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Donald Trump's potential indictment and its national implications

A video of former President Donald Trump is shown on a screen, as the House select committee investigating the Jan. 6 attack on the U.S. Capitol holds its final meeting on Capitol Hill on Dec. 19. (J. Scott Applewhite/AP)
A video of former President Donald Trump is shown on a screen, as the House select committee investigating the Jan. 6 attack on the U.S. Capitol holds its final meeting on Capitol Hill on Dec. 19. (J. Scott Applewhite/AP)

For the first time ever, a former American president could face criminal indictment.

Some say being indicted can only hurt Trump’s presidential campaign; others aren’t so sure.

“This is something he’ll be able to use to galvanize support," Doug Heye said on PBS NewsHour. ‘The system is rigged. It’s rigged against you. It’s rigged against me.’ So he’s consistent here, and that’s why it’ll help him short term.”

Today, On Point: The legal and political fallout of the possible indictment of Donald Trump.


Ryan Goodman, professor of law and co-director of the Reiss Center on Law and Security at New York University School of Law. Co-editor-in-chief at Just Security. Former special counsel to the general counsel of the Department of Defense. (@rgoodlaw)

Jack BeattyOn Point news analyst. Author of the Age of Betrayal: The Triumph of Money in America and editor of Colossus: How the Corporation Changed America. (@JackBeattyNPR)

Andrea Bernstein, journalist covering Trump legal cases for NPR. Member of ProPublica’s democracy team. Author of American Oligarchs: The Kushners, the Trumps, and the Marriage of Money and Power. Co-hosted the podcasts Will Be Wild and Trump, Inc. (@AndreaBNYC)

Geoff Kabaservice, vice president of political studies at Niskanen Center, a center-right think tank in Washington. (@RuleandRuin)

Interview Highlights

On district attorney Alvin Bragg

Jack Beatty: "He finds himself in the situation of being abused at new depths of iniquity by Mr. Trump. Just this morning, Trump posted calls him human scum, degenerate psychopath. Yesterday, he called him an animal. We have to remember that Mr. Bragg is an African American. The New York Times called that racist language. Yes. It's also racist inciting language. That almost certainly means that Mr. Bragg has to watch his step in New York from crazed Trump supporters. Trump this morning also goes on to warn of potential, quote, death and destruction in bringing such a false charge could be a catastrophe for our country.

"This from a man still approved by 70% of Republican voters. But there's some reason to think that he might have found his match in Alvin Bragg, 49, Harvard Law School graduate, former federal prosecutor and deputy New York state attorney general, who's had Trump in his sights for some time. And Trump people. He secured a six-count indictment of Steve Bannon for fleecing millions from a sucker scheme on the building a wall. He secured a conviction of Allen Weisselberg for on 15 felony counts. He was the chief financial officer of Trump Organization. And as the assistant New York attorney general, he oversaw ... litigation against the Trump Organization.

"He said this about himself during the 2020 campaign. This is Alvin Bragg. 'Growing up in Harlem. I saw every side of the criminal justice system from a young age. Before I was 21, I had a gun pointed at me six times, three by police officers and three by people who were not police. I had a knife to my neck, a semiautomatic gun to my head, and a homicide victim on my doorstep.' ... He says to his office in a message today about the Trump pressure. 'We do not tolerate attempts to intimidate and threaten the rule of law in New York.' He's not a man who seems to be easily intimidated."

On potential crimes

Ryan Goodman: "The crime is a falsification of business records. The facts that match that offense are that the scheme involved reimbursing Michael Cohen for having done the payoffs. And Michael Cohen pays Stephanie Clifford, otherwise known as Stormy Daniels, $130,000 for her story so that they can suppress it before the election, and it won't come out. He's then reimbursed by Trump. And we have Trump signature on many of these checks and that we have photographs of the reimbursement. They classify it as legal services. That's the scheme that Trump, Cohen and Allen Weisselberg, the CFO of the Trump organization, devised.

"Therefore, entering it into the business records as false invoices. Another thing they say is it's according to their invoices. They say it's because of the legal retainer with Michael Cohen and the Federal Court. Filings by the Justice Department say there was no legal retainer and Trump was aware of the fact of what it was for, which is a payment to Stormy Daniels. It is not legal services that Michael Cohen was providing.

