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

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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.

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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. 

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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.