Trump indictment process: What we know and what comes next
Former President Donald Trump has been indicted by a Manhattan grand jury. The exact charge or charges are still unknown because the indictment is under seal, but the case involves the hush money payment his former lawyer Michael Cohen made to Stormy Daniels ahead of the 2016 election.
Here’s what we know about the case and what happens next in the legal proceeding.
When will the indictment be made public?
Unclear. The district attorney, Alvin Bragg, can ask the court to unseal the charges before Trump appears for his arraignment, which is expected next week, or wait for the first hearing in front of a judge.
Is hush money legal? What possible crime did Trump commit?
The charges aren't yet known, because the indictment under seal.
But here's what we do know: Trump’s former lawyer and fixer Michael Cohen paid Daniels $130,000 just days before the 2016 election. In Cohen’s version of events, this was done at the direction of his boss because Daniels was on the cusp of going public about an affair she alleges she had with Trump in 2006.
Trump, while he was in the White House, reimbursed Cohen, but has consistently denied the affair. But the payment of the hush money, by itself, wouldn’t be the crime.
In this case, the possible crime is how the payments were documented on the books of the Trump Organization.
According to Mark Pomerantz, a former prosecutor who worked closely on the case and recently published a book about his experience, Cohen submitted phony invoices throughout 2017 referencing a “retainer agreement” and requesting payment. Then Cohen received a series of checks, hand-signed by Trump while he was in the White House. The legal problem is there was no retainer agreement — according to Pomerantz, it was all done to cover up the hush money scheme. The fake documentation of “legal expenses” on the Trump Organization’s books could trigger a charge under New York state law, which makes falsifying business records a crime.
Normally, the false business records charge would be a misdemeanor. In order to elevate it to a felony, the defendant needs to have created the fake records with an intent to commit or conceal “another crime.” We don't yet know what the Manhattan district attorney’s office may argue is the second crime.
Will Trump be arrested?
Trump’s attorneys have indicated that he will surrender and turn himself in for processing. If the case proceeds as other high-profile cases have in the past, he could be processed someplace within the district attorney’s office in lower Manhattan.
That would normally include paperwork, fingerprinting, a mug shot and a cross-check of any outstanding criminal charges, which would all happen behind closed doors. As for when he is actually “under arrest,” once he is in the custody of police officers, at that point he is not free to leave.
Will Trump be handcuffed?
That's unclear, too, but his Secret Service protection detail might complicate matters.
What happens at the arraignment?
Trump is expected to appear in person for his arraignment next week, as early as Tuesday.
That’s the first time the charges against him will be read in open court. Trump or his attorney on his behalf would enter a plea, and he would then be released with another court date. Trump would not have to post bail given the nature of the charges.
Will there be cameras in the courtroom?
It’s up to the judge. Given the historic nature of the events, media outlets will likely make the request, but the judge doesn’t have to allow cameras.
Who will preside over the arraignment?
NBC News confirmed that the arraignment will be presided over by Judge Juan Merchan, the same judge who recently heard the case against the Trump Organization for tax fraud. The judge has tangled with Trump’s defense lawyers in the past. Merchan could also preside over the new case, if it goes forward to trial, or it could go to another judge.
Can Trump still run for president?
Yes. The Constitution doesn’t say anything about disqualifying a person for office based on pending criminal charges or a conviction.
Can Trump continue to rail against the prosecution?
All defendants have a right to vigorously defend their innocence, but Trump can’t threaten the prosecutor without risking other legal charges under New York law.
The judge could also issue a gag order to prevent Trump from speaking about the case. In the weeks leading up to the indictment vote, Trump escalated his attacks on Bragg and the judicial system. He also warned of "death and destruction" if he were charged.
How long will this case take to get to trial?
Potentially, a very long time. Trump has made it very clear he will fight the charges. He’s entitled to “discovery” — the evidence prosecutors have gathered in their investigation, including grand jury minutes, potentially offering a glimpse into witness testimony. And then Trump’s attorneys will likely file pre-trial motions to get the case dismissed on legal grounds before it even reaches a jury.
Is Trump facing jail time if convicted?
In theory, yes. The charge of falsifying business records in the first degree is a low-level felony carrying up to four years in prison.
In reality, it’s uncertain whether Bragg would recommend Trump serve time behind bars (especially given Bragg’s stance against non-violent offenses). In the end, if convicted, a judge would decide the appropriate sentence.
This article was originally published on NBCNews.com