- Ellen Yaroshefskyprofessor of law at Hofstra University.
In an unprecedented move, a Manhattan grand jury voted Thursday to indict former President Donald Trump for hush-money payments made to adult film star Stormy Daniels during the 2016 presidential campaign to hide an alleged affair, making Trump the first former U.S. president to face criminal charges. While the precise details of the charges are not yet known, the development culminates years of political, business and personal legal troubles for Trump, who still faces three other major investigations. We look at the charges in this case and others that Trump faces, with Ellen Yaroshefsky, who teaches legal ethics as a professor at Hofstra University Law School.
AMY GOODMAN: This is Democracy Now!, democracynow.org, The War and Peace Report. I’m Amy Goodman.
Donald Trump was indicted Thursday, becoming the first former president ever to face criminal charges in the United States. Trump is expected to surrender to authorities and appear in court on Tuesday. Manhattan District Attorney Alvin Bragg has not released the exact charges against Trump, but according to press accounts, the grand jury indicted Trump on more than 30 counts. Bragg’s case focused on hush-money payments Trump made to adult film star Stormy Daniels during his 2016 presidential campaign to cover up his affair with her. The charges come four-and-a-half years after Trump’s former personal attorney and fixer, Michael Cohen, pleaded guilty to charges of tax evasion, bank fraud and lying to Congress about the hush-money payments, which he says Trump directed him to make. Cohen served time in prison.
Donald Trump is still facing three other major investigations. Veteran prosecutor Jack Smith is leading a Justice Department probe into Trump’s role in the January 6th insurrection and attempts to overturn the 2020 election. In Georgia, Fulton County District Attorney Fani Willis is investigating Trump’s effort to overturn Biden’s victory in Georgia in 2020. And in New York, Attorney General Letitia James has sued Trump and his Trump Organization for fraud related to his business dealings.
On Thursday, Donald Trump responded to the indictment by releasing a long statement that read in part, quote, “This is political persecution and election interference at the highest level in history,” unquote.
In recent weeks, Trump has railed against prosecutors investigating him. Trump recently posted a photo of himself holding a baseball bat, next to a picture of Manhattan District Attorney Alvin Bragg, who’s Manhattan’s first Black DA. Trump has also referred to Bragg as an “animal.”
This all comes as Trump is running for the White House again. Under the U.S. Constitution, Trump can remain in the race even if he’s convicted. In 1920, Eugene Debs ran for president on the Socialist Party ticket while in prison.
To talk more about the indictment of Trump, we’re joined by Ellen Yaroshefsky, professor of law at Hofstra University Law School.
Welcome to Democracy Now!, Professor. Why don’t you begin with your response to this historic indictment?
ELLEN YAROSHEFSKY: Relieved that this matter is finally going to be in a court of law rather than just in the media, because it’s so important to affirm the idea that we have a rule of law and that no one is above the law. So, we’ll wait and see what a jury does when they hear the facts and they apply the law.
AMY GOODMAN: Explain what we understand at this point. The indictment has not been unsealed. That apparently will happen on Tuesday, when Trump will surrender to New York authorities, it’s believed. He will have a mug shot taken. He will be fingerprinted. And he will be in court, it’s expected. But explain what we understand these charges are about.
ELLEN YAROSHEFSKY: Well, we don’t know for a fact, let’s say, until the indictment is actually unsealed. What we expect thereabout is that he falsified business records in the hush payments to — regarding the Stormy Daniels matter. And as a result of falsifying those payments, he actually had the intent to influence the federal election. That makes it a felony. If it were just falsifying business records, which is really clear happened, because Michael Cohen has served prison time in prison for that, that would just be a misdemeanor. But in order to elevate it to a felony, there has to be another crime, the intent to violate another crime. And the thought here is — and it’s a thought, it’s not proof — that the other crime would be to influence the federal election.
What’s interesting about this, Amy, even though that’s an untested theory, that three days before this happened was the Hollywood Access tape. And so, the idea here would be that because the Hollywood Access tape undermined his election prospects, that he really needed to engage in this conduct to make sure that his record of falsifying payments to hush — falsifying hush-money payments wouldn’t be revealed.
AMY GOODMAN: Now, explain that further, because this, the hush payment to Stormy Daniels, came less than two weeks before the election and just after that tape that was released.
ELLEN YAROSHEFSKY: Well, it didn’t matter — when the hush-money payments were made — right? — Michael Cohen talked about the checks — Trump had signed checks — and that those were the ways in which they falsified the payments, because they claimed they were legal expenses. They were not legal expenses; they were payments to Stormy Daniels. So, that’s the way that unfolded.
