The first indictment

The die is cast. New York County District Attorney Alvin Bragg is about to indict Donald Trump. For the first time in American history, a former president is about to be charged with a serious crime. Trump says he expects to be arrested Tuesday, and called for protests as New York law enforcement prepared for trouble at the state Supreme Court building in lower Manhattan.

Trump’s lawyers say he will surrender to avoid arrest on the indictment. If he surrenders, there will be no “perp walk.” He will not be led to a van in handcuffs as cameras whir and flashbulbs pop. He will just appear in court in his native state with minimal humiliation, face the charges, plead not guilty and be released on his own recognizance. Trump will of course be booked. Mug shots and fingerprinting just like everybody else. All are equal before the bar of justice.

The final acts in the drama are complete. After a year of investigation, Bragg has put the finishing touches on the grand jury inquiry. Trump’s former lawyer and fixer Michael Cohen testified several times, and completed his testimony in a two-hour session. Bragg interviewed porn actress Stormy Daniels. The whole sordid story of the hush money payoff to Daniels has been re-investigated, re-shaped and re-risen, like a phoenix from the ashes.

Trump called it a “simple private transaction.” Daniels claimed she accepted the money as “hush money” for not blabbing about a sexual liaison she had with Trump in the Beverly Hills Hotel in 2006 but waited to tell all until he was running for president in 2016 on the eve of the presidential election. An extramarital sexual affair never looks good when you’re running for president, particularly when the news comes on the heels of remarks on tape in which you bragged about grabbing women by the genitals.

The expected charges against Trump will be the felonious falsification of business records, arising out of the $130,000 payoff to Daniels on the eve of the 2016 presidential election.

The circumstances of the payoff had enough badges of fraud to raise the eyebrows of the most timid prosecutor. The payoff was papered up as a “settlement agreement,” stated to compromise non-existent “claims” between “Peggy Peterson” and “David Dennison,” fictional names intended to conceal the real parties of interest.

The money would come from a phony company, set up for that purpose by Michael Cohen, called “Essential Consultants.” Cohen borrowed on his home to raise the money. He remitted the funds only after Daniels advised that she was about to tell her story to the “National Enquirer.”

In 2017, (after he became president) Trump and Cohen allegedly met in the Oval Office, where Trump agreed to reimburse Cohen for the payoff. Thereafter, he signed checks payable to Cohen for “legal services rendered” under a fictional “retainer agreement.” They were in reality illegal contributions to the Trump campaign. It was a cover-up, pure and simple, to conceal the true nature of the payments, and a felony violation of the federal campaign finance laws. Cohen went to jail after he pleaded guilty in the federal court to, among other things, violating the election laws.

Trump was invited to waive immunity and appear before Bragg’s grand jury, an invitation only issued to targets before indictment. He predictably declined the invitation.

Former federal prosecutor Elie Honig reports in his book “Untouchable” that the feds considered indicting Trump in 2021 but decided against it because the events of Jan. 6 “made the campaign finance violations seem somehow trivial and outdated by comparison.” “We were well aware of the prudential reasons why you wouldn’t charge a president, even after he was out of office,” one person in a position to know told Honig.

Under New York law, falsifying business records is a felony where the falsification is intended to cover up another “crime.” Otherwise, the offense is only a misdemeanor, punishable by a year in prison — small potatoes for a former president. Obviously, Trump falsified the transactional records to cover up the federal campaign finance violation.

The issue is what would constitute the underlying crime. Does it have to be a New York crime or would a federal crime suffice? Or would Section 17-152 of the New York Election Law suffice, which makes criminal the promotion of someone’s election to public office by “unlawful means.”

Trump is a bad actor, with much more to answer for. He has the events of Jan. 6 and the mishandling of classified documents, now in the hands of Special Counsel Jack Smith. He has the Georgia case waiting in the wings involving multiple criminal violations of local election laws, where a grand jury has referred its charging recommendations to Fulton County prosecutor Fani Willis. At one time, Bragg was investigating Trump in New York for submitting false financial statements to banks to get loans. He appears to have lost interest in that one.

But while the charges against Trump are by no means trivial, prosecutors often take what they can get. The feds nailed Al Capone for tax evasion, which was not his worst crime. They knew he was a “Napoleon of crime” responsible for the 1929 St. Valentine’s Day massacre, but couldn’t prove it. So they took the bird in the hand.

In characteristic fashion, Trump denounced Bragg and Willis as partisan. They are both Democrats. He has also played the race card, attacking them for being “racist,” a term he reserves for certain of his investigating prosecutors. Both prosecutors are Black.

A cautionary tale for Bragg. Presidential candidate John Edwards was indicted in 2011 in North Carolina for allegedly siphoning campaign funds to buy an ex-lover’s silence. He was acquitted. Juries may allow leeway for messy personal lives, even if the mess generates a campaign finance violation. But Edwards was before a friendly jury. Trump may not fare so well in his native New York.

Trump’s first indictment will likely not be federal. Alvin Bragg will make history as the first prosecutor to the finish line. It should come as no surprise. He is the district attorney of New York County, standing where Thomas E. Dewey and Frank Hogan battled the mob, and Bob Morgenthau took on the Swiss Banks and the Wall Street fraudsters.

As Bobby Kennedy once said: “Like it or not, we live in interesting times.”

James D. Zirin is a former federal prosecutor in the Southern District of New York.