Breaking Down The Case Against Trump: New York Prosecutors Must Prove Complex Legal Theory—And It Could Be Risky


The Manhattan district attorney is reportedly toying with what experts have called an untested legal theory in potentially bringing charges against former President Donald Trump—adding to the unprecedented nature of a case that could mark the first-ever indictment of a former president.

Key Facts

The primary charge prosecutors are considering is whether Trump falsified business records when the Trump Organization reimbursed his former lawyer and fixer Michael Cohen for payments made to adult film star Stormy Daniels during his 2016 campaign for the presidency in exchange for her silence about her alleged 2006 affair with Trump, according to multiple reports.

Prosecutors must prove that Trump orchestrated the payments, but legal experts have said his lawyers could argue that Cohen made the deal on Trump’s behalf and without his knowledge (though Cohen has explicitly, and repeatedly, said he did so at Trump’s direction).

Falsifying business records in New York is a misdemeanor charge that carries a sentence of up to one year in jail, and in order for prosecutors to elevate the charge to a felony, which carries a maximum sentence of four years in jail, prosecutors must prove Trump intended to commit or conceal a second crime.

The second crime to which prosecutors could potentially tie the case—a violation of campaign finance laws—introduces another legal intricacy, since Cohen was convicted of federal campaign finance violations, while the case against Trump is at the state level.

Trump and his allies have publicly raised these and other concerns, including that the case exceeds the five-year statute of limitations for most nonviolent felonies and the two-year statute of limitations for misdemeanors in New York, though that defense could be complicated by the fact Trump was not living in New York continuously during that time period.

Trump’s legal team has also raised credibility issues surrounding Cohen, who served prison time in the 2018 case, pleaded guilty to lying to Congress in its investigation of Trump’s ties to Russia and was disbarred; Cohen testified twice before the Manhattan grand jury weighing evidence against Trump and said he met with prosecutors 20 times.

Chief Critic

Trump, his lawyers and a coalition of Republicans have claimed that Bragg, a Democrat, is leading a politically motivated investigation against Trump. Three House Republicans on Monday sent a letter requesting that Bragg sit for a transcribed interview before the Oversight Committee, accusing him of “settling on a novel legal theory untested anywhere in the country and one that federal authorities declined to pursue.” Trump on Wednesday also highlighted the legal complexities associated with the case by reposting a paragraph on Truth Social from a New York Times story that speculates whether the case could be thrown out, based on “interviews with election law experts strongly suggest that New York state prosecutors have never before filed an election law case involving a federal campaign.”


Democrats have acknowledged risks that Trump could play up the charges to rally his supporters, while also emphasizing that “no one is above the law,” Sen. Mark Kelly (D-Ariz.) said Sunday on CNN’s State of the Union. Democratic Party officials, prosecutors and Trump critics also expressed concerns to Axios that the case could become another platform for Trump to claim the Democratic party is engaged in a legal “witch hunt” against him, echoing a term Trump has used to refer to the Justice Department’s investigations into his handling of classified documents and role in the January 6 Capitol riots.


The merits of bringing a relatively minor case that stands on shaky legal ground against an ex-president have raised questions in the lead-up to a potential indictment. The Wall Street Journal editorial board, which leans conservative but has also been critical of Trump, warned on Sunday the case is “inherently fraught with political ramifications,” noting a possible indictment could rally the GOP behind Trump, especially if he is acquitted. The editorial board also speculated whether Bragg was caving to political pressure after two top prosecutors in his office resigned last year, because Bragg refused to bring a separate case against Trump related to his business practices.

Key Background

The Manhattan grand jury weighing evidence against Trump called off its expected meeting on Wednesday, delaying a possible vote on an indictment. Trump claimed without evidence over the weekend he would be arrested on Tuesday and called for his supporters to protest. Several small demonstrations have been organized on his behalf, but law enforcement officials have reportedly seen an uptick in calls for violence on social media. In preparation for potential unrest in the event of an indictment, law enforcement officials in Washington and New York City took additional security precautions this week, including erecting barricades outside of the Manhattan Criminal Courthouse and the Capitol building.

What To Watch For

If Trump is indicted, it could be days or weeks before he is arraigned in Manhattan Criminal Court and a year or more before he is brought to trial, which could come after his potential nomination as the GOP’s 2024 presidential candidate—or after his possible reelection as president.

Further Reading

Trump Reportedly Wants To Turn His Arrest Into A ‘Spectacle’—Complete With Handcuffs And Perp Walk (Forbes)

Here’s What Will Happen If Trump Is Arrested (Yes, He’ll Probably Get A Mugshot) (Forbes)

New York And D.C. Beef Up Security For Possible Trump Indictment Unrest (Forbes)

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