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(This story was first published on 22 March 2023. It is being republished with new developments after former US President Donald Trump was indicted by a New York grand jury on Friday, 31 March.)
Former United States President Donald Trump was indicted by a New York grand jury on Friday, 31 March, for covering up payments made to porn star Stormy Daniels in the midst of his 2016 presidential campaign, making him the first US president to face criminal charges.
The historic indictment throws a wrench in the works of the businessman-turned-politician, who survived two impeachments during his tenure and plans on running again in the 2024 presidential election.
The Quint explains the possible aftermath of Trump's indictment and his looming arrest, all at a time when the former president braces for another presidential battle.
If you're unfamiliar with the Donald Trump-Stormy Daniels case, click on the tab below to read more about the scandal.
The Trump-Daniels Scandal
Manhattan District Attorney Albin Bragg’s office had launched an investigation into a $130,000 payment from Trump’s estranged former lawyer Micheal Cohen to Stormy Daniels, in exchange for her silence regarding a sexual encounter with Trump in 2006. Trump subsequently reimbursed the payment.
While the former president denied the encounter, it is alleged to have taken place with his current wife Melania Trump and just a few months after the birth of Barron, their son.
A BBC report claimed that since the payment reimbursing Cohen was recorded as “legal fees,” prosecutors may say this amounts to Trump falsifying business records.
Cohen joined the Trump Organization as an attorney in 2006, and was there till 2018, after which he was convicted and sentenced to three years in prison for tax evasion and other federal crimes.
An acclaimed member of the industry, Daniels said that she had a sexual encounter with Trump in 2006, after he promised to give her a place on his reality show ’The Apprentice.’
Trump and Daniels met twice more – though without getting intimate – and she eventually stopped taking his calls.
Reports claimed that Daniels attempted to sell the story several times, most promisingly in 2011, when Trump expressed interest in running for president, but the publication backed out after Cohen threatened legal action.
But after Trump launched a formal campaign in 2016, a behind-the-scenes video from a TV show with Trump, where he described how he groped an actress on the show, led to widespread outrage and reignited Daniels’ chances of selling the story.
However, a concerned Trump posse was fearful of the Stormy Daniels story leaking amid the outrage and arranged the payment in exhume for Daniels’ silence through a Non-Disclosure Agreement (NDA).
In 2018, the story broke anyways, and Daniels subsequently claimed that she risked a million-dollar-fine for breaking the NDA but added that “it was very important to me to be able to defend myself.” In August that year, Cohen testified that the former president asked him to make the $130,000 payment.
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The Charges Against Trump
Factually, the DA’s case against Trump is straightforward. While the payment made by Cohen in exchange for Daniels’ silence is not illegal, the record of payment being noted as legal fees may create trouble for the former president.
Prosecutors say that the act amounts to falsifying business records, a misdemeanour – which is a criminal offence in New York.
Moreover, prosecutors could allege that the payment also violated federal campaign finance laws since Trump’s intention to keep the affair a secret may have motivated an attempt to hide payment to Daniels.
It also raised legal and ethical questions about the payment not being disclosed as a campaign contribution, or because campaign funding was used to make the payment.
To elevate the charges to a felony, the DA will have to prove that Trump created the false records with the intention to conceal or commit “another crime.”
While the decision on filing charges lies with DA Bragg, he set up the grand jury to investigate the presence of enough evidence to pursue a prosecution, and is the only one who is aware of the possibility and timing of an indictment.
While a conviction on a misdemeanour charge would result in a fine for trump, a conviction on a felony charge may land Trump in prison for a maximum sentence of four years. However, experts quoted in several reports predicted that the possibility of a fine is greater, and that any prison time is extremely unlikely.
The Process: How Do You Arrest a Former President?
The Arrest: Most standard steps of a felony arrest would apply to the former US president if he were arrested. Trump would have his “mugshot” taken and be fingerprinted.
As per standard procedure, he would also be read the Miranda rights, which remind him of his constitutionally-protected right to remain silent and the right to a lawyer.
A Few Exceptions: The court may also offer Trump a private entrance to the courthouse, rather than the traditional “perp walk.”
Trump’s status as a former President and his ever-present Secret Service detail indicate that some accommodations may be made.
Moreover, while defendants charged with a felony are temporarily handcuffed, investigators may forgo “cuffing” the former president.
DA Bragg's office said that it contacted the Trump camp on Thursday to "coordinate his surrender" for the arraignment in New York.
The Hearing: Once Trump enters, he may be allowed to forgo the usual interrogation room or cell and be allowed to wait in an interview room or holding area until his appearance before a judge.
After a plea – guilty or not guilty – is registered, other details like the timeline of the trial and restrictions on movement and bail conditions, if any arise, will fall into place.
Bail: According to federal law, the nature of the potential charges against Trump for not allowing prosecutors to seek to have him held on bail. Moreover, as a formal candidate in the 2024 Presidential race, Trump is far from a flight risk and will probably be released shortly, if indicted.
Mass Protests?: There have also been several discussions about the prospect of protests, which Trump explicitly called for on his very own 'Truth Social' site over the weekend, and law enforcement agencies claim to have come up with plans and precautions for any potential mayhem.
Can Trump Still Run for President?
Regardless of a possible indictment or a criminal conviction, Trump can continue his formal presidential campaign for 2024, something he has explicitly said he would do.
Interestingly, nothing in US law, not even prison, can prevent a candidate found guilty of a crime from campaigning for or serving as the president. However, an arrest would throw a wrench in the works for Trump’s presidential campaign.
Moreover, it might also brew trouble among already divided Republican voters, who’re choosing between Trump, Florida Governor Ron DeSantis, former Vice President Mike Pence and former South Carolina Governor Nikki Haley.
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