Will Trump Be Arrested? Legal Expert Weighs In
Virginia Allen /
Former President Donald Trump said over the weekend that he expects to be arrested by New York authorities in the Stormy Daniels case.
“WILL BE ARRESTED ON TUESDAY OF NEXT WEEK,” Trump wrote Saturday morning on his social media platform Truth Social, adding: “PROTEST, TAKE OUR NATION BACK!”
Trump’s comments come as Manhattan District Attorney Alvin Bragg has been leading an investigation into supposed hush money payments made to porn star Stormy Daniels prior to the 2016 presidential election.
“We don’t really know a lot of the facts and information surrounding these charges,” Zack Smith, a legal fellow at The Heritage Foundation, says, adding “we have to wait and see” what will happen regarding a possible indictment of the former president. (The Daily Signal is the news outlet of The Heritage Foundation.)
For Bragg, “there’s certainly political implications to this investigation,” Smith said, going on to explain that Bragg “knows, as any of these local, left-leaning district attorneys know, if they were to indict Donald Trump, a former president, something that’s never been done before in the history of our nation, it would immediately catapult them onto the national stage.”
Smith joins “The Daily Signal Podcast” to explain what we do know about the investigations against Trump and what an indictment would mean for the former president, who is seeking a return to the Oval Office in 2025.
Listen to the podcast below:
Read the lightly edited transcript below:
Virginia Allen: Former President Donald Trump says that he will be arrested Tuesday. Will he be? Here with us to explain is Heritage Foundation legal fellow and host of the “SCOTUS 101” podcast Zack Smith. Zack, welcome back to the show.
Zack Smith: Thanks so much for having me on.
Allen: Zack, Before we talk about whether or not Trump is or isn’t going to be arrested, can you explain what all of this is about? What charges is Trump facing here?
Smith: Donald Trump is basically facing three buckets of criminal investigations. There’s a federal investigation, there’s an investigation out of Georgia, and then there’s an investigation in the state of New York as well.
Now, the federal investigation, we’re all familiar with it. It involves the potential document retention issues, stemming from him taking documents after he left the White House, storing them in Mar-a-Lago. And also his conduct surrounding Jan. 6. [Attorney General] Merrick Garland appointed Jack Smith, he’s a well-known, very experienced criminal prosecutor, to be the special counsel and potentially investigate and potentially bring charges in these cases.
Now, we don’t know much about these federal investigations, and that’s typical. The Department of Justice is typically tight-lipped about ongoing investigations. But we do know that Jack Smith is issuing subpoenas, seizing documents. We’ve heard from some people who have been subpoenaed by Jack Smith, like [former Vice President] Mike Pence, that they plan to fight these subpoenas or at least certain aspects of them. This federal investigation is ongoing and it’ll be very interesting to see what, if anything, comes of it.
Now, he’s also facing investigation in Georgia, being brought by the Fulton County district attorney there.
You may recall a couple of weeks ago we saw kind of a series of bizarre interviews by the foreperson of the Fulton County grand jury, special grand jury that was investigating potential election law violations and other violations by Donald Trump and those surrounding him. What’s interesting about this Georgia investigation is that, under Georgia law, this was a special grand jury that was just investigating conduct. Typically, a grand jury, it will also issue an indictment. But under Georgia law, it would actually be a different grand jury that would issue any forthcoming indictments.
Now, what, if anything, Donald Trump would be indicted for out of Georgia, that remains to be seen. I suspect there are investigations into whether or not he violated Georgia’s RICO statute. A lot of this stems from the phone call he had days after the 2020 election involving his attorneys, the Georgia secretary of state, and others about whether he had in fact won Georgia.
There’s also what many in the media are referring to as the fake electors, which is somewhat of a misnomer. You may recall that in the days after the election when challenges were being brought, basically Donald Trump and his campaign asked for an alternate slate of electors to cast their ballots for Donald Trump so that if they won, there would be some recourse, that Donald Trump could have his electoral votes counted.
