What Happens If Trump Is Indicted?
Welcome to FiveThirtyEight’s politics chat. The transcript below has been lightly edited.
nrakich (Nathaniel Rakich, senior elections analyst): On Saturday, former President Donald Trump wrote on Truth Social (a social media site he created when he was kicked off Twitter and Facebook) that “the far & away leading Republican candidate & former president of the United States of America” — referring to himself — “will be arrested on Tuesday of next week.”
He was referring to the Manhattan district attorney’s office’s decision about whether to charge Trump with a crime for indirectly paying porn actress Stormy Daniels during the 2016 campaign to keep quiet about an extramarital affair the two allegedly had. That case is reportedly nearing its conclusion, but the district attorney’s office is keeping its lips sealed for now. If Trump is indicted, though, it would obviously be a massive story — no president or ex-president has ever faced criminal charges in U.S. history.
But let’s get one thing straight before we chat about how this potential indictment could hurt Trump legally and politically. Do we really think an indictment is coming on Tuesday?
ameliatd (Amelia Thomson-DeVeaux, senior reporter): A spokesperson for Trump admitted that he hasn’t been specifically notified that charges are coming today … So it’s pretty safe to say that’s just Trump guessing. But we do have reason to think that charges could be coming soon. Trump was invited to testify in front of the grand jury earlier this month, and often that’s the last step before a criminal indictment.
nrakich: Do we think it’s just a question of when, not if, the indictment will come?
ameliatd: We won’t know for sure until it happens. The Manhattan district attorney, Alvin Bragg, could still decide not to pursue charges against Trump. But he and his office certainly seem to be teeing up a case against Trump. That invitation to testify is one of the strongest signals in that direction.
kaleigh (Kaleigh Rogers, technology and politics reporter): Do we think the barricades being set up outside the Manhattan Criminal Courthouse indicate anything, or is it just a reaction to Trump’s posts?
geoffrey.skelley (Geoffrey Skelley, senior elections analyst): It’s the latter, in my opinion. After Jan. 6, you’d be a fool to take any chances.
ameliatd: This is a weird case though! It’s been called a “zombie case” for a reason — it just keeps coming back to life even though local and federal prosecutors have repeatedly looked into it and decided not to pursue charges. So it will be a little bizarre if this — of all the many pending investigations into him — turns out to be the first set of criminal charges filed against Trump.
geoffrey.skelley: Amelia, this case goes all the way back to the 2016 election campaign! Trump’s former attorney Michael Cohen (remember him?) paid Daniels to not share her story about an affair with Trump with the National Enquirer. Feels like forever ago now.
kaleigh: Amelia, the undead nature of this case is something Trump has pointed out as part of his multi-day effort to preemptively discredit it. He posted on Truth Social, “All other of the many Democrat law enforcement officers that looked at it, took a pass. So did Cy Vance, and so did Bragg. But then, much latter [sic], he changed his mind. Gee, I wonder why?”
ameliatd: That’s not really a fair characterization of what happened. Federal prosecutors did opt not to pursue the case — first because Trump was president and there’s guidance against indicting a sitting president, and then reportedly because it seemed like small potatoes compared with Trump’s other scandals. And then the previous Manhattan district attorney, Cyrus Vance, also chose not to pursue it, reportedly because he was focusing on a much bigger investigation into whether Trump and his organization inflated the value of some properties to lenders and insurers. These are the kinds of decisions that prosecutors make all the time. They want to win their cases, and elected prosecutors in particular want to be seen as going after cases that matter.
The real question seems to be whether it’s worthwhile to go after Trump for something relatively minor when the other allegations against him are arguably much more serious — or if it’s wrong to let him off the hook for breaking the law because what he did in this case doesn’t seem as serious.
nrakich: Yeah, so, forgive me if this is a dumb question, but what exactly would the charge be in this case? Is paying off a porn star illegal?
ameliatd: That’s one of the murkier aspects of the case. The issue is that Cohen paid off Daniels and was reimbursed by Trump — and that reimbursement was falsely recorded as a legal expense. At the federal level, that could be a campaign finance violation, so that potential case was fairly straightforward to understand. But the Manhattan district attorney is obviously not a federal prosecutor, and it seems likely he will charge Trump with falsifying business records, which can be a felony under New York state law if the records are falsified to commit another crime (or cover it up). So theoretically the underlying crime could be a state campaign finance violation — or something else we don’t know about.
geoffrey.skelley: The thing is, Trump was seeking federal office, so the state campaign finance violation part is a question mark, if that indeed is the second crime in question.
ameliatd: Right, exactly, Geoffrey. It’s just not clear at this point which state election law that would be.
nrakich: Does that uncertainty suggest that maybe this case isn’t rock solid? Basically, I’m wondering if there is a danger here that the first charges filed against Trump could fall flat, and that could make it harder to convict Trump in subsequent, more serious investigations like his mishandling of classified documents or interfering in the 2020 election in Georgia.
