20 March 2023
Preparations appear to be underway for the unprecedented scenario that Donald Trump could become the first former president in U.S. history to be indicted.
Barricades arrived outside the criminal courthouse in Manhattan on Monday while law enforcement agencies grapple with how to protect the former president. Questions also remain as to whether Trump would be handcuffed and when he would first appear in court if he is indeed charged in a case involving a hush money payment to adult film actress Stormy Daniels.
As a potential indictment looms, here’s what to expect if the grand jury indicts Trump.
What charges would Trump face?
Manhattan prosecutors are scrutinizing a $130,000 hush payment that Michael Cohen, Trump’s longtime fixer and former attorney, made to Daniels in exchange for her silence about an alleged affair she says she had with Trump.
Making a hush payment in itself is not illegal, but legal observers indicate that prosecutors are eying charges against the former president related to falsifying business records. Trump reimbursed Cohen for the payment and said he considered it a monthly retainer fee.
Trump denies the affair, and his attorneys have portrayed him as an extortion victim. They insist the payment, which was made in October 2016, was unrelated to Trump’s presidential campaign at the time.
Manhattan District Attorney Alvin Bragg (D) could seek the charge if prosecutors can show that Trump, with an intent to defraud, was personally involved in unlawfully designating Cohen’s reimbursements a legal expense.
That charge would still only amount to a misdemeanor, however. Elevating the charge to the felony version — which carries up to four years in jail — would require a connection to a separate crime.
Cohen pleaded guilty to federal campaign finance violations in connection with the scheme. But Bragg’s office, which prosecutes state crimes, would rely on an untested legal theory if it cites a federal violation.
Legal experts suggest Bragg could also look for a violation of state tax or campaign finance laws, depending on the evidence he collected.
Would Trump surrender to authorities?
Trump has long decried the investigation as a plot to derail his 2024 presidential campaign, reiterating that belief on Monday by calling it “the greatest Witch Hunt of all time.”
Over the weekend, Trump rocked the news cycle in a social media post by suggesting he would be arrested on Tuesday. He then told his supporters — in remarks that some political observers said were reminiscent of calls he made before his supporters stormed the Capitol on Jan. 6, 2021 — to “Protest, take our nation back!”
Despite Trump’s apparent threat, Joe Tacopina, Trump’s attorney, told the New York Daily News that the former president won’t refuse to surrender if he is indicted.
“There won’t be a standoff at Mar-a-Lago with Secret Service and the Manhattan DA’s office,” Tacopina told the paper.
The former president lives in Florida, but the proceedings would take place in New York City. Trump would first need to appear in court so a judge can formally read him the charges.
A source familiar with the arrangements said there are few preparations that can be made before any indictment of Trump, which would be relayed to his attorneys ahead of his protective detail.
The source said that should Trump be charged, he could arrange to surrender to authorities at another location, noting that other high-profile defendants have turned themselves in at local police stations.
What would happen once Trump appears in court?
It’s unclear what changes authorities would make for the extraordinary nature of indicting a former president, but standard procedure indicates that Trump would provide fingerprints before being released ahead of trial.
White-collar defendants are typically handcuffed as they walk into the courthouse in Lower Manhattan for their arraignment, when they formally enter a plea.
Cohen was asked in an MSNBC interview on Sunday about his own experience being indicted by the district attorney’s office, and he predicted that Trump would not be handcuffed. Despite fully breaking with the former president over the case, Cohen said such a thing would be bad for the presidency as an institution.
Following an arraignment for a felony, New York’s criminal procedure law directs law enforcement to take fingerprints of defendants. In those cases, state law permits officials to additionally take mugshots and palm prints.
After those proceedings conclude, Trump would likely be released as he awaits trial.
New York lawmakers in 2019 approved changes to the state’s bail and pretrial release laws, establishing a presumption of release on recognizance in all cases, except when a defendant poses a flight risk.
How would authorities handle Trump’s security?
Trump receives around-the-clock Secret Service protection, raising unique security issues surrounding any potential indictment.
Law enforcement officials in New York have been discussing security preparations if the case moves forward.
The source familiar with the arrangements said the Secret Service would be responsible for securing Trump’s movements into and out of the courthouse, while any security measures within the building would be left to local law enforcement and court staff.
Secret Service spokesman Anthony Guglielmi said he could not comment on specific protection plans or movements. The New York court system declined to comment on the arrangements, and The Hill has reached out to the Manhattan district attorney’s office for comment.
“While the NYPD continues to monitor all activity, there are no credible threats to the city at this time,” a New York City Hall spokesperson said when asked about the preparations.
“We will continue to monitor all activity, and in coordination with other local, state, and federal law enforcement, the NYPD always remains prepared to respond to events happening on the ground and keep New Yorkers safe,” the spokesperson continued. “The mayor is in constant contact with Commissioner Sewell about all public safety issues affecting the city every day and speaks with the commissioner and others at the NYPD multiple times every day.”
Rebecca Beitsch contributed.