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5 questions surrounding Donald Trump's possible arrest

President Donald Trump said he would be arrested on Tuesday. Trump's comments have led to a number of questions.

Sue Ogrocki / AP

By: Justin Boggs

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Former President Donald Trump has been the target of multiple investigations in multiple states and in the federal government.

Based on Trump’s comments, one of those investigations appears to be taking a dramatic turn.

Will Donald Trump be arrested?

Trump said on his Truth social media account that he will be arrested “on Tuesday of next week.” The post tended to suggest that the arrest would be done by the Manhattan District Attorney’s Office, which has assembled a grand jury for Trump’s case.

District Attorney Alvin Bragg has yet to confirm a coming indictment but has confirmed as recently as a week ago on MSNBC’s “Politics Nation” that an investigation is continuing.

Elliot Williams, a former deputy assistant attorney general at the Justice Department, said there are many questions that go into arresting a former president.

"It's significant, and it's also logistically complicated to arrest a president of the United States; he has Secret Service everywhere, all of this creates a mess both legally and practically," said Williams.

Bragg’s office won a conviction against the Trump organization in December 2022 on 17 charges, including conspiracy and falsifying business records. But in that case, Trump was not ordered to go to jail; instead, his business was ordered to pay a $1.6 million fine.

What is the NY AG investigating?

Bragg’s office has been investigating payments made by Trump and his former confidant Michael Cohen to Stormy Daniels. It was revealed that Daniels received a payment from Trump through Cohen to remain quiet about their relationship in the leadup to the 2016 election.

On Wednesday, Daniels and her attorney Clark Brewster confirmed on Twitter that she met with prosecutors at the request of Bragg’s office.

“Stormy responded to questions and has agreed to make herself available as a witness or for further inquiry if needed,” Brewster said.

In 2018, Cohen pleaded guilty to tax evasion charges.

"I don't want to see anyone, including Donald Trump, indicted, prosecuted, convicted, incarcerated, simply because I fundamentally disagree with them. This is all about accountability. He needs to be held accountable for his dirty deeds," Cohen told reporters this week.

But the kind of charges that Trump could be facing might not be terribly severe.

"It's almost anticlimactic. We're talking about the former president of the United States, and he may be indicted for something that's punishable as nothing more than a misdemeanor, which is not the way you want to see the resources of the system expended," former federal prosecutor Kevin O’Brien said.

What is the precedent for indicting a former president?

None. If Trump is charged, it would be the first time a former president has been charged after leaving office.

Special counsel Robert Mueller, who investigated alleged Russian interference in the 2016 election and any associated ties to the Trump campaign, stated in his 2019 testimony that a sitting president could not be charged with a crime due to a long-standing Office of Legal Counsel guidance.

But when asked by Rep. Ken Buck, R-Colo., if a former president could be indicted, Mueller simply responded, “Yes.”

The highest-ranking government official to ever face criminal charges was Aaron Burr for the killing of former Treasury Secretary Alexander Hamilton. Although charged with murder in both New York and New Jersey, Burr was never prosecuted.

Can active political candidates be criminally charged?

Trump recently announced his intention to run for president in 2024, and he has been actively gearing up to be the GOP nominee for the third straight election cycle. There are numerous examples of candidates in lower offices being charged for state crimes.

There is nothing stopping prosecutors in New York from charging a political candidate.

Federal guidance is a bit hazier. The Department of Justice frequently issues memos in the months leading up to an election reminding staff not to let investigations interfere with elections.

“The Department of Justice has a strong interest in the prosecution of election fraud and other election-related crimes, such as those involving federal and state campaign finance laws, federal patronage laws, and corruption of the election process,” wrote Attorney General Michael B. Mukasey in 2008. “As Department employees, however, we must be particularly sensitive to safeguarding the Department's reputation for fairness, neutrality, and nonpartisanship.”

Other attorneys general have issued similar memos.

The guidance stops short of saying that an active candidate can be indicted and or arrested on federal charges.

What other legal perils face Trump?

The Manhattan investigation is far from the only investigation into Trump.

In August, the Department of Justice confirmed it executed a search warrant on Trump’s Florida residence to find classified documents being stored on site, including some marked top secret.

Trump has not denied having the items in his possession but has claimed that he made the documents unclassified before leaving office. He has also accused the DOJ of conducting the search for political reasons.

On Friday, the Associated Press reported that a court ruled that Trump’s attorney Evan Corocan must answer questions from the Justice Department’s special counsel involving the document case.

Corocan reportedly claimed he could not answer questions based on attorney-client privilege. But the DOJ can get around that if it can prove to a judge that the conversations between the attorney and client were used in furtherance of a crime, the AP’s report added.

There has also been an ongoing investigation into efforts by Trump to overturn the results of the 2020 presidential election in Georgia. Last month, investigators released a report from a special grand jury.

Many key details of the investigation were not included in the report, but the report said Fulton County District Attorney Fani Willis should "seek appropriate indictments for such crimes where the evidence is compelling.”

The report added that the grand jury believes some witnesses lied in their testimony. Trump was not among those who testified in the Georgia investigation.