April 4, 2023 Update:
Former President Donald Trump’s indictment is for 34 counts of falsifying business records. A count can be any unique manner and means to commit an offense. In other words, it is not that the indictment alleges 34 unique offenses in the way most people would understand an offense. Instead, each ledger entry and check has been made its own “count.”
Falsifying a business record is a misdemeanor in New York, but it becomes a felony if the intent of falsifying the business record was to commit or conceal another crime. Notably, nothing in the indictment says what the other crime is supposed to be.
The purpose of the indictment is to give notice to the accused what he is being charged with. If faced with this type of a indictment in state court, Varghese Summersett would assuredly respond with a Motion to Quash the indictment.
April 2, 2023
Former President Donald Trump was indicted on March 30, 2023, by a Manhattan grand jury, becoming the first current or former president to face criminal charges in the last century.
In this article, Board Certified Criminal Attorney Benson Varghese explains what’s the behind the prosecution, the criminal process, and answers questions about this precedent-setting prosecution.
What has Donald Trump been charged with?
The indictment was originally kept under seal. It is not uncommon for judges to keep indictments under seal until the arraignment. The indictment will become public at his arraignment.
What we do know is that the grand jury has been looking at a $130,000 payment made to Stormy Daniels. She alleges the payment was to keep her from going public about a sexual affair.
Is hush money illegal?
There is nothing inherently illegal about paying hush money under most circumstances. In many regards, it is no different than paying someone for a nondisclosure agreement or requiring someone to maintain trade secrets.
However, how payments are structured could open a person up to become the target of a prosecutor. For example, Michael Cohen was prosecuted federally for how he handled payments to Daniels. Notably, federal prosecutors did not charge Trump.
It is likely the prosecutor is looking at some sort of fraud charge. For example, New York state law prohibits the falsification of certain business records. They could make an argument that the payment Cohen made to Daniels was falsified with the intention of committing another crime.
At this point, that seems like a stretch, which is part of the reason why everyone is eager to see what is in the indictment on Tuesday.
What is an indictment?
An indictment is a formal, written accusation that charges an individual with a crime. It is issued by a grand jury, which is a group of citizens convened to determine whether there is probable cause to believe the individual – in this case, former President Trump – has committed the alleged offense. If the grand jury believes there is probable cause, they will issue an indictment, which serves as the first step in the criminal prosecution process.
Grand jury proceedings are secret and take place behind closed doors. Prosecutors present evidence by reciting facts or providing witness testimony or exhibits. The process is not an adversarial process. The defendant is not present, and the defense attorney does not have a right to be in the room. That’s part of the reason why no one knows when an indictment is coming down.
Once an individual has been indicted, they will typically face an arraignment, where they will be advised about the charges against them.
What is an arraignment?
Former President Trump is set to be in court on Tuesday for an arraignment. An arraignment, in this context, is the process by which a judge informs the accused of the charge against them and addresses whether a bond will be set and the amount.
Are politics behind the Donald Trump indictment?
It is hard to ignore the political realities. First, the prosecutor is a state District Attorney. He is a democrat who ran on the platform that he would indict Trump.
Second, the old adage that a grand jury will indict a ham sandwich has some truth to it – grand jury presentations are made only by prosecutors. The defense is not present. It is basically a prosecutor making a pitch to average citizens that “there is probable cause to believe this offense took place.” The pitch is not, “this is a strong case that we know we can prove beyond a reasonable doubt.”
Can Donald Trump still run for President?
You bet. The United States Constitution outlines the requirements to run for President in Article II, Section 1. According to the Constitution, a candidate must meet the following criteria to be eligible for the office of President:
- Natural Born Citizen of the United States
- At least 35 Years Old
- A resident of the U.S for at least 14 years
There is nothing that prohibits Trump from running for president while under indictment.
Will Donald Trump be taken into custody on Tuesday?
Former President Trump is expected to “surrender” himself on Tuesday and appear voluntarily in court. We should not expect handcuffs or a “perp walk.”
He will likely be fingerprinted and photographed before seeing the judge, who will inform him of the charge against him and address any bail matters. There’s really no reason for the judge to set a bond, as bonds are merely a promise to appear in court. The former president is not a flight risk nor does he have any criminal history.
What is the political effect of this indictment?
Given the fact that District Attorney Alvin Braggs made a Trump indictment a major part of his political platform, it is impossible to say politics did not play a part in this prosecution. I wouldn’t be surprised if the charges actually galvanize Trump’s political base and put him in a better position than he was before the charge.
What happens next?
Now that Trump has been indicted, the case will wind its way through the criminal justice process. That will include a number of court settings until the case is resolved either through a plea-bargain agreement or a trial. Of course, no one expects Trump to ever plead guilty to the charges – or the DA to dismiss the charges – so the reality is that we may see a very high-profile trial of a former president in the next year or two. Stay tuned.
About Benson Varghese
Benson Varghese is the founder and managing partner of Varghese Summersett, one of the largest and fastest-growing criminal defense, personal injury, and family law practices in North Texas. He is a Board Certified Criminal Lawyer and an experienced litigator who has tried more than 100 cases before state and federal Texas juries. Before going into private practice and starting his own firm, Benson served as a prosecutor at the Tarrant County Criminal District Attorney’s Office. Read more about Benson here.
Benson is frequently asked to weigh in on local or national stories as an expert legal analyst. If you are a member of the media and would like to speak to Mr. Varghese, please contact his media relations director, Melody Lanier, at 817-203-2220 or 817-821-3935