By Joseph Ax
NEW YORK (Reuters) – Donald Trump could be indicted in New York as early as this week for allegedly covering up secret payments to a porn star during his 2016 presidential campaign, nearly seven years after the money changed hands.
But any trial against the former US president would still be more than a year away, legal experts said, and could coincide with the final months of the 2024 presidential campaign as Trump seeks a return to the White House.
In a social media post on Saturday, Trump said he expected to be arrested on Tuesday and urged his followers to protest, although a spokesman later said Trump had not been notified of an impending arrest.
Manhattan District Attorney Alvin Bragg presented evidence to a New York grand jury about a $130,000 payment to porn star Stormy Daniels in the final days of the 2016 presidential campaign in exchange for her silence about an alleged affair, according to sources. Trump has denied the affair, and his lawyer has accused Daniels, whose real name is Stephanie Clifford, of extortion.
If indicted, Trump would become the first former US president to face criminal prosecution. Polls show him leading other potential rivals for the Republican nomination, including Florida Gov. Ron DeSantis, who is widely expected to run for the White House.
The average criminal case in New York takes more than a year to go from indictment to trial, said Karen Friedman Agnifilo, a former Manhattan chief assistant district attorney, and Trump’s case is far from typical.
That raises the possibility that Trump may have to stand trial midway through the 2024 presidential campaign or even after Election Day, although putting the president-elect or president on trial on state charges would enter uncharted legal waters. If elected, he would not have the power to pardon himself on state charges.
“It’s so unprecedented it’s hard for me to say,” Agnifilo said when asked if a judge would put Trump on trial near the election. “I think it’s complicated.”
The New York case is one of several focused on Trump, including an investigation into election meddling in Georgia and two federal probes into his role in the Jan. 6, 2021, attack on the U.S. Capitol by his supporters trying to overturn his defeat and in the preservation of classified documents after leaving the White House.
CONTESTING THE CASE
In his early career in real estate, as a television celebrity and then in politics, the notoriously litigious Trump has used aggressive counterattacks and delaying tactics when faced with legal challenges.
Trump has accused Bragg, an elected Democrat, of targeting him for political gain and may seek to have the charges dismissed on those grounds.
Trump is likely to pursue other avenues, some of which could create difficult legal issues that take time to resolve.
While president, Trump reimbursed Cohen for the Daniels payments, and federal prosecutors who charged Cohen said in court documents that the payments were falsely recorded as being for legal services. The New York Times, citing sources, reported that the most likely charges against Trump would be for falsifying business records, a misdemeanor.
To bring that felony charge, prosecutors must prove Trump falsified records to cover up a second crime. One possibility, according to the Times, is that prosecutors could argue that the payment itself violated state campaign finance law because it was effectively an illegal secret donation to boost his campaign.
Using state election law to bring charges of falsified business records is an untested legal theory, experts said, and one that Trump’s lawyers are sure to challenge.
Trump may also challenge whether the statute of limitations — five years in this case — should have expired. Under New York law, the statute of limitations can be extended if the defendant was out of state, but Trump could argue that the office of the US president should not apply.
“There’s a whole range of possibilities,” said David Shapiro, a former FBI agent and prosecutor and a professor at the John Jay College of Criminal Justice in New York. “It’s a dream job for defenders.
FINGERPRINTS AND PHOTOGRAPHS
For the foreseeable future, any indictment will require Trump to travel to the district attorney’s office in central New York to turn himself in. In white-collar cases, the defendant’s attorneys and prosecutors usually agree on a date and time rather than arresting the person at home.
Trump would be fingerprinted and photographed and appear for arraignment. He will likely be released on recognizance and allowed to return home, experts said.
Trump’s lawyer, Joe Tacopina, told CNBC on Friday that Trump would turn himself in if he was indicted. If Trump refuses to come voluntarily, prosecutors could seek his extradition from Florida, where he currently lives.
Ironically, DeSantis normally has to give formal approval for an extradition request in his capacity as governor, although Florida legal experts said his role would be strictly administrative.
(This story has been revised to correct the misspelling of “changed hands” in paragraph 1)
(Reporting by Joseph Ax; Additional reporting by Luke Cohen and Tom Hals; Editing by Scott Malone and Alistair Bell)