AMY GOODMAN: And Karen [McDougal], the Playboy model, who apparently also got hush-money payments, talk about the charges. Or, we don’t know what the charges are, but how this all relates?
ELLEN YAROSHEFSKY: Well, we don’t know. But what we do know is we’re looking at falsifying business records. And any of the payments that were made were made, theoretically, under — this is what Michael Cohen says, right? — is that they said that they were legal expenses. They were not legal expenses. They were payments made to ensure that both of those women did not talk and explain what had happened. That’s why — that’s a misdemeanor to have done that. And when we said the indictment has up to 30 counts, that means 30 different charges. For each of those payments, for each check, that could be a different charge.
AMY GOODMAN: And her name is Karen McDougal. Earlier this month, Trump’s former personal attorney and fixer, Michael Cohen, spent several hours testifying to a state grand jury in Manhattan. He previously pleaded guilty to charges of tax evasion, bank fraud and lying to Congress about the hush-money payments, which he says Trump directed him to make.
MICHAEL COHEN: This is not revenge. Right? What this is is about accountability. I don’t want to see anyone, including Donald Trump, indicted, prosecuted, convicted, incarcerated, simply because I fundamentally disagree with them. This is all about accountability. He needs to be held accountable for his dirty deeds.
AMY GOODMAN: Talk about the significance of what he’s saying.
ELLEN YAROSHEFSKY: Well, he’s going to testify. His testimony is significant. Hopefully, there will be other witnesses who will testify, as well. But a part of the significance is that he will be cross-examined, and his credibility will be put at issue, and that will be a significant issue before any jury. Michael Cohen has made a lot of statements. Michael Cohen spent time in prison. Michael Cohen was indicted by the Trump — during the Trump administration. So, all of those will be factors as the jury considers Michael Cohen’s testimony.
AMY GOODMAN: So, can you respond to those who say that they feel that Donald Trump should be indicted, but for far more serious crimes, among them, for example, inciting the insurrection? And the significance of this being put forward, and then how strong this case is? I mean, we’re talking about the credibility before a Manhattan jury. You have someone like Michael Cohen, who himself has pled guilty to perjury and who has served time in prison, being the person who testifies, along with Stormy Daniels.
ELLEN YAROSHEFSKY: Well, let me start here. Alvin Bragg is a very careful, diligent prosecutor. He’s very experienced. He’s been a federal prosecutor. He was a state prosecutor in the Attorney General’s Office, where he investigated Trump. So, coming into office, he knew very well, I think, what he was up against. He would not go forward, I believe, with an indictment unless there was significant evidence from which their office believes they can prove this case beyond a reasonable doubt.
There may be other more significant cases. Certainly, the idea of an insurrection and trying to overthrow the government is a very serious charge, much more serious than this. But Alvin Bragg doesn’t control that. He doesn’t control the Georgia case that Fani Willis is considering. As a prosecutor, you can only take the case that’s before you, take the facts that you have and investigate those facts. So, it could be that if the timing had been different, people wouldn’t be questioning why bring this case first. This is the case that Alvin Bragg has.
AMY GOODMAN: So, let’s talk about those other cases for a moment. You referred to them quickly, but what he’s facing in this federal investigation in Washington, D.C., and what exactly Fani Willis may bring charges against him for, the Fulton County DA, and then, in New York, the Attorney General Tish James.
ELLEN YAROSHEFSKY: There are many, as you’ve pointed out, Amy, these three cases. So, first of all, federal charges. The Department of Justice brought in a lawyer, Jack Smith, a very experienced lawyer, who is examining the factors around the insurrection, what happened during the insurrection, Donald Trump’s responsibility for it, classified documents. It’s an ongoing and a sweeping investigation. We don’t know what’s going to happen. We do know that it appears that Jack Smith has been very diligent and forthright, going after witnesses, trying to ensure that the crime-fraud exception, for instance, would allow certain people to come forward and testify, including Mike Pence. And so, that’s going on. We don’t know when or if there will be an indictment in that case. So, that’s one.
Fani Willis had a grand jury empaneled, and the grand jury gave her a report that she’s now looking at to determine whether or not Donald Trump, through his calls to Brad Raffensperger, trying to, quote, “find 11,000 votes,” so that they could overturn the election in Georgia — that matter went before a grand jury in Georgia, and she’s making a determination as to whether or not there will be an indictment in that case.
A year ago — well, December of '22, Letitia James in New York filed a massive civil fraud case — it's fraud and other financial crimes — against Donald Trump and the Trump Organization regarding billions of dollars — billions of dollars — as a result of overvaluing and undervaluing many of the properties of the Trump Organization and of Donald Trump. That matter is also proceeding.
