Donald Trump’s legal team recently urged the Manhattan district attorney’s office not to indict the former president over his role in paying hush money to a porn star, arguing that the payments would have been made irrespective of his 2016 presidential candidacy, sources familiar with the matter have said.
The lawyer who represented the Trump team at the meeting with the district attorney’s office, Susan Necheles, also argued that campaign funds had not been used for the payments to the porn star, known as Stormy Daniels, and were therefore not a violation of campaign finance laws.
The arguments presented to the district attorney’s office mark the most formal defense that the Trump team have raised to date, as they attempt to settle on a strategy to avoid conviction in the event that the former president is charged with a misdemeanor or felony over the payments .
Trump may face an uphill struggle with those arguments, given the fact that having “mixed motives” to protect himself personally and to protect his campaign could leave him liable, and the timing of the payments suggests there was an urgency to pay the money before the end of the 2016 campaign.
The effort to convince the district attorney, Alvin Bragg, not to bring charges may also prove futile amid increasing signals that an indictment is likely.
On Wednesday, Trump’s former lawyer Michael Cohen was tested for around two hours before the grand jury and told the Guardian that he provided the most complete account of the hush money scheme. He added that every juror asked a question, which suggested a particularly engaged grand jury.
That is a typical sign for prosecutors as they weigh potential charges, legal experts say, because it could indicate the grand jury found him to be a compelling witness – and a jury at an eventual trial might be similarly convinced.
Cohen is the crucial witness because he made the $130,000 payment to Daniels in late October 2016, buying her silence about the story of an affair with Trump. Trump later reimbursed him as president, through monthly $35,000 checks from his personal checking account, and Cohen pleaded guilty in 2018 to federal charges involving the hush money.
The district attorney’s case is likely to focus on how Trump and the Trump Organization handled the reimbursement. According to court filings in the federal case, the Trump Organization falsely recorded the payments as legal expenses, referencing a legal retainer with Cohen that did not exist.
Falsifying business records can be a misdemeanor in New York. But it can rise to a felony if the prosecutors can show beyond a reasonable doubt that a defendant’s “intent to defraud” included an effort to commit or conceal a second crime.
What is unclear in this investigation is the potential second crime, though Bragg could tie the falsification to a violation of state election law, arguing the payment to Daniels was an illicit contribution to the Trump campaign, gave Daniels the money stifled and helped his campaign.
Also on Wednesday, Daniels herself met with the district attorney’s office at their request, her lawyer said in a tweet. Daniels responded to questions, he said, “and has agreed to make himself available as a witness, or for further inquiry if needed”.
The district attorney’s office has questioned at least seven other people before the grand jury and Cohen was expected to be one of the final witnesses to make an appearance. Trump was also recently invited to testify, but his legal team is understood to have declined the offer.
The recent moves by the district attorney suggest criminal charges against Trump could be imminent. It would be rare for a prosecutor to question essentially every relevant witness in a high-profile white-collar criminal case and ultimately decline to seek an indictment.