Donald Trump may make US history as the first former president indicted on criminal charges. Prosecutors working for Manhattan District Attorney Alvin Bragg have been building a case about hush money payments made by Trump’s former lawyer and fixer, Michael Cohen, to former porn star Stormy Daniels. Cohen paid Daniels $130,000 during the 2016 presidential campaign to buy her silence about her claims that she had an affair with Trump a decade earlier.
But what does an indictment mean? Here’s a legal breakdown:
What is an indictment?
An indictment is a charging document presented to a court that accuses one or more people of crimes. Indictments spell out who is charged, what charges they face and how they allegedly broke the law. Every defendant in the US is presumed innocent until their guilt is established beyond a reasonable doubt. To secure a conviction, prosecutors must prove all the elements of a crime.
Does someone who is indicted get arrested?
Someone may be indicted after they’re arrested, which is often the case in murders and other violent crimes. After an indictment, a defendant may be arrested or can surrender to authorities. They are then fingerprinted and photographed. They’re informed that they have the right to remain silent and the right to an attorney. They may or may not be handcuffed, depending on the crime.
In some notorious cases, the accused may also have to endure a so-called perp walk, in which a suspect is publicly paraded in handcuffs. Trump isn’t expected to face that — his lawyer Joseph Tacopina said last week the former president would surrender to authorities if he’s indicted.
Who issues an indictment?
In New York, as many as 23 citizens known as a grand jury votes on an indictment. Grand jurors are an investigative body who meet in secret to consider evidence and hear testimony from witnesses without potential defendants being present. Prosecutors question witnesses, but grand jurors can ask questions as well. Grand jurors will indict if they believe prosecutors presented sufficient evidence.
Cohen testified twice before the grand jury considering charges against Trump, and other witnesses involved in the hush money transaction appeared as well. In New York state, prosecutors typically offer potential defendants a chance to testify. Trump declined that offer. Robert Costello, a lawyer who said he once advised Cohen, said he testified Monday as a rebuttal witness for the defense.
What happens after an indictment?
A defendant facing felony charges in New York must appear before a state supreme court judge for arraignment. At that hearing, the judge reads the charges and the defendant enters a plea of guilty or not guilty. In New York cases, defendants are released without having to post bail, unless they’re accused of a violent crime. The judge will set dates for future hearings to resolve disputes about the law, the evidence or the witnesses.
Does an indictment mean prison time?
No, an indictment only starts the process of determining whether someone is guilty. A defendant may also resolve a case by pleading guilty and admitting to their crimes. But defendants who want to contest the charges can go to trial before a judge or a jury. Sometimes, a judge will dismiss an indictment or some parts of it before the case reaches trial.
If a defendant is found guilty by trial or plea, they are given a sentence by a judge, often to a term of imprisonment if they’re convicted of a felony.
What charges could Donald Trump face?
Legal experts believe that Trump is likely to face charges related to the falsification of business records. For such a charge to be a felony under New York law, it must also relate to a second underlying crime. That crime could relate to campaign finance violations.