Washington, DC – The Manhattan district attorney in New York appears poised to take an unprecedented step in United States history: charging a former president with a crime.
The potential looming indictment of Donald Trump has dominated US headlines for days as the former president, who is running for the White House again in 2024, and his Republican allies accuse prosecutors of politicising the justice system.
While the details of possible charges remain unclear, it has been widely reported that the case revolves around a hush money payment Trump’s former fixer and personal lawyer Michael Cohen paid to porn star Stormy Daniels ahead of the 2016 elections.
Trump fuelled speculation about the case when he said last week that he will be arrested and urged his supporters to protest.
Al Jazeera looks at the facts of the case and what could happen if Trump is indeed charged.
What are the charges about?
The impetus for the case dates back to 2016, when Cohen paid Daniels $130,000 just before the US presidential election to keep quiet about an alleged affair she had with Trump.
Cohen has said he acted at Trump’s request and that the former president reimbursed him for the money given to Daniels, whose real name is Stephanie Clifford.
The story became public in 2018. In subsequent interviews, Daniels said she had a sexual encounter with Trump at a celebrity golf tournament in 2006.
Several US media outlets have reported that Trump will likely be charged with falsifying business records for trying to improperly conceal the payment as legal expenses.
The charge, normally a misdemeanour, could be upgraded to a felony if prosecutors link the payment to violations of election law, which cap donations to political candidates at $2,700 per individual and require them to be made public. The payment to Daniels, right before the 2016 vote, could be considered an illegal campaign contribution.
Cheryl Bader, clinical associate professor of law at Fordham University in New York, said “piggybacking” one alleged offence onto another may prove challenging for prosecutors.
“The speculation is that the underlying crimes are going to be connected with campaign finance or promoting a candidate in an unlawful manner,” Bader told Al Jazeera.
Another issue for the DA is the fact that the US Justice Department decided not to prosecute the case, Bader added.
“There could be a path to convictions; I think all the legal stars will need to align,” she said.
What has Trump said?
Trump has insisted that he did nothing wrong and has accused Alvin Bragg, the elected Democratic prosecutor overseeing the case, of “misconduct” and interfering in the 2024 elections.
Trump has also questioned the credibility of Cohen, who was sentenced to three years in prison in 2018 for his role in the Daniels payment as well as for lying to Congress. Trump has often dismissed Cohen as a convicted liar and “jailbird”.
In 2018, Trump denied the affair with Daniels but said the payment to the adult film actress “was used to stop the false and extortionist accusations made by her”.
He still maintains that the payment was unrelated to his 2016 campaign for president.
Why now?
It is not clear whether new evidence has been discovered. But as things stand, the case revolves around a possible offence committed seven years ago, relating to an alleged extramarital affair from 2006. That stretched timeline has led some legal experts to describe it as a “zombie” case.
Bragg came into office in January of last year. Early into his term as district attorney, two prosecutors involved in investigating Trump resigned, with one claiming that the probe was “suspended indefinitely”.
Bragg has not discussed details of the investigation, citing its ongoing status, but as prosecutor, the decision to pursue this particular charge is his.
“The prosecutor has a lot of discretion in the case, as to whether to present the evidence to the grand jury, whether to ask them for an indictment and whether to move forward or dismiss the case,” Bader said.
Jeffrey Chabrowe, a criminal defence lawyer in New York, said the case is “kind of minor”.
“It’s a small, narrow case. It’s not a huge, big undertaking,” he explained. “Why has no one else done it? I don’t know.”
What is a grand jury?
While Bragg is the one pursuing the charges, prosecutors do not indict people; grand juries or judges do.
An indictment would mean a grand jury has found that criminal charges are warranted in a particular case.
A grand jury is a group of randomly selected citizens who are presented with evidence to assess whether an alleged offence merits prosecution. The jurors convene in secret proceedings without a judge present.
In New York, as many as 23 people sit on a grand jury. To bring formal charges, a majority must vote in favour of an indictment.
With subpoena power, the grand jury also serves as an investigative body. The panel can compel parties to produce documents and testimonies relating to a probe.
Unlike a trial jury, the grand jury does not determine whether a suspect is guilty or not. Rather, it decides whether there is probable cause to criminally charge a defendant.
“Indictment is the way a felony moves forward,” Chabrowe said.
Defendants can testify in front of the grand jury, but their testimony may also be used against them in a trial in the case of an indictment.
“There’s no defence attorney present. It’s a secret proceeding. And that’s why we don’t really know exactly what’s happening right now within the grand jury — because nobody could be there but the prosecutor,” said Fordham’s Bader.
What happens next if Trump is indicted?
If Trump is indicted, Bader explained that the next step would be for him to be processed into the criminal justice system and arraigned — in other words, presented with formal charges in court.
Given that it is a highly-publicised “white-collar” case, Trump would likely be released on his own recognisance without bail, meaning he would simply promise to return to court when necessary.
Bader said that, after arraignment, the next stage is “pre-trial litigation”, where the parties file motions to the judge, including to determine what evidence is permissible in court. The pre-trial period also includes a “discovery process” in which the prosecutor shares findings with the defence.
Then the trial happens, with the prosecutors and defence lawyers presenting evidence to convince the jury — a randomly selected group of people from the community — of the defendant’s guilt or innocence.
“The judge tells the jury the law, and then the jury deliberates and would come with a verdict. If there is a guilty verdict, then the judge will sentence a defendant,” Bader said.
Will Trump be arrested?
Trump being handcuffed and guided into the back of a police car is a tantalising image for many of his critics — so much so that social media websites are being flooded by artificial intelligence-generated photos fictionalising his arrest.
But Bader said it is unlikely the former president would be treated like an average suspect.
“In our country, ‘white collar’ defendants are often treated in a more dignified manner. This is one way in which our system is a racist system,” she told Al Jazeera.
“I think because of who the defendant is in this case, he will be treated with extreme kid gloves,” Bader added. “I wouldn’t be surprised if we saw that he comes in the back of the courthouse, escorted by his Secret Service team and whatever entourage he’s with and that he is given a very quiet and dignified processing.”
Both Bader and Chabrowe said that even if Trump is convicted, it would be unlikely that he would be sentenced to jail time given the nature of the offence.
Can the case be dismissed?
Defence lawyers often ask judges to toss out cases against their clients, arguing there is not enough evidence or no crime was committed. The request is known as a motion to dismiss.
But Chabrowe said judges rarely dismiss criminal cases. “Very, very, very, very few cases are dismissed in motions to dismiss. No one’s going to dismiss [the Trump case],” he said.