Now, there’s historical precedent for that happening in 1876 and in 1960. When certain states were in dispute, alternate electors cast their ballots. In fact, in 1960 in Hawaii, it was a good thing they did because the outcome of Hawaii’s Electoral College votes actually flipped. If there hadn’t been an alternate slate of electors who had cast their ballots, then in that case, Jack Kennedy would essentially have been out of luck when he actually prevailed in Hawaii.
All of that to say, I think it’s very interesting, somewhat political in nature, that it’s only now that these electors cast their ballots for Donald Trump that they’re being called fake electors and being investigated for potential crimes.
Now, this brings us to the third investigation that Donald Trump is facing, the one out of Manhattan. This is being brought by the Manhattan District Attorney’s Office. Alvin Bragg, he’s a rogue prosecutor, recently came into office with pledge not to prosecute most misdemeanors, to seek very lenient jail sentences, something my colleague Cully Stimson and I have written about in the past.
But essentially, as I understand it—and look, with all of these investigations, there’s still a lot we don’t know because grand jury proceedings are secret or they’re supposed to be. But as I understand it, broadly speaking, Alvin Bragg is investigating Donald Trump for what would be a falsifying documents-type case.
Now, this is typically a misdemeanor offense under New York law unless you can show a certain intent to defraud or to conceal another crime, an intent to defraud in order to conceal another crime, which could then bump it up to a low-level felony under New York law. It’s a very convoluted legal theory that Alvin Bragg appears to be pursuing. Even The New York Times and The Washington Post have conceded that this is a very novel theory. It could be very difficult for him to prove if and when he brings it. But I think, without a doubt, most of these investigations would not have been initiated if Donald Trump wasn’t the target.
Allen: For the purposes of our conversation today, let’s focus on that third bucket, the investigation going on by the Manhattan DA’s office.
Smith: Sure.
Allen: We know that it involves Stormy Daniels, porn star Stormy Daniels.
Smith: Right.
Allen: She had made claims that she was paid hush money following an affair that she had with former President Donald Trump. Then Donald Trump sued her for defamation. She was ordered to pay Trump almost $300,000. Explain what is happening with that document. What is that document specifically that’s in question in this case?
Smith: Sure. As I understand it, the payment that was made to Stormy Daniels is about $130,000. When that payment was made, Michael Cohen, Donald Trump’s former attorney, he’s since been indicted on a number of charges himself, made that payment and then was getting reimbursed for that payment, essentially.
Now, the documents involved in that payment, essentially, and this is a 40,000-foot view kind of, essentially said that Michael Cohen was being reimbursed by the Trump Organization for certain legal expenses, consulting fees, and other services that he had provided. Now, that doesn’t appear to be the case. It appears like the payment was in fact a reimbursement and then kind of a finder’s fee, if you will, on top of that for Michael Cohen facilitating this payment.
The idea is that the Trump Organization, at the behest of Donald Trump, essentially falsified these business records, which typically under New York law would simply be a misdemeanor.
Now, I think what’s interesting about this, Virginia, is that Alvin Bragg, when he came into office, he pledged not to prosecute most other misdemeanor offenses. In fact, he hasn’t prosecuted most misdemeanor offenses. Again, this is something I’ve written about, my colleague Cully Stimson has written about. I just think it’s very ironic that this charge that’s being pursued against Donald Trump now, apparently, is based on what’s in essence a misdemeanor offense that he is trying to shoehorn and bump up to a felony offense under a very complex, very novel legal theory.
Allen: The question most Americans are asking today is, Donald Trump has put on social media that he’s going to be arrested on Tuesday. Is he going to be arrested?
Smith: Well, we’ll have to wait and see what happens. Certainly, none of us have a crystal ball. We can’t see what’s going to happen in the future. I think it’s certainly clear that Donald Trump has been a target of many investigations over the past several years, going all the way back to the very beginnings of his presidency. We don’t really know a lot of the facts and information surrounding these charges. We have to wait and see. But again, I think it’s clear that these investigations themselves would not have been initiated, in all likelihood, if Donald Trump wasn’t the target.
Allen: On Monday, House GOP members sent a letter to Bragg and they were demanding communications, documents, testimony from Bragg that’s related to this specific investigation into Trump. They wrote in the letter that Bragg’s investigation into Trump appears to be politically motivated. Do you think that’s true?
