10 min read

Trump indicted

What we know so far about the first criminal charges against a former president in U.S. history.
Trump indicted
(Tia Dufour / Trump White House archives)

Good morning! It’s Friday, March 31, 2023. The 2024 elections are 585 days away.

As you’ve surely seen, there’s some big news to cover this Friday morning: former President Donald Trump has been indicted. I will spend today’s newsletter breaking down what we know so far, and answering some questions that might be swimming around in your head already.

Of course, if you have others, send them my way and I will try to answer them in the newsletter next week.

I’ll be covering this indictment closely as it continues to develop, hopefully helping you navigate this complex news story — both by breaking it down into understandable terms and by giving you an idea of what the broader impact might be.

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Now, let’s dive in...

Grand jury indicts Trump, first ex-president to face criminal charges

A grand jury in Manhattan voted to indict Donald Trump on Thursday, making him the first former or sitting president in American history to face criminal charges.

A spokesperson for Manhattan District Attorney Alvin Bragg confirmed the historic charges in a terse, two-sentence statement Thursday evening.

Trump was reportedly caught off guard by the indictment, believing — like many political observers — that the grand jury had gone dormant until the end of April. He even posted on Truth Social on Wednesday that he had “gained such respect for this grand jury,” clearly under the impression that an indictment was no longer poised to come.

By Thursday, Trump had changed his tune. “This is Political Persecution and Election Interference at the highest level in history,” the former president said in a statement.

“The American people realize exactly what the Radical Left Democrats are doing here,” he continued. “So our Movement and our Party — united and strong — will first defeat Alvin Bragg, and then we will defeat Joe Biden, and we are going to throw every last one of these Crooked Democrats out of office so we can MAKE AMERICA GREAT AGAIN!”

What happens now?

Prosecutors are currently coordinating with Trump’s legal team about when the former president will surrender to authorities. According to Politico, the DA’s office had initially wanted Trump to surrender today, but his lawyers rebuffed the request, saying the Secret Service needed more time to prepare.

Instead, per the Washington Post, Trump is expected to turn himself in on Tuesday and appear in court at 2:15 p.m. Eastern Time that day.

When Trump does surrender, he will likely be processed at the DA’s office in Manhattan. It is there, while still under the protection of Secret Service officers, that he will be fingerprinted and a mugshot will be taken. It is up to prosecutors whether he is handcuffed.

Trump will then appear in court for the legal step known as an arraignment, when the charges against him will be read aloud and he can plead guilty or not guilty. Acting New York County Supreme Court justice Juan Merchan, who also heard the recent tax fraud case against the Trump Organization, is expected to preside.

Because he is expected to be charged with a nonviolent felony, Trump will almost certainly be released on his own recognizance, allowing him to freely return to Mar-a-Lago. It will likely be months before a trial in the case begins; during this pre-trial period, Trump’s attorneys can attempt to have the judge dismiss the case before it ever reaches a jury.

What is Trump being charged for?

Because the indictment is still under seal until the arraignment, we only know so much about the criminal case Trump is poised to face.

Based on what the grand jury has been investigating for several months, it is widely presumed that Trump is being charged with falsifying business records relating to a $130,000 hush money payment given to porn star Stormy Daniels just before the 2016 election.  

At the time, Daniels was threatening to go public with her claim — which the former president denies — that she and Trump had an affair in 2006. The payment itself was made by Michael Cohen, then Trump’s lawyer and “fixer”; Trump later reimbursed Cohen, signing the checks himself after becoming president.

The reimbursement was then recorded by the Trump Organization as a legal expense, which prosecutors are expected to allege was an illegal falsification.

In New York, falsifying business records is only a misdemeanor — unless it can be elevated to a felony by proving that the falsification was committed to conceal a second crime. In this case, that second crime will likely be a campaign finance violation, as prosecutors are expected to argue Cohen’s payment to Daniels was an in-kind contribution to the Trump campaign but not reported as such.

According to CNN, Trump has been charged with 34 counts of falsifying business records. (Each reimbursement check to Cohen could be treated as an individual count.)

Again, there is a lot we don’t know with the charges still unsealed. But, based on what we do know so far, several legal experts have raised doubts about the strength of the case against Trump.

For one thing, elevating Trump’s charges to a felony by accusing him of two crimes, layered on top of each other, is likely to rely on one of two largely untested legal theories.

Either Trump will be accused of falsifying the records to commit a state campaign finance violation (which would be unusual to charge for actions relating to a presidential campaign) or to commit a federal campaign finance violation (which would be unusual for state prosecutors to be charging at all, especially paired with the state business records crime).  

In either event, the prosecutors are opening themselves up to possible vulnerability; it is on these grounds that Trump’s lawyers will likely attempt to have the case thrown out before a trial even begins.

Cohen pleaded guilty in 2018 to committing a federal campaign finance crime stemming from the Daniels payment, but he was charged by federal prosecutors, alleviating this particular legal intricacy. In that indictment, Trump was effectively named an unindicted co-conspirator (famously referred to as “Individual-1”), but federal prosecutors declined to resume the investigation into Trump after he left office.

Both Bragg and his predecessor also initially decided against bringing charges against Trump related to the Daniels payment, leading to it being called the “zombie” case inside the DA’s office for its many lives.

The case is not just vulnerable because of the steps involved with making it a felony: prosecutors are also expected to use Cohen as their central witness, despite the fact that he has previously been convicted for lying under oath in a separate case.

How will the indictment impact the 2024 race?

