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.
The 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 is pending.
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.