Smith: Well, there’s certainly political implications to this investigation, to any potential prosecutions, and Alvin Bragg, for all his flaws, he can’t be ignorant of that fact. He knows, as any of these local left-leaning district attorneys know, if they were to indict Donald Trump, a former president, something that’s never been done before in the history of our nation, it would immediately catapult them onto the national stage. It would raise their star within the Democratic Party, help them gain a national profile. I certainly think that’s part of this that cannot be ignored either.
Allen: Florida Gov. Ron DeSantis was asked about Bragg’s investigation into Trump during a press conference on Monday. DeSantis said that Bragg, he mentioned that he’s a [George] Soros-funded prosecutor. He said while he can’t comment on the hush money payments, that the real losers in this situation are the people of New York. Let’s take a quick listen to what DeSantis had to say.
Florida Gov. Ron DeSantis: I think that that’s fundamentally wrong. I also think it’s important to point out when you’re talking about these Soros-funded prosecutors, yes, they may do a high-profile politicized prosecution, and that’s bad. But the real victims are ordinary New Yorkers, ordinary Americans, and all these different jurisdictions that they get victimized every day because of the reckless political agenda that these Soros DAs bring to their job. They ignore crime and they empower criminals. That hurts people, hurts a lot of people every single day.
Allen: Zack, your response?
Smith: A hundred percent agree. In fact, Cully and I, we have a book coming out later this year in June called “Rogue Prosecutors,” where we talk about many of these rogue prosecutors, their policies, how their policies are harmful to their communities, and then we highlight eight rogue prosecutors around the country. Alvin Bragg is one of the people we highlight because his policies are so extreme, they are so radical. Ron DeSantis is exactly right, that it is everyday New Yorkers who are being not only victimized by the criminals who commit crimes, but also being victimized by Alvin Bragg’s refusal to do his job.
Again, I think it’s very ironic that Alvin Bragg is choosing to focus his scarce resources in his office on this type of, what appears to be a politicized investigation under a very novel legal theory, while at the same time he’s refusing to do the basic blocking and tackling of being a big city DA.
Allen: You mentioned that no president in history has ever been indicted.
Smith: Right.
Allen: If Trump was indicted, what does that mean for him?
Smith: Well, again, that’s the million-dollar question, Virginia. Look, I think different people have different ideas on how this will impact Trump politically, how it will impact the race to be the GOP nominee in 2024. All of that remains to be seen. But again, I’ll go back to what I’ve said before. I think it’s very clear that these investigations do have political undertones to them, and Donald Trump likely would not have been the target of any investigation if his name wasn’t Donald Trump.
Allen: If you were one of Trump’s lawyers right now, what would you be focused on?
Smith: Well, I think I would be focused on being sure that we have our ducks in a row, that we’re ready if and when any charges come down. Then I anticipate his lawyers will mount a vigorous defense against these charges. It’ll be very interesting to see how this plays out in real time against the backdrop of a presidential campaign, which, when I say we are in uncharted waters here, we are really in uncharted waters.
Allen: Zack, you co-host the podcast “SCOTUS 101” with your colleague GianCarlo Canaparo. If you would just talk a little bit about some of the things that you-all are focused on during this time on “SCOTUS 101” before we let you go today.
Smith: Well, I appreciate that plug, Virginia. Basically, what we do on “SCOTUS 101,” we highlight what’s going on at the court, we have an interview with a different judge, lawyer, professor, a prominent individual each week, and then we play some Supreme Court trivia. If you ever had any questions about the justices, why the Supreme Court building is where it is, that sort of thing, we talk about that each week.
Right now, we’re in the back half of the Supreme Court’s term. I anticipate that we’ll start getting opinions coming out from the justices. There’s still several high-profile oral arguments the justices will hear this month and next month. But again, it’s a race to the finish line at this point, and we have a lot of high-profile cases that the justices still have to weigh in on.
Allen: Well, Zack, we certainly appreciate your time today and your analysis over what is happening in the Manhattan Attorney District’s Office and with former President Donald Trump.
Smith: Of course. Thanks for having me on.
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