Trump is not just a former president, of course: he is also the frontrunner for the Republican presidential nomination in 2024.

The indictment will not disqualify Trump from the race: candidates like Eugene Debs have even run for president from prison before, after being convicted. But will the charges hurt the former president’s comeback bid? I want to offer two smart, conflicting points on whether the indictment will matter.

Here, Politico’s Alexander Burns argues that the indictment will not help Trump grow his base, his central task in order to return to the presidency:

“His base of support is too small, his political imagination too depleted and his instinct for self-absorption too overwhelming for him to marshal a broad, lasting backlash. His determination to look inward and backward has been a problem for his campaign even without the indictment. It will be a bigger one if and when he’s indicted.”

And here, David Lauter of the Los Angeles Times notes that Trump’s favorability has remained almost exactly consistent for two decades, unshaken by any number of scandals and controversies:

“The 1999 Gallup survey, for example, found opinion about Trump divided pretty much as it’s split today: 47% of Americans viewed him unfavorably, 41% favorably. (Currently, 55% have an unfavorable view of him, compared with 41% who see him favorably, according to the average of polls maintained by FiveThirtyEight.)”

Which side do I come down on? Well, first, it’s important to note that there are two stages to the presidential election process, so there are really two questions housed within the larger one I posed before.  

At the primary stage, so far, it seems as though Trump will only be boosted by the indictment. It took mere minutes after the indictment was reported for Republican leaders to rally around him — including his 2024 rivals.

More than two years removed from the presidency, it is remarkable the degree to which Trump still inspires loyalty among GOP elected officials (or, perhaps, fear masked in loyalty). For example, Trump reportedly expressed support for then-Vice President Mike Pence being hanged during the January 6 riot at the Capitol. Yesterday, Pence called Trump’s indictment an “outrage.”

Meanwhile, Trump has spent months coming up with nasty nicknames for Florida Gov. Ron DeSantis and alleging, baselessly, that he is a pedophile. Yesterday, DeSantis called the charges against Trump “un-American” and said that he would not assist in an extradition of the former president. (States are required by the Constitution to honor extradition requests from other states. DeSantis’ threat likely won’t matter anyways because Trump is expected to turn himself in.)

It will be difficult for Trump’s presumptive 2024 rivals — nearly all of whom issued supportive statements yesterday — to build a campaign against him if they are also defending him from legal charges, and it is easy to imagine that the statements will simply remind Republican voters of how much they like Trump. The indictment could easily fortify support around Trump, especially if GOP voters view the charges as a political attack against their party’s effective leader.

The general election, however, is another matter. We saw in 2022 that extremist, Trump-style candidates did not fare well in battleground states. In 2024, Trump will have to peel off independents who voted for Biden in 2020 and Democrats in 2022, tired of the chaos Trump brings to the political stage; an indictment for hush money paid to a porn star is not likely to help that case.

This is broadly the conventional wisdom about the indictment right now: it will help in the primary, hurt in the general. But there are two X-factors about the primary I do want to raise that I think could potentially change that calculus:

  • 1. Other indictments.

Remember: Trump is also facing two intensifying investigations from the Justice Department (for his handling of classified documents and for his handling of January 6th) and another from the district attorney in Fulton County, Georgia (for his actions after the 2020 election).

Perhaps one indictment, on a fairly hard-to-follow legal case, will not impact Trump. Might Republican voters feel differently if he is facing two indictments, or even three?

  • 2. Other indictments.

Republican adoration of Trump has largely been unshaken for the past six years — but that has also been confined to a universe in which almost no popular Republican leaders have even tried to challenge Trump’s dominance of the party.

What might happen if a Republican stands on the debate stage and makes the bulldog case, again and again, that the party of Lincoln does not want to be represented by a porn-star-hush-money-payer.

Mike Pence, popular among evangelical Christians, seems well-suited to make this case, but clearly has decided not to; DeSantis has whiffed as well. What about Chris Christie? He already seems to be preparing a candidacy aiming head-on at his onetime ally, on both moral and political grounds. Could Christie do to Trump what he did to Marco Rubio?

Based on a half-decade of political observation, this may seem far-fetched, but my only point is that we don’t know what might happen if a Republican leader actually takes Trump on and makes a case to Republican voters that he is immoral and unfit for the presidency. That is something we have largely never seen since Trump took office.

In fact, to say the obvious, there is a lot we don’t know about what it looks like for a former president — and leading presidential candidate — to be indicted. Thursday’s grand jury vote launched the political universe squarely into a space with little precedent and a million floating question marks.  

No matter what all the pundits and prognosticators try to tell you, what happens next is truly anyone’s guess.

The day ahead.

President Biden and First Lady Biden will travel to Rolling Fork, Mississippi, a week after the town was ravaged by a deadly tornado. They will receive a briefing on response and recovery efforts and meet with local residents impacted by the storms. The president will then deliver remarks on the relief efforts.

After the speech, the Bidens will travel to Delaware, where they will spend the weekend.

Vice President Harris and Second Gentleman Emhoff are in Africa. They will begin their day by meeting with the staff at the U.S. embassy in Dar Es Salaam, Tanzania, before traveling to Zambia for the final stop on their three-country tour.

After arriving, Harris will hold two meetings and a joint press conference with Zambian president. Harris and Emhoff will then meet with Zambian National Assembly speaker Nelly Mutti and with staff at the U.S. embassy in Lusaka.

The House and Senate are on recess until April 17.

The Supreme Court will meet for its weekly conference to discuss pending cases and petitions.

Thanks for reading.

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— Gabe