The week came and went and former President Donald Trump was not charged with a crime by Manhattan District Attorney Alvin L. Bragg, as Trump had predicted.
But a grand jury in Manhattan is expected to reconvene on March 27 and continue its work on Trump’s case.
What possible charges Bragg may be considering is unknown, but people familiar with the investigation have told various news outlets that the investigation is related to allegations that Trump used corporate funds during the 2016 presidential campaign to pay porn star Stormy Daniels to keep quiet about an alleged sexual encounter and failed to report the payment as a campaign donation.
Who made the payment to Daniels?
In August 2018, Trump’s then personal attorney Michael Cohen pleaded guilty to two campaign finance law violations and admitted in open court that he paid $130,000 to Daniels, whose real name is Stephanie Clifford, to silence her during the 2016 presidential election “at the direction of” Trump. Cohen said he incorporated Essential Consultants LLC in Delaware to make the payment.
When was the payment made?
On CBS’ “The Late Show with Stephen Colbert,” Michael Avenatti, then Daniels’ attorney, held up a receipt from a bank in San Francisco showing that on Oct. 27, 2016, Essential Consultants made a $130,000 payment to Daniels’ attorney at the time. The presidential election was less than two weeks later on Nov. 8.
Why was the payment made?
According to federal prosecutors who prosecuted Cohen, the $130,000 paid to Daniels was one of two payments totaling $280,000 Cohen “made to silence two women who otherwise planned to speak publicly about their alleged affairs with a presidential candidate, thereby intending to influence the 2016 presidential election.” Specifically, Daniels was paid $130,000 in exchange for signing a nondisclosure agreement that barred her from talking about her alleged sexual encounter with Trump.
How and when did Trump and the Trump Organization reimburse Essential Consultants LLC?
According to the plea agreement, Cohen sought reimbursement in January 2017 from the Trump Organization and started receiving $35,000 in monthly payments in February. Over the course of the year, Cohen received $420,000 to cover the costs of the $130,000 payment and $50,000 for “tech services,” plus more to cover taxes, and a $60,000 bonus.
Cohen told the House oversight committee in testimony on Feb. 27, 2019, that Trump “personally signed from his personal bank account” a check for $35,000. That check is dated Aug. 1, 2017. Other checks came from a trust account and were signed by two other company executives, Donald Trump Jr. and Allen Weisselberg, Cohen told the House committee. (After Trump was elected, he said he would put his business assets in a trust and that his sons would run his business.)
The payments were described by the Trump Organization as “retainer” fees for legal work in 2017. But the Justice Department said, “In truth and in fact, there was no such retainer agreement, and the monthly invoices COHEN submitted were not in connection with any legal services he had provided in 2017.”
What crime may have been committed?
It’s unknown what specific criminal charges prosecutors may be considering, as Trump has not been charged. But the New York Times has reported — citing “[p]eople with knowledge of the matter” — that the charges relate to falsifying business records, specifically that Trump recorded payments to Cohen as legal fees when they were actually reimbursements to Cohen for hush money paid to Daniels.
In New York, falsifying business records can be charged as either a misdemeanor or a felony. In order for the charge to be bumped up to a felony, according to New York law, one must commit the crime of falsifying business records when the “intent to defraud includes an intent to commit another crime or to aid or conceal the commission thereof.” It is believed, the New York Times reported, that this second crime involves illegal campaign contributions — namely, that the hush payment amounted to an illegal campaign contribution. It is unknown if Bragg might consider that a violation of state or federal election law.
What do legal experts say about the chances of conviction?
In an essay for Just Security on March 20, four legal experts considered the violations that Trump may have committed and that might warrant bumping up a misdemeanor charge of falsifying business records to a felony, and the difficulty of securing a conviction based on those possibilities.
“There is strong evidence that Trump’s conduct in the hush money payments involved federal campaign finance violations. —After all, Cohen was convicted for just such offenses, and the Justice Department’s sentencing memorandum stated that he ‘acted in coordination with and at the direction of Individual-1,’ who was easily identified as Trump,” wrote Joshua Stanton, Norman L. Eisen, E. Danya Perry and Fred Wertheimer.
But invoking a federal campaign finance violation carries some prosecutorial risk, they wrote. For starters, a judge would need to consider whether state law allows a federal election law to be considered as a basis for a felony charge.
The text of the state statute suggests that a second crime “could include federal crimes,” the four wrote, and some cases have been brought in New York “with a federal crime as a predicate offense.” But the statute isn’t entirely clear, and “in a very different context,” one appellate court in New York interpreted the law to only include state crimes. A court in Manhattan, in this context, could rule differently.
“It remains to be seen how a judge would rule on this point if it is put to the challenge,” they wrote. “If we were charging the case we would charge both federal crimes and state ones as alternative bases for elevating the misdemeanor to a felony.”
