Donald Trump was indicted on Thursday, according to a report in the New York Times, for his role in a hush money scheme prior to the 2016 election. The vote to indict, brought by Manhattan District Attorney Alvin Bragg, indicates that a grand jury found probable cause that Trump committed an offense, which must now be proved to a jury, while paying off adult film actress Stormy Daniels before the 2016 election. Bragg faces an uphill battle in this case, but the task before him is not impossible. Were the defendant not a former president in the midst of a reelection campaign, the prosecution probably wouldn’t draw much controversy. With Trump’s liberty on the line, however, the district attorney—really, the entire criminal legal system—is in for the fight of a lifetime. The Times reported that the specific charges would be announced in the coming days.
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Bragg’s case against Trump is one of several moving through the courts today. It is the first to result in an indictment, though arguably the toughest to win. No former president has ever been indicted, and Trump is already in the midst of a reelection campaign. So any prosecutor taking on Trump begins at a disadvantage, facing widespread accusations of political persecution from the GOP. The problem for Bragg is not a mismatch between New York law and the misconduct alleged here; his reported theory of the case is defensible. The problem is that an extremely unusual set of circumstances gave rise to this alleged crime, denying Bragg the ability to fortify his charges with precedent and thereby leaving Trump ample room to question their legitimacy.
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Here are the facts, as alleged: In 2016, Stormy Daniels contacted the National Enquirer through a representative to offer the story of her affair with Trump. The paper’s publisher, David Pecker, under a previous “catch and kill” agreement with the Trump campaign reportedly declined to run the story and the Trump campaign was made aware that Daniels was coming forward. At this point, days before the 2016 election, Michael Cohen—Trump’s longtime fixer—gave the porn actress $130,000 in hush money through a shell company. Trump gave Cohen $420,000 for his effort, but allegedly sought to conceal Cohen’s payments by listing them as legal expenses for a retainer agreement that did not exist. Trump allegedly falsified these records to prevent the public from learning that he, a presidential candidate, paid off an adult film actress to stop her from acknowledging their affair. It seems safe to say that the story might have hurt his chances in that election, which he won with a margin of fewer than 80,000 combined votes in three tipping point states.
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Federal prosecutors later charged Cohen for his role in the scheme, and he pleaded guilty to various charges, including violation of campaign finance law. He admitted all of this information in the process, accusing Trump of directing his actions throughout the sordid episode. There is also an audio recording of Cohen and Trump discussing the details of the deal.
It had long been a curious feature of this case that its central participant, Donald Trump, faced no legal repercussions, while a supporting player, Michael Cohen, got a three-year prison sentence. No longer. Following a lengthy investigation, Bragg persuaded a grand jury that the former president, too, likely broke the law in paying off Daniels. (The gap between Trump’s alleged crime and indictment should not create any problems; the five-year statute of limitations for this offense paused when he was outside New York, as he was for most of this time.)
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The district attorney’s theory of the case, as reported prior to the indictment, is coherent but somewhat complicated. Under New York law, it is a felony offense to falsify business records when this “intent to defraud” includes “an intent to commit another crime or to aid or conceal the commission thereof.” But the payment seemed to violate either state or federal election laws on transparency and campaign limits. Put all that together, and you have a crime under New York law: falsifying business records (by lying about the payments to Cohen) in the furtherance of another crime (the illegal contribution to Trump’s campaign).
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Thursday’s indictment shows that Bragg has already convinced a grand jury that probable cause exists to believe Trump committed an offense related to this scheme. Winning at trial will be much harder, requiring the district attorney to prove each element of the crime to a jury beyond a reasonable doubt. That would likely include proving Trump’s intent to contravene campaign finance law. Succeeding here will require Bragg to put Cohen on the stand and persuade a jury that he is more credible than the former president.
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That’s a tall order, and not just because Cohen is a disgraced felon. Despite existing evidence of Trump’s extensive involvement in the Daniels scheme, we have not yet seen a smoking gun that proves his fraudulent intent (1) to falsify records in furtherance of (2) helping his campaign. It is notable, though, that the former parent company of the National Enquirer, American Media Inc., signed a non-prosecution agreement with the Department of Justice in 2018 in which it admitted that its role in the payoff scheme was “to ensure that a woman did not publicize damaging allegations about that candidate before the 2016 presidential election and thereby influence that election.” The former CEO of AMI, Pecker, testified before the grand jury and will likely prove a critical witness in any jury trial.
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Still, Bragg will likely need to prove both the falsifying records to help his campaign elements to secure a conviction, putting immense pressure on Cohen’s credibility. He’ll also need to refute Trump’s defense (already previewed on Truth Social) that Cohen (1) told him the payoff was legal and (2) he relied on this advice in good faith. Again, the resolution of this dispute may well hang on the jury’s determination of credibility between the two men.
Of course, the district attorney will have some say over who, exactly, sits on that jury. Both sides can strike up to 10 jurors for virtually any reason (though not a protected trait like race or sex). Bragg’s team may well use these peremptory strikes to exclude jurors who are sympathetic toward Trump, including Republican voters. The defense may, in turn, use its strikes to exclude Democratic voters. But the jury pool will be drawn from an overwhelmingly Democratic district. So it will be much easier for prosecutors to build an all-Democratic jury than for the defense to build an all-Republican jury.
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Say Bragg lawfully establishes a sympathetic jury and secures a conviction. Then what? The crime, according to reports prior to the indictment, in question would be a class E felony, which carries a four-year maximum sentence of incarceration. New York judges are generally unlikely to impose a prison sentence on a first-time offender convicted of a non-violent class E felony. It’s a fair assumption that a judge will be especially hesitant to impose jail time on a former president. If the judge sentences Trump to any kind of confinement, house arrest is most plausible, since it could accommodate the Secret Service agents that the former president is entitled to retain under federal law.
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To state the obvious, this is a difficult, high-stakes prosecution. That’s not because any one piece of the indictment is unprecedented; Trump’s own former finance chief, Allen Weisselberg, pleaded guilty to falsifying business records in furtherance of fraud, the same charge that Trump likely now faces. Rather, the difficulty comes from a concatenation of unique factors, not least of all the involvement of an ex-president fighting to reclaim the White House. It is not easy to explain, in a single sentence, how paying off an adult film actor (which is not a crime in itself) set off a chain of events that culminating in a felony offense. The complexity and downright strangeness of the case leaves room for Republicans to delegitimize the prosecution and muddy the public’s understanding of Trump’s alleged offense.
Other pending cases involving Jan. 6, classified records, and election interference are much more straightforward. Perhaps Bragg’s move will embolden other prosecutors to bring charges related to the former president’s alleged misconduct in these arenas. If so, that domino effect may be the case’s most important legacy.