In retrospect, it’s perhaps unsurprising that Donald Trump, the many-times-bankrupt former president and game show host who confessed on video to sexual assault, would be indicted for the most absurd crime imaginable: allegedly falsifying business records to cover up the hush money payments he paid to a porn actress, which was itself intended to cover up an extramarital affair Trump allegedly had shortly after his third wife gave birth to their son Barron.
On Tuesday, Trump was indicted on 34 separate counts related to this alleged scheme.
Nor is Manhattan District Attorney Alvin Bragg’s investigation into Trump, which led to this indictment, the only such investigation that could lead to criminal charges against the former president. There are three other known investigations into Trump.
Two are federal; a federal special prosecutor, Jack Smith, took over both last November.
The first federal probe involves an FBI search of Mar-a-Lago, Trump’s Florida compound, which revealed that the former president kept classified documents — including, according to the Washington Post, ones “relating to nuclear weapons.”
There are also some outward signs that this federal investigation into Trump is gaining steam. In a dramatic development last month, one of Trump’s own lawyers, Evan Corcoran, testified before a grand jury about his conversations with Trump.
The second probe, meanwhile, involves what Attorney General Merrick Garland described as “the investigation into whether any person or entity unlawfully interfered with the transfer of power following the 2020 presidential election, or with the certification of the Electoral College vote held on or about January 6, 2021.”
Then there’s a fourth criminal probe, in Georgia, investigating whether Trump illegally tried to change the result of the 2020 election. Criminal charges against Trump could potentially arise out of a post-election call with Georgia’s Republican Secretary of State Brad Raffensperger, in which Trump told the state’s top election official that he wanted “to find 11,780 votes.” (Biden defeated Trump in Georgia by 11,779 votes.)
We do not yet know if any of these investigations will end in Trump being convicted of a crime. In all but one of them, we don’t even know if Trump will be formally charged with violating a criminal statute. And in the one investigation where Trump has been charged — Bragg’s New York-based investigation — there is some legal uncertainty about whether the felony statute Trump was indicted under actually reaches Trump’s alleged actions.
When all these investigations are complete and all the potential charges against Trump are resolved, in other words, it is still possible that he will never be convicted of a crime.
Nevertheless, Trump is already the first former US president ever to be indicted. And many of the key facts that could lead to other indictments, including the fact that he kept classified documents at Mar-a-Lago and the fact that he tried repeatedly to overturn Biden’s victory in the 2020 election, are not reasonably in doubt.
The New York indictment of Donald Trump
The Manhattan DA has been investigating financial fraud at the Trump Organization for several years. Bragg’s office has already secured a couple of convictions against Trump’s primary business and one of his close business associates.
Last August, former Trump Organization CFO Allen Weisselberg pleaded guilty to allegations that he did not pay taxes on $1.7 million in compensation — including an apartment, two cars, and private school tuition for family members. He also agreed to testify against the Trump Organization, and this allowed prosecutors to convict the Trump Organization of 17 counts of tax fraud and related financial crimes arising from the payments to Weisselberg.
But Weisselberg did not agree to testify against Trump, and the actual charges against the former president arise out of a separate set of shady transactions: Trump’s alleged $130,000 in payments to porn actress Stormy Daniels, which were made to cover up an alleged sexual encounter between Trump and Daniels in 2006 (Trump denies that he had sex with Daniels).
Notably, Trump’s former lawyer and fixer Michael Cohen pleaded guilty to federal campaign finance crimes arising out of these hush money payments to Daniels in 2018.
Tuesday, Bragg’s office unsealed an indictment that charges Trump with 34 separate counts of falsifying business records in the first degree, a felony. A separate document laying out the factual basis for Bragg’s allegations against Trump points to a complicated web of arrangements between Trump, Cohen (who is identified as “Lawyer A”), and David Pecker, the CEO of American Media, the company that publishes the National Enquirer.
New York law typically does not make it a crime to pay a former sexual partner to remain silent about an affair. But it is a crime to falsify business records in New York “with the intent to defraud.”
So, if Bragg can prove that Trump mischaracterized his payments to Daniels in the Trump Organization’s own documents in order to cover up those payments, that could potentially allow Trump to be convicted.
There is, however, a catch. Ordinarily, falsifying business records is only a misdemeanor under New York law — meaning that it is a minor crime that is only punishable by up to a year in prison — and that matters because the statute of limitations for misdemeanors is only two years in New York state. So, if Trump is only charged with a misdemeanor, Bragg would have to prove that Trump tried to cover up the payments to Daniels within the last two years — which is unlikely because those payments have been public since at least 2018.
That said, it is possible to charge a defendant accused of falsifying business records with a felony, and the statute of limitations for this more serious felony is five years. To charge Trump with a felony, however, Bragg also has to prove that Trump falsified business records with the “intent to commit another crime or to aid or conceal the commission thereof.”
In the statement of facts document, Bragg tries to link Trump to the federal campaign finance crime Cohen pleaded guilty to in 2018 and a broader “scheme” with Pecker to suppress damaging stories in the lead-up to the election. But it is far from clear that New York state prosecutors may charge Trump with a felony because he tried to cover up a federal, as opposed to a state, crime.
