Trump's looming indictment, explained by a legal expert
David Lurie answers the big questions heading into what could be a momentous week.
When I first saw Donald Trump’s all-caps Saturday morning screed about how he “WILL BE ARRESTED ON TUESDAY OF NEXT WEEK,” I knew I needed to scrap what I had planned for this edition of the newsletter and put together a table-setter for what could end up being one of the wildest weeks in the history of US politics.
Luckily, I knew just the guy to talk to.
David Lurie is an attorney who practices in New York and writes about the intersection of law and politics. I did a Q&A with Lurie back in November about the DOJ investigation of Trump and ended up so impressed with his legal mind that I asked him if he’d be interested in writing for Public Notice. Thankfully he was up for it, and since then he’s done great work in this newsletter on topics ranging from Kevin McCarthy to Bill Barr and Tucker Carlson.
So with Manhattan District Attorney Alvin Bragg now reportedly closing in on indicting Trump for his role in hush payments to Stormy Daniels that were made just before the 2016 election — if you need a refresher about the details of that sordid affair, I ticked through them in last Monday’s edition of the newsletter — I rang up Lurie and had him walk me through what we can expect if/when Trump is indicted, why Trump’s 2012 comments about John Edwards could come back to haunt him, how Trump might defend himself both legally and in the court of public opinion, and much more.
Sure, illegal campaign contributions and falsifying business records may not rise to the level of inciting a coup attempt or egregiously mishandling top secret documents, but Lurie wrapped up our call by making a case that the conduct under investigation by Bragg shouldn’t be minimized.
“While we don't yet know the charges Trump may be facing, we do know — based on the federal charges [former Trump fixer] Michael Cohen pleaded guilty to — that Trump was involved in serious misconduct, including the violation of campaign finance laws to mask a payoff,” he said.
A transcript of the rest of our conversation, lightly edited for clarity and length, follows. And more Lurie is in store this week — he’s going to be the guest on the next edition of my podcast, so be sure to look for that Wednesday evening. A lot could change between now and then.
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Assuming Trump isn’t making stuff up about being indicted on Tuesday, what should we expect that day?
Well, that he’s not making it up is a pretty big assumption, because all the leaks are coming from his side and almost certainly not from the government.
What we do know is that there’s an assembled grand jury — the body that issues indictments — and it has taken testimony from witnesses and received evidence from prosecutors. The standard for an indictment is probable cause, which means a more than 50 percent chance that a crime was committed. If a prosecutor determines that bar has been met, then they will ask the grand jury to vote for an indictment.
If that happens, Trump will be charged with one or more crimes, and he will be, presumably, taken into custody. In that case, I would imagine that he’ll receive bail. He’ll be fingerprinted and put into the system. There has been reporting — again, we don’t know the source of it — that the Secret Service has been consulted regarding the possibility that he will be booked in Manhattan, and has been arranging security for that.
Will there be a mugshot?
I would imagine so, yes.
Wow. That will break the internet.
Well, you’re put in the system like any other person who has been arrested and charged with a crime.
You mentioned in one of our DM exchanges that the John Edwards case is an interesting precedent in terms of the Stormy Daniels hush payment. For people who might not remember all the details, what’s the relevance of Edwards in this context, and what does his case teach us about how a Trump prosecution might go?
Edwards not only had an affair with a person who was not his wife during his 2008 presidential campaign, but she became pregnant and had a child. (His wife was very ill with cancer, by the way, when all this was happening.) He allegedly arranged for a patron of his to make payments to the woman, and these were mischaracterized on the books to hide what was really going on. And the allegation was that they were hush money payments made in part to cause the recipient to keep quiet about the affair and the child during the campaign.
Edwards went to trial, he was acquitted on one or more charges, there was a mistrial on the others, and the government didn’t retry the case. The core issue had to do with the purpose of the payments. They weren’t payments that went to the campaign, they went to the woman Edwards had an affair with. He argued that the purpose was not to keep the matter secret during the campaign, which was the theory that would’ve made it a campaign contribution — a contribution to benefit his campaign for president — but that he had personal reasons for doing it, including helping the woman. So the case eventually had to do with whether the purpose of the payments and hiding them was in fact to benefit his campaign.
There’s obviously a great deal of parallel between that situation and the Trump fact pattern here. Frankly, if Trump’s situation is considered as a federal criminal campaign finance case, the evidence is pretty compelling against him. There were two women who claimed to have affairs with him. One woman [Karen McDougal] was paid for her story by the National Enquirer, which was then run by allies of Trump, but of course they never published anything about it, so she was paid to keep quiet. In the Daniels case, Michael Cohen — Trump’s fixer — paid the money out of his own pocket, then got reimbursed by Trump right during the heat of the 2016 campaign. It’s pretty clear that these were payments not to speak about the affairs in the time period right before the election.
Further, Trump is on record showing that he fully understands the law in this area. In fact, he was recorded in a cable news interview before Edwards went to trial discussing the case and why he didn’t think Edwards should be prosecuted even though he didn't like him.
So Trump is well aware of the campaign finance laws, and that’s important because knowledge of them is highly relevant to potential culpability. Now, why is that important here, since this isn’t a federal campaign finance case? Well, there also are New York campaign finance laws that arguably were violated in connection with these payments.
I want to be very clear here that I am not taking any position on whether there's a valid theory for indicting Trump. There's a lot of speculation about that, but we haven't seen the indictment. We don’t know all the evidence, because some of it has been taken in by a grand jury in secret. So I’m speaking in general and frankly somewhat hypothetical terms. But as I said there appears to be a substantial argument that just like the federal campaign finance laws, Trump violated the New York campaign finance laws, and might have done so knowingly. That’s relevant because the rumor is that the New York DA is considering bringing a business records falsification case, and the difference between a business records falsification case being a misdemeanor and a felony turns on whether the falsification was related to a known effort to violate another law. So in this case, the other law would most likely be the campaign finance laws.
Let’s talk about how a Trump indictment could impact his presidential campaign. Is it possible that this could go to trial before November 2024, and thus we’d have the spectacle of a major candidate, maybe even the Republican nominee, on trial? Will he have to spend a lot of time in Manhattan and less than he might want on the campaign trail?
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