ameliatd: It’s possible that Bragg has uncovered some other evidence that we’re not aware of — this is a situation where we really need to see what the charges say (if they happen). But the legal theory is a bit puzzling right now.
geoffrey.skelley: Nathaniel, this situation reminds me of a great line from “The Wire”: “Come at the king, you best not miss.” If Bragg doesn’t have a clear-cut case against Trump, that seems very risky. I’m no legal expert, but this seems more ambiguous than, say, an attempt to pursue legal charges against Trump for his election meddling in 2020 or inciting a riot on Jan. 6.
kaleigh: If multiple cases yield charges that end up going nowhere, it would also lend credence to Trump’s claims that this is all a “witch hunt” against him. Although that really just means the justice system is working as it should, it would make a lot of Trump supporters feel like this is politically motivated and that prosecutors are desperately looking for anything to pin on Trump.
ameliatd: The issue, I think, is that there are lots of investigations swirling right now, but it’s not clear when any of them will actually wrap up — or what the implications will be for Trump.
Just as a quick reminder: There are two separate federal lines of investigation into Trump (one about his role in trying to overturn the 2020 election and the Jan. 6 insurrection, the other about his alleged mishandling of classified documents), plus one other local investigation into his attempt to overturn Biden’s victory in Georgia.
So does this turn into a game of chicken where no one wants to be the first prosecutor to indict a former president? If Bragg breaks the seal, maybe that’s good for other prosecutors? 🤷♀️
nrakich: Kaleigh, you mentioned the reactions of Trump’s supporters, and that seems like a big part of this (potential) story. Trump also urged his followers to “Protest, take our nation back!” if he is indeed arrested. Are Republicans still in Trump’s corner on this, or are they pausing and saying, “Hey, wait a minute, maybe this guy isn’t totally above board…”?
kaleigh: Trump’s main defense here has been that this case is politically motivated and a witch hunt (as well as claiming that no crime was committed). Other mainstream Republicans have echoed this. House Speaker Kevin McCarthy suggested the potential charges might be using the justice system to “target political opponents.”
Dan Bongino, the popular right-wing radio host, said on Fox News that the potential charges were evidence of the country devolving into “a police state” where “you investigate a person in search of a crime.”
And among Trump supporters online, the idea that this is politically motivated is basically taken as fact at this point. The question here is what kind of reaction they might have if Trump is arrested.
ameliatd: It helps in this case that Bragg is a Democrat: Manhattan district attorney is an elected position. So it’s not unexpected that Trump would try to link this indictment to the broader Democratic Party.
But the reality is that there’s no investigation against Trump that won’t seem politically motivated to his supporters. Federal prosecutors aren’t elected, and a special prosecutor took over the federal investigations involving Trump as soon as Trump announced he was running for president again, but if Trump ends up being charged in either of those investigations, he’ll say it’s Biden’s doing.
nrakich: Surely everyone will listen to McCarthy and not protest, right?
kaleigh: So here’s the interesting thing I’m seeing online. In the right-wing forums and communities I follow, there is talk of heeding Trump’s call to protest, of organizing, of “burning things to the ground.” A lot of the rhetoric echoes what I was seeing in the days leading up to Jan. 6.
But what’s different is that we are now in a post-Jan. 6 world. Trump supporters saw the arrests of the Jan. 6 rioters, so they’re urging a lot of caution this time around — even those who believe the real problem with Jan. 6 was undercover leftists and Antifa co-opting the protests.
Bongino, for example, urged Fox News viewers to protest, but “please do it peacefully. These people on the left would like nothing more than any excuse to use against you to throw you in prison too.” Gateway Pundit, a far-right news site known to publish disinformation, also published an op-ed written by an assistant editor suggesting Trump supporters engage in a nationwide “strike” rather than protest: “No violence, no civil war. We can’t risk another January 6 — where we are framed and painted as violent terrorists or ‘insurrectionists.’”
ameliatd: So does that mean we should be less worried about potential violence, Kaleigh? Or we’re just not sure how this is going to turn out?
kaleigh: I’m not sure. It could actually mean something more organized or targeted happens.
Trump, for his part, hasn’t been preaching peaceful protest. He has simply implored his followers to “PROTEST, PROTEST, PROTEST” and claimed the nation is being “killed.” His rhetoric is very similar to Jan. 6, and he hasn’t urged the same caution that others have.
nrakich: I’m also curious how a potential indictment would be received by Republicans who aren’t die-hard Trump supporters. As we all know, Trump is currently running in a contested Republican primary for president. How do we think his indictment would shake up the 2024 campaign — if at all?
geoffrey.skelley: Cop out here, but I think it’s quite hard to say! On the one hand, a recent The Economist/YouGov survey found that more Republicans (45 percent) view the allegations regarding hush money to be “very serious” or “somewhat serious” than in 2018 (33 percent), when the revelations first came out. However, as we saw with polling about Trump’s handling of classified documents, Republicans usually answer the question of “should Trump be charged with a crime?” with a resounding “no.”
