By Laura Jarrett —
NBC News
Never in American history has a former president been prosecuted.
That may change this week: Donald Trump is facing possible criminal charges in a New York court related to paying hush money to porn actress Stormy Daniels during the 2016 election campaign.
Trump maintains that he has not committed any crime and his lawyers argue that he was a victim of extortion.
The Manhattan district attorney's office, led by Democrat Alvin Bragg, has no comment and no charges have been announced.
But a grand jury is due to decide in the coming hours whether to indict Trump, which would be a remarkable moment in the country's history in a case with a legal basis that seems far from obvious.
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What is the possible crime?
Factually, the case is simple.
Michael Cohen, a former Trump attorney, paid Daniels $130,000
just days before the 2016 election. According to Cohen, he did so at Trump's direction because Daniels was going to go public with an alleged sexual affair with the businessman in 2006 (which he fervently denies). ).
When he was already in the White House, Trump returned the money to Cohen.
Hush payment isn't a crime
, but how the Trump Organization documented that spending might be.
According to Mark Pomerantz, a former prosecutor who worked closely on the case and recently published a book about his experience,
Cohen filed false invoices in 2017
referencing a "retainer agreement" and requesting payment.
The lawyer then received a series of checks, hand-signed by Trump when he was already in the White House.
The legal problem is that there was no retention agreement: according to Pomerantz, everything was done to cover up the payment in silence.
False documentation of “legal expenses” on the books of the Trump Organization could trigger a prosecution under New York state law that criminalizes falsifying business records.
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Normally, that charge would be a misdemeanor.
To elevate it to a felony, the defendant must have created the false records with the intent to commit or conceal “another crime.”
In this case, it is not clear what the second offense is that the Manhattan District Attorney's Office alleges.
Some legal commentators have suggested that the prosecutor may only pursue the misdemeanor.
Others have argued that it would be a huge waste of time and resources, and would give Trump the power to paint the case as weak.
If the grand jury does not vote to indict Trump on a felony, it could order the prosecutor to indict him on the misdemeanor.
Is it clear that the legal case will go ahead?
No. Former District Attorney Cy Vance, a Democrat, thoroughly investigated the false business records charge (and its limitations).
According to sources familiar with the investigation, Vance even commissioned outside lawyers to study the legal implications, but ultimately chose not to pursue the case further.
It was considered a long shot at the time, and many legal scholars still consider it a long shot.
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If the grand jury indicts, then the key will be what the prosecution's theory is about the second offense mentioned above.
Is it a state crime?
Some have pointed to a possible conspiracy charge under New York law, with the idea that Trump conspired with others to ensure the matter did not come to light before the 2016 election. Others have suggested that it could be in the offing. game a violation of federal campaign finance rules.
That's what Cohen pleaded guilty to in 2018, along with other charges, stemming from an investigation led by the US Attorney's Office for the Southern District of New York in collaboration with the FBI and IRS.
But the prospect of state prosecutors linking his case to a federal crime is considered legally risky ground.
In the absence of a solid legal precedent in this case, the prosecutors' bet is that a judge or an appeal court annul the accusation or sentence against the former president.
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What would be Trump's legal defense?
Trump has dismissed the investigation as politically motivated because Bragg is a Democrat, but his lawyers' arguments in court will likely be different and could revolve around Trump's intent at the time the payments were made.
New York law requires an “intent to defraud” in order for a jury to convict on a false business records charge.
Lawyers could argue that there was never any intention to defraud the Trump Organization.
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Trump suggested Monday on social media that even if a crime had been committed, the statute of limitations would have already expired.
But that's unlikely to be a major stumbling block.
The statute of limitations for a felony charge involving false business records normally requires that a charge be filed within five years, but the statute of limitations is extended when the defendant is not continuously present in New York.
Given that Trump was only in the state a few times when he was president, this is likely to be a hurdle that the prosecution can overcome if it pursues the case.
Trump's lawyers can also turn to Pomerantz's book to bolster their arguments.
Pomerantz explains the potential legal issues in mounting a successful case of false business records, so attorneys can argue that even an insider didn't think the case was strong enough to prosecute.
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Could Trump go to jail?
In theory, yes.
The charge of falsifying business records in the first degree is a felony that can carry up to four years in jail.
Actually, it's not certain that Bragg would recommend that Trump serve time.
Ultimately, if he is found guilty, it will be up to a judge to decide the appropriate sentence.
What happened to the federal investigation?
The US Attorney for the Southern District of New York obtained a guilty plea from Cohen and investigated Trump years ago, referring to him as “Individual-1” in court documents when discussing the campaign finance violations.
But the Justice Department's policy of not impeaching a president complicated matters.
According to a book by CNN's Elie Honig, citing multiple sources, federal prosecutors considered charging Trump once he was out of office, but ultimately decided against it.
Honig writes that this case was not seen as a sure success.
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Why is this happening now?
It's hard to tell.
Within the District Attorney's Office, the investigation was labeled a
zombie
case , according to Pomerantz, who would die and be resurrected multiple times over the years.
Bragg's office is an elected office, so some have argued that going ahead with an impeachment of Trump could help his re-election efforts, while others have suggested that if Trump did, in fact, break the law, Bragg should lead the case and make sure that no one is above the law.
If Trump is impeached, what will happen?
In a typical case, the prosecution would instruct the grand jury on the charges and the law, and then the jurors would vote.
The grand jury is usually made up of 23 people, and at least 16 who have heard the evidence have to be present to vote, but the decision does not have to be unanimous.
If 12 members of the grand jury vote in favor of the indictment, the prosecution drafts an indictment and is signed by the foreperson of the jury.
The indictment is filed under seal in court, so the public will not initially see it.
Once the accusation is presented, the Prosecutor's Office usually contacts the defense attorneys to coordinate that the defendant surrender.
Despite Trump's social media post Saturday suggesting he would be imminently arrested, a Trump spokesman said his lawyers have not been made aware of any charges thus far.
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If the case proceeds like other high-profile cases in the past, and if Trump turns himself in, he could be prosecuted in the District Attorney's Office, according to sources familiar with the office.
This would include paperwork, fingerprinting, a mug shot of him, and a check on any pending criminal charges, all behind closed doors.
The charges would then be laid before a judge.
That would be public.
At that point, Trump or his attorney on his behalf would plead not guilty or guilty and be released with another court date.
Given the nature of the charges, he would not have to post bail.
