PROSECUTORS SIGNAL CRIMINAL CHARGES FOR TRUMP ARE LIKELY

By: William K. Rashbaum, Ben Protess, Jonah E. Bromwich

Photo: Literary Hub

The former president was told that he could appear before a Manhattan grand jury next week if he wishes to testify, a strong indication that an indictment could soon follow.

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, and a conviction in the complex case is far from assured.

Mr. Trump has faced an array of criminal investigations and special counsel inquiries over the years but has never been charged with a crime, underscoring the gravity of Mr. Bragg’s inquiry. Mr. Bragg could become the first prosecutor to charge Mr. Trump, but he might not be the last.

In Georgia, the Fulton County District Attorney is investigating whether Mr. Trump interfered in the 2020 election, and at the federal level, a special counsel is scrutinizing Mr. Trump’s effort to overturn the election results, as well as his handling of classified documents.

The Manhattan inquiry, which has spanned nearly five years, centers on a $130,000 payment to the porn star, Stormy Daniels, in the final days of the 2016 presidential campaign. The payment was made by Michael Cohen, Mr. Trump’s former fixer, who was later reimbursed by Mr. Trump from the White House. Mr. Cohen is expected to testify in front of the grand jury, but has not yet done so.

The district attorney’s office has already questioned at least six other people before the grand jury, according to several other people with knowledge of the inquiry. Mr. Bragg’s prosecutors have not finished the grand jury presentation and he could still decide against seeking an indictment.

Mr. Trump has previously said that the prosecutors are engaged in a “witch hunt” against him that began before he became president, and has called Mr. Bragg, a Democrat who is Black, a politically motivated “racist.” A spokeswoman for the district attorney’s office declined to comment.

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.

Combining the criminal 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.

This is not the first Manhattan grand jury to hear evidence about Mr. Trump. Before leaving office at the end of 2021, Mr. Bragg’s predecessor, Cyrus R. Vance Jr., had directed prosecutors to begin presenting evidence to an earlier grand jury. That potential case focused on the former president’s business practices, in particular whether he fraudulently inflated his net worth by billions of dollars in order to secure favorable terms on loans and other benefits.

But Mr. Bragg, soon after taking office last year, grew concerned about the strength of that case and halted the presentation, prompting two senior prosecutors leading the investigation to resign.

Still, the portion of the investigation concerned with Mr. Trump’s net worth is continuing, people with knowledge of the matter said.

Defendants rarely choose to testify before a grand jury and it is highly unlikely that Mr. Trump would do so. As a potential defendant, he would have to waive immunity, meaning that his testimony could be used against him if he were charged. Although he could have a lawyer present in the grand jury to advise him, the lawyer would be prohibited from speaking to the jurors, and there would be few limits on the questions prosecutors could ask the former president.

In recent years, Mr. Trump has been wary of answering questions under oath, given the legal intrigue swirling around him. When the New York attorney general deposed him last year in a civil case, Mr. Trump refused to provide any information, availing himself of his Fifth Amendment right to refuse to answer questions more than 400 times over the course of four hours. If he testifies about the hush money to this grand jury, he will not have that option.