kaleigh: Well, one of Trump’s potential opponents, Florida Gov. Ron DeSantis, had to thread a difficult needle here — trying not to turn off Trump supporters while also not coming too much to a potential rival’s defense. He said Monday, “I don’t know what goes into paying hush money to a porn star to secure silence over some type of alleged affair. I just, I can’t speak to that.” But then he added: “But what I can speak to is if you have a prosecutor who is ignoring crimes happening every single day in his jurisdiction and he chooses to go back many, many years ago to try to use something about porn star hush money payments, that’s an example of pursuing a political agenda.”
ameliatd: Yeah, this is really hard for Trump’s primary opponents to deal with! They don’t want to say that the Manhattan district attorney is right to investigate Trump — but they obviously wouldn’t mind a weaker Trump in the primary. Hence DeSantis’s effort to try to throw shade on the actual conduct while simultaneously attacking Bragg.
geoffrey.skelley: I’ve seen some conventional wisdom developing that criminal charges could help Trump in a primary but hurt him in the general election. That doesn’t seem far-fetched. But in the primary, a lot will depend on what kind of message conservative media and the other candidates send potential primary voters. If the candidate responses mostly sound like DeSantis’s and the defenses of Trump sound like Bongino’s, well, I wouldn’t be surprised if it helps Trump look like a victim and perhaps shores up his support among primary voters. Then again, he already leads in most national polling, and we’re a long way from actual voting. So the potential impact is very hard to know.
In a general election, I do think it would tend to hurt him — we know that scandals tend to harm politicians seeking reelection, and Trump is in a sense seeking reelection even though he doesn’t currently hold office.
ameliatd: I could see this going in a few different directions. In some ways, any attention is good for Trump. But if he gets charged by multiple prosecutors, even the logistics of the cases could hinder his ability to run a successful campaign. It could be hard to jet around to rallies when you have to appear in court in multiple states!
And of course there’s the possibility that voters (whether in the Republican primary or the general election) get sick of the constant legal trouble. But it’s very far from certain that will happen.
Personally, I think a lot hinges on what happens with the other investigations. If Trump ends up being indicted in Georgia or in the federal prosecutions, the political ramifications will be different than if this turns out to be the only case where Trump actually faces charges.
geoffrey.skelley: Yeah, anything related to the 2020 election would probably matter more to voters than the 2016 hush money allegations.
nrakich: OK, but let me play devil’s advocate here. It’s not a perfect comp, but after the FBI searched Mar-a-Lago last August, Trump’s favorability ratings barely budged. My instinct is that the American public’s view of Trump and his scandals is set in stone. That is, they already know he’s a magnet for scandals, and that is priced into how they feel about him.
geoffrey.skelley: That’s reasonable. A majority of Americans think Trump has a criminal past: In June 2019, 57 percent told Quinnipiac University that they thought Trump had committed a crime before he was president. That was a higher percentage than the share who felt he’d committed a crime while he was in the White House (48 percent) in a December 2019 Quinnipiac poll, taken just before the House voted to impeach him (the first time around). But right after Trump left office, a poll conducted by Ipsos for the Survey Center on American Life found that 55 percent thought it would be a good idea for state and federal authorities to investigate potential crimes Trump may have committed while in office.
nrakich: Yeah. I don’t think Trump is a particularly strong candidate for Republicans in 2024 (just look at how he did in 2020, and how his endorsed candidates did in general elections in 2022), but I’m not sure this would weaken him further in a general-election matchup.
And since I get this question all the time: Yes, Trump can run for president from jail. Just ask Eugene V. Debs!
geoffrey.skelley: Partisanship is an incredibly strong force in modern politics. For the most part, Republicans are gonna vote for the Republican nominee regardless (as will Democrats for their nominee). But less strongly identifying Republicans or GOP-leaning independents could defect under certain circumstances. Some of them voted for Biden in 2020, after all.
nrakich: Sure, but don’t you think all the independents who care about Trump’s scandals already voted for Biden in 2020? I’m having trouble picturing the voter who supported Trump in 2020 but who thinks an indictment (from a Democratic prosecutor!) is the last straw.
geoffrey.skelley: They might simply get tired of all of Trump’s scandals. Jan. 6 occurred after the last presidential election, so it might be hard to separate out the effect of criminal charges from the impact of that event if we have Biden-Trump, Round 2. Not to mention, things like the state of the economy, abortion, foreign conflicts, etc., will all matter too.
kaleigh: Exactly. There have been a series of losses for the Trump loyalist crowd: losing in 2020, Jan. 6, a poor performance in 2022. Adding this to the list might be enough to tip the last hangers-on into the “he’s too much drama” camp.
nrakich: If Barack Obama was “No-drama Obama,” what’s Trump?
geoffrey.skelley: He’s not Teflon Don, despite headlines to the contrary over the years.
kaleigh: How about Dicey Don?
nrakich: Haha, that’s terrible.
kaleigh: Nine Lives 45?
OK, I give up.