The Daily - The Indictment of Donald Trump

Episode Date: March 31, 2023

A Manhattan grand jury has indicted Donald J. Trump for his role in paying hush money to a porn star, according to people with knowledge of the matter. The precise charges are not yet known, but the case against him has kicked off a historic moment in American politics.The investigative reporter Ben Protess discusses the development — which will shake up the 2024 presidential race and forever mark Mr. Trump as the nation’s first former president to face criminal charges — and what happens next.Guest: Ben Protess, an investigative reporter for The New York Times.Background reading: Mr. Trump becomes the first former president to face criminal charges.Why was he indicted? These are the key events that led to this moment.This is what will happen when Mr. Trump is arrested.For more information on today’s episode, visit nytimes.com/thedaily. Transcripts of each episode will be made available by the next workday.

From The New York Times, I'm Michael Barbaro. This is The Daily. Today. All right, we're going to break in with this Fox News alert here. We have just gotten word former President Donald Trump has been indicted. For the first time in U.S. history, a former president has been indicted on criminal charges. This of course is unprecedented. The former president accused of paying $130,000 in hush money to Stormy Daniels in the weeks before the 2016 presidential election.

My colleague Ben Protess on the case against Donald Trump and what happens next. I just hung up with the former president and I asked, does he plan to turn himself in? He said, you take care, John, and then he hung up on me. It's Friday, March 31st. Ben, it is late. It is after 9 p.m. It's been a very long day for you. I know you're tired.

Thank you for making time for us. My pleasure. I want to begin, Ben, by just observing the enormity of what has just happened. Because for the past six years, we've lived through an endless cycle of investigations into Donald Trump. Investigations into alleged campaign collusion with Russia, investigations into tax evasion, January 6th, the mishandling of classified documents. All of those could have theoretically led to criminal charges, but so far haven't. This time, in this investigation, it has. And it feels huge. It is huge. I mean, I think everybody uses the word unprecedented with this president. There have been so many unprecedented things. But, you know, in our 250 years of this country, we've never had a president

sitting or former who's been indicted. And the fact that we now have that is remarkable. It is unexpected in many ways. Despite all the investigations you mentioned, he's always managed to escape. And now we've sort of burst that bubble. And now that he's indicted, what is going to happen in the next few hours, the next few days? So we expect him to surrender to authorities in Manhattan early next week. Basically what that means is that like any felony defendant, he's going to be escorted into the bowels of the New York State Courthouse in lower Manhattan, and he's going to be fingerprinted.

He's going to be photographed, and he's going to have to wait there until ultimately he's arraigned in a courtroom. Well, let's just spend a little bit of time with the indictment itself. In the simplest terms, what exactly has Trump been charged with here? So the story I broke a few hours ago with my colleagues, including Willie Rashbaum and Jonah Bromwich, basically says that the grand jury has indicted Mr. Trump, but the indictment is going to remain under seal until he is arraigned in court. So we don't get to know the specifics. We don't get to know the charges. But what we do know from our reporting is that there are more than two dozen charges. Wow. I mean, it's a huge number of charges.

Yeah. And we also know that the Manhattan District Attorney, Alvin Bragg, has built a case that likely centers on the accusation that Mr. Trump falsified business records. These are business records from his company. And he did this a few years ago during the 2016 presidential campaign over a payment to a porn star, Stormy Daniels. Right, a story we all know very well. In fact, a story we know probably a lot better than we wish we did. But just remind us of the very basic elements of that story, Stormy Daniels and Trump. And they keep in touch over the ensuing months. Fast forward to the 2016 presidential campaign, about a decade later. Right. Trump and his people are suddenly afraid that Stormy is going to tell all and that her story is going to be hugely damaging, not just to his personal life.

You know, he was married at the time of the encounter with Ms. Daniels, but also to his campaign, which was already reeling from other accusations. Right. So basically, Michael Cohen, who was Mr. Trump's fixer at the time, comes up with $130,000 of his own money to buy her silence. He pays the $130,000 in hush money to basically ensure that she's not going to tell her story. And she does indeed keep quiet about it. Trump, of course, wins the election.

