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Over the weekend, former President Donald Trump said he would be arrested on Tuesday and called on his supporters to protest on his behalf. He is facing more than a dozen investigations, criminal and civil: There are investigations into his handling of classified documents, his role in the riot on Jan. 6, and election interference in Georgia.
But the case that he was referring to is the one being pursued by the Manhattan district attorney, Alvin Bragg Jr., which revolves around a one-time payment of $130,000, allegedly made on Trump’s behalf to the porn star Stormy Daniels seven years ago, in exchange for her silence about a sexual encounter they had had.
Now, while we don’t know whether an arrest is imminent, an indictment might be.
CNN reports that city, state, and federal law enforcement agencies in New York have discussed contingency plans in the case of an arrest. But there is at least one more witness who is expected to testify before the grand jury in this case, according to the New York Times. Sources told the paper that even if an indictment did come down Monday, logistics would likely delay an arrest beyond Tuesday.
Still, we don’t know much about how it will all play out. On Monday’s episode of What Next, host Mary Harris spoke with Slate’s own Dahlia Lithwick to unpack the mystery of how a years-old payment to a porn star might lead to the first-ever criminal prosecution of a former president. Their conversation has been condensed and edited for clarity.
Mary Harris: It’s been a long time since most of us heard the name Stormy Daniels or really thought about the elements of this case. Can you remind us all just what happened here?
Dahlia Lithwick: In 2018 Michael Cohen, Donald Trump’s former lawyer and fixer, pleads guilty to, at that time, a whole host of crimes. But one of them was federal campaign finance law violations, because he was the guy who was spearheading paying hush money in 2016 right before the election—specifically, a $130,000 payout to Stormy Daniels, who alleged that she had had an affair with Donald Trump.
And this affair was, like, 14 years ago, 15 years ago—a long time ago.
Yeah, and she had told people for years, openly, that she’d had an affair with him. (The time frame here is tricky, and it will be one of the things that could be a technical impediment to this case—there is possibly a statute of limitations.)
And part of what’s notable about that is that we’d all found out about the Stormy Daniels allegations before Michael Cohen was laying all this out with the Department of Justice. Originally Cohen was telling newspapers like the Wall Street Journal that this didn’t happen. And so it’s like he totally flipped his position.
Right. And that’s one of the weaknesses, in addition to the kind of questions about the statute of limitations and whether this is a state or federal crime—Cohen is the star witness, and he’s not deemed the world’s most reliable witness. And it’s never great to put someone like that in front of a jury and have them testify to the ways in which they denied it until they went to jail for it.
As you said, we don’t exactly know what’s going to happen this week. We just have these hints. But were you expecting this—was a prosecution related to the Stormy Daniels hush payment on your 2023 dance card?
In so many ways, this was the zombie case—it was just lurking there under the surface, waiting to be awakened.
Alvin Bragg is the new Manhattan D.A. who would potentially bring these charges. There’s been so much back-and-forth about what Bragg is doing with this case and whether there’s going to be a case there at all. Can you tell that story from the beginning? Because I think it’s part of what makes this puzzling.
I think that part of the problem is, Bragg was elected in a highly politicized moment. We’ve got COVID, we’re worrying about crime, we’re worrying about all this stuff. The first thing Bragg does is release a memo where he asserts that he is going to have different prosecutorial priorities. And this immediately sets him into the column of those who may be soft on crime. He’s coddling criminals. So people go crazy at him.
Someone said: It’s a real trick, in your first weeks in office, to have both the New York Post and MSNBC furious with you at the same time. And he manages to do it because, at the same time that he is laying out different prosecutorial priorities and incarceration priorities, he’s also backing off the Trump prosecution. It turns into just a spectacular nightmare. Mark Pomerantz, one of the former prosecutors on the case, writes this resignation letter that’s leaked to the papers that essentially says that the Trump case has “been suspended indefinitely.” And he’s frustrated because he thinks they had a real case and that Bragg is a chicken. So, both of these things are happening, and poor Bragg is just getting walloped from all sides. There’s just no way to know what happens inside his office, but whatever it is that happened, we do get this huge prosecution of a tax fraud case against the Trump Organization that ends up in a conviction in December.