As Mark Pomerantz, a former prosecutor in the Manhattan DA’s office, wrote in a recent book, the felony statute is “ambiguous” — though it refers to “another crime,” it does not say whether this crime may be a federal criminal act or only an act that violates New York’s criminal law. Worse, Pomerantz writes, “no appellate court in New York has ever upheld (or rejected) this interpretation of the law.”
That means that, unless Bragg eventually links Trump to some other state crime, there is a great deal of uncertainty about whether a felony conviction against Trump can stand.
There’s one more twist here. The statute of limitations for the felony version of the false records crime is five years, while the statute of limitations for the misdemeanor version is only two years. Trump’s final payment to Cohen occurred in December 2017, which was more than five years ago.
That said, New York law sometimes allows the clock to be stopped on these statutes of limitations when the defendant was out of the state, and Trump spent four years living in the White House before relocating to Florida.
The state of the investigation into Trump’s attempt to steal the 2020 election
The Justice Department’s larger investigation into the January 6 attacks has been going on since they happened, focusing first on the people who stormed the Capitol. Initially, there wasn’t a consensus in the political world about whether Trump had committed crimes with his web of lies about the election. So an investigation into him does not appear to have begun immediately.
We now know that a team of prosecutors began more intensely scrutinizing Trump and his associates in the fall of 2021. About a year ago, this team was “given the green light by the Justice Department to take a case all the way up to Trump, if the evidence leads them there,” according to a recent CNN article.
The probe proceeded quietly at first. In January 2022, the Washington Post reported that “so far the department does not appear to be directly investigating” Trump. But just a week and a half after that article, Deputy Attorney General Lisa Monaco confirmed an investigation into one aspect of Trump’s scheme: fake electors. This was Trump allies’ effort to name Trump supporters as electors in key swing states Biden won, and to have their purported electoral votes submitted to Congress and Vice President Mike Pence and effectively dispute the actual electors’ votes.
“Our prosecutors are looking at those, and I can’t say anything more on ongoing investigations,” Monaco said.
By May, the investigation had subpoenaed many close Trump aides for documents and was asking specifically for info about lawyers who had tried to help him overturn the election. In June, the home of Jeffrey Clark — the official Trump tried to put in charge of the DOJ so he could enlist the department in declaring the election results fraudulent — was searched by federal agents. The DOJ’s inspector general, Michael Horowitz, is involved in the investigation of Clark since he was a DOJ employee at the time. Rep. Scott Perry (R-PA), who put Trump in touch with Clark, is also a key subject of this investigation.
By late July, the Washington Post reported prosecutors were asking “hours of detailed questions” about Trump’s actions specifically, on topics such as the extent of his involvement with the fake elector push and his effort to pressure Pence to throw out state electoral votes. Then, in September, investigators issued at least 40 subpoenas in a week, this time focusing more on Trump’s political and fundraising operations. More recently, new subpoenas have gone out to state officials Trump tried to pressure.
A growing number of Trump aides have gone in to testify before one of several active Washington, DC, grand juries in recent months. The former president filed a secret suit to try to block testimony of aides like former White House counsel’s office lawyers Pat Cipollone and Pat Philbin, citing privilege concerns, but he lost that suit, and they testified in December.
The new battles are over whether former White House aides like Mark Meadows — and Vice President Mike Pence — will have to testify, or whether they can cite executive privilege. District judges have already rejected their privilege claims, but they may appeal.
Yet though the election investigation certainly seems quite sprawling and serious, we still lack visibility into a few important questions.
First, how strong is the evidence against Trump personally? Have they “flipped” members of his inner circle who can testify that he knowingly committed corrupt activity — or not? Will he be able to get out of charges by claiming (some of) his lawyers advised him everything he was doing was legally permissible?
Second, what is the DOJ thinking about the legal issues at the heart of the case? The House January 6 committee argued that Trump broke four laws in his attempt to stay in power: obstruction of an official proceeding, conspiracy to defraud the United States, conspiracy to make a false statement, and assisting an insurrection. And a federal judge, David Carter, already ruled last year that evidence suggests Trump committed some of these crimes.
Still, though DOJ investigators are clearly taking their investigation very seriously, we don’t know whether they agree with Judge Carter’s analysis of the law or whether they are even entirely sure what they think about it yet. One of Trump’s arguments in defense will likely be that he was engaging in politicking and political speech, not plotting a criminal conspiracy. If he is indicted, that argument would surely reach the Supreme Court at some point.
This is all fairly novel territory, and it’s hard to point to a case quite like it. The topic is enormously important, but because Trump’s actions were so unprecedented, there’s much less of a road map on what the special counsel’s path forward should be.
The state of the classified documents investigation
The classified documents case before the special counsel seems simpler from both a legal and evidentiary perspective than the election case, but it has its own potential problems.
When the FBI went to Mar-a-Lago in search of classified documents in August 2022, the political world was rife with speculation about what could have justified such an extraordinary action and what Trump might have been up to. Was he selling classified material to the highest bidder? Was he trying to blackmail the “deep state”? These theories were never backed by evidence, but a Washington Post report that agents were looking for “nuclear documents” suggested this was monumental stuff indeed.
