The Trump indictment, an explainer


Two fundamentals stand out in the Manhattan grand jury indictment of Donald J. Trump: One is that under our constitutional system, a person is innocent until proven guilty, a matter deeply rooted in the rule of law; the other is that no person, no matter their station or status, is above the law, including a former president of the U.S.

The Manhattan case is one of four investigations of the former president inquiring into his actions while he was in office. This one, People of the State of New York vs. Donald J. Trump, involves 34 standard accusations of corporate wrongdoing, which under New York law can be charged as a misdemeanor or a felony: A felony is a far more serious crime than a misdemeanor, with longer prison terms and higher fines.

The other three cases are far more straightforward: A state case dealing with Trump’s attempt to overturn Georgia election results stemming from a phone call to Georgia Secretary of State Brad J. Raffensperger, demanding him to find 11,780 votes so he would win the state by one vote; two federal investigations, one concerning Trump’s role on Jan. 6 to disrupt the peaceful transition of power, and the other regarding his refusal to return classified documents to the National Archives after his term ended.

The Manhattan case promises to be the most difficult for prosecutors because of the divide between the facts and the law.

The facts are clear. The grand jury accused Trump of falsifying business records as a felony when he concealed hush money payments to porn star Stephanie Clifford — commonly referred to as Stormy Daniels — with whom Trump once had a tryst. He has long claimed he wanted to protect his family, but according to a Fox publication, Melania Trump was aware of her husband’s sexual relationship with Daniels. If Daniels’ story had appeared during the final days of the 2016 presidential campaign, it would have negatively affected his election.

Although Trump denies these facts, his former attorney, Michael D. Cohen, has testified under oath that the president instructed him to pay $130,000 to Daniels, and Trump would reimburse Cohen as part of his legal fees, which were paid monthly throughout 2017. These were not legal fees, even though Trump’s business records show they were recorded as Cohen’s retainer.

In addition, the charges relate to other schemes to quiet accusations against Trump during

the campaign. One was made by Karen McDougal, an actress and model, who also alleged she had a nine-month affair with Trump, again while married to Melania. 

Trump worked with Cohen and David J. Pecker, the publisher of the National Enquirer magazine, to bury McDougal’s story, a practice in the tabloid industry known as “catch and kill.” Another was a catch-and-kill National Enquirer story from one of Trump Tower’s doormen who allegedly claimed that Trump fathered a child out of wedlock while he was married (it turns out the story was likely false).

While these sordid facts are certain, the law is not so clear that a jury could find they amount to a crime.

Typically, the district attorney’s office tries such cases as misdemeanors. But the actions may arise to a felony if they lead to the commission of, or conceal, “other crimes.” In his accompanying statement of facts, D.A. Alvin Bragg noted that he was investigating three such crimes. The first is a federal campaign election violation: Trump violated the law because the payments to Cohen were never listed as part of his campaign expenses.

Another potential crime involves a scheme involving a state election law that makes it a crime for two or more people to conspire to further a political candidacy “by unlawful means” — in this case, using concealed funds to promote Trump’s image, but not reporting it as such. The problem with the legal theory concerning federal and state election law, and one that the defense will surely use, is that this was a federal election. It is debatable whether a state prosecutor can charge a person with either a federal or state campaign crime when the candidate is running for national office.

The salvation of the case may rest with a third potential crime: tax fraud. Bragg claims that Trump and Cohen “took steps that mischaracterized, for tax purposes, the true nature of the payments made in furtherance of the scheme … To get Michael Cohen his money back, they planned one last false statement.” That is, Trump laundered his payments to Cohen as a repayment, not a legal fee.

Predicting an outcome in this case is impossible. It will take many months to sort it all out. The defense will likely move for dismissal. The judge will likely deny the motion. The defense will argue that the statute of limitations has run out, and the case was filed too late. The prosecution will counter that the clock was stopped while Trump was president, because the Justice Department has held that a sitting president may not be prosecuted. Besides, they will add, Trump declined to submit his financial records to the D.A.’s office, which had to be subpoenaed, an action upheld by the U.S. Supreme Court in 2021.

