A New York grand jury is expected to indict Donald Trump. Getting a conviction won’t be easy

In a Manhattan courthouse, a grand jury has weighed evidence to decide whether former US president Donald Trump should be indicted on charges related to payments made in 2016 to a porn actress.

Trump has denied having an affair with actress Stormy Daniels, but the payments he made to her, to keep her quiet, are not in dispute.

The payment was recorded by the Trump Organization as legal fees. And it’s that record that has the former president facing a criminal trial. They can be charged with falsifying business records, a misdemeanor, and also face the more serious charge of falsifying business records in the first degree – a felony.

But making that case, some legal experts say, could be a challenge for Manhattan District Attorney Alvin Bragg, who may find it difficult to prove Trump’s intent. It didn’t help that Bragg’s star witness was a convicted felon.

“This case is going to have serious, serious issues,” said Mark Bederow, a criminal defense attorney and former Manhattan, NY, prosecutor.

“It’s a lot of surprising ways that the decision here … appears to be a green light,” he said of the expected decision by the prosecutor to officially pursue charges. “It’s amazing to me.”

But others say Trump should not be too confident; the case against him may be stronger than some suggest. US Attorney Norm Eisen, who served as counsel to the House Judiciary Committee for Trump’s first impeachment trial, praised Bragg’s efforts to take the case to a grand jury.

“The charges here are very serious criminal acts. And I think the evidence is strong,” Eisen said.

The case revolves around $130,000 in US payments made by Trump’s former personal lawyer, Michael Cohen, to Daniels through a shell company set up by Cohen. Cohen was later reimbursed by Trump, whose company listed the reimbursement as a legal expense.

The potential legal problems for Trump are twofold. Did he falsify this business transaction at the Trump Organization by recording payments to Daniels as legal fees? And, more seriously, if he falsified the record, what was his purpose in committing other crimes, in particular, evading campaign finance laws?

Cohen pleaded guilty to violating US campaign finance laws over the payments. Federal prosecutors said the payments constituted illegal and unreported assistance to the Trump campaign. However, he refused to press charges against Trump himself.

Now, nearly five years after Cohen’s guilty plea, Trump may face his own charges related to the payment. These are the challenges the district attorney may face in building his case, and the difficulties Trump’s legal team may face in defending him.

Potential violations

Under New York state law, it is a crime to falsify business records.

“It’s as simple as it sounds, if you falsify business records for any purpose, and you do it intentionally, you can be convicted of a misdemeanor,” said Bederow.

But David Shapiro, a financial crimes specialist and former FBI special agent, said indicting Trump for wrongdoing would be “unusual.” Usually, he said, prosecutors seek indictments for serious crimes.

“A misdemeanor, usually you don’t even hear about it. It doesn’t rise to the level of awareness of the district attorney. It will remain in the local court,” he said. “What gives this case its potential heft is the scheme to deceive.”

Potential crime

The payment to Daniels occurred during Trump’s campaign for president. The legal issue here is whether the payment records on Trump’s books were falsified in order to evade federal campaign finance laws.

The allegation is that paying for Daniels’ silence, and avoiding the embarrassment of the alleged affair, would help Trump’s presidential campaign, and therefore should be considered a campaign expense. The expenses must be disclosed to the Federal Election Commission. But the amount paid to Daniels would exceed the legal limit of $2,700 US.

“[If] It is a cover to evade federal campaign finance laws, [Trump] now they can be prosecuted for crimes,” said Leo Glickman, a New York-based attorney who specializes in campaign finance, elections and voting rights law.

“The idea here is that the only reason why they paid Stormy Daniels was to advance his candidacy for president.”

But Bederow believes it could be difficult to prove Trump’s intentions are lies. The jury, he said, could conclude that Trump’s only purpose in hiding the payment was to avoid embarrassing his wife or children for having an affair with Daniels, and to prevent damage to his business reputation.

“This has nothing to do with any intent to lie, or more importantly, attempt to conceal a crime,” Bederow said.

Proving that the entire arrangement was to cover up Cohen’s payments to ensure that knowledge would not harm the president’s campaign would be “a hell of a task, I think, for the prosecution here,” Bederow said.

But Eisen downplayed that potential defense. He said Trump must show there was no element of campaign intentionality, “no element whatsoever,” regarding the payment to Daniels.

“Who is considered a liar? Even for a serial killer like Donald Trump, this is beyond the pale,” said Eisen, a lawyer who worked on Trump’s impeachment. “I don’t accept that a bad defense is going to succeed. No jury is going to buy it.”

Cohen’s credibility

One of Bragg’s biggest responsibilities, Bederow said, could be a key witness: Michael Cohen.

“Michael Cohen was the worst witness the prosecution could have imagined for a number of reasons,” Bederow said.

Most importantly, Bederow said, Cohen is a convicted felon, having pleaded guilty to campaign finance charges and lying to the US Congress.

“It’s not often that a star witness literally has the confidence to make a false statement under oath,” Bederow said. “That’s not a good starting point for any prosecutor.”

Bederow said Cohen harbored disdain for Trump, which could raise questions about his motivations for testifying.

But prosecutors often have to rely on people who are at fault themselves, Eisen said.

“[Cohen] accept responsibility for what is wrong. And the story of quiet money payments has not been different since they started working together. I know because he was one of the first witnesses I called during the impeachment.

Eisen agreed that Cohen’s cross-examination will be “colorful and difficult.”

“I’m sure he’s telling the truth. He’s rough around the edges and colorful himself, but I think he’ll stand up to cross-examination.”

Statute of limitations

Trump could benefit from Bragg’s time bringing his case to court.

The statute of limitations for this litigation is usually five years. And since the payment was made in 2016, more than six years have passed.

However, if the defendant is out of state, the statute of limitations can be “tolled” or suspended during that period. And Trump, having spent four years in DC as president, is out of the country.

“But it’s hard to believe that the legislature would have intended … that the president of the United States be considered out of state,” Shapiro said.