New York District Attorney Alvin Bragg’s office is engaged in delicate negotiations with the Secret Service over how to handle the potential arrest of former President Donald Trump next week on charges he made an illegal payoff to a porn star to keep her silent about an alleged sexual affair, according to a source familiar with the talks.
Trump on Saturday posted a message on social media that he expected to be arrested on Tuesday. He called on his supporters to "protest, take our nation back."
Although the president’s lawyers had been informed an indictment could come as early as Tuesday, charges are more likely to be filed later in the week, the source said. Prosecutors still want to put one more witness before the grand jury before wrapping up the case.
The chief question at the moment is how to work out procedures for an extraordinary and unprecedented scenario: how to arrest, fingerprint and — per standard procedure — handcuff a defendant who happens to be a former president and is protected by a group of Secret Service agents.
That issue is now squarely before Bragg as his prosecutors negotiate with the Secret Service, and other federal and local law enforcement agencies, including the New York Police Department, over how to handle Trump’s arrest amid heightened security concerns.
Under standard procedures, once indicted, a defendant like Trump would be escorted into the New York City courthouse in lower Manhattan and taken to a processing room where he would be briefly put in a jail cell, booked, fingerprinted, photographed for a mug shot and handcuffed. He would then be escorted via elevator to an upper floor where he would be walked in handcuffs into a courtroom for his arraignment in full view of the media — the equivalent of a “perp walk.”
But Trump is not the standard defendant. By law, he is protected at all times by Secret Service agents. Prosecutors are still discussing whether Trump should be allowed to have Secret Service agents, rather than court security officers, escort him into the courtroom without handcuffs. Prosecutors and New York police are also trying to map out a multitude of security issues, including fears that a “nut job” inside the public courtroom could seek to disrupt the proceedings, the source said.
The ultimate resolution of that and related issues will be up to Bragg, but the source said the situation was still “fluid” with major questions unresolved.
For many legal experts, even larger questions still remain about the strength of Bragg's case. It revolves around $130,000 in payments made by Trump's former lawyer Michael Cohen to former porn actress Stormy Daniels toward the end of the 2016 campaign when she was threatening to go public about an alleged sexual dalliance with Trump 10 years earlier.
The payment, arranged by Cohen after consulting with Trump, was listed internally within the Trump Organization as “legal expenses” — a description that Bragg’s prosecutors are expected to charge as illegal under a New York state law prohibiting falsifying business records.
But that charge is a misdemeanor offense unless it can be shown to be part of an underlying crime. To make that case, and escalate the indictment into a felony, prosecutors are preparing to argue that the payment was made to Daniels to influence the 2016 election and was therefore a violation of New York state election law as an unreported contribution by Trump to his own campaign.
But that remains an untested legal theory. Contributions to presidential campaigns are governed by federal election law and it is not clear whether New York election laws can be stretched to include expenditures in a presidential race.
The source familiar with the case acknowledged that Trump’s lawyers are likely to challenge the indictment on those grounds, among others, and that a judge could ultimately agree and “bump this back to a misdemeanor.”