Washington, D.C. – New York’s Manhattan District Attorney appears poised to take an unprecedented step in United States history: to charge a former president with a crime.
The potential 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 politicizing the justice system.
While details of potential charges remain unclear, the case is widely reported to center on a hush money payment Trump’s former fixer and personal attorney Michael Cohen paid to porn star Stormy Daniels ahead of the 2016 election.
Trump fueled speculation about the case when last week he said 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 indicted.
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 remain silent about an alleged affair she had with Trump.
Cohen has said he acted at Trump’s request and that the former president refunded him 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 is likely to be charged with falsifying company records for improperly concealing the payment as legal fees.
The charge, normally a misdemeanor, could be upgraded to a misdemeanor if prosecutors link the payment to violations of the election law, which limits donations to political candidates to $2,700 per person and demand they be made public. The payment to Daniels just before the 2016 election could be considered an illegal campaign contribution.
Cheryl Bader, a clinical associate professor of law at Fordham University in New York, said “piggybacking” from one alleged crime to another can be challenging for prosecutors.
“It is speculated that the underlying crimes will be related to campaign finance or unlawfully promoting candidates,” Bader told Al Jazeera.
Another problem for the prosecutor is the fact that the US Justice Department has decided not to pursue the case, Bader added.
“There could be a way to beliefs; I think all the legal stars need to align,” she said.
What did Trump say?
Trump has insisted he did nothing wrong and has charged Alvin Bragg, the elected Democratic prosecutor overseeing the case, with “misconduct” and interference in the 2024 election.
Trump has also questioned the credibility of Cohen, who was sentenced to three years in prison in 2018 for his role in paying Daniels and 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 extortionate allegations made against her.”
He still claims the payment had nothing to do with his 2016 presidential campaign.
It is not clear whether new evidence has been found. But as things stand, the case revolves around a possible crime committed seven years ago that relates to an alleged extramarital affair from 2006. That stretched timeline has led some legal experts to describe it as a “zombie ‘-case.
Bragg took office in January last year. Early in his term as district attorney, two prosecutors involved in the Trump investigation resigned, one claiming that the investigation was “indefinitely suspended.”
Bragg has not discussed the details of the investigation, citing its pending status, but as a prosecutor, he makes the decision to pursue this particular charge.
“The prosecution has a lot of discretion in the case, in determining whether to present evidence to the grand jury, whether to ask them to indict, and whether to continue or dismiss the case,” Bader said.
Jeffrey Chabrowe, a New York criminal defense attorney, said the case is “kind of small.”
“It’s a small, narrow business. It’s not a big, big undertaking,” he explained. “Why hasn’t anyone else done it? Don’t know.”
What is a Grand Jury?
While Bragg is the one prosecuting the charges, prosecutors don’t charge people; grand juries or judges do.
An indictment would mean that a grand jury has determined that criminal charges are warranted in a particular case.
A grand jury is a group of randomly selected citizens who are given evidence to judge whether an alleged crime warrants prosecution. The jurors meet in secret proceedings without a judge present.
In New York, no fewer than 23 people sit on a grand jury. To file formal charges, a majority must vote in favor of an indictment.
With subpoena powers, the grand jury also serves as an investigative body. The panel may require parties to provide documents and testimony related to a probe.
Unlike a trial jury, the grand jury does not determine whether a defendant is guilty or not. Instead, it decides whether there is probable cause to prosecute a suspect.
“Indictment is how a crime progresses,” Chabrowe said.
Defendants can testify before the grand jury, but their testimony can also be used against them in a trial in the event of an indictment.
“There is no lawyer present. It’s a secret procedure. And that’s why we don’t know exactly what’s happening in the grand jury right now — because no one can be there except the prosecution,” Bader van Fordham said.
What happens if Trump is impeached?
If Trump is indicted, Bader explained that the next step would be for him to enter the criminal justice system and be charged — in other words, formally charged in court.
Given that it’s a highly publicized “white-collar case,” Trump would likely be released on his own admission 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 with the judge, including to determine what evidence is admissible in court. The pre-trial period also includes a “discovery process” in which the prosecutor shares findings with the defense.
Then the trial takes place, with the prosecutors and defense attorneys 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 comes out with a verdict. If there is a guilty verdict, the judge will convict a defendant,” Bader said.
Will Trump be arrested?
Trump being handcuffed and led into the back of a police car is a tantalizing image for many of his critics — so much so that social media websites are flooded with AI-generated photos that fictitious his arrest.
But Bader said the former president is unlikely to be treated like an average suspect.
“In our country, ‘white-collar’ defendants are often treated with more dignity. This is one way 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 velvet gloves,” Bader added. “I wouldn’t be surprised if we saw him end up in the back of the courthouse, escorted by his Secret Service team and whatever entourage he is in, and given very calm and dignified treatment.”
Both Bader and Chabrowe said that even if Trump is convicted, he is unlikely to be sentenced to prison given the nature of the crime.
Can the case be dismissed?
Defense attorneys often ask judges to drop cases against their clients, arguing that there is insufficient evidence or that no crime has been 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 will dismiss (the Trump case),” he said.