By Joseph Axe
NEW YORK (Reuters) – Donald Trump could be indicted in New York as early as this week for allegedly covering up hush money 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 to return to the White House.
In a social media post on Saturday, Trump said he expected to be arrested on Tuesday and urged his supporters to protest, although a spokesman later said Trump has not been notified of any pending arrest.
Manhattan District Attorney Alvin Bragg has presented evidence to a New York grand jury about a $130,000 payment to porn star Stormy Daniels in the waning 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 racketeering.
If indicted, Trump would become the first former US president to be prosecuted. Polls show him leading other potential rivals for the Republican nomination, including Florida Gov. Ron DeSantis, who is widely expected to make a bid 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, former Manhattan chief assistant district attorney, and Trump’s case is far from typical.
That raises the possibility of Trump being tried in the middle of the 2024 presidential campaign, or even after Election Day, although putting a 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 from state charges.
“This is so unprecedented that it’s hard for me to say,” Agnifilo said when asked if a judge would try Trump close to the election. “I think it’s tricky.”
The New York case is one of several focusing on Trump, including an election interference investigation in Georgia and a pair of federal investigations into his role in the January 6, 2021 attack on the US Capitol by his supporters who tried to overturn his defeat and into the United States. his retention of classified documents after leaving the White House.
CHALLENGING THE CASE
In his early career in real estate, as a TV celebrity and then in politics, the famously 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 could seek to dismiss the charges on those grounds.
Trump would also likely pursue other avenues, some of which could present difficult legal issues that take time to resolve.
While serving as president, Trump reimbursed Cohen for the Daniels payments, and federal prosecutors who charged Cohen said in court papers that the payments were falsely recorded as for legal services. The New York Times, citing sources, has reported that the most likely charges against Trump would be for falsifying business records, typically a misdemeanor.
To elevate this charge to a felony, prosecutors must prove Trump falsified records to cover up another crime. One possibility, according to the Times, is that prosecutors could argue that the payment itself violated state campaign finance law, since it was effectively an illegal secret donation to boost his campaign.
Using state election law to raise a charge of falsifying corporate records is an untested legal theory, experts said, and Trump’s lawyers are sure to challenge it.
Trump could 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 has been out of state, but Trump may argue that serving as US president should not apply.
“There’s a whole range of possibilities,” said David Shapiro, a former FBI agent and prosecutor who teaches at the John Jay College of Criminal Justice in New York. “This is a dream case for defense attorneys.”
FINGERPRINT AND MUGSHOT
In the short term, any indictment would require Trump to travel to the district attorney’s office in downtown New York to surrender. In civil cases, the defendant’s lawyers and prosecutors typically agree on a date and time rather than arresting the person at home.
Trump would have his fingerprints and mugshot taken and would appear for arraignment. He would likely be released on his own recognizance and allowed to go home, experts said.
Trump’s lawyer, Joe Tacopina, told CNBC on Friday that Trump would surrender if he was indicted. If Trump refused to enter voluntarily, prosecutors could seek to have him extradited from Florida, where he currently resides.
In an ironic twist, DeSantis would typically have to give formal approval to an extradition request in his capacity as governor, although legal experts in Florida said his role would be strictly administrative.
(Reporting by Joseph Axe; Additional reporting by Luc Cohen and Tom Hals; Editing by Scott Malone and Alistair Bell)
