Former President Trump is expected to face what could be more than two dozen counts across different charges as he makes his first appearance in court Tuesday, following an indictment in connection with concealing hush money payments to an adult film star.
The charges will be revealed when Trump is arraigned in Manhattan. In the brief courtroom exchange, Judge Juan Merchan will read aloud the laws the former president is alleged to have violated, while Trump is expected to plead not guilty.
The criminal charges stem from a $130,000 payment made to Stormy Daniels by Trump fixer Michael Cohen. Though hush money payments are not illegal, the manner in which Trump and Cohen concealed the payments could be, casting the reimbursements as legal expenses.
Reports indicate Trump could face charges on more than 30 counts from Manhattan District Attorney Alvin Bragg (D).
The potential for dozens of charges likely reflect Trump’s lengthy payment history with Cohen – spread out over about a year – as well as the track prosecutors take in tying the misdemeanor records falsification to a felony that could include both tax fraud and campaign finance violations.
Trump or his trust wrote 11 checks to Cohen, and each could trigger separate charges, even if prosecutors focus only on the checks the former president directly signed.
“If Trump signed six checks, those are six events that can each trigger multiple crimes. For example, each could be charged as a misdemeanor falsification of business records as well as multiple felony versions of the same offense, with multiple other crimes serving as the predicates to bump that charge up to a felony,” Josh Stanton, an attorney with Perry Guha who has written analyses of the case, told The Hill.
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The total number of counts could also mean serious work for the eventual jurors chosen in the case.
“Thirty counts is a lot,” said Catherine Christian, who spent more than 20 years in the Manhattan district attorney’s office and now is in private practice.
“Every single count has to be found sufficient. Now it could be that means 10 counts are found insufficient then you still have 20 counts, but my point is every they’re looking at every single count.”
It also depends on how Bragg prosecutes the case.
Legal observers suggest an indictment of Trump would likely focus on charges of falsifying business records, but bumping that up from the misdemeanor to a felony may prove difficult.
A felony charge requires a connection to a second crime and would augment the maximum jail time from one year to four years.
Prosecutors are likely to weigh two possible pathways to achieve that end.
If he pursues an approach based on tax issues, Bragg would likely look to see if Trump took a tax deduction on the reimbursements by deeming them a legal expense.
The potentially more complex path is to upgrade to felony charges by using various campaign laws.
Likely to be in dispute is whether Trump violated campaign laws by failing to disclose the payments.
Cohen served jail time for what was deemed an excessive campaign contribution, with federal prosecutors arguing that the hush money payments should have been disclosed in campaign finance reports as it was spending that could have influenced the 2016 election.
Trump’s legal team has said he would have made the payment regardless of the race, in an effort to stop false information from hurting his marriage. Daniels alleged the two had a sexual relationship, an affair Trump denies.
But Trump’s attorneys have also said Bragg would be in the wrong to bring such a charge because as a presidential candidate, Trump’s conduct was governed by federal campaign law, something they argue is out of reach for the state prosecutor to use in bumping up to a felony.
Some argue that point doesn’t entirely prohibit Bragg from bringing charges that are tied to federal campaign law violations.
Norm Eisen, counsel for Democrats in Trump’s first impeachment and an author on both impeachment reports, told The Hill that New York law doesn’t expressly rule out the option.
“I absolutely believe having studied New York law that Bragg can charge state and federal campaign finance crimes in the alternative. The statute doesn’t limit ‘other crimes’ or ‘unlawful’ behavior to only state offenses,” Eisen said.
He added such a point would likely be challenged in court, but that Bragg would be wise to pursue all possible options.
“If he chooses to go with one or the other, that’s also understandable and legitimate, but if it were me, I would do both state and federal,” he said.
Pursuing a felony through state campaign laws could present other complications. State campaign finance laws are preempted when federal campaign finance provisions apply.
While state law bars any evasion of campaign contribution limits, using those statutes is not straightforward, as another campaign finance statute deems that they “shall not apply to any candidate” when they are also required to file statements at the federal level.
That leaves a statute barring “conspiracy to promote or prevent election” — something experts say Trump may have violated — as well as a catch-all statute in New York code for election violations “not specifically covered” elsewhere.
Trump has arrived in New York City for the arraignment, and his legal team has said he will plead not guilty to the charges.
The former president has repeatedly dismissed the entire probe and its conclusion as politically motivated.
“The Corrupt D.A. has no case,” Trump wrote on his social media site Sunday night.
“What he does have is a venue where it is IMPOSSIBLE for me to get a Fair Trial (it must be changed!), and a Trump Hating Judge.”
Zach Schonfeld contributed.