Michael Cohen

Editorial Cartoon by Graeme MacKay, The Hamilton Spectator – Wednesday March 22, 2023

Fingerprints and a mugshot: What happens if Trump is arrested

Donald Trump is hunkering down in Florida ahead of his widely anticipated arrest this week on charges stemming from an investigation into a $130,000 payment to porn star Stormy Daniels in 2016.

He would be the first US president to face criminal charges.

In 2016, adult film star Stormy Daniels contacted media outlets offering to sell her account of what she said was an adulterous affair she had with Donald Trump in 2006.

Mr Trump’s team got wind of this, and his lawyer Michael Cohen paid $130,000 to Ms Daniels to keep quiet.

This is not illegal. However, when Mr Trump reimbursed Mr Cohen, the record for the payment says it was for legal fees. Prosecutors say this amounts to Mr Trump falsifying business records, which is a misdemeanour – a criminal offence – in New York.

Prosecutors could also potentially allege that this breaks election law, because his attempt to hide his payments to Ms Daniels was motivated by not wanting voters to know he had an affair with her. Covering up a crime by falsifying records would be a felony, which is a more serious charge.

Even advocates for prosecution acknowledge that either way, this is by no means a clear-cut case. There is little precedent for such a prosecution, and past attempts to charge politicians with crossing the line between campaign finance and personal spending have ended in failure.

“It’s going to be tough,” says Catherine Christian, a former financial prosecutor for the New York City district attorney.

The decision on whether to file charges rests with New York City District Attorney Alvin Bragg. He set up the grand jury to investigate whether there was enough evidence to pursue a prosecution, and he is the only one who knows if – or when – an indictment will be announced.

Last week, Mr Trump’s lawyers said that the former president was offered a chance to appear before the grand jury, which is considered a sign that the investigation is close to finishing.

The lawyers have downplayed suggestions that they or Mr Trump have any advance notice of an impending indictment, saying his comments about it being Tuesday were based on media reports.

However, there are other signs that the grand jury is wrapping up.

Both Michael Cohen and his former legal adviser Robert Costello have given testimony in recent days.

Mr Costello was put forward by Mr Trump’s defence team on Monday in an attempt to discredit Cohen’s testimony.

If Mr Bragg decides to move ahead with charges, he will first inform Mr Trump and his lawyers, setting off negotiations over how and when the former president will appear in New York City for his formal arrest and first hearing in court.

As part of those negotiations with prosecutors, the court may also agree to grant him a private entrance to the court, instead of the more typical “perp walk” in front of the assembled media.

Once inside, however, Mr Trump will be fingerprinted and have his mug shot taken like all defendants in criminal cases. He will also be read his “Miranda” rights, reminding him of his constitutionally-protected right to a lawyer and to decline to talk to police.

Defendants charged with a felony are typically handcuffed temporarily, although Mr Trump’s lawyers will try to avoid that for their client. Throughout the booking process, he will be accompanied by Secret Service agents.

Mr Trump would then wait in a holding area or cell until his appearance before a judge. The arraignment – the moment where a defendant enters their plea before a judge – is open to the public.

Once the case is booked and a judge is selected, other details will fall into place, such as the timing of the trial and possible travel restrictions and bail requirements for the defendant.

A conviction on a misdemeanour would result in a fine. If Mr Trump were convicted on the felony charge, he would face a maximum sentence of four years in prison, although some legal experts predict a fine is more probable, and that any time behind bars is highly unlikely. (BBC)