Updated: August 24, 2023
The criminal case pending in New York against former President Donald Trump is anything but usual. It was the first time in U.S. history that a former president has faced criminal charges. Throw in a Secret Service detail, a presidential campaign, a second state criminal indictment, and not one but two federal indictments—and it's become a logistical nightmare.
But, other than the spectacle of all of it, the criminal proceedings have been fairly straightforward and typical. It's likely this case will take several twists and turns, but for the moment, Trump is (almost) like any other criminal defendant.
In this article, we'll review questions regarding the criminal justice process in Trump's New York case regarding alleged hush-money payments made to several individuals during his first presidential campaign and falsified business records relating to those payments. We'll continue to add information as the case progresses.
People of New York v. Donald J. Trump
In many states, including New York, prosecutors can choose to either:
Prosecutors often choose the grand jury route in highly publicized cases because grand jury proceedings offer several advantages, such as being non-adversarial and secret. Given the publicity of this case and the politics involved, it's no surprise the district attorney took the case to the grand jury. Plus, in New York, a defendant facing felony charges has a constitutional right to an indictment by a grand jury.
(N.Y. Const. art. 1, § 6; N.Y. Crim. Proc. Law § 210.05 (2023).)
Importantly, an indictment is not a conviction. An indictment begins a criminal case—it's an accusation issued by a grand jury stating that enough evidence exists to reasonably believe the defendant committed certain crimes. A conviction, on the other hand, requires proof beyond a reasonable doubt.
Similar to a criminal complaint, an indictment gives notice of the criminal charges pending against the defendant. Trump's indictment and the charges were sealed, because New York law requires it. When a defendant has not been arrested in a case, the indictment must remain sealed until the defendant appears for arraignment.
(N.Y. Crim. Proc. Law §§ 190.65, 210.10 (2023).)
An arraignment is typically a defendant's first time going before the court—it represents the formal start of the criminal court process. In a typical arraignment, the judge will:
This was the case at Trump's arraignment. After learning of the charges presented in the indictment, Trump pleaded "not guilty" to all 34 felony counts of falsifying business records in the first degree. The judge then released Trump on his own recognizance pending trial.
(N.Y. Crim. Proc. Law § 210.15 (2023).)
No. New York law greatly restricts the use of cash bail and pretrial detention (sitting in jail pending trial). Bail is generally reserved for defendants accused of committing violent felonies. In most misdemeanor and non-violent felony cases, the judge must release a defendant on recognizance (a promise to appear) or under non-monetary conditions (such as restricting travel).
The white-collar charges against Trump allow him to be released without bail or conditions, which is what the judge did. The judge released Trump on recognizance, and Trump won't need to be back in court for some time. If Trump doesn't appear back in court as ordered, then the judge may impose conditions of release or bail.
(N.Y. Crim. Proc. Law § 530.40 (2023).)
In the "hush money" case, Trump has been charged with 34 counts of falsifying business records. These charges might sound minor, but if convicted, Trump faces the possibility of time behind bars.
It's a crime in New York to make false statements in the business records of any "enterprise" (a company or other organization), if the purpose of the lie is to defraud. It can be a misdemeanor or a felony, depending on the circumstances, though Trump is charged with all felonies. Here, prosecutors allege Trump and others falsely recorded hush money payments as "legal fees" to cover up election law crimes.
To prove someone guilty of any crime, the prosecutor has to prove each element of the crime beyond a reasonable doubt. Someone is guilty of falsifying business records in New York when they do any of the following with the intent to defraud:
In other words, telling a lie or covering up the truth in business records is a crime if there's an intent to deceive behind it.
(N.Y. Penal Law § 175.05 (2023).)
When the prosecutor proves the elements listed above, the person is guilty of falsifying business records in the second degree, which is a Class A misdemeanor.
But the crime becomes a felony if the prosecutor can prove one more element—that the person made the false statements (or omissions) with the intent to commit, conceal, or aid another crime. In that situation, the person is guilty of falsifying business records in the first degree, which is a Class E felony with a possible penalty of one to four years in prison.