And everything seems like it's dead and buried. Except that in 2018, federal prosecutors in the Southern District of Manhattan figured this out after the Wall Street Journal published the story exposing the payoff to Ms. Daniels. And the federal prosecutors and the FBI suddenly are now investigating Mr. Cohen, and they're upending his life. And in the course of that, they drill down on the $130,000 payment to Ms. Daniels. And what they find out is that this payment was essentially an illegal campaign donation to the Trump campaign. And the reason for that is that when you're buying her silence,

you're helping her silence, you're helping the campaign, right? You're keeping out a damaging piece of information from voters' attention right before the election. Right. So that is an unrecorded and very excessive campaign donation. And Mr. Cohen pleads guilty and in this very dramatic moment, stands up in court while he's pleading guilty and points the finger at the president and says, I did this because I was directed to do it by Mr.

Trump. And what, remind us, becomes of that finger pointing by Cohen to the president of the United States? So it's ultimately revealed that Trump reimbursed Cohen for the money. And Cohen goes on a publicity tour telling anyone who would listen, including Congress and the prosecutors, that this was all orchestrated by Trump. And that Trump knew that it was improperly covered up in internal documents at the company. But legally speaking, there's not much the prosecutors can do because there's a longstanding Justice Department policy that says you can't indict a sitting president. So essentially, from the public view, that's where this hits a dead end. Right. I remember that really well. It kind of ends as a salacious curiosity involving the president that doesn't really seem to be going anywhere. So walk us through how and why this case of all cases

and this Manhattan district attorney of all prosecutors ends up reviving this case that seemed very dead because Trump was president and how we get to this indictment, the first and only criminal indictment of Donald Trump. Okay, so the feds closed the book on their case. And just down the street is the Manhattan District Attorney's office. They opened their own investigation into the hush money. Originally, you had the DA, Cy Vance, who initially opened

the investigation. In the course of that, he subpoenaed Trump's tax returns. They ended up looking into a broader array of Trump's business practices. They looked into whether he lied on his financial statements. And that was the case that everybody sort of thought they were going to bring. Not the hush money case, but the new DA, Alvin Bragg, he's sworn in early 2022. And he inherits this case that was going to be focused on Donald Trump's business practices and whether he basically lied about his finances for years and years. He looks at that case and he says, yeah, Trump, maybe he lied and falsified his financial records, but we just don't have it yet. We can't quite prove it. And Bragg sort of decides, pump the brakes. Well, the only problem was when he decided to pump the brakes, he got a tremendous amount of blowback. And everybody was wanting to know, including in

deep blue liberal Manhattan, why did you, Alvin Bragg, the DA we just elected, not want to indict Donald Trump? And in the course of the last few months, the zombie case comes back. This hush money case comes back from the dead once again. And sure enough, over the course of the last several months, they start examining new potential new theories and how to revive the case. And they impanel a grand jury in January. And that's the same grand jury that just indicted him. And Ben, what made Bragg and made the lawyers in his office think that this zombie case was worth pursuing?

What evidence did they have that made them want to try to bring these charges? They clearly feel that they have a deep body of evidence and a lot of that hinges on Michael Cohen. So Cohen has met with the district attorney's office 20 times.

He has testified before the grand jury twice for hours and hours. And his story under oath is that Trump orchestrated this and was aware of all of the illegal aspects of the hush money deal. And how does the evidence that they have accumulated bring them to charges. I know we don't know the charges, but to the degree that you, based on your reporting, think you understand the charges, help us understand how what Michael Cohen has been telling the district attorney might create these charges. It all comes down to how Michael Cohen was reimbursed for the money he paid Stormy Daniels. So the hush money was paid by Cohen, but he was paid back by Trump. And Trump, while president, signed checks to Cohen, paying him back for all that money. And internally in the Trump organization,

they have these records that falsely say that the money had to do with legal expenses and that it had to do with a retainer agreement that Cohen had with them. The problem was, of course, there was no retainer agreement. It was totally bogus. There were no legal expenses, at least not in 2017 when he was repaid. This all had to do with hush money that Cohen had paid Stormy Daniels. And so if the whole thing was a work of fiction, and if the whole thing was, work of fiction, and if the whole thing was,

according to Cohen, fraudulent, then that's what the district attorney is going to build his case around. Okay, so the alleged crime here, what is behind this indictment, we think, is the fraudulent claim of what this money was for. It's, in actuality, paying off Daniels. But Trump lies and says he's just paying his lawyers fees. Correct. And so the case could be built not just on Cohen's testimony, but on the checks themselves that Trump signed, and on the documents that show that the Trump organization improperly and falsely recorded for these payments as legal expenses, which is just not true. And so ultimately, the case is very likely to come down to the falsification of those business records, which in the state of New York is a crime.

