A potential indictment against Trump would be unprecedented. Here's why NY prosecutors would face an uphill battle to convict him.
After years of being mired in criminal and civil investigations into everything from his business dealings to his role in the Capitol riot, former President Donald Trump
is now staring down a potential indictment from the Manhattan district attorney's office.
But despite its gravity — Trump is the current frontrunner for the 2024 Republican presidential nomination — experts say the likeliest case New York prosecutors could bring is far from open-and-shut.
A Trump indictment would be unprecedented on a few levels. For one, it would be the first time an ex-president was charged with criminal violations. The facts of the case also mean New York prosecutors would need to use a largely untested approach to tie a possible violation of state law to a violation of federal election laws — and their star witness would likely be Trump's former lawyer, an admitted felon who's previously lied to investigators.
All things considered, experts say the former president may have a better shot at getting off the hook in this case compared to other legal threats he faces from state and federal prosecutors.
If Trump is indicted, the case is expected to center on an illegal hush-money payment that his then-lawyer, Michael Cohen, made to the adult film actress Stormy Daniels during the 2016 election in exchange for her silence about an alleged affair with Trump. Cohen has testified that he paid Daniels at Trump's direction, but Trump and his lawyers deny knowledge of the payment.
Trump has also denied the affair and said he did "absolutely nothing wrong." And he's accused the Manhattan DA, Alvin Bragg, of running a politically motivated fishing expedition and called on congressional Republicans to investigate Bragg's office.
Among the charges Trump could face is violating New York's business records statute, which bars individuals from falsifying business records with an intent to defraud. According to media reporting about how the DA's office is evaluating the case and presenting evidence to the grand jury, state prosecutors are seeking to charge Trump with a felony violation of the state law.
To do that, the DA's office must overcome an additional hurdle: it would have to prove that Trump falsified the records in order to commit another crime, or to aid or conceal the commission of falsifying the business records.
In Trump's case, based on public comments from the DA's office, the additional alleged crime would likely be a violation of federal campaign finance laws.
Some legal experts have pointed out that New York has a long history of bringing felony prosecutions based on falsifying business records. Just Security, for instance, found dozens of cases over the last 15 years that fall under that umbrella.
But Randall Eliason, a law professor at George Washington University, noted that state prosecutors could face an additional wrinkle where Trump is concerned.
Namely, New York's business records statute's "intent to defraud" requirement is "usually defined as intent to deprive a victim of money or property," Eliason wrote. But while all the examples in Just Security's review meet that requirement, "it's not clear how concealing a campaign contribution does."
"Prosecutors could argue an intent to deprive voters of accurate information," he added, "but it's not clear that would qualify as intent to defraud in NY (it clearly would not under federal law.)" If Trump is charged with falsifying business records, "expect to see this defense."
David Weinstein, a former federal prosecutor in the Southern District of Florida, echoed that view, telling Insider that the potential case against Trump is far from a "slam dunk conviction."
Weinstein also pointed out that a significant portion of the case against Trump, if he's indicted, would hinge on the testimony of Cohen, his former fixer who claims Trump directed him to make the Daniels payments and who admitted to lying to Congress, among other crimes.
Cases like this — and others that rely on testimony from cooperating co-conspirators — are "more difficult to prove," Weinstein said.
If prosecutors argue that Trump committed a felony violation of the New York business records statute by breaking federal campaign finance laws, he added, the defense will likely argue that the DA is "overreaching" his duties of enforcing state laws.
Trump, for his part, frequently highlights Cohen's pitfalls as a star witness; earlier Thursday, he described his former longtime confidant as a "convicted nut job with zero credibility" in an all-caps Truth Social rant.
Insider reached out to a lawyer representing Trump for comment Thursday.
Barbara McQuade, the former US attorney for the Eastern District of Michigan, told Insider that if Trump is charged, "the more the case relies on documents instead of the testimony of Michael Cohen, the stronger it will be."
"Whereas Cohen has some credibility issues as someone with an axe to grind and a convicted perjurer," prosecutors can get around those concerns by corroborating his testimony with bank records, phone records, and other documentary evidence.
"Documents don't lie and documents don't forget," McQuade added.
Eric Columbus, a former Justice Department official under the Obama administration, also wrote on Twitter that he had "serious concerns" about bringing an indictment against Trump focused on the Daniels hush-money payment if "there's nothing here that wasn't known in 2018," back when Cohen pleaded guilty.
Bragg's predecessor, Cyrus Vance Jr., strongly considered bringing an indictment against the former president centered around the hush-money payment, according to The Times.
But in the end, Vance's investigators deemed it too risky to charge Trump with falsifying business records and using federal campaign finance law violations as the secondary crime, The Times reported.
Columbus wrote that it's incumbent on Bragg's office to show that the rationale for indicting Trump has nothing to do with politics.
That rationale is "especially strong when the prosecuting office has *already* exercised such discretion and opted not to prosecute," he wrote. "If a prosecuting office reverses course, it must be able to explain why."
Reached for comment, a spokesperson for Bragg's office said that charging white-collar cases based on falsifying business records is a key aspect of its work, and that since Bragg took office, the Manhattan DA has filed more than 100 counts of felony falsifying business records counts against 29 individuals and entities.