(N.Y. Penal Law § 175.10 (2023).)
It's tough to say how the case will turn out at this point, but the New York District Attorney has explained—at least in part—his theory of why Trump is guilty. According to the DA, the charges are based on several acts during Trump's first presidential campaign involving payments to people who had negative information about Trump. The DA's theory is that Trump, his lawyer Michael Cohen, and others at Trump's company (American Media Incorporated or AMI) had a systematic plan to pay off those people so that voters wouldn't learn of the information.
The DA said the acts alleged in the indictment violated New York election law, which makes it illegal to conspire to promote a campaign by unlawful means. Also, the amount of the payment Michael Cohen made to one of the people (at Trump's direction) was over the federal limits on campaign contributions.
The DA argued that AMI falsified records and that Trump covered up the hush-money payment to Daniels by classifying it as "legal fees" that he paid to Michael Cohen. Trump allegedly signed several checks that misclassified the payments to Cohen. The DA also said that when Cohen was reimbursed for the payment he made to Daniels, Trump and others illegally planned to have the reimbursement misclassified as Cohen's "income" on New York tax documents. These acts were falsification of business records made with the intent to cover up or commit election law crimes, and violated New York laws on business recordkeeping, according to the DA.
If the DA can prove what he's alleged, Trump could well be found guilty of at least some of the charges. But until this goes to trial, it's impossible to predict with any certainty what will happen.
If Trump is convicted, there's at least a chance he could spend some time behind bars.
The punishment for a Class E felony is one to four years in prison. Trump is charged with 34 counts, and if he's convicted of more than one, the judge gets to decide whether to give him consecutive rather than concurrent sentences (though the judge might have to impose concurrent sentences on some charges, depending on what Trump's convicted of and what the evidence is). Consecutive sentences are served one after another and can significantly lengthen the amount of time someone spends behind bars. (Concurrent sentences are served at the same time.)
Many factors go into a judge's sentencing decision, such as the circumstances of the offense and whether the defendant has any prior convictions. At this early stage, we can't know what's in store for Trump and will have to wait and see as the case unfolds.
(N.Y. Penal Law §§ 70.00, 70.25 (2023).)
No. A "gag order" generally prohibits any discussion of the case, and these orders rarely survive constitutional challenges. The judge in Trump's case issued a protective order that directs Trump and his lawyers not to disseminate evidence shared by the prosecution online or with third parties. Trump remains free to discuss his case and defend himself.
Currently, both sides—the prosecution and defense—are engaged in criminal discovery, meaning each side has certain obligations to share evidence that they may use at trial. Criminal discovery is meant to prevent surprises in a case and allow a defendant to adequately prepare their defense. The DA's office requested a protective order to limit Trump's ability to share or disclose the government's evidence with anyone outside his defense team, citing Trump's history of attacking witnesses, judges, prosecutors, and others in cases against him. The judge agreed and issued the order.
The order specifically states that evidence and information turned over by the DA's office cannot be shared with third parties or posted to news or social media platforms, such as "Truth Social, Facebook, Instagram, WhatsApp, Twitter, Snapchat, or YouTube, without prior approval from the Court…." If Trump or his lawyers violate the order, they can be charged with criminal contempt in the second degree, a misdemeanor.
(N.Y. Crim. Proc. Law § 245.70 (2023).)
Barring any unforeseen events, Trump doesn't need to return to court until 2024. The judge tentatively scheduled a trial date of March 25, 2024.
Between now and 2024, the government prosecutors and Trump's defense team will be filing and arguing pretrial motions that will set the stage for a possible criminal trial. These motions will likely ask the judge to dismiss the case or certain charges, exclude certain evidence, or move the case to another location. Trump's defense team already requested that the case be moved from state to federal court, but the judge denied the request.
(N.Y. Crim. Proc. Law §§ 210.20, 210.40 (2023).)