Indictment of Donald Trump for Minor Offense: Risk Assessment for the US


The criminal indictment of former president and current presidential candidate Donald Trump is historic and unprecedented. It stands for the principle that, in the United States, no one is above the law. At the same time, prosecuting Donald Trump for his alleged involvement in hush-money payments to cover up extramarital sexual encounters is a risky bet for the US and could undermine the current system of justice. The core of the indictment’s 34 felony charges against Donald Trump relate to recording hush-money payments made via his attorney Michael Cohen as “legal fees.” Under New York state law, if you falsify your own business records, that’s a misdemeanor, a minor crime. To make it a felony, the government needs to prove that the falsification of the record was intended to commit and hide another crime.

The indictment does not specify what that other crime was, but some have theorized that it was violating election law by hiding what was, in effect, a contribution to his campaign. Since it is very unlikely that the district attorney would attempt to retry Donald Trump, the resulting mistrial or acquittal would be almost as great a victory as would be a conviction. At the same time, prosecuting Trump with only minor charges related to hush-money payments could deaden the public response when it comes time to bring more serious charges. This means that prosecutors in different jurisdictions would have to be judicious when deciding when and how to file a criminal charge against Donald Trump.

The Manhattan District Attorney’s Office is the prosecutor in the case against Trump and operates under the supervision of District Attorney Alvin Bragg. The Manhattan DA’s Office is responsible for the orderly administration of justice in all criminal matters brought to trial in the Manhattan District Court and is tasked with the prosecution of all criminal offenses occurring in the district. In 2019, the office secured a conviction for Theodor McCarrick, a former top official in the Roman Catholic Church, who was found guilty of sexual abuse. This shows that District Attorney Bragg and his team are serious and capable prosecutors.

Donald Trump’s attorney, Michael Cohen, is a former lawyer, political consultant and Congressman appointed by Trump in 2018. Cohen is currently in prison after pleading guilty to financial fraud and has been cooperating with prosecutors in the Trump investigation. Cohen has been particularly vocal in calling for Donald Trump’s prosecution, writing a tell-all book that accuses the former President of committing numerous crimes. He has also been a highly visible media figure in the aftermath of Trump’s legal troubles. As such, he has come to represent an important voice in the ongoing effort to hold Donald Trump accountable for any alleged wrongdoing.

Ultimately, the decision to prosecute Donald Trump for a relatively minor offence is a risky bet for the US. It is uncertain whether Trump can be successfully prosecuted for more serious crimes connected to his attempts to subvert democracy. If a local prosecutor is able to place a sitting president in criminal jeopardy, then that would be a particularly troubling outcome for our democratic constitutional system. Prosecutors in different jurisdictions will have to exercise a great deal of judiciousness and caution when deciding to file criminal charges against Trump.