his Truth Social site that he believes he will be arrested on Tuesday. The Manhattan district attorney’s office could move to indict Trump for hush-money payments that were made to Stormy Daniels just ahead of the 2016 election.
Prosecutors want to prove that those payments were meant to keep Daniels quiet about an alleged affair that could have hurt his presidential campaign. Therefore, prosecutors contend, the payments were in-kind campaign contributions that exceeded the legal limit.
The possibility of indictment is already becoming a charged political issue.
“They’re making stuff up that they’ve never used against anybody because they hate Trump,” Sen. Lindsey Graham, R-S.C., said at the Vision 24 conference.
“You know I would hope that if they brought charges that they have a strong case because this is, as you said, it’s unprecedented. There are certainly risks involved here. But nobody in our nation is or should be above the law,” Sen. Mark Kelly, D-Ariz., said on CNN’s “State of the Union.”
If and when Trump is indicted, Manhattan District Attorney Alvin Bragg will be bringing charges against a former president that both the Federal Election Commission and federal prosecutors in New York decided not to pursue.
“Even if Mr. Trump is indicted, convicting him or sending him to prison will be challenging. The case against the former president hinges on an untested and therefore risky legal theory involving a complex interplay of laws, all amounting to a low-level felony,” The New York Times wrote when detailing the grand jury’s work.
Straight Arrow News Political Correspondent Ray Bogan interviewed Jerry Goldfeder, special counsel at the law firm Stroock & Stroock & Lavan, to get a better understanding of the details of this case, and how Trump being a former president changes the equation.
Question: “If charges are brought forward, reports indicate Trump would be accused of breaking New York state election law and falsifying business records. The latter is normally a misdemeanor, but Bragg may be moving to upgrade that to a felony. What is Bragg’s legal theory?”
Goldfeder: “We don’t know what Bragg’s legal theory is. Once there is an indictment, assuming there will be an indictment, we will all find out how he has crafted these allegations. There’s been a lot of speculation, a lot of educated guesses, but frankly, no one really knows what District Attorney Bragg’s theory is going to be.”
Question: “The Manhattan DA’s main witness is Michael Cohen, Trump’s former lawyer and fixer. He already pled guilty to federal charges for the same hush-money payments including one count of causing an unlawful campaign contribution and one count of making an excessive campaign contribution. But on top of that, he has even more of a criminal history. He has also pled guilty to five counts of tax evasion, and one count of making false statements. So with all of that in mind, how does that impact a prosecution when the lead witness has pled guilty to lying?”
Goldfeder: “Well, I’m sure it won’t make it easy for the district attorney to be relying on someone with Cohen’s background. But he will present the case, he will put forth his legal theory, he will outline his facts in terms of putting on the evidence with probably more than one witness and documentary evidence. And the jury will decide whether or not the district attorney has proved beyond the reasonable doubt that there have been sufficient violations and that the former president is guilty.”
Question: “To get a conviction, prosecutors would need to establish that the payments were a donation and that Trump knew that donation violated campaign finance laws. So is that what Cohen’s testimony is for? And just more broadly, how do they go about establishing something like that?”
Goldfeder: “Well, we don’t know exactly what Cohen is going to testify to in the trial against the former president. But in fact, the district attorney has to prove beyond a reasonable doubt that which includes intent, that, in fact, these payments were for the purposes of helping his election, or not hurting his election. And if that’s the case, it was an in-kind contribution, and therefore it was excessive. It wasn’t reported. But nevertheless, it violates the law.”
Question: “Now, there’s a saying that we’ve heard a lot over the last few years, which is everyone is equal in a court of law, even a former president. But Trump is inherently different because he’s a former president. As an example, if and when he surrenders, he would fly to New York on a private jet and surrender under the protection of the Secret Service. It’s just different from the onset. So are there any ways like the one I just mentioned, either pretrial during the trial, or if he’s found guilty during the sentencing, that he would be treated differently, for better or for worse, because he’s a former president?”
Goldfeder: “I’m certain he will be treated differently because it’s natural for the jurors. If this case goes to the jury, the jurors will look at look upon him differently because he’s the former president of the United States, and no former president has ever been indicted. So it’s natural for jurors to look at him differently. And if they convict, then sentencing, the sentencing judge will also look upon him differently because he’s the former president. There’s no getting away from that. The issue here is whether or not just because he’s a former president, should he not be indicted for for the crimes that Bragg thinks he has committed? And that would send a very terrible message, if in fact, the former president is above the law.
So if and when Bragg does bring the indictment, and if and when it does go to trial, if it’s not dismissed beforehand, the jurors will have to make a very unique kind of judgment. They will be instructed to evaluate the facts, as the evidence has shown, and they will be instructed as to what the law is, but they are necessarily going to look at this defendant as different because in fact, he is different.”
Question: “We talked about the falsifying business records charge and how that could be upgraded from a misdemeanor to a felony. How does a prosecutor’s office go about upgrading a charge to a felony? And then what does the judge take into account when they hear that, can they go back and reverse that?”
Goldfeder: “It gets upgraded to a felony if there is intent to violate another law, and the theory of the case will be that there is a violation relating to the business records with intent to violate a campaign finance law. Now, we’re not sure exactly yet what law that is. And we’ll see it once we read the indictment, assuming there’s an indictment. And undoubtedly, the former president will move to dismiss, his lawyers will move to dismiss the indictment as legally insufficient. And the judge will have to make a decision as to whether or not as a matter of law, the indictment should stand. I think it probably will. But I’m not the judge. And we haven’t read the indictment yet. So we shall see.”
