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Trump’s impeachment tests the US justice system in new ways – a former prosecutor explains 4 key points to understand


When former President Donald Trump turns himself in to authorities in New York on Tuesday, April 4, 2023, and is suedthe charges on which a grand jury in Manhattan indicted him will likely be made public.

Manhattan District Attorney Alvin Bragg got the charge on March 30, 2023, after a grand jury vote, but the exact charges against Trump remain sealed. Multiple media sources report the charges against the former president committed corporate fraud.

I’m a former prosecutor And professor of law who studies the criminal justice system. As the complexities of Trump’s case will continue to unfold, The Conversation asked me to explain the complex legal situation. Here are four key points to understand about the prosecution and what is likely to come.

Former President Donald Trump arrives at a campaign rally in Waco, Texas on March 25, 2023.
Jabin Botsford/The Washington Post via Getty Images

1. Counterfeit business documents are the main problem

From what we understand from the investigation, the allegations against Trump seem to stem from a US$130,000 payment in 2016 by then-Trump attorney Michael Cohen to an adult film star, Stormy Daniels. In return, Daniels promised not to tell the media about her alleged affair with Trump.

Media reports suggest there could be about 30 counts against Trump, and at least some of those counts will be felonies.

Just because there are so many counts does not mean that there are many different criminal events or types of crimes alleged. Prosecutors often charge similar, repeated behaviors — multiple drug sales, for example — as separate counts. In this case, the multiple counts can refer to a series of business documents that record the same or similar transactions. Or the allegations may indeed relate to multiple alleged criminal events.

Media reports indicate that Bragg does not appear to be alleging Trump’s payment to Daniels itself was illegal.

Instead, Trump will likely be accused of “falsifying company informationfor trying to hide the payment by lying about its nature in the administration of the Trump Organization, his company.

Creating a false business record with the intent to defraud is one Class A felony crime in New York. But the offense can become low level Class E felony if Bragg can prove that Trump created bogus corporate records to facilitate a second crime.

It’s not yet clear what the second crime will be — or even if a second crime is alleged — but the possibilities include federal or state crime. campaign finance violations or tax evasion.

2. Bragg will have to prove Trump’s involvement, fraudulent intent

If a trial comes along, the prosecution will have to put together a series of pieces to reach a conviction on each of the charges Trump faces.

First, the prosecution would have to prove that the Daniels payment was recorded by Trump officials as something that was clearly false. It is not enough to show that the payment has been recorded ambiguously, such as ‘miscellaneous’ or even ‘legal services’. The company data in question must be unequivocally “false”.

Second, it is not necessary that Trump himself created false data. The prosecution would only have to prove that Trump was the direct cause of the false entry — meaning someone followed his specific directions.

Third, the prosecution would have to prove that Trump prepared the false records for fraudulent purposes and, to prove a crime, for the specific purpose of committing or covering up another crime.

This is important because there could be other potentially plausible reasons the defense could offer, including that Trump was trying to embarrass his family or himself. Another option is indifference that Trump has given little thought to how the transaction was recorded. Therefore, the details of the alleged false documents and the extent of Trump’s involvement in their creation will be central questions during the process.

Finally, the prosecution for the crime would also have to prove that another crime was committed or covered up by using this false business record.

A white-haired woman holds a sign that says
People gather in front of Trump Tower on March 31, 2023, the day after former President Donald Trump was indicted by a New York grand jury.
Spencer Platt/Getty Images

3. It is the most complex straightforward case in history

Although everyone will see if this case is treated like other cases, differences are inevitable. For example, the New York police and bailiffs will have to do that coordinates the arrest process with Trump Secret Service agents.

Further complications will arise if there is any prospect of incarceration. Based on what we know now, there is little chance that Trump will end up in jail awaiting trial for this charge of a nonviolent crime. And even if he is eventually convicted, he is still unlikely to be incarcerated, based on the nature of the charges and his lack of previous criminal record. That said, judges have wide discretion in determining sentences.

That’s just a glimpse into the logistical challenges facing the Manhattan District Attorney’s Office and the New York courts. If this were another defendant, this would be a relatively simple case, the kind that makes up the hundreds of cases in an average prosecutor.

Trump, however, is not another defendant. That means this is probably the most complex straightforward case in US history.

A black man with a goatee wears a dark jacket, white shirt and appears to be walking toward a waiting car.
Manhattan District Attorney Alvin Bragg will leave his New York office on March 22, 2023.
Scott Olson/Getty Images

4. The legal process becomes a messy affair

Most cases of minor crimes and felonies are resolved before trial, especially if there is no obvious victim. Typically, the prosecution will offer a plea deal, perhaps including probation, or even make a proposal distraction program with community service, for example, which will lead to the charges being dropped.

It’ll be interesting to see if Bragg makes a bid along those lines. Even if he does, defendants typically have to plead guilty to benefit from these schemes, and Trump can refuse to plead guilty for political, personal or legal reasons.

So it is likely that the case will go to trial, a process that will be messy for many reasons – especially the jury.

In choosing a jury in a criminal case, the examining magistrate is supposed to exclude potential jurors who are biased in favor of, or against the defendant. That is normally easy because the jurors have usually never heard of the defendant.

But most potential jurors will have an opinion about Trump, and many will have to be excused from jury duty due to a lack of objectivity.

In a trial with so much media attention, there will also be people who have strong feelings for Trump and want to sit on the jury. Some of them can hide their prejudices. That is a problem in itself.

Once the trial begins, media attention will put the spotlight on the selected jurors. If it becomes clear that the jurors lied or did not disclose information in jury selection, that may be grounds for removing them from the jury in the middle of the trial. If enough jurors are removed, the case ends in a mistrial, putting everyone back to square one.

So while there is much about this prosecution that is not yet clear to the general public, one thing is clear: this will be a case of unprecedented attention and complexity.

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