A fact-checker’s guide to Trump’s first criminal trial: business records, hush money and a gag order

Amid a fiercely competitive 2024 election rematch against incumbent President Joe Biden, former President Donald Trump will become the first former president put on criminal trial. 

Trump faces felony charges in four cases, but the first one to go to trial — and perhaps the only one likely to be completed before Nov. 5, Election Day — is a case in Manhattan concerning the alleged mislabeling of payments to adult film actor Stormy Daniels on the eve of the 2016 election. Daniels has said she had an affair with Trump.

Trump is charged with 34 counts of falsifying business records to cover up a $130,000 payment to Daniels made through Trump’s then-attorney Michael Cohen. (Daniels’ real name is Stephanie Clifford.) Manhattan District Attorney Alvin Bragg is prosecuting the case.

Jury selection starts April 15. 

On its own, falsifying records in the second degree is a misdemeanor. However, the charge transforms into a felony if the person accused is convicted of falsifying business records with the intent to commit another crime or to aid or conceal a crime committed. The upgrade would make the crimes Class E felonies, New York’s lowest level.

"Paying hush money is not illegal. People can disapprove of it, but it’s not illegal," said Jon Sale, a criminal defense attorney in Miami and a former Watergate prosecutor. 

Rather, Trump is accused of having made false entries in financial records to further another crime.

"Why did Donald Trump repeatedly make these false statements?" Bragg said when he announced the charges. "The evidence will show that he did so to cover up crimes relating to the 2016 election." 

Bragg said Trump’s actions "violated New York election law, which makes it a crime to conspire to promote a candidacy by unlawful means." He also said the wire payment exceeded the federal campaign contribution cap and falsified financial statements violated New York law.

The number of charges refers to 34 documents the grand jury found to have contained a "critical false statement" related to the payments. The counts also include documents related to Karen McDougal, a former Playboy model who said she had an affair with Trump, which Trump has consistently denied.

Trump has three other active criminal cases: one Georgia case involving election interference, a separate federal case on election interference and a federal case on document retention. He has also faced a civil trial in New York over inflated valuations of his businesses. In that case, Trump was found liable but is appealing the verdict.

Here, we will answer questions about the prosecution’s challenges and how the trial will work, and fact-check false and misleading statements Trump has made about the case.

Michael Cohen, former personal lawyer to President Donald Trump, leaves federal court Aug. 21, 2018, in New York. (AP)

The Manhattan case may be the first to go to trial, but legal experts say it may be the hardest to prove.       

They cite three major challenges facing the prosecution.

One is convincing a jury that the misdemeanor business falsification charges collectively advanced a separate crime, enabling Trump to be charged with a felony.

"A juror could easily have a reasonable doubt about whether the true motive behind the payments is … to keep your wife from finding out and protect your public image," said Bill Otis, former head of the Appellate Division of the United States Attorney’s Office for the Eastern District of Virginia and a former special counsel to former President George H.W. Bush.

A second challenge involves some key government witnesses, including Cohen, who was sentenced to three years in prison for tax evasion, making false statements to a federally insured bank and breaching campaign finance rules. Some charges he pleaded guilty to were related to the Daniels and McDougal cases. In a separate case, he pleaded guilty to lying to Congress. Cohen eventually served a little more than a year in prison plus additional time on home confinement. 

This history means Cohen "has serious credibility problems," said Matthew J. Galluzzo, who worked as a Manhattan prosecutor before Bragg’s tenure and is now in private practice. 

A third challenge for prosecutors is that it will take only one juror to prevent the unanimous verdict necessary to convict Trump.

"Even in a favorable venue like New York, some jurors could believe that Trump is being treated unfairly by our civil and criminal justice system," said Neama Rahmani, a former prosecutor who co-founded the firm West Coast Trial Lawyers.

Adult film actor Stormy Daniels speaks April 16, 2018, outside federal court in New York. (AP)

Citizen residents of Manhattan will comprise the jury. Even though Trump lived in the borough for much of his adult life, Manhattan probably is not a favorable jury pool for Trump: Biden won 86% of the vote there in 2020.

During jury selection, attorneys on both sides will be able to ask potential jurors questions to see whether they have fixed notions about the case that would keep them from ruling impartially.

The juror questionnaire posted by the court includes such questions as the prospective juror’s news and social media consumption habits; whether they have supported or belonged to  anti-government groups or identified as QAnon; whether they have attended a Trump rally or signed up for a pro-Trump newsletter; whether they have read his books; and whether they "have any feelings of opinions about how Mr. Trump is being treated in this case."

Sale said that even though the test is to put one’s beliefs aside "and only decide based on the facts and the law," getting a fair jury will be a challenge for the defense. 

However, Trump’s ace in the hole is that he needs only one holdout.

