What happens if Trump is arrested: Will he be handcuffed? Or sent to prison?

EL PAÍS reviews the many questions hanging over the case stemming from $130,000 in hush money paid to the porn star Stormy Daniels

Protests against former president Donald Trump on Tuesday.SHANNON STAPLETON (REUTERS)
Iker Seisdedos

It is still not clear if and when former U.S. president Donald Trump may be indicted (and arrested) in a case stemming from $130,000 in hush money paid to the porn star Stormy Daniels during the 2016 presidential campaign in exchange for her silence over an alleged affair. Trump said that it would happen on Tuesday, but this did not come to pass. The media have thrown up other dates, suggesting Wednesday and next week.

What is clear is that the hush money has had the opposite effect: if it was intended to cover up Trump’s alleged relationship with the porn star — which he denies — it did not succeed. Seven years after the payment was made, it is still being talked about.

Many questions are hanging over the case. Will Trump be handcuffed? Or sent to prison? And how will this affect his 2024 White House run? The potential indictment opens up an uncharted scenario in legal terms, since no former occupant of the Oval Office, either sitting or former, has ever been charged with crimes.

What are the charges against Trump?

According to Daniels, the two had sex in 2006 in a hotel in Lake Tahoe after a celebrity golf tournament. At the time, Trump was a real estate mogul, as well as a well-known television personality. Daniels says that Trump said he would help her TV career.

A decade later, in the weeks leading up to the 2016 election, Trump’s then-lawyer Michael Cohen paid Daniels $130,000 to keep quiet about the affair. This was proven in a 2018 trial, in which Cohen pleaded guilty to violating campaign finance laws and was sentenced to three years in prison.

Cohen claims that Trump, who was at that point president of the United States, reimbursed him for the money — a point that Trump denies. In the United States, it is not illegal to buy a person’s silence, but it is illegal to do so using campaign funds. The case centers on the argument that the Trump Organization reimbursed Cohen for the $130,000 and recorded the payments as expenses. Falsifying documents is a misdemeanor, but it could be considered a felony if it was instrumental in the commission of another crime. It’s not yet clear what crime Trump may be accused of, but legal experts suggest New York District Attorney Alvin Bragg could charge him with violating federal and state campaign finance laws or conspiracy to influence an election.

Who decides if Trump should be indicted?

The decision rests with the members of the grand jury, before whom Bragg has built his case. On Monday, the jury heard testimony from a Trump ally, Robert J. Costello, who sought to undermine Cohen’s credibility. The fact that the Manhattan DA offered Trump the chance to testify suggests that the investigation is close to finishing, meaning an indictment may be imminent.

Trump arrested
Trump ally Robert Costello after testifying on Monday.Stephanie Keith (Bloomberg)

What will happen if Trump is charged?

If Trump is charged, he will have to appear in court. This may happen several days after his lawyers are notified of the charges. Trump, who currently lives in Florida, is also allowed to make a first statement by videoconference. Sources close to the former president told The New York Times that Trump will cooperate. In the unlikely event that he does not, New York authorities would have to issue an extradition order to Florida, which would require authorization from Florida Governor Ron DeSantis, a possible Trump rival in the Republican presidential primaries.

And then?

Trump will be fingerprinted and have his mug shot taken. This will be done in private. He will then be brought before the judge to hear the charges against him, and enter a plea of guilty or not guilty. He may be handcuffed when he is brought into court, but it is not a requirement. Throughout the booking process, Trump will be accompanied by Secret Service agents, who are assigned to protect him as he is a former president. It is a delicate situation. A Trump arrest could be used to show that no one — not even a former president — is above the law. But on the other hand, the public may see Trump as the victim of a political witch hunt.

Could Trump end up in jail?

It is unlikely that Trump will end up behind bars. In New York state, falsifying business documents is an offense that is punishable by up to four years in prison. But it is not clear what charges Bragg will bring against Trump, nor whether he will request a prison sentence. However, even if he doesn’t and Trump is found guilty, a jury may decide to send him to jail.

Is this the only case Trump is facing?

No. Trump is facing several investigations. One is Congress’s investigation into the January 6 attack on the U.S. Capitol instigated by Trump’s claims of election fraud and attempts to reverse the November 2020 election results. The House Select Committee to Investigate the January 6th Attack on the US Capitol unanimously recommended that Trump be criminally prosecuted for his events on that ominous day, as well as for his actions during the two months that led up to the violent insurrection.

Trump is also being investigated for possible illegal interference in the 2020 presidential election in Georgia, and is under scrutiny from special counsel Jack Smith for his handling — allegations say mishandling — of classified documents after leaving office. Civil cases over his business dealings in New York are also pending.

Donald Trump arrested
Donald Trump and Stormy Daniels.MANDEL NGAN ETHAN MILLER (AFP)

What is the Republican Party saying?

Over the weekend, leading members of the Republican Party spoke out against a possible indictment. On Saturday, Kevin McCarthy, speaker of the House of Representatives, announced a congressional investigation into the New York prosecutors investigating Trump. For his part, Kentucky Senator Rand Paul tweeted: “A Trump indictment would be a disgusting abuse of power. The DA should be put in jail.”

Florida Gov. Ron DeSantis, Trump’s strongest prospective rival, offered a mixed assessment when asked to address the potential indictment on Monday. “I don’t know what goes into paying hush money to a porn star to secure silence over some type of alleged affair,” DeSantis said as some in the audience laughed uncomfortably. “But what I can speak to is that if you have a prosecutor who is ignoring crimes happening every single day in his jurisdiction and he chooses to go back many many years ago to try to use something about porn star hush money payments, that’s an example of pursuing a political agenda and weaponizing the office. And I think that’s fundamentally wrong.”

How will this affect Trump’s 2024 White House run?

It’s hard to say. The case could either rile up supporters or convince the moderates in the Republican Party, who he needs to win over, that it’s time to look for another presidential candidate. But polls continue to show that he is the most popular Republican politician. Trump himself has made it clear that criminal charges will not affect his intention to run for president. “I wouldn’t even think about leaving,” Trump told reporters. “Probably it will enhance my numbers.”

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