So, we don’t have a sense, timewise, of when or if any of these other cases will proceed, whether there will be other indictments, whether the Letitia James attorney general case will go to a jury. That’s all to be determined. All we know right now is, yes, there is one indictment — that’s this indictment — and it’s the first time that Donald Trump or any president will face criminal charges.
AMY GOODMAN: And even though it’s the first indictment, it doesn’t necessarily mean it could lead to the first trial. Is that right? And what does it mean if he has charges brought against him in the federal, with Jack Smith, the Justice Department; in Georgia; and the state of New York? What happens then?
ELLEN YAROSHEFSKY: Well, we’ll have to wait and see. I mean, certainly, just because there will be an indictment and an arraignment, which is when Donald Trump will show up and plead not guilty, presumably, and be released, there will be a lot of motions that will be made. There will be a timeline set up for motions. These cases do not proceed quickly. These are white-collar fraud cases. They can go on for years. So, we don’t know when there will or if there will ever be a trial in New York.
We also don’t know whether Jack Smith will ever indict Donald Trump federally. But if so, the timing will have to be worked out. Obviously, you can’t stand trial in two separate cases at the same time. So, the courts, the judges will have to decide upon timing. The same is true with respect to Georgia. It may be that the Georgia case could proceed, if it’s indicted, earlier than the New York case.
AMY GOODMAN: Donald Trump held his first major rally for the 2024 presidential campaign in Waco, Texas, last weekend, vowing to destroy the deep state and railing against prosecutors investigating his alleged crimes. This is what he said.
DONALD TRUMP: When they go after me, they’re going after you. … The only way to stop these arsonists is to rebuke and reject this evil persecution by sending us straight back to the White House to expel the communists and the Marxists and all of them in 2024.
AMY GOODMAN: Can you respond to what he’s saying?
ELLEN YAROSHEFSKY: Well, he’s asking for mob rule. He’s asking us to undermine — this is not the first time — undermine the rule of law, not have a democracy, basically have a world in which Donald Trump is the only person whose opinion matters. We have a country, and we’re trying to uphold democracy, and we’re trying to uphold the rule of law. And so, it’s significant here that Alvin Bragg has brought this case, despite the fact that Donald Trump may continue to make such statements, despite the fact that there’s going to be quite a reaction, I suspect, to Donald Trump’s indictment. But we’ve got to uphold a system where there is a rule of law.
AMY GOODMAN: He showed video of the violent attack on the Capitol at the Waco rally. He also, of course, had tweeted that picture holding a baseball bat next to a picture of the Manhattan DA, Bragg. Right now the police department is preparing for next week, as he has made allusions to people gathering there, calling on every police officer to be wearing uniforms. Talk about what will happen on Tuesday. I mean, do you expect a perp walk? Do you expect him to be shown with his hands behind his back handcuffed?
ELLEN YAROSHEFSKY: Donald Trump would probably like — and he’s the — to have handcuffs. He’d like that. He’d like a perp walk. I do not believe for a second that the DA is going to do that. The DA is being very careful about this, is being very sensitive, I think, about the ways in which he’s going to be arraigned. They’re going to make special provisions.
The police are already called out. I mean, if you go downtown Manhattan, it looks like they’re preparing for a war zone. It’s very disturbing. There’s no defendant, I think, we know in history who’s ever — potential defendant, who’s ever behaved in this fashion, calling out a mob.
That said, there were not that many people there. Last Tuesday, when Donald Trump announced that he was going to be indicted, he wanted many people to come and demonstrate. There were not that many people. It’s unclear how many people will be there this Tuesday, assuming he shows up, but the police will be prepared, the DA’s Office is prepared, New York City is prepared. We’re not going to succumb to mob rule. We have got to uphold the rule of law.
AMY GOODMAN: Let me ask you about Florida Governor Ron DeSantis, who said, “Florida will not assist in an extradition request given the questionable circumstances at issue with this Soros-backed Manhattan prosecutor and his political agenda.” Unpack all of this.
ELLEN YAROSHEFSKY: It’s shocking. Let’s just start there. Never before has a governor said, “We are not going to abide by the law.” Right? Governors are required, if they get an extradition warrant from a governor in another state, to make sure that person gets sent to the state. So, DeSantis, first, has said, “I am not going to uphold the law here.”
The other part, the horrible part, that continues to feed racist and antisemitic violence in many places, is talking about Bragg or other prosecutors as Soros prosecutors. That is just a dog whistle for antisemitism, and it is just feeding the ways in which this country is terribly divided.