The discovery process will take place when prosecutors share with the defense the facts and evidence they have accumulated. The trial will then proceed. Probably right during the final weeks of the 2024 presidential campaign, along with developments in the three other ongoing and more significant investigations.


Jack Fruchtman, who lives in Aquinnah, taught constitutional law and politics for over 40 years, and is the author of “The Supreme Court and Constitutional Law,” now in its third edition.


  1. Thanks for another clear and rational essay,Jack.
    But this is not rocket science– the guy is a crook.
    Lock him up.

      • John– I do watch the right wing media. They have lots of accusations, but most are general in their narrative — like “the Biden family is the most crooked family in the world” But when I ask for specifics. they are pretty vague– yes,a former staffer alleged some groping, there are questions about some business dealings, particularly about Hunter, and some deal with China.
        But I can’t get a straight answer about what law Hunter broke by being on the board of directors of an oil company. I do wish we would hear more about that , but Fox seems totally fixated on a few unflattering pictures of him that were found on his laptop.
        And please holding up the military aid ? Read up on it.
        But I will give you a spoiler alert– the prosecutor that Biden wanted fired when he was vice president was NOT pursuing an investigation into Hunter’s dealings in Ukraine.
        Now , of course I have TDS so I have to point out the allegations against the former president for comparison– that is what this article is about. Right ?
        Keep in mind, there were literally hundreds of investigations that resulted in a “deal” –Just a few– Fraud with the Trump foundation, violation of the emollients clause, trump university, the legality of 6 bankruptcies worth billions of dollars, violations of the fair housing act, tax fraud , etc…

        • Using the NYT as a source is pretty weak. The paper is not any different today than when it gushed at Walter Duranty’s Pulitzer. Believe me. I’ve worked for the paper. Try reading Peter Schweizer’s book about the Bidens and get back to me.

          • John– how about you posting something to back up your assertions.. sorry, i am not going to read an entire right wing biased book about some weak allegations about the Bidens.
            The NYT article I referenced stated a number of FACTUAL allegations concerning the activities and allegations of criminal activities of the trump organization., and the unlawful actions of mr trump himself.
            The NY Times is not a “weak” source, unless you think that hard working people who are dedicated to providing truthful information to the general public is a “weak” source of news.
            So let me challenge you here for future articles..
            You or I post something–
            And then you or I challenge it.
            It’s called a debate—
            You and i both put up our version of the facts—
            and we have a debate– in public–
            You can put up your nut case books, and i can put up my nut case facts–
            Game on ?

    • nope — all politicians are not crooks.
      Take that pile of crap and put it back where it came from

      • Please accept my apology, I should have specified “upper level” politicians.
        I’m stickin’ with it; that way I’m never disappointed.

        • Tim just a quick rundown of the number of “upper level” politicians at the federal government who have been convicted of crimes.
          Since 1969, there have been 39 “upper level” officials convicted of crimes .
          30 republicans
          5 democrats
          4 unaffiliated
          Let me remind you that there are thousands of upper level politicians In the federal government.
          To look these numbers and come to the conclusion that you do is somewhat surprising to me.
          Of course, if you think the judicial system, the courts, the lawyers the judges and millions of other people who work within the legal system are all involved in a deep state conspiracy to protect said politicians, well, I guess it makes sense.

          • Albert– my comment replying to you was censored.
            It seems the moderator has some issues with comments that point out the pedophilia problem that is systemic in the Catholic church.

    • Every single elected official on island is a crook
      Do you dare say that to their faces or just on comment boards?
      If all politics are crooks what are the people who vote for them.
      Have you ever voted/voted for a crook.
      Is everyone.
      On average politicians are less crooked than the people who vote for them.

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