The first of former President Donald Trump’s criminal trials is set to begin on April 15 after New York prosecutors accused him of falsifying business records related to an alleged affair with adult performer Stephanie Clifford, also known as Stormy Daniels.
The impending trial raises the prospect that he could face additional penalties, including a criminal conviction, before the 2024 election.
Experts have offered differing views regarding the eventual verdict, but the New York Clifford case is generally considered the least consequential of his four criminal cases. Trump is currently facing potential prison time in his Washington and Georgia election-related cases, and his Florida documents case, none of which appears to have a certain trial date; some could be after the election.
The four trials also raise legal issues that could influence how future presidents and candidates make decisions. New York Judge Juan Merchan just added yet another gag order to the list that Trump has encountered in Washington and his civil trial, prompting questions about free speech for leading candidates facing trial.
The Charges
Roughly a year before the scheduled trial date, Manhattan District Attorney Alvin Bragg brought a 34-count indictment charging Trump with falsifying business records. They relate to alleged hush money payments made to Clifford ahead of the 2016 presidential election.Bragg is charging Trump under a law that allows the prosecution to elevate the counts from misdemeanors to felonies if the fraud was conducted to conceal another crime. Trump has denied all wrongdoing in the case and has denied that he had an affair with Clifford.
The indictment was unusual in that it didn’t specify the crime for which his charge would be elevated to a felony. Bragg has said that “the indictment doesn’t specify it because the law does not so require.”
The district attorney has suggested three possible additional crimes: federal campaign finance laws, a state election law, and a tax fraud law. The Justice Department never charged Trump for federal campaign finance violations.
According to Bragg, the charges arise from an alleged $130,000 payment made by Trump’s former attorney, Michael Cohen, to Clifford at the then-candidate’s request. Bragg alleged that the Trump Organization reimbursed Cohen through payments that were purportedly disguised as part of a retainer agreement.
The district attorney lays out two other alleged hush money payments. Although all the charges relate only to the payment to Clifford, the prosecutors’ depiction of these other deals appears to be an effort to boost their case that Trump intended to conceal another crime.
Bragg’s office alleged that Cohen also worked with American Media Inc. (AMI), the media company behind the National Enquirer, to arrange a payoff of $150,000 for Karen McDougal, a former Playboy model, in exchange for her silence about her alleged affair with Trump.
A separate, $30,000 agreement was set up between AMI and a Trump Tower doorman who alleged to have information about a child the former president purportedly fathered out of wedlock, Bragg’s office alleged.
What Alvin Bragg Has to Prove
To secure a felony conviction, Bragg must convince a jury that Trump not only falsified the relevant records but also did so with the intention of concealing another crime.It’s unclear whether Bragg will even need to cite the second crime during the trial. Attorneys told The Epoch Times that Bragg doesn’t need to give the jury a specific campaign finance or tax violation to secure a conviction.
“If I were teaching this case, I would certainly use it as an example of an overzealous prosecutor improperly dividing a single misdemeanor into multiple charges, and then turning them into felonies by purporting to enforce federal campaign finance laws when the [Justice Department] already declined the case,” John Shu, a constitutional law expert who served in both Bush administrations, told The Epoch Times.
Trump could defend himself by claiming that he made the payments to prevent his wife, former first lady Melania Trump, from hearing about the affair allegations.
Trump to Testify
A longstanding question in Trump’s legal battles—and his political career more broadly–is how much his unique speaking style helps or hurts him.
On April 12, Trump said during a press conference that he will testify.
“I would testify, absolutely. It’s a scam ... that’s not a trial,” he said.
Shu told The Epoch Times that it would be better for Trump not to testify in Merchan’s trial.
“I’m sure Alvin Bragg is praying ... that Trump will take the stand,” he said, “because then he can cross-examine him, he can pick him apart.”
Shu also said that Bragg would love an opportunity to charge Trump with perjury as he did Allen Weisselberg, the former Trump Organization chief financial officer. Weisselberg was sentenced on April 10 to five months in prison.
“Trump has the right to remain silent, and as much as the former president may not want to, I think he should exercise it in the criminal trial,” Shu said.
Former federal prosecutor Neama Rahmani told The Epoch Times: “At the trial, Trump will probably take the stand, both for political and legal reasons. The entire country will be watching the trial, and if he doesn’t take the stand, people will think he is guilty.”
Trump could request that the jury receive the option to convict him of the “lesser-included” misdemeanor offenses instead of felony offenses. In New York, Class A misdemeanors such as this carry a maximum penalty of one year in prison. However, Bragg couldn’t have brought the counts as misdemeanors since the two-year statute of limitations had already run out.
Shu told The Epoch Times that although Trump legally could make that request, he thinks it is unlikely.
“I’m quite doubtful if Trump would even want it or allow his lawyers to argue it,” he said.
“When he testifies, Trump will likely deny having sex with Daniels and say he paid Daniels to save his family from the embarrassment of what she might say about him,“ Rahmani told The Epoch Times. ”That is a legal defense because it reduces the felony to a misdemeanor.
