What Happens if Trump is Indicted?

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As a former Assistant United States Attorney who worked under Robert M. Morgenthau in the late 1960s, I have been following the news of Donald Trump's possible indictment by the Manhattan District Attorney's office with great interest. Not so much because Trump was President of the United States—we indicted many public figures when I was a prosecutor based solely on the facts and the law, without regard to party affiliation or political status—but because I have been following Donald Trump and his litigation history for many years. I wrote a book about it in 2019 entitled Plaintiff in Chief, A Portrait of Donald Trump in 3500 Lawsuits. That number has grown in the intervening years, and frankly I am not surprised. Trump likes to litigate.

Manhattan District Attorney Alvin Bragg recently invited Trump to appear before a New York County grand jury, but Trump declined to testify, losing his last clear chance to avoid indictment. No former president in the 234-year history of the American republic has ever faced indictment. Trump advisor and former New York City mayor Rudy Giuliani has said that if Trump were to be indicted, “This is the kind of thing that ends a civilization.” I don't agree with Giuliani, who also worked as a federal prosecutor. Trump is a citizen like the rest of us and, if warranted by the facts and the law, indicting him shouldn’t be seen as unprecedented, let alone apocalyptic.

Vice presidents have faced criminal charges: Spiro Agnew faced an indictment that he had accepted bribes when he was Governor of Maryland. He worked out a deal with the Justice Department that he would resign from office and not contest a felony tax count. On the recommendation of the government that he not be incarcerated, the court sentenced him to a $10,000 fine and a period of probation. In 1809, former Vice President Aaron Burr was indicted for treason. He had a high profile trial that inspired numerous newspaper editorials and saber-rattling speeches by his supporters and detractors. The jury deliberated for 25 minutes and he was acquitted. Civilization did not end.

As has been widely discussed, Bragg is said to be nearing an indictment of Trump over the Stormy Daniels affair. Stormy is the porn star who claimed she had sex with Trump in the Beverly Hills Hotel in 2006 but waited until he was running for President in 2016 to threaten to go public with the information on the eve of the presidential election. She received $130,000 to remain silent. Trump called it a “simple private transaction.” Indeed, there is nothing illegal about paying someone to hush up an extramarital affair, and in many states like California, there is nothing illegal about an extramarital affair either.

But such congress never looks good when you’re running for President, as Gary Hart and John Edwards learned the hard way. In Trump’s case, the revelation of the sordid Stormy business on the heels of the Billy Budd “Grab ‘em by the …”
tape, would not have been good news.

So what did Trump do? The circumstances of the payoff would raise the eyebrows of any prosecutor. There was a “settlement agreement” stated to compromise "claims.” The payoff would come from a company called “Essential Consultants,” set up by Trump’s fixer lawyer Michael Cohen. Cohen borrowed on his home to raise the money. He remitted the funds only after Stormy advised Cohen that she was about to tell her story to the National Enquirer. In 2017 (after he became President) Trump signed checks reimbursing Cohen for the payoff, and then some for the related tax liability.

But a hush money payoff to a porn star is a “personal, living or family expense,” which the state and federal revenue laws consider to be non-deductible. The payoff may have also been an illegal contribution to the Trump campaign, violating the federal campaign finance laws. As we heard so much during Watergate, “it was the cover-up, stupid.”

Cohen pleaded guilty in the federal court to violating the election laws, and went to jail. He is angry that Trump has gotten off. At least, until now.

Under New York law, falsifying business records (FBR) is a felony where the falsification is intended to cover up another “crime.” Otherwise, the offense is only a misdemeanor, punishable by a year in prison—small potatoes even for a former President. The issue is what is a crime authorizing enhancement to a felony: a New York crime, clearly, but when the New York statute speaks of a crime, does it include a federal crime?

There are strong public policy reasons for enhancing the FBR crime to a felony where the underlying crime is federal, not state, and many would argue Trump committed an FBR felony in New York. Judges interpret the meaning of an ambiguous law in light of other statutes on the same subject matter. Here, there is something helpful. In the context of automatic disbarment of an attorney in the event of conviction for a felony, the New York Court of Appeals has stressed that conviction of a federal felony is sufficient to warrant automatic disbarment. Automatic disbarment is warranted when the lawyer is convicted of a federal felony even if there is no analogue to New York law, re-stating its position that: “section 90(4) of the Judiciary Law mandates automatic disbarment when an attorney is convicted of any crime “judged by the Congress to be of such seriousness and so offensive to the community as to merit punishment as a felony.”

But if you need a state crime to enhance, there is Section 17-152 of the New York Election Law making it a crime to promote the election of a candidate for public office by illegal means. That seems to fit the situation quite neatly. And, if that doesn’t do it for you, there is the New York income tax law which might deem Trump’s writing off the payoff as a “legal expense” tax evasion.

Trump has accused Bragg of interfering with a presidential election, an example of the one of Trump's favorite legal strategies: attack. In the U.S. we are all considered equal before the law, and criminal investigations are tasked with being color blind. Notwithstanding, Trump, also played the race card, calling Bragg, a “racist,” a term he reserves for certain investigating prosecutors. Bragg is black.

At this point, we do not know whether the grand jury will indict or if they do, what will be in the indictment. Will Trump be arrested? Will there be a perp walk? Surely, the DA will ask for fingerprints and a mug shot. What will this do to his candidacy for President in 2024? If Bragg goes forward, it will be the trial of the century.

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