If Bragg were to argue that state campaign finance laws apply to any election, even federal ones such as presidential races, the four wrote, “a potential problem for prosecutors is found in a separate New York state campaign finance law that states that the ‘filing requirements and the expenditure, contribution and receipt limits’ under state law ‘shall not apply to any candidate’ when that candidate is required to file statements at the federal level, ‘provided a copy of each such statement or report is filed in the office of the state board of elections.’”
Bragg might argue, they said, that “the appropriate statement or report was not really filed in the office of the state board of elections because it omitted any reference to the hush money payment.” But, “We have found no case law assessing such an argument in New York—we will have to see what a judge decides.”
Other options, they said, included charging Trump with violating state statutes related to “[c]onspiracy to promote or prevent election” or with a state “catch-all offense” that “criminalizes any knowing and willful violation of any New York election law.”
“There are many New York election laws Trump may have violated in the hush money scheme,” they wrote. “As just one example, when Cohen made the payment to keep Stephanie Clifford silent, he was required to account for the expenditure consistent with New York campaign finance laws (so long as state campaign finance law applied to Trump’s candidacy, as addressed above). To the extent Trump directed Cohen’s conduct, he could himself be criminally liable under the catch-all provision for this violation.”
Ultimately, charging Trump with a felony “presents complexities,” they said, but “DA Bragg is to be applauded for taking the matter seriously.”
On March 20, Reps. Jim Jordan, Bryan Steil and James Comer — chairs of the Judiciary, House Administration, and Oversight and Accountability committees, respectively — sent a letter to Bragg accusing him of “an unprecedented abuse of prosecutorial authority” that they say would “unalterably interfere in the course of the 2024 presidential election,” and demanding Bragg testify before Congress “about what plainly appears to be a politically motivated prosecutorial decision.”
“The legal theory underlying your reported prosecution appears to be tenuous and untested,” the three wrote.
On March 23, Bragg’s office responded to the lawmakers’ letter.
“The letter’s requests are an unlawful incursion into New York’s sovereignty,” the district attorney’s general counsel, Leslie Dubeck, said, adding that information in an active investigation is “confidential under state law,” the New York Times reported.
What’s the origin of the investigation?
On Aug. 23, 2018 — two days after Cohen admitted in federal court that he paid $130,000 to Daniels “at the direction of” Trump — the New York Times reported that the Manhattan district attorney’s office was “considering pursuing criminal charges against the Trump Organization … in connection with Michael D. Cohen’s hush money payment to an adult film actress,” citing two unnamed sources.
Over time, the district attorney at the time, Cyrus R. Vance Jr., expanded his office’s investigation beyond the payment to Daniels, disclosing in an Aug. 3, 2020, court filing that his office was conducting a “complex financial investigation” of the Trump Organization. The filing, which came during a legal fight over Trump’s personal and corporate tax returns, indicated that Trump and his company were under investigation for “possible bank and insurance fraud,” according to the New York Times.
In a book released last month, Mark Pomerantz, a former top prosecutor in the DA’s office, writes that Vance “agreed and authorized” the prosecution of Trump for allegedly inflating the value of his assets to obtain bank loans. But Bragg “decided that Donald Trump should not be prosecuted,” Pomerantz writes, “and the investigation faltered.”
Pomerantz resigned in protest less than two months after Bragg took office. In his resignation letter, Pomerantz accused Bragg of “suspending” the broader investigation of Trump for financial crimes, predicting that a delay would result in a “grave failure of justice.”
Bragg has repeatedly insisted that his office has not abandoned the broader investigation.
At a Feb. 7 press conference, when asked about Pomerantz’s book, Bragg said: “I bring hard cases when they are ready. Mark Pomerantz’s case simply was not ready. So I said to my team, let’s keep working.”
It’s unclear at this point if Bragg’s office has dropped that case or is continuing to investigate Trump for allegedly inflating the value of his assets in business records.
What is Trump’s response to the possible indictment?
Trump has had quite a bit to say in recent days. Told charges could be forthcoming, Trump posted numerous messages on Truth Social attacking Bragg and calling the charges a politically motivated “Witch Hunt.”
Trump attacked Bragg, who is Black, as a “Racist in Reverse” whose campaign in 2021 was financially backed by liberal billionaire philanthropist George Soros. Bragg, Trump said, “SHOULD BE HELD ACCOUNTABLE FOR THE CRIME OF ‘INTERFERENCE IN A PRESIDENTIAL ELECTION.’”
Soros financially supported Bragg’s election indirectly via the Color of Change PAC, which registered May 12, 2021, with the New York State Board of Elections and received a $1 million donation from Soros two days later. The group, which reported receiving no other donations, spent $424,091 on digital communications and direct mail in support of Bragg. The PAC had pledged to spend $1 million to help elect him.
