Former President Trump Indicted

Major media outlets are reporting that a state grand jury in New York has issued a sealed indictment of former President Donald J. Trump. The indictment is under seal, the New York Times reports, and the story is sourced to “five people with knowledge of the matter.” The AP sources its reporting on the indictment to “Trump’s lawyer.”

We do not know at this stage what the precise charges are, though the indictment reportedly deals with the hush money payments to Stormy Daniels. We also don’t know why the document remains sealed, what specific facts it alleges, or when it will be announced publicly.

As such, we are going to refrain from extensive comment on or analysis of the indictment at this time. Lawfare will, of course, post documents as they become available, and we will give our best sense of the merits of the case as soon as there is a case to analyze. That said, we will not be doing substantial podcasting or written work on a document that, as of this stage, remains something of a ghost.  

Here, however, is a bit of background material on the fact pattern that has reportedly given rise to the indictment– the case against Trump having arrived in the Manhattan courthouse by a particularly long and convoluted route. 

In January 2018, the Wall Street Journal reported that Michael Cohen, Trump’s then-personal lawyer, had coordinated a $130,000 payment to Stephanie Clifford—an adult film star better known as Stormy Daniels—“a month before the 2016 election as part of an agreement that precluded her from publicly discussing an alleged sexual encounter with Mr. Trump.” The scandal continued to unfold through press reports over the following months. In August of that year, Cohen pleaded guilty to a number of charges brought by the U.S. Attorney’s Office for the Southern District of New York—including campaign finance violations concerning the payments to Daniels and an additional scheme to purchase the silence of a former Playboy model, Karen McDougal. (In a theatrical twist, Cohen also pleaded guilty during the same hearing to charges brought by Special Counsel Robert Mueller in the Russia investigation, during the same hour as Trump’s former campaign manager Paul Manafort was found guilty of tax evasion and bank fraud.)

As sketched out by public reporting, government filings in Cohen’s case, and Cohen himself in his testimony before Congress, the Daniels and McDougal payouts trace back to efforts by the 2016 Trump campaign to keep stories about the candidate’s alleged infidelity from hitting the headlines in the runup to the election. Both Daniels and McDougal claim to have had sexual relationships with Trump in 2006, when he was married to his current wife, Melania. In the months before the 2016 election, both women expressed interest in telling their stories to the public—a development that would likely have been harmful to the Trump campaign. The National Enquirer, a publication with close ties to Trump, purchased McDougal’s story in what is commonly known as a “catch and kill” arrangement, paying her $150,000 in exchange for the rights to the story about her affair. According to the government, Cohen encouraged the Enquirer to pay McDougal and told the tabloid that it would be reimbursed. He later took steps to purchase the rights for McDougal’s story from the Enquirer, but the arrangement was never finalized. In the Daniels case, Cohen paid $130,000 to the actress directly in exchange for her silence. Neither women’s allegations became public in advance of the 2016 vote. 

The problem with all this, according to the Southern District of New York, was that these payments constituted illegal, unreported campaign donations to the Trump campaign under federal campaign finance law. The efforts to silence Daniels and McDougal amounted to an in-kind contribution to Trump, in that they were meant to aid the campaign by preventing the women from speaking in public. 

So how much did Trump know about any of this? The former president is unnamed in the court filings against Cohen, identified only as “Individual-1.” Cohen stated in court during his plea hearing that he coordinated the payments “at the direction of a candidate for federal office.” Later, in a December 2018 sentencing memo, the government wrote that Cohen “acted in coordination with and at the direction of Individual-1.” Notably, Cohen was reimbursed by Trump for his payments to Daniels in installments over the course of 2017—while Trump was in the Oval Office. Some of the checks to Cohen bear Trump’s signature. 

The Southern District of New York continued its investigation into the hush-money payments following Cohen’s guilty plea. In July 2019, however, the federal government indicated that it had “effectively concluded” the investigation and that future charges were unlikely—a development that the New York Times described as a likely “legal victory” for Trump.

This is the point at which the Manhattan District Attorney’s Office picked up the baton. Under District Attorney Cyrus Vance, the office began an investigation into the hush money payments that also expanded to include potential misconduct on the part of the Trump Organization. The latter prong of the investigation led to the Supreme Court case Trump v. Vance—concerning whether the district attorney could obtain the financial information of a sitting president in the course of a criminal investigation—and resulted, in July 2021, in the indictment of the organization and its Chief Financial Officer Allen Weisselberg on fraud charges. Trump himself was not charged.

Vance finished his term as district attorney in December 2021 and was succeeded by Bragg. Shortly after Bragg took office, two of the lead prosecutors working on the Trump case—one of whom, Mark Pomerantz, Vance had recruited specifically to investigate Trump—resigned, reportedly because Bragg had told them he was skeptical about the strength of their case against Trump. Following these high-profile departures, the case seemed to grind to a halt, though Bragg said publicly that the office was continuing to investigate. Pomerantz published a book in February 2023 making his case for a prosecution of Trump and criticizing Bragg for not moving forward with charges. Pomerantz’s decision to air dirty laundry may create problems for the prosecution going forward: reviewing the book in the Washington Post, former federal prosecutor Andrew Weissmann speculated that “if charges are brought, this book is certainly going to be used in countless ways by the defense, including to claim selective prosecution, to try to change venues and to undermine government witnesses.”

At some point after Pomerantz’s departure, Bragg seemingly did a U-turn and decided to move forward with charges against Trump after all. It remains unclear what changed his mind. The Post suggested previously that it isn’t a question of smoking-gun new evidence, reporting that “It is unlikely that any new facts or witnesses have emerged since Cohen first publicly discussed the Daniels payment in 2018.”

More generally, the state case–despite not having materialized yet–has faced criticism on a number of bases. Some commentators have suggested that the statute of limitations has run, others that Bragg may not be able to show the requisite “intent to defraud” on Trump’s part, others that the matter should not be handled at the state level at all. Still others have suggested that it’s clearly politically motivated or that Bragg is creating a felony out of a misdemeanor.

In our judgment, all of the criticisms are premature. You can’t evaluate an indictment without access to the indictment. And you can’t condemn a prosecutor for pursuing a case you can’t read. 

Hence, we encourage all commentators to refrain alike from triumphant claims that the rule of law has been vindicated or from clucking about witch hunts. There will be plenty of time for that later.