"So it's almost basically a slam dunk on falsification of business records. But what I've just described is only a misdemeanor. It becomes a felony, separate felony offense, if the falsification of those business records was done in furtherance of committing or concealing a second crime. And that's what I'm looking for. What is going to be that second crime, in all likelihood, that we'll see if there is an indictment."

On possible indictments of a former president

Ryan Goodman: "He is in a difficult situation, and I think he has to consider the context. And the reason I say difficult, because at one level, it's easy to say, as we do in law school, as I teach in my classes, nobody is above the law. The U.S. Supreme Court has reaffirmed this principal time and again. It did so in the United States v. Nixon case with Nixon's tapes. It did so in the Clinton v. Paula Jones case. They say it specifically. We just saw it happen again with the 11th Circuit Court of Appeals in Georgia, which is a conservative bench.

"And they sit on the Mar-a-Lago declassification documents. A former president does not get special treatment. That's former presidents and incumbent presidents. At the same time, there is a concern that the government and law enforcement agencies could ever be used to be weaponized against political opponents. So if indeed one is going after a former president from a different party who is a leader of the political opposition, in a certain sense, that has to give him pause.

"I do think it means that if he brings a case, he's going to have much greater confidence in it than other cases. He's only going to bring it if he thinks he can really win it. And if he doesn't have just a slim majority of that grand jury, but a sizable majority of that grand jury, if not unanimous."

How does this affect the political universe we find ourselves in right now?

Geoff Kabaservice: "I do believe that the judicial system should be allowed to carry out its own course. But I also believe with former Republican Representative Peter Meyer, that an indictment would be, in effect giving Trump $1 billion worth of free publicity. And I think there's no doubt that even the threat of the indictment has also already allowed Trump to vault to the top of the Republican presidential primary sweepstakes for 2024. And in effect, even people who oppose Trump in the Republican Party have been forced to rally around him and say that this is a rigged judicial proceeding, that Democrats are weaponizing the institutions of government and the rule of law against Trump."

On chaos in the presidential race

Geoff Kabaservice: "Chaos is Trump's brand. He's used it successfully in the past. I really have felt in these hyper-partisan polarized times that we're reverting to our tribal status. And Trump is the tribal leader of the Republican Party. And really, I think when most people are in that kind of tribal mindset, then their beliefs and values and principles go out the window.

"And the only one that remains is loyalty to the tribal leader. I was struck by a poll that the Public Religion Research Institute has conducted over a number of years with white evangelicals. And the poll asked whether they believed that an elected official who commits an immoral act in their personal life can still behave ethically and fulfill their duties in public and professional life. And in 2011, only 30% of white evangelicals agreed with that statement. But by 2020, 68% agreed with that.

"And that's because Donald Trump really showed them that character doesn't matter when it comes to the presidency. All that matters is the willingness to defend the tribe. However, you are quite correct that if Trump is indicted, this will just add to, I think, the bad odor in which he is held by those suburban swing voters who really do determine the outcome of the presidential elections. But just getting Donald Trump to the nomination of the Republican Party would increase the likelihood that he might be elected president anyway. We only have two choices in this system, and if people are pissed off enough at the Democrats, then they'll turn to the alternative, even if it is Donald Trump."

Related Reading

New York Times: "Make No Mistake, the Investigation of Donald Trump and the Stormy Daniels Scheme Is Serious" — "Though it may be tempting to do so, it is a mistake to assess the Manhattan district attorney’s investigation of Donald Trump by comparing its relative severity with those of myriad other crimes possibly committed by him. That is not how state and federal prosecutors will — or should — be thinking about the issue of charging Mr. Trump or, for that matter, any other defendant."

Just Security: "Survey of Past New York Felony Prosecutions for Falsifying Business Records" — "A core crime that the Manhattan District Attorney will likely include in an indictment of former President Donald Trump is 'falsifying business records in the first degree,' a felony under New York State law (N.Y. Penal Code § 175.10). Prosecutors and indeed all of us are compelled by the rule of law to consider how such a charge compares to past prosecutions. Are like cases being treated alike?"

This program aired on March 24, 2023.


Jonathan Chang Producer/Director, On Point
Jonathan is a producer/director at On Point.


Anthony Brooks Senior Political Reporter
Anthony Brooks is WBUR's senior political reporter.



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