The Trump Organization’s chief financial officer, Allen Weisselberg, is indicted. He pleads guilty. Then, at some point, a decision was made to go after this fairly trivial set of misdemeanor offenses of falsifying financial records (the Michael Cohen–Stormy Daniels case).
Paying hush money to someone you had sex with seems very gross. But what makes this illegal? Like, why would the Manhattan D.A. be able to investigate this in the first place?
Yeah, no, it’s totally OK to pay hush money to people you had sex with. [Laughs.]
Note to self! [Laughs.]
So that’s not the problem. I think the problem was the falsifying of business records.This is kind of what Wall Street bigwigs are investigated for and prosecuted for all the time, which is just falsifying their records. And I think that what Cohen told federal prosecutors he did was, he said these checks he received, ostensibly as legal fees, went onto the books as a legal expense to pay Michael Cohen for his work. And that is, you know, false. At the most simple level, this is just bread-and-butter financial crimes. Don’t say you are getting paid for legal services when you’re being reimbursed for what could be—or may or may not be—a campaign donation.
That seems tiny.
The misdemeanor is just first-degree falsifying business records. Maximum four years in prison. It’s a low-level thing. And I think that the question is—and this is what people are scratching their heads about—is there a way to make this a bigger thing? And can you connect it either to campaign violations or can you connect it to tax fraud? Can you connect it to something huge? Because if you do that, either in furtherance of a crime or to hide a crime, then you can vault yourself into felony land.
There’s been a huge amount of infighting in the legal journalism world about whether this case is too tenuous—and what happens if Bragg brings it and he loses. Like, it’s going to be horrible. You get all of the momentum not just blocked but reversed if it ends up feeling like a weak case. And then Charles Blow wrote a piece saying, “Oh my God, just get what you can get, the low-hanging fruit.” This is all stuff that Michael Cohen got tagged for where Donald Trump couldn’t be tagged for it because he was sitting president at the time. So tag him.
I think that one of the things that Donald Trump’s thermonuclear response evinces is that he thinks that this is going to be a thermonuclear indictment. And it might just be, like, super-small french fried potatoes.
What do we know is happening this week? Why do you think Trump has Tuesday on his mind in the first place?
I think a couple of things happened last week. One is, we know that Michael Cohen was talking with the grand jury. And Stormy Daniels was in there talking. And we know—this is important—that Donald Trump was invited to come and talk to the grand jury himself, which is, by every measure that I understand, well, you’re 1 yard from the end zone when you invite the person in question to come in and talk. And, needless to say, he didn’t. So all of a sudden, this case that felt like a sleeper until, I don’t know, late January suddenly is on fire. And then on Friday, news outlets reported that a bunch of different entities in New York were preparing for what would happen were Trump to be arrested, or at least [they] were having internal conversations about what they should prepare for, should an indictment come.
And it went from “Maybe something is happening very soon” to “Oh, something’s happening next week.” And perhaps that is where Donald Trump got Tuesday from. I think this is one of those classic Trump moments: He’s about to get in trouble, but if he sets fire to everything before he gets in trouble, then he thinks he won’t get in trouble.
In truth, once the grand jury votes, it can be days and weeks before they actually sign the document listing the charges. So it’s not an automatic thing that if the grand jury votes to indict him, then there’s a perp walk. In a lot of ways, it makes perfect sense for him to say, “Hit the streets now.”
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Yeah, I mean, Trump is currently running for president in 2024, and he’s scheduled to hold a campaign rally in Texas this week. Do you think he’s going to be showing up for that campaign rally, with this sort of sword of Damocles hanging over him?
I think this is why he ran, right? [Laughs.] I mean, in some sense, I think this is his amazing superpower: to say “I’m running.” Because there are conventions around how we treat those who are running for president. These investigations are heading into a political season. And I think the clock is absolutely ticking, right? The campaign season starts very, very soon. To convene an actual grand jury to bring charges to have a trial—it’s almost impossible for these things to happen before we are fully in the primary. He could easily be using this campaign to possibly insulate himself from what’s coming. But the act of campaigning means that he’s foreshortened the clock on the investigations into the criminal and civil investigations into him.
Prosecutors will be really mindful of the fact that by, what?—March? April of 2024?—it may be over. Trump could be in the clear.
