Trump indictment explained: How does this impact the 2024 election?
(FOX 9) - There are many questions surrounding the indictment of former President Donald Trump, including how the arrest and investigation will affect the 2024 campaign cycle, what potential consequences could be if the former president is convicted and what will happen next.
FOX 9’s Rose Schmidt asked David Schultz, a professor of political science at Hamline University and professor of law at the University of Minnesota, to answer some of the most pressing questions after the historic day.
The interview with Schultz, an expert in election law, criminal law and constitutional law, has been edited for brevity and clarity.
What are the key takeaways from this indictment?
"The first is to remember that he's being charged under New York state law, not under federal law. What he's being charged with here is fraud, business fraud under New York state law. And specifically what the charges are: It's not the claim that he made the payoffs to Stormy Daniels per se, but what he did was to try to conceal those through his business. There's 34 felony charges which basically documents all the checks, all the false ledgers he made it in his business books, let's say, to do it. So I think that's the most important thing to understand here is first, it's under New York state law. And it's about business fraud. The second thing to take away is the degree to which this criminal charge is going to collide with the campaign cycle. And third, we have to be honest: Donald Trump is not your typical criminal defendant."
Is it strange to call a former president a criminal defendant?
"It is very strange. Leading into it, we were all speculating: Is he going to be handcuffed? Is he going to be mugshotted? Is he going to be fingerprinted? At what point was he read his Miranda rights? And to a large extent, a lot of that did happen here today. But he was also treated differently because he was an ex-president. So for example, the fact that he's been able to go back to Mar-a-Lago. There's no bail here. He does not have his passport taken away because they're not viewing him as a risk of flight. So in one sense, it's kind of weird because we're seeing him both being treated the same as everybody else but in some sense, not at all being treated like the average person who might be charged with similar types of crimes. So he's your classic white-collar criminal (defendant) on steroids. Not just white collar, but a former president, and that puts us in totally uncharted ground."
How historic is this week? The Founding Fathers did not plan for anything like this in the Constitution, right? I mean, there's no precedent for this.
"There's no precedent for it. I mean, they did anticipate the idea that yes, a (former) president could be indicted. But I don't think they ever really seriously thought about the fact that this could happen.... I was teaching a law school class today and one of my students said to me, 'This is going to be one of those moments when you get older, and you say, Where were you when?' And I think this is for many of us, it will be a 'where were you when?" The day that Trump was indicted or an ex-president was indicted. That's how significant it is."
He took great lengths, from what the prosecutors are saying, to cover up payments that he made to Michael Cohen. That speaks to the fact that he recognized he was probably going to at some point be under scrutiny for this, right?
"Yeah. So way back in 2015, 2016, he recognized I think, both, let's say from a political point of view, that this might not play well, and might have had a sense at that point, that this could pose a problem for him. Also, let us say from a federal point of view. But certainly not enough, if the allegations are correct, to dissuade him from doing it. And maybe he made a classic white-collar criminal calculation and said, the risks here are worth it. Again, we have to sort of remember there's a presumption of innocence. Absolute presumption of innocence that he's entitled to also."
What could a trial look like?
"If and when a trial were to occur, it's possible that he could testify. Michael Cohen could testify. It's possible that Stormy Daniels could testify. What will be interesting to see is once they're able to impanel a jury -- people who have not made up their minds on this -- and then we now start to have Trump saying one thing, maybe Cohen saying something, Stormy Daniels saying it, who's the jury going to believe? So remember, at the end of the day, it's partly about who said what, but it's also about, if we looked at the information, the prosecutor has a lot of documents, and those documents are going to be critical also in the case. And so for anybody who's pre-judged the case, innocent or guilty, wait until the evidence comes in. Let the jury do their job."
Is there a chance this doesn't go to trial?
"Slim. Now, it's possible. I think the Trump attorneys are going to say that either as a matter of law, or as a matter of fact, there's insufficiency of a case here and will probably ask it to be dismissed. That's a possibility. Or maybe some of the charges. I don't think it's likely. And I say that because the way it was laid out in both the statement of facts and in the criminal complaint against him, this reads like any other type of fraud case in New York. So I think it's unlikely... The only other issue becomes an unlikely 'would Donald Trump be willing to take a plea bargain?' I find it unlikely that that would happen."
When you read the statement of facts, prosecutors claim that Trump defrauded the American people, the electorate, ahead of the 2016 election. What is the impact of that?
