Skordas: How a prosecutor decides to charge a former US president

Apr 3, 2023, 12:25 PM | Updated: Jan 5, 2024, 3:01 pm

A prosecutor has three questions to answer when deciding whether to charge someone.  Can a case be...

NEW YORK, NEW YORK - MARCH 31: Law enforcement officials walk the perimeter of Manhattan Criminal Court on March 31, 2023 in New York City. DA Alvin Bragg announced that the grand jury has indicted former President Donald Trump in his investigation into the former president's involvement in a hush money payment to adult film actress Stormy Daniels before the 2016 presidential election. President Trump is expected to surrender next week. The charges have yet to be made public. (Michael M. Santiago/ Getty Images)

(Michael M. Santiago/ Getty Images)

This is an editorial piece. An editorial, like a news article, is based on fact but also shares opinions. The opinions expressed here are solely those of the author and are not associated with our newsroom.

SALT LAKE CITY — A prosecutor has three questions to answer when deciding whether to charge someone, including a former U.S. president. The questions include whether a case can be filed, whether there is reasonable certainty that the prosecution will prevail at trial, and whether the case should be filed. 

We know that a prosecutor can file a case against former President Trump because a grand jury in New York has issued an indictment. It’s often said that a prosecutor “can indict a ham sandwich.” That’s because a prosecutor has a very low standard to clear to obtain an indictment. It’s entirely the prosecutor’s show.

Related: Former President Trump was indicted Thursday, what it means

When a prosecutor presents a case to a grand jury, there is no defense attorney there to present evidence of innocence or cross-examine the witnesses. There is no judge present to determine if the proceedings are fair. The rules for admitting evidence in a criminal trial don’t apply to a grand jury.

There are no guarantees

This case is by no means a slam dunk for the prosecution at trial. The state’s star witness is a convicted liar and disbarred attorney whose testimony is self-serving. Michael Cohen, President Trump’s self-proclaimed “fixer,” has been convicted of eight felonies, including two counts of illegal campaign contributions relating to payments to women as “hush money,” five counts of evading personal taxes, and one count of false statements to a financial institution. 

Inside Sources Podcast: Why Trump’s Indictment Should be a Federal Case

President Trump has tried to distance himself from Cohen, who arguably has an axe to grind. And as President Trump’s former lawyer, he will be testifying to attorney-client conversations, which should make any lawyer cringe. 

President Trump’s defense team will have a heyday with him on the stand. Stormy Daniels, a former adult movie star, will also be on the state’s witness list. 

The state must prove prior knowledge

The state doesn’t have a silver bullet here. They have to show that President Trump was knowingly involved in Cohen’s illegal activity. Cohen paid $130,000 out of his own pocket to keep Stormy Daniels quiet. President Trump and the Trump Organization paid him back. Those payments were called “legal fees” by the Trump Organization. These are uncontested facts.

These are some of the questions the state must ask, and answer in the affirmative:

  • Did President Trump know Cohen broke the law when he paid Daniels?
  • Did President Trump intentionally hide the fact that he repaid Cohen?
  • Did he personally direct the Trump Organization to falsify its records?

Those allegations may be difficult for the prosecutor to prove, especially when he’s relying on the testimony of sketchy witnesses.

Should this indictment have been pursued?

Prosecutors have a lot of discretion in deciding whether or not to charge someone. There are often good reasons not to charge someone just because you can or because you think they might be guilty. Sometimes, a prosecutor has to decide whether bringing charges is the right thing to do.

For example, a prosecutor can charge an unemployed single mother for stealing formula for her baby, but should he? A prosecutor could legally charge a father for punching the man who sexually assaulted his daughter, but should she? Should a Democratic Manhattan DA have brought a hard-to-prove case against a Republican former president running for re-election?

Even some Democrats and Republicans who have distanced themselves from President Trump are crying partisan politics on this one. For the first time in our country’s history, a prosecutor has brought criminal charges against a former president. He did so when that former president was running for re-election. The appearance that he used the power of the Manhattan DA’s office for political reasons should have been enough to make Mr. Bragg think twice.

It looks and smells politically motivated.

Greg Skordas is the legal analyst for KSL NewsRadio.

We want to hear from you.

Have a story idea or tip? Send it to the KSL NewsRadio team here.

United States

An official ballot drop box is pictured outside of the Salt Lake County Government Center on March ...

Becky Bruce

Research: Threats, harassment of local officials up 55% since 2022

Princeton University's Bridging Divides Initiative performed the research with Civic Pulse, surveying local elected officials nationwide about their experiences with threats. 

7 hours ago

View of Salt Lake City pictured, governor is cracking down on denver sending immigrants to utah...

Aimee Cobabe

Utah governor’s office pushing back against Denver for bussing immigrants to Utah

Gov. Spencer Cox's office says that the City of Denver did not consult with them about sending immigrants to Utah.

6 days ago

SCOTUS ruling on mifepristone...

Kira Hoffelmeyer, Jessica Lowell

Utah reactions to SCOTUS ruling on mifepristone access

The SCOTUS ruling on mifepristone means the abortion pill will remain accessible to women.

7 days ago

FILE - Hunter Biden, son of President Joe Biden, speaks during a news conference outside the Capito...

Mariah Maynes

Jury deliberations begin in Hunter Biden trial

The jury has begun deliberating upon whether Hunter Biden is guilty of three federal firearms charges.

10 days ago

A child and two adults load things into a white truck....

Mariah Maynes

Today is Secure Your Load Day. So, what does that mean?

Secure Your Load Day is June 6. According to the Governors Highway Safety Association, it aims to raise awareness of the dangers unsecured loads.

14 days ago

hispanic businesses immigrants growth...

Don Brinkerhoff

Why there’s financial hope for Gen Z

We're living in financial stressful times, Gen Z has reason to be hopeful about their financial future.

20 days ago

Sponsored Articles

Underwater shot of the fisherman holding the fish...

Bear Lake Convention and Visitors Bureau

Your Bear Lake fishing guide

Bear Lake offers year-round fishing opportunities. By preparing ahead of time, you might go home with a big catch!

A group of people cut a purple ribbon...


Comcast announces major fiber network expansion in Utah

Comcast's commitment to delivering extensive coverage signifies a monumental leap toward a digitally empowered future for Utahns.

a doctor putting her hand on the chest of her patient...

Intermountain Health

Intermountain nurse-midwives launch new gynecology access clinic

An access clinic launched by Intermountain nurse-midwives provides women with comprehensive gynecology care.

Young couple hugging while a realtor in a suit hands them keys in a new home...

Utah Association of Realtors

Buying a home this spring? Avoid these 5 costly pitfalls

By avoiding these pitfalls when buying a home this spring, you can ensure your investment will be long-lasting and secure.

a person dressed up as a nordic viking in a dragon boat resembling the bear lake monster...

Bear Lake Convention and Visitors Bureau

The Legend of the Bear Lake Monster

The Bear Lake monster has captivated people in the region for centuries, with tales that range from the believable to the bizarre.


Live Nation Concerts

All the artists coming to Utah First Credit Union Amphitheatre (formerly USANA Amp) this summer

Summer concerts are more than just entertainment; they’re a celebration of life, love, and connection.

Skordas: How a prosecutor decides to charge a former US president