A case against the former president — who is also a current presidential candidate — poses challenges for prosecutors. Here’s why.
The revelation that the Manhattan district attorney’s office has indicated to Donald J. Trump’s lawyers that he could soon face criminal charges marked a major development in an inquiry that has loomed over the former president for nearly five years.
It also raised a number of questions about the contours of the potential case against Mr. Trump, who could become the first former American president to be indicted.
Alvin L. Bragg, the district attorney, is focused on Mr. Trump’s involvement in the payment of hush money to a porn star who said she had an affair with him. Michael D. Cohen, Mr. Trump’s fixer at the time, made the payment during the final days of the 2016 presidential campaign.
While the facts are dramatic, the case against Mr. Trump would likely hinge on a complex interplay of laws. And a conviction is far from assured.
Here’s what we know, and don’t know, about the longest running investigation into Mr. Trump:
How did this all begin?
In October 2016, during the final weeks of the presidential campaign, the porn star Stormy Daniels was trying to sell her story of an affair with Mr. Trump.
At first, Ms. Daniels’s representatives contacted the National Enquirer to offer exclusive rights to her story. David Pecker, the tabloid’s publisher and a longtime ally of Mr. Trump, had agreed to look out for potentially damaging stories about him during the 2016 campaign, and at one point even agreed to buy the story of another woman’s affair with Mr. Trump and never publish it, a practice known as “catch and kill.”
But Mr. Pecker didn’t purchase Ms. Daniels’s story. Instead, he and the tabloid’s top editor, Dylan Howard, helped broker a separate deal between Mr. Cohen and Ms. Daniels’s lawyer.
Mr. Cohen paid $130,000, and Mr. Trump later reimbursed him from the White House.
In 2018, Mr. Cohen pleaded guilty to a number of charges, including federal campaign finance crimes involving the hush money. The payment, federal prosecutors concluded, amounted to an improper donation to Mr. Trump’s campaign.
In the days after Mr. Cohen’s guilty plea, the district attorney’s office opened its own criminal investigation into the matter. While the federal prosecutors were focused on Mr. Cohen, the district attorney’s inquiry would center on Mr. Trump.
So what did Mr. Trump possibly do wrong?
When pleading guilty in federal court, Mr. Cohen pointed the finger at his boss. It was Mr. Trump, he said, who directed him to pay off Ms. Daniels, a contention that prosecutors later corroborated.
The prosecutors also said that Mr. Trump’s company “falsely accounted” for the monthly payments as legal expenses and that company records cited a retainer agreement with Mr. Cohen. Although Mr. Cohen was a lawyer, and became Mr. Trump’s personal attorney after he took office, there was no such retainer agreement and the reimbursement was unrelated to any legal services Mr. Cohen performed.
Mr. Cohen has said that Mr. Trump knew about the phony retainer agreement, an accusation that could form the basis of the case against the former president.
In New York, falsifying business records can amount to a crime, albeit a misdemeanor. To elevate the crime to a felony charge, Mr. Bragg’s prosecutors must show that Mr. Trump’s “intent to defraud” included an intent to commit or conceal a second crime.
In this case, that second crime could be a violation of New York State election law. While hush money is not inherently illegal, the prosecutors could argue that the $130,000 payout effectively became an improper donation to Mr. Trump’s campaign, under the theory that it benefited his candidacy because it silenced Ms. Daniels. .
Will it be a tough case to prove?
Even if Mr. Trump is indicted, convicting him or sending him to prison will be challenging. For one thing, Mr. Trump’s lawyers are sure to attack Mr. Cohen’s credibility by citing his criminal record.
The case against the former president also likely hinges on an untested and therefore risky legal theory involving a complex interplay of laws.
Combining the falsifying business records charge with a violation of state election law would be a novel legal theory for any criminal case, let alone one against the former president, raising the possibility that a judge or appellate court could throw it out or reduce the felony charge to a misdemeanor.
And even if the felony charge remains, it amounts to a low-level felony. If Mr. Trump were ultimately convicted, he would face a maximum sentence of four years, though prison time would not be mandatory.
How did prosecutors convey that charges are likely?
Prosecutors in the district attorney’s office recently signaled to Mr. Trump’s lawyers that he could face criminal charges.
They did this by offering Mr. Trump the chance to testify next week before the grand jury that has been hearing evidence in the potential case, people with knowledge of the matter said. Such offers almost always indicate an indictment is close; it would be unusual for prosecutors to notify a potential defendant without ultimately seeking charges against him.
In New York, potential defendants have the right to answer questions in the grand jury before they are indicted, but they rarely testify, and Mr. Trump is likely to decline the offer.
Will Mr. Trump definitely be indicted?
It is still possible that Mr. Trump will not face charges. Mr. Trump’s lawyers could meet privately with the prosecutors in hopes of fending off criminal charges.
And although Mr. Bragg’s prosecutors have already questioned at least six other people before the grand jury, they have not completed their presentation of evidence. Mr. Cohen, for example, has yet to appear before the panel.
The prosecutors will then need to present the charges to the grand jurors, who will vote on an indictment.
Until then, Mr. Bragg could decide to pump the brakes. As of now, however, that seems unlikely.
What has Mr. Trump said in his defense?
Mr. Trump has referred to the investigation as a “witch hunt” against him that began before he became president, and has called Mr. Bragg, who is Black and a Democrat, a “racist” who is motivated by politics.
In a statement released Thursday night on Mr. Trump’s social network, Truth Social, he reiterated those claims, and denied he had ever had an affair with Ms. Daniels. He noted that prosecutors from various offices — including Mr. Bragg’s predecessor — had investigated the matter and had never before charged him with a crime.
He wrote that the potential indictment was an attempt to thwart his presidential campaign.
“They cannot win at the voter booth, so they have to go to a tool that has never been used in such a way in our country, weaponized law enforcement,” Mr. Trump wrote. Former Justice Department officials have accused Mr. Trump of ordering them to act in ways that aided him politically when he was in office.
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