And it is a felony if you're using those false business records to commit or conceal a second crime, in this case, probably an election law violation. Okay, explain that. So they might be able to prove a crime of financial fraud from Trump lying about what this money was for, allegedly. What might be the second crime that would make this all a felony? Sure. So if the first crime is lying about what the money was for and these false business records,

the second crime very well could be that he was using those false business records to cover up a campaign finance crime. And in this case, that would be that Cohen paid money to Stormy Daniels to keep her quiet about a potential affair, an alleged affair, and that that was essentially a huge contribution to Trump's campaign. And the problem is that contribution was essentially a huge contribution to Trump's campaign. And the problem is that contribution was not recorded anywhere. And it was way in excess of what you're allowed to donate to a campaign. And in New York State, there are campaign finance laws just like there

are federally. And if it ran afoul of those laws, that could be the second crime that the Trump organization and that Trump were essentially covering up. So the second crime involved here, which could be the one that makes that financial crime a felony, sounds familiar. And that is because it is the crime that Michael Cohen already pled guilty to. Exactly. So Ben, important question. How strong a case is this, based on your reporting? I mean, I wouldn't call it a slam dunk,

but put yourself in the shoes of a juror in Manhattan who is evaluating a payment to a porn star that was covered up and lied about that potentially affected the outcome of the 2016 election. Did I mention Manhattan, where people don't love the former president? Yes. And I think that the prosecution feels pretty strongly that it has a provable case. That does not mean, however, that it does not have its challenges. We'll be right back. Ben, right before the break,

you said that the district attorney's office thinks it has a reasonably strong case, but that there are challenges that it faces in bringing it. So what are those challenges? Yeah, so the first part of the case is not so hard. It's the bread and butter of the DA's office. They're bringing the accusation that Trump and his company essentially falsified business records. Nothing strange about that. accusation that Trump and his company essentially falsified business records. Nothing strange about that. But to make that case a felony, as we discussed, you have to have that second charge, and that's a little bit trickier. What do you mean? Why? So if we're right, and the second crime

is a campaign finance violation, then what's tricky here is that you have New York state prosecutors building a case in part around a violation of New York state election law, basically that this was an illegal campaign donation to the Trump campaign. But it was not a state campaign, right? It was a presidential campaign. It was a federal campaign.

So you're having this unusual, potentially unprecedented mixing of New York state election law and a federal campaign. Right. It's not as clean as most cases might be where it's state law, alleged state crime. This is a little bit funkier, you're saying. It's a little bit funkier. And as far as we can tell, this has never been tested. Because remember, in the Michael Cohen case, that was entirely a federal case. Those were federal charges in dealing with a federal campaign.

Here, we're talking about state charges dealing with a federal campaign. Right. And listen, when you're bringing criminal charges against the former president of the United States, who's now running once again, it is challenging to bring a case that has never before been tested through the courts. That doesn't mean that they won't win. That doesn't mean that there's not a lot of evidence suggesting that he will be convicted. It just means it's a challenge.

Right. What should we make of the fact that this grand jury brought this indictment? I mean, does that tell us anything about the strength of the case? Or is that a misreading of how important and clear a grand jury indictment actually is? Well, the adage is that a grand jury will indict a ham sandwich, and Donald Trump, as many things, he's not a ham sandwich. But this is still a lower bar, a lower threshold. Basically, you needed a majority of the grand jurors to vote in favor of indicting him, whereas obviously you need a unanimous jury to convict him. And at trial, you're going to have to prove the case beyond

a reasonable doubt. And here it's a lower standard. So you should not infer just from his indictment that he is going to be convicted. But I do think what it does show is that they were able to convince the majority of these jurors that this case should be brought. And certainly they built a case that suggests that the president potentially committed these crimes. Ben, I think that a question on a lot of people's minds as they absorb this indictment and everything you have just said

is why did the Manhattan DA decide to bring this case? It's an old case. It involves this intimate, tawdry personal story. And from what you're saying, it's built on a pretty untested legal theory, and it could fail. So why this one? Well, in terms of whether or not to bring the case at all, I think that if the DA were asked this question, he would say that the rule of law applies to anyone. It doesn't matter if you're the former president, you know, or someone off the street.

