Some prosecutors called it a “zombie;” other legal observers said it was a “sleeper case.” But Manhattan District Attorney Alvin Bragg’s (D) probe into Donald Trump is the first to initiate history-making criminal charges against a former president.
Among the dizzying array of ongoing criminal probes into former President Trump, he faces investigations by both federal and Georgia authorities over his role in seeking to block the transfer of power after the 2020 election. The Justice Department is also investigating the mishandling of classified records at his Florida home.
New York, however, has stepped in first.
The New York case elicits complex feelings, even among those eager to see Trump convicted. While the charges have yet to be unsealed, many perceive them to be the least serious of the accusations he faces across the various other probes.
The exact charges remain under seal until Trump’s arraignment, scheduled for Tuesday afternoon, but they are expected to include at least one felony for his role in organizing a hush payment to adult film star Stormy Daniels shortly ahead of the 2016 election.
In some ways, it makes sense that the Manhattan charges have come first, with interest in a possible case percolating in some fashion since the payments became public in 2018.
Josh Stanton, an attorney with Perry Guha who has penned analyses of the case, stressed that Bragg is not rushing in bringing the case.
“New York not waiting is indicative of the fact that they are committed to respecting the rule of law, even if their case is not the one with the most severe possible sentence and also is not the one where his conduct was the most egregious,” Stanton said, noting that even with a felony conviction, Trump is likely to get probation rather than jail time.
“They have decided that Trump violated the law….So I don’t think it makes sense for the Manhattan district attorney to wait and see if other people go first. This is from conduct from 2016 and 2017.”
But some have expressed hesitation, concerned either over whether Bragg can mount a successful prosecution in what could be a complicated case or that having a higher-profile matter mark the first-ever indictment of a president would be better optics.
Rep. Eric Swalwell (D-Calif.) told The Hill that Bragg going first indicates this is not the political witch hunt that Trump claims, a sign that prosecutors are independently assessing the strength of the evidence of misdeeds before proceedings.
“If it wasn’t an independent process, then Donald Trump would be saying, ‘Oh, this is coordinated, and this is political.’ So the fact that the public perception is that the first charge is not the one that is the strongest or most important case against him, to me just shows that this is an independent process that’s playing out and that’s what you want in any prosecution,”he said.
Others noted that the details of the case — spurred by an extramarital affair Trump has denied — pale in comparison to the other potential charges that might be brought against him.
“After inciting an insurrection at the U.S. Capitol, pressuring local officials to overturn the 2020 election, receiving financial kickbacks from foreign powers, and numerous other crimes during his presidency, it’s embarrassing and infuriating that the first indictment against Trump is about … Stormy Daniels,” Adam Green, co-founder of the Progressive Change Campaign Committee, said in a statement.
Some fear that could help fuel Republicans narratives minimizing the case.
The GOP has largely dismissed the case as politically motivated, while some have suggested the underlying conduct doesn’t merit prosecution.
“Look, this is an issue about campaign finances. And it’s a tenuous [case]at best,”former Vice President Mike Pence told CNNin a Thursday night appearance.
Even Trump’s 2024 primary rivals did not seek to capitalize on the indictment, with former South Carolina Gov. Nikki Haley tweeting out her past appearance on Fox News saying, “I think the country would be better off talking about things that the American public cares about.”
Norm Eisen, counsel for the Democrats in Trump’s first impeachment, pushed back in an interview on those critiques, stressing that the case didn’t just implicate an alleged affair. He noted the timing of the hush arrangement followed the release of the “Access Hollywood” tape.
“If these payments had not been made, and these alleged campaign finance violations had not occurred, there’s no telling if the election results might have been different. So, in that regard, the issues…being investigated in the state of Georgia and in the federal grand jury are very important, but they did not affect the outcome. This might have,” Eisen said.
Stanton also fought the idea that Trump was simply “fudging some numbers.”
“On the one hand, we look at white collar crimes differently from violent crimes. But some white collar crimes have very serious real world impacts,” he said.
“The real world impact of this is it actually might have helped sway the election.…This information should have been public, should have been reported.”
Some have also questioned the strength of Bragg’s case, particularly when it comes to bringing felony charges.
The returned indictment means at least 12 of the 23 grand jurors found “reasonable cause” that Trump committed the charges. Prosecutors now must meet a much higher burden to secure a conviction: proof beyond a reasonable doubt.
Outside legal experts suggest the indictment will focus on charges of falsifying business records, a misdemeanor under New York law. Elevating it to a felony, however, would require connecting Trump’s alleged “intent to defraud” to a second crime.
Prosecutors could attempt to connect the base charge to the campaign finance violations to which Michael Cohen, Trump’s former fixer who made the payment, pleaded guilty in connection with the scheme.
“I always call this the Capone theory, the Al Capone theory. They couldn’t get him on murder, extortion, racketeering, bootlegging, et cetera. They got him on tax evasion. If that crime done was enough for me to be charged, fined, convicted and sent to prison, why am I any different than Donald Trump?” Cohen, who has since turned against Trump, asked on CNN on Thursday.
Eisen’s research indicates the district attorney’s office regularly brings falsifying business records charges in white-collar cases and that prosecutors on multiple occasions connected it to state campaign finance crimes.
“There’s nothing novel here, because this pattern has been prosecuted and convictions won so many times. That’s also why it’s not a political prosecution, because contrary to what the former president and his allies are saying, I believe that if anyone else did this, they would be prosecuted. There’s no reason that a former president should be exempted,” he said.
Trump’s attorney has countered that the former president didn’t violate campaign finance laws, saying he used personal funds to reimburse Cohen irrespective of the election. Trump’s allies have also argued that as a presidential candidate his conduct was governed by federal campaign law, something they argue is out of reach for the state prosecutor to use in bumping up to a felony.
Though some observers are elevating the other cases against Trump, those investigations have their own challenges.
Trump has filed a motion to quash the Georgia probe, something that may not undercut any ultimate criminal case, but nonetheless as a procedural move is sure to eat up court time.
And while many Democrats are eager to see Trump held to account for efforts to remain in power after the election, culminating with the rally on Jan. 6, 2021, before his supporters violently attack the Capitol.
But many of the serious charges prosecutors could mull in connection with the event would likely require demonstrating Trump’s intent, a heavier burden for Justice Department lawyers.
“A lot of these things require proof of willfulness,” Stanton said, “And that’s always a challenge for prosecutors.”