"Mr. Trump is not going to find 12 jurors in Manhattan to unanimously acquit him," Galluzzo said. "However, he wins, as a practical matter, if he can convince one juror out of 12 to have reasonable doubt."

If that happens, the judge would declare a mistrial, and it’s highly likely that Election Day, Nov. 5, will fall before the retrial. That outcome would benefit Trump.

Former President Donald Trump salutes at a campaign rally March 16, 2024, in Vandalia, Ohio. (AP)

The trial will be held every weekday except Wednesdays, when Juan M. Merchan, the acting justice of the Supreme Court, holds mental health court. New York law generally requires a defendant to be present during the trial, which, in this case, could last six to eight weeks.

That schedule would mean that Trump can hold campaign events at night, on Wednesdays or on weekends. Trump can also continue posting on his Truth Social platform.

Outwardly, Trump seems unfazed by the logistical constraints, often speaking to press gaggles after court appearances and using the trials to portray himself as a victim of the justice system. 

"He is expected to use his trial as a major theme of his campaign," said Jerry Goldfeder, a senior counsel with the firm Cozen O’Connor who has represented elected officials.

A week before the trial started, a Trump fundraising email said, "Biden will raise millions while I’m stuck defending myself in court!" and asked "one million pro-Trump patriots to chip in."

A Class E felony is punishable by up to four years in prison, but even if Trump gets convicted, he might not get jail time. Being convicted of a felony is no barrier to running for president or serving. Even being in prison would not block him from serving as president, though it might cause significant logistical headaches. 

Trump omits that the order still allows him to criticize key people with power in the prosecution.

Merchan’s April 1 gag order barred Trump from speaking about witnesses or counsel in the case other than Bragg or about members of the court staff or their family members if those statements are made to interfere with the case. In other words, Trump can still criticize Bragg and Merchan. Even though the federal government is not prosecuting Trump in this case, Trump also maintains his right to call it a "Biden trial." 

Trump’s lawyers have challenged the gag order and courts will have the final say. Legal experts agreed that Trump should not be allowed to make comments that incite violence, But beyond that, we heard mixed opinions about the gag order.

Sale said one potentially unfair aspect of the order is that although Cohen has frequently talked about the case on television, outside of court, Trump cannot rebut what Cohen says.

However, experts said the law supports gag orders. 

"This case law goes back decades," said Stephen Gillers, a professor at New York University School of Law, "Merchan followed it."

Duncan Levin, who worked in the district attorney’s office before Bragg and is now a defense attorney, agreed with Gillers. Gag orders "with very limited exceptions have long been found not to violate the First Amendment," Levin said. Trump "is free to discuss the criminal justice system but not to make ad hominem attacks on particular people associated with the case," Levin said.

The First Amendment does not protect all speech, said Steven Friedland, an Elon University law professor and former assistant U.S. attorney for the District of Columbia.

"Political speech and ideas are the most highly protected, although they are still not without limits," Friedland said. "The judge is attempting to protect political speech while at the same time protecting the fair administration of justice."

Manhattan District Attorney Alvin Bragg speaks April 4, 2023, at a press conference after former president Donald Trump’s arraignment in New York. (AP)

This statement by Trump on Truth Social is unsupported. 

Trump points to one of Bragg’s prosecutors, Matthew Colangelo, who formerly worked for the Justice Department and the New York attorney general. 

"Colangelo is a radical left (prosecutor) from the DOJ who was put into the state working for (New York Attorney General) Letitia James and was then put into the district attorney's office to run the trial against Trump," Trump said during a March press conference.

While working for the New York attorney general, Colangelo investigated the Trump Foundation and led lawsuits against the Trump administration.

But his presence on the team doesn’t prove that Biden White House or campaign officials coordinated the case with Bragg. 

Although some legal experts told PolitiFact that Bragg could have avoided controversy by not hiring Colangelo, they agreed that his hiring does not signal that the White House or campaign officials coordinated with the district attorney’s office.

Galluzzo called Trump’s statement "total nonsense."

"Why would it be strange or suspicious for a prosecutor to hire another prosecutor with a New York license and experience working on complex prosecutorial matters?" Galluzzo said. "Most federal prosecutors in this country have worked under both Democratic and Republican administrations."

Days before the trial, Trump wrote on Truth Social "look what was just found! Will the fake news report it?" and showed a Jan. 30, 2018, letter by Daniels stating "I am denying this affair because it never happened."

The letter was publicly released and widely reported on the day it was released. 

But soon after, Daniels recanted, saying an affair had in fact occurred. She said her denials were because of a nondisclosure agreement and that she signed the letter because parties involved "made it sound like I had no choice."

PolitiFact in 2023 fact-checked a claim that the 2018 letter "debunked" Bragg’s case and rated that False.

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