AMY GOODMAN: I wanted to read for you the beginning of a piece by Chris Hedges in ScheerPost post called “The Donald Trump Problem” and get your response, Professor Yaroshefsky. “Donald Trump — facing four government-run investigations, three criminal and one civil, targeting himself and his business — is not being targeted because of his crimes. Nearly every serious crime he is accused of carrying out has been committed by his political rivals. He is being targeted because he is deemed dangerous for his willingness, at least rhetorically, to reject the Washington Consensus regarding neoliberal free-market and free-trade policies, as well as the idea that the U.S. should oversee a global empire. He has not only belittled the ruling ideology, but urged his supporters to attack the apparatus that maintains the duopoly by declaring the 2020 election illegitimate.
“The Donald Trump problem,” Chris Hedges writes, “is the same as the Richard Nixon problem. When Nixon was forced to resign under the threat of impeachment, it wasn’t for his involvement in war crimes and crimes against humanity, nor was it for his illegal use of the CIA and other federal agencies to spy upon, intimidate, harass and destroy radicals, dissidents and activists. Nixon was brought down because he targeted other members of the ruling political and economic establishment. Once Nixon, like Trump, attacked the centers of power, the media was unleashed to expose abuses and illegalities it had previously minimized or ignored,” Chris Hedges writes. Your response?
ELLEN YAROSHEFSKY: There’s always political commentary anytime there is an indictment that ends up in the media. So, on the right wing, the right wing now, like Trump and others, are saying, “This is just politics in action. This is just a political indictment. You’re just trying to interfere with Trump’s election possibility.” So, that’s on the right. Chris Hedges, on the left, you know, is indicated, though, this is done for other political reasons.
So, let me just say this. There are always political consequences to an indictment, from which people in the media and the blogosphere can talk about the way in which they see it. But the point here is we have a system, and we try to have a system, of the rule of law, where if people are violating the law — they’re violating the law — the prosecutors investigate the facts. They have discretion as to what to do. But we expect, and we — we expect that there will be accountability in law. There may be other consequences, from which people can argue politically. For instance, Donald Trump may say, if he is convicted and if he is indicted, it will affect his election. No doubt that is true, or it should be true. It may be true. People may vote for him anyway. But there will be consequences. And similarly, as Chris Hedges argues, you can argue all day long the reasons, the reasons underlying the indictment, but we’re looking at cases that really are about the legal system and whether we believe in a legal system and the rule of law.
AMY GOODMAN: Can you compare what’s happening now, this unprecedented indictment against a former president of the United States, with what happened to John Edwards? Remember, when he was running for president. After nine days — he was indicted. After nine days of deliberation, the jury deadlocked on five of the six felony counts against the former senator. The government had accused him of orchestrating nearly a million dollars in payments two wealthy Edwards donors made to hide his pregnant mistress from the media during a critical phase of his 2008 bid for the White House.
ELLEN YAROSHEFSKY: So, yes, in fact, there were acquittals there. And it’s the same question here, which is: Can they prove that those payments were made with an intent to influence the election? Apparently, there, the jury decided no.
But John Edwards — the case is a bit like apples and oranges, comparing John Edwards and what he’s done with Donald Trump. Donald Trump has a much longer history. There are many more indications here of what Donald Trump did in terms of influencing the election.
And ultimately, it’s going to be up to a jury to decide whether or not these payments, these falsified business records, were done with the intent to influence the election. The question is: Will the jury decide the way the Edwards jury decides? We don’t know that. Certainly, the Donald Trump defense will use that, in the media and elsewhere, to talk about the case against Trump and why it shouldn’t result in a conviction.
AMY GOODMAN: Finally, is there a statute of limitations here?
ELLEN YAROSHEFSKY: Well, that’s an interesting question, Amy. The idea is the statute of limitation was tolled. That means it was stopped, and additional time is added. “Tolled” means, for instance, because of Cuomo — Andrew Cuomo said we’re tolling a variety of things because of COVID. So, that’s one. And there’s also a question as to tolling generically under the criminal procedure law. I assume the defense is going to raise that issue. It appears now as if that, yes, in fact, the case can go forward, because the statute was tolled from 2016 onward.
AMY GOODMAN: Well, Ellen Yaroshefsky, we thank you so much for being with us, professor of law at Hofstra University Law School.
ELLEN YAROSHEFSKY: Thank you.
AMY GOODMAN: As we will continue, of course, to cover this historic indictment throughout next week.
Coming up, over a thousand protesters flooded Tennessee’s state Capitol building Thursday demanding an end to gun violence, following Monday’s mass shooting that killed three 9-year-olds and three adults. We’ll speak with an emergency room doctor who took part in the protest. Stay with us.