Could Donald Trump Get Arrested?
Recently, there's been a lot of media speculation about whether Donald
Trump, former President of the United States, could get arrested and,
if so, how that would play out.
The Manhattan District Attorney's Office has been investigating Trump
for allegedly orchestrating hush money payments to Stormy Daniels through
his attorney at the time, Michael Cohen. In 2018, the New York Times reported
that just before the 2016 presidential election, Michael Cohen paid porn
actress Stormy Daniels $130,000 to stop her from talking about an affair
in 2006. The alleged affair raised its own questions but so did the possibility
that the payment violated federal campaign finance laws. In 2018, Cohen
plead guilty to certain offenses including a campaign finance violation
for the payment to Daniels. Trump was not charged. According to news reports,
Cohen said he paid Daniels at the direction of a candidate for federal
office. The Federal Election Commission (FEC) didn't make any further
inquiry into the payment to Daniels.
New York Times has recently reported that Alvin Bragg, the elected District Attorney of New York County (Manhattan)
is asking a Grand Jury to investigate Trump and it was speculated that
this investigation might be for falsifying business records (a crime in
New York) in connection with the hush money paid to Stormy Daniels. Falsifying
business records could be charged, for example, if someone (1) makes or
causes a false entry in the business records of an enterprise (think letters,
financial ledgers, business checks); (2) alters or deletes, a true entry
in the business records of an enterprise; (3) omits to make a true entry
in the business records of an enterprise (think failing to include detail
about the purpose of a payment) in violation of a duty to do so which
he knows to be imposed upon him by law or by the nature of his position;
or (4) prevents the making of a true entry or causes the omission thereof
in the business records of an enterprise (such as withholding information
from another person who is making a record about a payment).
In New York, Grand Jury proceedings are secret and private. The District
Attorney is not allowed to comment on the progress of the proceedings
until an indictment has been reached. If an indictment is voted, the District
Attorney may reach out to Trump's attorney to arrange a surrender.
A surrender is when an accused person and their attorney schedule an appointment
to be arrested and charged in court. Following any surrender on an indictment,
Trump would possibly be arraigned in Manhattan Supreme Court the same
day of the surrender. (Supreme Court in New York is a trial level state
court that handles criminal and civil cases and not to be confused with
the US Supreme Court which is a federal appellate court.) At this arraignment,
a New York Supreme Court Justice would consider issues such as whether
to release him or place some restrictions on his liberty such as supervised
release. Supervised release is a type of court imposed supervision where
an accused person has to check in with some frequency while their case
If Trump is arrested and indicted for offenses relating to falsifying a
business record, the District Attorney might have a difficult road ahead.
A central question would be what exact business records were falsified,
how so, and by whom. Then, there would be questions about how the District
Attorney would prove that Trump's intent was to defraud at the time
of the falsification. If the District Attorney's goal is to charge
a felony version of falsifying business records, they would have to argue
this falsification was done with an intent to defraud and also to commit
or conceal a different crime such as a violation of federal election finance rules.
It might be argued that Trump never had the alleged affair, or never used
campaign funds, and that the so called "hush money" was really
just a settlement or made without Trump's knowledge at the time the
records concerning it were made. Notably, the Federal Election Commission
didn't pursue action against Trump after reviewing this payment.
Any prosecution into Trump would also grant him the same rights afforded
to other criminal defendants in New York including the right to discovery.
Discovery includes all of the law enforcement related paperwork, documents,
records, notes, witness statements, and other information. It is very
broad. For example, if an investigator wrote down a name of someone they
spoke to during their investigation on a napkin, they have to turn over
a copy of this napkin even if they also disclosed this same information
elsewhere in what they turned over. Every scrap of paper has to be disclosed.
Any federal investigation might have to be turned over in detail including
any search warrants and related applications. So, if the FEC has thousands
of documents regarding the Cohen investigation or the payment to Daniel,
this may have to be disclosed. Additionally, any Brady material would
have to be turned over. Brady material is, generally, conflicting or contradictory
information that tends to suggest that an accused person did not commit
the crime they are accused of. So, if any witness expressed doubt as to
what Trump knew or when, this may have to be revealed. If the case ever
went to trial, Trump's guilt would have to be proven beyond a reasonable
doubt which is a much higher than the standard the Grand Jury was held
to. Also, at any trial, Trump's attorneys would be able to speak,
cross examine witnesses, and argue a defense, unlike at the Grand Jury.
Could Trump raise doubt as to whether his intent was truly to defraud?
Could he raise doubt as to whether he was trying to skirt election finance
laws? As far as impermissible uses go, juries have heard about candidates
that are using campaign funds to pay student loans, home improvement expenses,
or other things clearly unrelated to their campaign. But is money paid
to silence a defamatory story unrelated to a campaign when if it weren't
for the campaign, the story may not have ever been be told or threatened
to be told?
There are, of course, other questions. If Donald Trump surrenders, will
he be handcuffed and have to do the "perp walk" such as that
happened to former candidate for the presidency of France Dominique Strauss-Kahn
in 2011? Would it be fair to ask a candidate to do a perp walk given that
everyone is presumed innocent and a candidate is especially susceptible
to embarrassing photos? If convicted, would he be sentenced to jail considering
the fact that the New York County District Attorney has suggested in a
Day One Memo that they will try not to seek jail for non-violent offenses? A felony
conviction might not prevent a federal candidate from taking office so
it will be interesting to see how this unfolds. It should go without saying
that no indictment has, as of the writing of this, been announced and
all of this speculation may amount to nothing. Additionally, everyone
is presumed innocent until proven otherwise in a court of law.