Yet subsequent reports suggested that DOJ prosecutors and FBI agents working on it were not always in full agreement about the strength of the case. According to a Washington Post report in December, the FBI initially wasn’t sure it wanted to take up the case at all. The National Archives had asked them to get involved because they had found classified material in boxes belatedly returned to them by Trump, and they thought more material was missing. Even after Trump appeared to defy a grand jury subpoena to return documents, some FBI agents working on the case “weren’t certain” they had enough probable cause for a search, per the Post.
The search took place in August, and prosecutors claim to have found dozens of classified documents, but exactly what they found remains mysterious. The Post reported some documents had “highly sensitive intelligence regarding Iran and China,” including a description of Iran’s missile programs. The government has expressed concern that the information could jeopardize human intelligence sources. But it is difficult to evaluate those claims because, well, the information is classified.
Meanwhile, the DOJ-FBI divide reportedly persisted. Bloomberg News reported in October that though some DOJ prosecutors thought there was enough evidence to charge Trump with obstruction of justice because he defied the subpoena, some “internal critics,” including in the FBI, are questioning why Trump would be charged when Hillary Clinton wasn’t in her own classified information investigation. (Clinton had some classified information in email chains sent to her personal email account that she had used for work; Trump had paper documents in boxes at Mar-a-Lago.)
Furthermore, yet another Washington Post story suggests that the more ominous and speculative theories about Trump’s motives in keeping classified documents weren’t founded, in investigators’ eyes. They’ve come to believe, instead, that his motive was “largely his ego and a desire to hold on to the materials as trophies or mementos.” That would not get him off the hook for violating classified information law, but it’s certainly less of a clear-cut threat to national security than, say, the attempted selling of documents would be.
Yet Trump is also potentially vulnerable to charges of obstruction and making false statements to the government.
That’s where his attorney, Corcoran, comes in. Corcoran told the government, in June 2022, that Trump had turned over all the classified documents at Mar-a-Lago. But the FBI search two months later revealed that was not true. Investigators reportedly believe that Trump lied to Corcoran, and that’s why they were so interested in getting Corcoran’s testimony.
Special counsel Smith may view these as the most straightforward charges against Trump. And though any charging recommendation Smith makes will go up to Attorney General Merrick Garland for approval, his opinion will carry great weight in determining whether Trump ends up indicted on these fronts this year.
The Georgia investigation into Trump’s attempts to overthrow the 2020 election
In early January 2022, Fulton County District Attorney Fani Willis’s office asked a Georgia court to convene a special grand jury “for the purpose of investigating the facts and circumstances relating directly or indirectly to possible attempts to disrupt the lawful administration of the 2020 elections in the State of Georgia.”
This investigation includes both Trump’s “find 11,780 votes” phone call and the Trump campaign’s attempt to create a slate of fake members of the Electoral College who would fraudulently tell Congress that the state’s electoral votes were cast for Trump.
The special grand jury, whose investigation is now complete, heard testimony from several very high-profile Trump allies, including former New York Mayor Rudy Giuliani and US Sen. Lindsey Graham (R-SC).
While Willis has yet to file charges against Trump or any members of his inner circle, and while the full grand jury report remains sealed, the forewoman of this special grand jury told the New York Times that the report recommends multiple indictments.
The forewoman also said that “it’s not a short list.”
It remains to be seen whether Willis files any charges against Trump. For the moment, Trump’s lawyers are trying to convince an Atlanta court to suppress the grand jury report and to disqualify Willis from the case. But there are a few Georgia criminal statutes that could potentially reach Trump’s conduct after the 2020 election.
Georgia laws make it a crime to willfully tamper with certain aspects of an election, to solicit another person to do so, or to engage in “criminal solicitation to commit election fraud.”
So what should we take away from all of this?
The purpose of a criminal investigation, and ultimately of a prosecution, is to convince a jury to convict a defendant after a full criminal trial has taken place. It is not to provide the media or the public with regular updates about what law enforcement knows about potential suspects.
Especially within the context of federal investigations, these norms exist to protect the investigation — if a suspect learns too much about what information law enforcement is seeking, they could destroy evidence or tamper with witnesses — and to protect potential suspects. When someone is formally charged with a crime, they have an opportunity to vindicate themselves at trial. If they are merely the subject of accusations tossed off by government officials, they have no real way to protect or rehabilitate their reputations.
For these reasons, anyone eager to see how the other investigations into Trump will end must have patience.
Even now that Trump is indicted in Bragg’s investigation, and even if a federal indictment does happen, this will not be the end of the story — far from it. A trial or trials would follow, as would many legal challenges from Trump’s team (some perhaps before sympathetic judges). Trump likely can’t be stopped from continuing his 2024 presidential run except by voters, but despite talk of his recent political woes, he continues to lead almost every poll of a multi-candidate GOP field.
There could be many more twists and turns ahead.
Update, 5:30 pm ET: This story has been updated to include information about Bragg’s indictment of Donald Trump.