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Manhattan District Attorney Alvin Bragg filed the first criminal case ever against a former president. Despite criticism that the case was small potatoes, the case is more substantial and more likely to lead to conviction and jail time than coverage has suggested. The 34-count business falsification case may be the only case against former president Donald Trump to reach a verdict before the November election. As a result, it may well shake up the presidential race. Here are five things to keep in mind before the trial begins next week.
The same key facts were considered in Trump’s first impeachment.
Trump’s first impeachment seems like ancient history. But House impeachment investigators interviewed Hope Hicks and Michael Cohen, and delved into the facts concerning payment to women to silence them before the 2016 election. The hush money scheme was grist for impeachment because procuring office by corrupt means can be a sufficient basis for impeachment.
While impeachment ultimately focused solely on the Ukraine “perfect call,” obtaining office by corrupt means is central to Bragg’s case. When Trump allegedly falsified documents to disguise the hush money, he violated New York law, Bragg will argue. (“The core is not money for sex,” he told WNYC’s Brian Lehrer. “We would say it’s about conspiring to corrupt a presidential election and then lying in New York business records to cover it up.”)
A conviction would impose accountability for the scheme that helped put Trump in the White House. That would be a key affirmation of the rule of law.
Yes, if convicted his punishment might include jail time.
Norman Eisen, former counsel to House impeachment managers (who investigated the hush money scheme as described above), in an analysis and compendium of trial materials, “Trying Trump: A Guide to His First Election Interference Criminal Trial,” employs a unique argument to conclude that “Trump’s case presents legally cognizable aggravating factors that make a sentence of incarceration not only possible but likely, and there are many examples of first-time offenders charged with this offense getting jail time.” Eisen explains how he reached that conclusion:
New York State aggregate case data suggest that approximately one in ten cases in which the most serious charge at arraignment is falsifying business records in the first degree (and in which the court ultimately imposes a sentence) results in a sentence of imprisonment. Our analysis of the raw data available from New York State shows that between November 2020 and March 20, 2024, there were 457 cases with a final disposition in which the most serious charge at arraignment was falsifying business records in the first degree. Fifty-five of these cases — or approximately 12 percent of the total — resulted in a prison sentence.
Comparing cases in which first-time offenders were sentenced to incarceration for falsifying business records in commission of campaign finance violations, he concludes incarceration would not be unusual punishment in this case. Since the judge in determining punishment would consider the number of other pending criminal cases against Trump and Trump’s behavior (e.g., threatening court personnel, flouting gag orders), he could well sentence Trump to some time behind bars.
Trump’s counsel blew it on a possible immunity defense.
No matter the result, the Supreme Court’s decision on immunity in the Jan. 6 case cannot help Trump in New York for two reasons. First, the hush money scheme was set up before the election, although payments continued into his presidency. And second, Trump’s attorney dropped his appeal from a ruling from U.S. District Court Judge Alvin Hellerstein that the case could not be removed and was not preempted by federal law because “evidence overwhelmingly suggests that the matter was a purely a personal item of the President — a coverup of an embarrassing event.” Trump’s counsel let stand Hellerstein’s ruling that “money paid to an adult-film star is not related to a President’s official acts.”
Having failed to keep the issue alive, even a very favorable ruling from the Supreme Court would not allow Trump to re-raise the issue. That’s precisely what New York Supreme Court Justice Juan Merchan held last week in rejecting Trump’s last-minute gambit to delay the trial.
Trump’s behavior could risk a contempt of court ruling — or worse.
Many Americans express frustration that Trump’s attacks on the courts’ legitimacy and on judicial personnel and their families have not been adequately punished. That may change.
Merchan issued an order on March 26 prohibiting him from making public statements about witnesses, counsel other than Bragg or their families, court staff, and jurors. Within days, Trump attacked Merchan’s daughter, leading the judge to expand the order.
However, out-of-court statements may not constitute the highest risk of Trump landing in contempt. He must sit in court day after day as former associates (such as Cohen) testify against him and prosecutors accuse him of mounting a coverup to win election. Few Trump-watchers think he has the self-control to remain quiet. What then?
The judge could set a series of escalating fines. (Judge Arthur Engoron in the New York civil case twice fined Trump for violating a gag order barring certain public statements; Trump soon stopped.) Theoretically, Merchan could also detain him, even briefly, in the holding cell behind the courtroom used for defendants not out on bail.
Trump’s true comeuppance: His behavior could adversely affect the judge’s sentencing decision and the jury’s decision on guilt. After all, they will have to decide if Trump is the sort of person to flout the law.
Trump won’t have the ‘deep state’ to blame. And voters may cheer a conviction.
Trump continually plays the victim of persecution and election interference by an alleged “deep state.” (If anything, he is using trials and screeds about them to help win election.) But he’s wrong — and not only because he gets treated no worse, and perhaps better, than any criminal defendant.
Ordinary New York grand jurors indicted him, and run-of-the-mill trial jurors will determine guilt. As Karen Friedman Agnifilo, a veteran of the Manhattan DA’s office, reminds us, “This jury isn’t going to be forced down his throat. He will have chosen the people in this jury.” With 10 peremptory challenges (to eliminate a juror for virtually any reason) Trump will face his jury’s verdict.
Trump shouldn’t count on engendering sympathy for a conviction. Polling from Research Collaborative on the four Trump trials found, “Three-quarters of voters believe that if found guilty, Trump should serve time in prison, including 97% of Democrats, 80% of independents, and 49% of Republicans.” Another poll from Politico showed, “By a more than 2-1 margin, respondents said that a conviction would make them less likely to support Trump (32 percent) as opposed to more likely (13 percent).” In other words, voters may view a conviction and even incarceration as Trump getting his just deserts. No wonder Trump seems increasingly desperate to avoid trial.