"The way I describe this case, there's an old adage that says, 'Sometimes it's not the deed that you do is wrong; it's the effort to cover it up.' And in some sense, that's what's happened here: that had he just simply made out of his own pocket, potentially payments to Stormy Daniels and another woman to simply say, 'we're going to help you buy from the National Enquirer the rights of going to not run the story,' no big deal. But because it occurred during the campaign with an intent to try to cover up ... information that could have affected his campaign and the fact that this expenditure was not disclosed, put all that together: This is about the cover-up along with the fact that we're looking at a whole bunch of smaller payments being made. Not one big check. If the allegations are correct, he certainly didn't write on the memo of the check 'hush money to a porn star.' This is basically calling it 'legal expenses.' So there's a lot going on here in terms of a fraud and again, if we take the prosecutor seriously who says, 'We don't like business fraud in New York, and we're prosecuting it.'"
What do you make of the DA saying he can't hold former President Trump to a different standard just because he's a former president? Do you feel like that argument that they're laying out is essentially to try to combat the political rhetoric that's circling them now?
"Yes, I do. And I think it was also interesting the way he described it. He said, 'This is a case about business fraud.' And at one point, the Manhattan prosecutor said, 'We are New York City. We are the center of business for the world.' He said, 'We routinely do Wall Street fraud, business fraud,' and he said, 'We take fraud incredibly seriously here,' and effectively said, 'We're treating Donald Trump no differently than any other stockbroker or banker who commit fraud.' I think that was his argument that he was trying to make in his press conference."
What happens next?
"Over the next few weeks, prosecution and Trump's attorneys will agree on a schedule, for example: when motions will be filed. I'm suspecting that Donald Trump's attorneys are going to say, 'There's nothing here,' (and) ask for dismissal. The prosecution is required under the Constitution to divulge all the evidence they have. Then, there's going to be a whole bunch of other subpoenas and so forth. But what we're looking at here is probably a trial that occurs sometime in 2024, likely somewhere around March or April of 2024. That puts us in the dead center of the primary season for President of the United States. If we think of Iowa or New Hampshire or South Carolina coming roughly late January, by the time we get to March or April, we're in the thick of Super Tuesday, we're in the thick of major primaries, and one has to wonder, on a couple of scores: How does he allocate his time campaigning for president versus sitting in a trial? But also how does all this information now play with the American public in terms of his supporters and everybody else watching, or at least hearing, about the trial that is occurring?"
Going forward, how do you think this will impact his chances in 2024? Could it work to his advantage?
"It's hard to assess the impact of this decision. Short term, I don't think it changes the minds of any of Donald Trump supporters. In fact, the evidence is ever since he sent out some texts a few weeks ago, it's helped him raise money. It's helped him increase his lead over DeSantis. Probably not an issue there. It's not going to help him with Democrats. I find it hard to believe that independent or swing voters are going to say, 'he's been indicted. I'm now going to support him at this point.' But there could be a different impact. Maybe longer term, as people start to think about these charges, some of his supporters -- maybe it's only a few supporters, maybe they say, 'Business fraud: I don't like that.' But think about all the other charges he's facing at this point. But then we also have to keep in mind, there are at least three other criminal investigations pending."
And if a few supporters changed their minds?
"Might this have an impact on an election? And it could be. Remember, in 2016, move 90,000 votes in three states, Hillary Clinton is president. In 2020, move 43,000 votes in three states, Donald Trump is reelected. Could all this just affect a few thousand votes and maybe make the difference? It could."
What about Joe Biden? How does this affect him?
"It might help him in terms of potentially weakening Donald Trump and especially it might help Joe Biden in terms of maybe solidifying more of a support for independents or at least giving independents less of a reason to support Donald Trump. But I think probably the smart strategy for Joe Biden at this point, especially since these are state charges, is say nothing. Now, it becomes a little bit more complicated if his attorney general decides to proceed with charges against Donald Trump growing out of January 6th, or a special prosecutor decides that the documents at Mar-a-Lago merit some kind of charges. That's going to be a little bit harder for Joe Biden to maneuver at this point. But I think for now, he's going to stay silent on this."
Do you think Trump anticipated these charges in terms of why he declared his presidency so early?
"The answer is yes. And the reason why is because he declared his candidacy so early, he potentially can raise money under federal campaign laws to pay for his legal expenses, including perhaps his legal defense here. So as opposed to having to pay for it out of his own pocket, a lot of the money that he may be raising right now goes right into his legal defense fund."
What types of consequences could the former president face if he were to be convicted?
"If by chance he were convicted, fraud in New York state carries a sentence of up to four years. Some people are saying, 'Oh, 34 counts times four?' No. Odds are, if he were to get any prison time, it would not be consecutive, it would be concurrent. So he'd basically spend up to four years total. It's rare that somebody gets four years, then four years, then four years, then four years. I also think it's pretty unlikely that he would get -- even if convicted -- a full four years. It probably would be some combination of maybe jail time, or it could very well be probation, a whole bunch of different possibilities. So for people who are thinking that Trump is going to prison, we are a long way from having that discussion."