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Trump faces arraignment, long legal battle ahead

Donald Trump during a 2016 election campaign stop in Plattsburgh.
Pat Bradley/WAMC
Donald Trump during a 2016 election campaign stop in Plattsburgh.

As he runs for the White House for a third time, former President Donald Trump is entering a new era, becoming the first president charged with a crime. His arraignment stems from hush money paid to porn star Stormy Daniels during his 2016 campaign. The investigation by Manhattan DA Alvin Bragg is already being dismissed as politically-motivated even by some of Trump’s 2024 Republican rivals. For analysis, we’re joined by Columbia Law School Professor John Coffee.

We've obviously never seen this before. How do you expect things to play out as Trump turns himself in?

Well, the actual arrangement, I think, will be very streamlined and modest. There won't be the perp walk that takes the individual in handcuffs out on the street for photographers to go at him. There probably will be fingerprints, but there probably will not be anything like handcuffs or a jail cell and the Secret Service will be with him at all times. This will not take long and he'll be on the plane home that night.

What happens after that?

Well, then I think we're going to see the defendants make a number of motions. They will move to dismiss on a variety of legal theories, some of which are more than plausible. And they will also probably seek a change of venue. They've discussed that moment. They know that Midtown Manhattan is not exactly a Republican hotbed and Trump has more detractors than fans in Manhattan. Therefore, they would like to get it shifted to Staten Island. That's one kind of motion they'll make. There will be other attempts to delay all this. You have to schedule this trial, and Trump usually wants to delay this, and will probably be seeking to delay it until after the primaries are over. Which means that voters will not be voting on someone who might be a felon by that point, they'll still be dealing with someone who faces somewhat uncertain future.

You said a moment ago that his attorneys are likely to make some legal arguments you think have a certain amount of standing. What are they?

Well, first of all, we won't know for sure until we see the indictment. But the indictment that Mr. Bragg is pursuing is one that earlier prosecutorial teams working under the prior U.S. Attorney, Cyrus Vance decided was a little risky. The theory that's being used, will apparently be that Trump falsified a business record, which is a misdemeanor, punishable by up to a year in prison. And it can be converted into a felony, punishable by four years in prison if this crime was committed, falsifying the business record in order to conceal or help commit an additional crime. That requires that you point to a second crime, and it looks like, we don't know until tomorrow, that the prosecutors are planning to allege that Trump was committing a federal election law violation by an effect making a de-facto contribution to his own campaign when he paid $130,000 or repaid Cohen for that $130,000 to hush up Stormy Daniels. Now, that is arguably a federal contribution in violation of federal law, but it's very uncertain. One, does New York have the jurisdiction to enforce federal election law? They haven't generally tried anything like that. And two, did Trump have any idea this was a federal election violation? The statute requires an intent to defraud an intent to defraud doesn't mean that you negligently did something, it means you had to intend that second violation. And that's going to be hard to show because putting it bluntly, Mr. Trump is relatively ignorant of the requirements of the law, including federal election law. So, showing that he was intentionally trying to violate it is an uphill battle. That's one of several issues that we're going to have in that area.

Does the fact that the DA’s office was able to convince a grand jury to bring a charge tell you anything about the type of evidence that Bragg may have?

Well, it was said by a former New York State Court of Appeals Chief Justice, that a grand jury will indict a ham sandwich if the prosecutor asked them to. So, I wouldn't draw too much from the fact that the grand jury gave this indictment. It's not hard. You only have to get a majority of the grand jury. But I think we do know something about the evidence. The evidence is going to rely very much on Michael Cohen, Mr. Trump's former lawyer and the individual who usually was the go between when Mr. Trump paid someone off. That makes him a difficult witness for the prosecution. He's already plead guilty to violations of federal election law and now he's pointing the finger at Donald Trump. From one standpoint, you can say, well, he was working for Trump and no one knows better how Trump behaved. And also, it's true in many white-collar cases, that you got to find a co-conspirator who will testify against the principal defendant. But we do have the fact that there is a history of Mr. Cohen, and he's not the ideal witness.

What about the fact that this case, as you mentioned, was not pursued by the previous DA? Does that tell us anything about its likely hood in succeeding and convicting Trump?

Well, they decided not that it was false, they decided it was safer to go after Trump and alleged that he was falsifying his business records by inflating his assets in order to get major banks to lend him more money. Now, that's the classic kind of fraud. You are going after property, money, etc. and the banks were misinformed. Although banks are pretty sophisticated and the defense would be, banks don't do a loan this large without doing some due diligence on their own. But anyway, the earlier prosecutorial team working for Cyrus Vance decided it was better to make the banks the victims of the crime, rather than make the public of victims because they were uninformed about the nature of the payoff. You can debate that. I do think that the decision made by the first team of prosecutors was probably the better decision. But at that point, the new district attorney, Mr. Bragg wanted to show the world that he was in charge. He didn't like that particular theory, and he refused to prosecute it and the two district attorneys working under Vance immediately resigned. It'll be debated for some time if this case is unsuccessful, whether it would have been better to pursue the original theory that Cyrus Vance and his aides, Mark Pomerantz and others had elaborately prepared. But that's the kind of judgment, it's like second guessing the pitch the pitcher threw. You can argue both ways.

Just one more thing as we're awaiting more details about the nature of this investigation. Do you think there's any possibility of Trump striking a plea deal or a plea bargain here at all?

I would make this prediction absolutely impossible that Donald Trump can plea bargain and plead guilty to any of this and remain a candidate. He is going to say I was victimized. This is a political attack. They're indicting me in his vocabulary to weaponize the legal system against me. So, he's going to have to fight this and he would have a great difficulty defeating the misdemeanor charge because it is possible to show that business records were falsified to indicate that there were legal expenses being paid here, rather than a side payment to get some of the hush up. But the criminal offense, I don't think he needs to plea bargain there because he's got a fighting chance of beating them.

A lifelong resident of the Capital Region, Ian joined WAMC in late 2008 and became news director in 2013. He began working on Morning Edition and has produced The Capitol Connection, Congressional Corner, and several other WAMC programs. Ian can also be heard as the host of the WAMC News Podcast and on The Roundtable and various newscasts. Ian holds a BA in English and journalism and an MA in English, both from the University at Albany, where he has taught journalism since 2013.
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