Trump has also claimed the case is based on the “FAKE AND FULLY DISCREDITED TESTIMONY … OF A CONVICTED LIAR, FELON AND JAILBIRD, MICHAEL COHEN.” As we have written, Cohen told the New York Times in February 2018: “Neither the Trump Organization nor the Trump campaign was a party to the transaction with Ms. Clifford, and neither reimbursed me for the payment, either directly or indirectly.” Cohen’s plea agreement in August of that year made clear that the statement was incorrect. He was reimbursed and it was from his employer, “the Company,” which was the Trump Organization.
Trump also claimed prosecutors “are MANY years beyond the Statute of Limitations which, in this instance, is TWO YEARS.” While the statute of limitations is two years for most misdemeanors in New York, it is five years for felonies like the one that Trump might face. And that can be extended for any time a defendant spends “continuously outside this state [New York]” — such as if someone was living in Washington, D.C., or Florida — adding up to an additional five years to the statute of limitations.
In yet another message posted at 1:08 a.m. on March 24, Trump again attacked Bragg – this time as a “degenerate psychopath” – and insisted that “NO Crime has been committed.” Trump ominously warned about “potential death & destruction” if “such a false charge” is brought against him.
Trump has acknowledged that he reimbursed Cohen for the payment to Daniels, but in a series of tweets on May 3, 2018, Trump denied that he ever had an affair with Daniels, calling her claims “false and extortionist accusations.” As for why he paid, Trump said only that nondisclosure agreements are “very common among celebrities and people of wealth.” Trump also claimed, “Money from the campaign, or campaign contributions, played no roll in this transaction.”
Daniels has described her alleged encounter with Trump, which she says happened in July 2006 at a golf tournament in Lake Tahoe, in detail in many interviews, including on “60 Minutes,” and in her 2018 book, “Full Disclosure.” There is also a photo of the two of them together at the tournament.
What is the penalty, if convicted?
Class E non-violent felonies like this are punishable by one and one-third to four years in prison, but probation is also possible. Because this particular felony is a “wobbler” offense — meaning it can be charged as either a misdemeanor or a felony — it is also possible for the charge to be reduced to a misdemeanor at some point.
Can Trump continue to run for, or legally serve as, president if convicted?
The short answer is: “Yes, someone can run for president while under indictment or even having been convicted and serving prison time,” Georgetown University law professor Josh Chafetz told us. “The reason is that the Constitution lays out the qualifications for being president.”
Article II, Section 1, Clause 5 of the U.S. Constitution lists three qualifications to serve as president: He or she must be at least 35 years old upon taking office, a U.S. resident for at least 14 years and a “natural born Citizen, or a Citizen of the United States.”
“These qualifications are understood to be exclusive,” Chafetz said. “Anyone can be president so long as they meet the constitutional qualifications and do not trigger any constitutional disqualifications.”
The only clear constitutional disqualification is the 22nd Amendment, which states that “[n]o person shall be elected to the office of the President more than twice.” Trump has been elected only once.
Nine other legal scholars surveyed by Insider came to the same conclusion. Laurence Tribe, a constitutional law professor at Harvard University, told the news site: “Some presidents have described the White House as a prison, but the Constitution doesn’t specify that that’s the only prison you could occupy in order to serve as president.”
Chafetz said Eugene V. Debs, the late labor leader, is a “prominent example” of someone who ran for president from prison on the Socialist Party ticket in the 1920 election. He received nearly 1 million votes.
“You can see why this would be important, especially in the context of state convictions. Some states are very Democratic; others are very Republican. It would be a real problem if any state, by convicting someone of a crime, could prevent that person for running for the presidency of the entire country,” Chafetz said. “This is not to suggest that any of the investigations into Trump are motivated by partisanship; it is simply to say that there would be a strong temptation towards partisan-motivated prosecutions if such prosecutions could disqualify someone from the presidency.”
What’s the status of other criminal investigations involving Trump?
As we have said, Bragg decided in February 2022 not to pursue charges against Trump for allegedly inflating the value of his assets to obtain bank loans. But Bragg has clarified that he only decided not to bring charges “at that time” and that his office continued to investigate.
The Fulton County district attorney’s office is also investigating whether Trump’s efforts to reverse the 2020 election outcome in Georgia amounted to a crime. In February, the jury foreperson of a special grand jury empaneled in Atlanta revealed that the grand jury recommended multiple people be indicted related to activities involving criminal interference in Georgia’s 2020 elections. Although the jury forewoman did not name those recommended for indictment she said, “You’re not going to be shocked” by who the list might include.
Those investigations are in addition, of course, to the federal investigation into Trump’s handling of classified documents at his Mar-a-Lago home. In November, Attorney General Merrick Garland appointed Jack Smith, a former Justice Department prosecutor, as special counsel to oversee the investigation.
Garland said Smith would also oversee the Justice Department’s ongoing probe of “whether any person or entity unlawfully interfered with the transfer of power following the 2020 presidential election or the certification of the Electoral College vote held on or about January 6, 2021.”
Any one of those cases could end in criminal charges against the former president.
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