In a social media post on Saturday, Trump, who is seeking the Republican nomination for the presidency in 2024, said he expected to be arrested on Tuesday and called on his followers to protest, though a spokesperson later said Trump has not been notified of any pending arrest.
The investigation surrounding the former president centres on a $130,000 payment that Michael Cohen, Trump’s former personal lawyer and fixer, made to porn star Stormy Daniels in the waning days of Trump’s 2016 campaign.
Who is Stormy Daniels?
Daniels, whose real name is Stephanie Clifford, is an American adult film actress who gained significant media attention in recent years. She first rose to prominence in 2018 when it was revealed that she had been paid by Cohen to keep quiet about an alleged sexual encounter with Trump in 2006.
The scandal surrounding the alleged affair and the subsequent alleged hush money payment made international headlines and sparked a legal battle between Daniels and the president’s camp. Daniels filed a lawsuit to have the nondisclosure agreement (NDA) invalidated, claiming that Trump never signed the agreement and therefore it was not legally binding.
Despite efforts to keep the story quiet, Daniels has become a vocal critic of the former president and his administration. She has continued to speak out about her alleged encounter with Trump, drawing attention to issues such as campaign finance violations and the use of NDAs to silence victims of sexual assault.
The mother-of-one remains a controversial figure in US politics and popular culture.
How did the case unfold?
Daniels first described in 2011 her purported tryst with Trump during an interview with the In Touch Weekly magazine.
She said she met Trump at a charity golf tournament in July 2006 and alleged the pair had sex once in his hotel room at Lake Tahoe, a resort area between California and Nevada.
“He didn’t seem worried about it. He was kind of arrogant,” she said in response to the interviewer’s question whether Trump had told her to keep quiet about their alleged night together.
The magazine initially did not publish the story after legal threats from Trump’s lawyer, Cohen, according to CBS News’ 60 Minutes programme. The magazine finally published the piece in 2018, weeks before Daniels told 60 Minutes that she had been threatened shortly after she agreed to speak to the magazine in 2011.
She said she later accepted $130,000 in “hush money” from Cohen a month before the 2016 election because she was concerned for the safety of her family.
Cohen pleaded guilty in 2018 to campaign finance violations tied to his arranging the payments to Daniels and another woman, among other crimes. He has said Trump directed him to make the payment.
Cohen testified before the grand jury on March 13 and again on March 15, according to his lawyer, Lanny Davis. Grand jury proceedings are not public. Federal prosecutors who charged Cohen said in court papers that the payments were falsely recorded as for legal services.
Manhattan District Attorney Alvin Bragg also presented evidence to a New York grand jury about a $130,000 payment to Daniels in exchange for her silence about an alleged affair, according to sources, Reuters reported.
Adult film actress Stormy Daniels speaks to the media along with her lawyer Michael Avenatti (R) outside federal court in the Manhattan borough of New York City [File: Brendan Mcdermid/Reuters]
How has Trump responded?
Trump has denied the affair, and his lawyer has accused Daniels of extortion.
He has also accused Bragg, an elected Democrat, of targeting him for political gain and could try to seek dismissal of the charges on those grounds.
Trump would likely pursue other avenues as well, some of which could present thorny legal issues that take time to resolve.
Where do the investigations stand?
Daniels met with and answered questions from Manhattan prosecutors investigating the payment, and is willing to be a witness, her lawyer, Clark Brewster, tweeted on March 15.
Daniels tweeted her thanks to him for “helping me in our continuing fight for truth and justice”.
The New York Times, citing sources, has reported the most likely charges against Trump would be for falsifying business records, typically a misdemeanour.
To elevate that charge to a felony, prosecutors must prove that Trump falsified records to cover up a second crime. One possibility, according to the Times, is that prosecutors could assert the payment itself violated state campaign finance law since it was effectively an illegal secret donation to boost his campaign.
Using state election law to elevate a false business record charge is an untested legal theory, experts said, and Trump’s lawyers would be sure to challenge it.
Trump could also challenge whether the statute of limitations – five years in this instance – should have run out. Under New York law, the statute of limitations can be extended if the defendant has been out of state, but Trump may argue that serving as US president should not apply.
What could happen next?
In the near term, any indictment would require Trump to travel to the district attorney’s office in downtown New York to surrender. In white-collar cases, the defendant’s lawyers and prosecutors typically agree on a date and time, rather than arresting the person at home.
Trump would have his fingerprints and mugshot taken and would appear for arraignment in court. He would likely be released on his own recognisance and allowed to head home, experts said.
Trump’s lawyer, Joe Tacopina, told CNBC on March 17 that Trump would surrender if charged. If Trump refused to come in voluntarily, prosecutors could seek to have him extradited from Florida, where he currently resides.
Were he charged, Trump would become the first former US president to face criminal prosecution. Polls show him leading other potential rivals for the Republican nomination, including Florida Governor Ron DeSantis, who is widely expected to mount a White House bid.
The average criminal case in New York takes more than a year to move from indictment to trial, and Trump’s case is far from typical. That raises the possibility of Trump having to stand trial in the middle of the 2024 presidential campaign, or even after election day. If elected, he would not hold the power to pardon himself of state charges.