It's that the law needs to be upheld. And if they have the facts and the evidence to prove their case, that they should proceed. But of course, the very nature of this case, Ben, is what invites Republicans to say that it's a witch hunt, right? Because it involves an affair, because it's old, because it comes from a Democratic district attorney who already experienced blowback for

not bringing a different set of charges. Bragg has to know that all of this is setting him up to seem, to many Republicans, like a partisan who's out to get Trump. to many Republicans like a partisan who's out to get Trump. Well, the Republicans are going to say that this is a witch hunt no matter what the case is. And let's be honest, Bragg, the DA's case may not be the last case that we see against Donald Trump. We may see future indictments of him unrelated to this in different jurisdictions. But all that's going to really matter is what people in the jury box think, and they're the ones who ultimately decide his fate. Right. Well, let's turn to the next phase of all of this. Because as you already hinted at, the next few days, the next few weeks, they're going to be very strange. But the real drama, of course, is going to be this trial.

And assuming that Trump doesn't plead guilty, and there's no reason to think he will, what would the timetable for that trial be? We have this potential extraordinary timetable. If we know one thing about Donald Trump's legal strategy, it's delay, delay, delay. And so I think that this could be likely delayed well into 2024. We could be looking at a trial nine months, 12 months away. And of course, that would raise this extraordinary prospect of having a trial nine months, 12 months away. And of course, that would raise this extraordinary prospect of having a trial unfolding against the backdrop of a presidential campaign, a campaign in which the defendant very well could be either the leading contender or even the nominee of his party. And if Trump is found guilty in a trial, in the middle of a campaign,

what kind of a sentence could he be looking at, potentially? If a jury finds him guilty, it'll be entirely up to the judge to decide what to do. The judge would not need to impose prison sentence, but he could face up to four years in prison. Wow. So it is possible that we could have a convicted former president

headed for some prison sentence running for president in the middle of 2024. Correct. But to be clear, you do not need to have a clean criminal record to be able to hold the office of the presidency. In other words, Trump could be convicted

and still be reelected. Correct. Under the Constitution, that's the deal. It's like unprecedented on top of unprecedented on top of unprecedented. Everything about this case feels totally historic, and that's because it is. Well, Ben, thank you very much. We appreciate it. Thank you very much. We appreciate it. Thank you.

In a statement released on Thursday night, Trump called the indictment, quote, political persecution and election interference at the highest level in history, called the Manhattan district attorney who brought the case against him, We'll be right back. Here's what else you need to know today. Today is a tough and a tragic day for Kentucky, for the Fort Campbell, and for the 101st. Nine soldiers have died after the U.S. Army helicopters they were riding in collided during a training mission along the border of Tennessee and Kentucky, whose governor, Andy Beshear, spoke about the accident on Thursday. The crash, which occurred late Wednesday night, involved two Black Hawk assault helicopters that took off from Fort Campbell. The cause of the collision is under investigation.

We are blessed to live in the freest country in the history of planet Earth. But we must remember that that freedom relies on those who are willing to serve, some of which pay the ultimate price. And Russia has detained an American journalist for the Wall Street Journal, accusing him without providing any evidence of espionage in a major escalation of its wartime tactics against foreign media. The reporter, Evan Gerskovich, who is based in Moscow, is believed to be the first American journalist held as an accused spy inside Russia since the collapse of the Soviet Union. The Journal vehemently denied Russia's claims that Gurskovich is a spy

and called for his immediate release. Today's episode was produced by Jessica Chung and Alex Stern, with help from Carlos Prieto and Asta Chaturvedi. It was edited by Rachel Quester and Paige Cowett, contains original music by Diane Wong and Dan Powell, and was engineered by Chris Wood. Our theme music is by Jim Brunberg and Ben Landsberg of Wonderly. That's it for The Daily.

I'm Michael Barbaro. See you on Monday.