Former President Donald Trump’s prediction that he would be arrested Tuesday didn’t bear out, but he still faces the prospect of indictment. That’s now in the hands of a New York grand jury.
“The standard [for a grand jury] is not the same standard as a trial, which is proof beyond a reasonable doubt. The standard is probable cause that a crime has been committed,” said Andrea Zopp, who once served as the first assistant state’s attorney in Cook County.
Zopp has some understanding of what Manhattan District Attorney Alvin Bragg may be considering in the Trump case. Zopp said that while it’s possible nothing comes of the grand jury at all, she expects Bragg to file some sort of charges given his past public statements.
Read More: Donald Trump Indictment Would Be Unprecedented Moment in US History
Trump is under investigation for violating a New York state law: the falsification of business records.
Ron Safer, who led the criminal division for the U.S. attorney’s office out of Chicago, said that would amount to a misdemeanor, unless that falsification was done in the course of committing another crime.
That’s where federal law and a potential campaign finance violation come into play.
“That is that he falsified these business records allegedly in order to provide hush money without disclosing that on his campaign finance disclosures,” Safer said. “So you’ve got really two crimes at work for the same statute.”
The initial crime would be that Trump allegedly falsified business records to make it look like he paid attorney’s fees, when in fact, the money was a hush payment to Stormy Daniels to conceal their alleged affair during his 2016 presidential campaign.
If that was done in furtherance of breaking federal campaign finance law, it could be a felony.
Safer said the Manhattan district attorney regularly brings cases of falsifying business records — but usually the cases have something to do with a defendant avoiding taxes or trying to make money.
“In this case,” Safer said, “the motive is to become the president of the United States in a way that conceals pertinent information from the public. It’s hard to imagine something that has a higher degree of severity.”
It does get tricky.
Safer said to his knowledge, never before has the felony trigger portion of the New York law relied on a federal, rather than a state, statute.
Safer said New York’s law doesn’t specify whether elevating the falsification of business records from misdemeanor to a felony has to stem from a state or federal law, so it should not present a legal complication.
Those who want Bragg to hold off on his legal pursuit said the district attorney shouldn’t use Trump as a test case.
Zopp raised another option: whether Trump violated state fraud law.
“That’s one of the underlying challenges with this case,” Zopp said. “The fraud is simply a cover-up of a fact he didn’t want in the public eye, and the question is: Is that serious enough in the realm of crime? [It] doesn’t necessarily make it less of a crime, but the question is: Is it serious enough? Or is it a crime? Because she wasn’t a government official. Was it a crime to give her money and to not share that with the public? Because if it’s not a crime, then it wouldn’t be a fraud under the New York statute.”
Another complication: It’s Trump – a former U.S. president and a candidate aspiring to once again be president.
Zopp and Safer both said that shouldn’t matter, and that it’s up to prosecutors to treat everyone equally under the law.
Were he in Bragg’s shoes, Safer said, “I would have to see. Are we making an exception for Donald Trump because he is Donald Trump? And if the answer is ‘yes,’ I wouldn’t make the exception. If the answer to that is ‘no,’ there is a reason inherent in the conduct — not who he is but the conduct, that this is different — than I would think about not prosecuting the case.”
Still, Trump isn’t just another somebody, so that may be easier said than done, particularly given the potential historic gravity of the case, the ongoing 2024 campaign, Bragg’s own career aspirations, Trump’s call for protests and pressure from Trump’s Republican allies in Congress.
“It is, of course, a significant deal for the country to indict a former president,” Zopp said. “So, yes, I do think that could be a factor.”
Zopp said it gets back to her point about gauging the seriousness of the alleged crime.
“Prosecutors make discretionary calls every single day about whether or not a particular offense rises to the level of raising an indictment,” Zopp said. “Not every crime that they have evidence of gets charged.”
Neither Zopp nor Safer is privy to all the evidence, testimony or other information that is part of Trump’s situation — so it’s impossible for Zopp and Safer to predict what could, or should, happen.
Whatever happens with this potentially historic case, Trump remains under federal scrutiny, including for the matter of classified documents seized from his Mar-a-Lago estate.
Follow Amanda Vinicky on Twitter: @AmandaVinicky