Michael Cohen Back in Spotlight
In this case and his Georgia trial, Trump has the disadvantage that codefendants have taken deals acknowledging guilt in the schemes he’s alleged to have perpetrated.AMI entered a non-prosecution agreement in 2018 in which it acknowledged payment to ensure McDougal “did not publicize damaging allegations” about then-candidate Trump.
“For Trump to say this money was purely a retainer, I think there would have to be some additional evidence,” Keith Johnson, a criminal defense attorney, told The Epoch Times. “That’s where Michael Cohen is going to be the state’s best witness.”
In March, Merchan rejected a motion by Trump to exclude testimony from Clifford and Cohen. It’s unclear how the jury will view the two, given that one is an adult performer and the other has admitted to lying to Congress.
Heritage Foundation Vice President John Malcolm told The Epoch Times that Cohen’s credibility is “on the surface, quite suspect” and that it will be “eminently attackable.”
“[Cohen] is going to have to be thoroughly cross-examined as being an incredibly biased witness—the one who has a bone to pick with the president, someone who had been to federal prison, someone who has been on multiple media outlets talking about his disdain for the former president,” Malcolm said.
“That’s where the case is going to be won or lost, in my opinion.”
Gag Order
Another confounding factor is the somewhat personal nature of Trump’s dispute with Merchan, whose daughter works for a political consulting firm that helps Democrats.“It’s very unfair that we have this judge who hates Trump and has tremendous conflict, as you know,” Trump said during a press conference on April 12.
Merchan recently altered his initial gag order to add himself and his daughter, Loren Merchan. Trump had called out Merchan on TruthSocial, noting her association with various Democrats and accusing her of posting a picture of him behind bars on social media platform X.
“It is not linked to her email address, nor has she posted under that screen name since she deleted the account,” he said. “Rather, it represents the reconstitution, last April, and manipulation of an account she long ago abandoned.”
Former Assistant U.S. Attorney Kevin O’Brien told The Epoch Times: “Judges have been issuing gag orders for months. I haven’t seen too much of an impact on [Trump’s] conduct.”
Trump, he said, has been “disruptive.”
“He’s going to do everything in his power to prevent [the trial] from starting, and I think the judge may have to hold him in contempt, and fine him substantially,” he said.
O’Brien said he doubted, however, that Merchan will put Trump behind bars for his purportedly disruptive conduct.
Because Trump’s cases involve high-profile political figures, gag orders could restrict his ability as presumptive GOP nominee to discuss individuals who are criticizing him publicly, hampering his campaign.
Possible Outcomes
Experts differed when asked by The Epoch Times for their predictions in the so-called hush money case.Shu criticized the legal basis for the case and opined on the potential jury.
“From the reality perspective and not the strictly legal one, the chances that Alvin Bragg will get a jury of people who detest Donald Trump are very high,” he said.
Chamberlain said he is skeptical that a jury will convict Trump.
“You need to find a unanimous jury,” he told The Epoch Times. “New York isn’t D.C. in the same way. There are still plenty of Republicans who live in New York. So I don’t think it'll be as straightforward to convict him as it would be in a jurisdiction like D.C.”
On April 8, an appeals court denied Trump’s attempt to move the trial out of Manhattan. He had raised concerns about his ability to get a fair and impartial jury in the city. Two other attempts to delay the trial also failed on April 9 and 10. The first was related to Merchan’s gag order, and the second was related to presidential immunity.
The trial is likely to coincide with the Supreme Court’s hearing oral arguments in Trump’s immunity appeal—scheduled just 10 days after the trial begins. But a decision in that case won’t likely be rendered until the end of the Supreme Court’s term in June. It’s unclear how a positive ruling in that appeal would affect the New York trial—if at all, given the timing.
Even if he is convicted, it seems unlikely that he would face jail time and the associated impediments to his campaign. The charge he faces is a class E felony, the lowest tier in New York state. Each count carries a maximum sentence of four years, but the Associated Press reported that newspaper archives have historically shown that defendants usually don’t receive prison time for the felony.
Implications for 2024
If the jury convicts Trump, it will make him the first former president to be both criminally indicted and convicted of a felony. Democrats and Biden’s campaign will likely seize on a possible conviction to fuel the left’s narrative that Trump disrespects the law.
It’s unclear how many Americans would switch their vote if Trump were convicted in this case and others. His reputation as “Teflon Don” appears to have proven true in some respects during the 2024 campaign cycle.
“He’s just immune and the normal rules don’t apply to him,” Rahmani told The Epoch Times. “Anyone else, even if there was an indictment ... they’d have to resign. He just gets more strength. It’s just, it’s fascinating.”
Despite courts’ gag orders and multiple indictments, Trump has once again beat his Republican primary competitors by large margins, and he is also ahead of Biden in polling regarding head-to-head matchups.
Conservative author Henry Olsen told The Epoch Times that Trump’s “reputation among voters is pretty set.”
“I do not think that this particular trial is going to change things very much if he is convicted. I do think that somehow if they were to procure a mistrial ... I think that could help him because it goes against the grain,” he said.
“I don’t think it would change a lot of opinions about his character, but it might shift a little bit of the framing around the nature of the lawsuits.”
