“Prosecutors Signal Criminal Charges for Trump Are Likely”

NYT:

The Manhattan district attorney’s office recently signaled to Donald J. Trump’s lawyers that he could face criminal charges for his role in the payment of hush money to a porn star, the strongest indication yet that prosecutors are nearing an indictment of the former president, according to four people with knowledge of the matter.

The prosecutors offered Mr. Trump the chance to testify next week before the grand jury that has been hearing evidence in the potential case, the people said. Such offers almost always indicate an indictment is close; it would be unusual for the district attorney, Alvin L. Bragg, 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. His lawyers could also meet privately with the prosecutors in hopes of fending off criminal charges.

Any case would mark the first indictment of a former American president, and could upend the 2024 presidential race. It would also elevate Mr. Bragg to the national stage, though not without risk.

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. If Mr. Trump were ultimately convicted, he would face a maximum sentence of four years, though prison time would not be mandatory.

Mr. Trump’s lawyers are also sure to attack Mr. Cohen, who in 2018 pleaded guilty to federal charges related to the hush money.

The $130,000 payout came during the final stretch of the 2016 presidential campaign, when Ms. Daniels’s representatives contacted the National Enquirer to offer exclusive rights to her story about an affair with Mr. Trump. 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 bite at 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. Trump later reimbursed Mr. Cohen through monthly checks.

In the federal case against Mr. Cohen, prosecutors 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.

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 because the money silenced Ms. Daniels, it benefited his candidacy.

That 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.

On whether the underlying activity was a campaign finance crime, see my 2018(!) piece at Slate, Michael Cohen’s Guilty Plea Directly Implicates Donald Trump in a Felony.

At this point, the charges related to election subversion that may be brought in Georgia or by DOJ seem much more serious and important.

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