Opening statements are set to take place on Monday in Donald Trump’s criminal trial, the first ever of a former US president, on charges of falsifying business records to conceal hush money paid to porn star Stormy Daniels before the 2016 election.

Trump, the Republican candidate challenging Democratic president Joe Biden in the November 5th US election, has pleaded not guilty.

Here is an explanation of the charges brought by Manhattan District Attorney Alvin Bragg and Trump’s possible defences.

What is Trump accused of doing?

Bragg’s office last year charged Trump with 34 counts of falsifying business records to cover up a $130,000 (€120,000) payment that Trump’s former personal lawyer and fixer Michael Cohen made to Daniels in the waning days of the 2016 campaign for her silence about a sexual encounter she says she had with Trump a decade earlier.

Prosecutors have said that was part of a broader “catch-and-kill” scheme to suppress negative news stories about Trump before the 2016 election in which Trump defeated Democrat Hillary Clinton.

Cohen has also said he and Trump discussed a $150,000 payment made by American Media, publisher of the National Enquirer tabloid, to former Playboy model Karen McDougal to keep quiet about an affair she says she had with Trump. The tabloid never published a story.

Trump denies both sexual relationships and has called the case a politically motivated “witch hunt.” He has admitted to reimbursing Cohen for his payment to Daniels, whose real name is Stephanie Clifford.

What laws would that violate?

According to prosecutors, Trump disguised his 2017 reimbursement checks to Cohen for the Daniels payment as retainer fees for legal services in records maintained by his New York-based family real estate company, the Trump Organization.

Each of the 34 counts stem from a check, ledger entry or invoice from Trump’s reimbursement to Cohen. It is against New York state law to make a false entry in a company’s records. While falsification of business records on its own is a misdemeanour, it is considered a felony punishable by up to four years in prison if it is done to conceal or further other crimes.

In this case, Bragg said those other crimes include alleged election law violations and tax law violations. Federal law in 2016 capped individual contributions to campaigns at $2,700, and New York state law makes it a misdemeanour to conspire to promote a candidacy by “unlawful means.”

Michael Cohen. Photo: Associated Press/PA

Bragg said Trump’s 11 checks to Cohen in 2017 totalled $420,000.

That included reimbursements for the Daniels payment and $50,000 for other expenses Cohen incurred while working on Trump’s campaign, as well as $180,000 to account for taxes Cohen would have had to pay for falsely reporting the money as income rather than a reimbursement, according to prosecutors.

The checks also included a $60,000 bonus for Cohen’s work for the Trump Organization, prosecutors said.

What could Trump’s defence be?

Trump may argue that Cohen acted on his own when paying Daniels. He may also argue that the purpose of silencing Daniels and McDougal was to spare him and his family the embarrassment of public attention to alleged extramarital affairs, not to help his campaign.

He may also try to undercut Cohen’s credibility as a witness, including by pointing out that he has admitted to perjuring himself before Congress.

Cohen pleaded guilty in 2018 to federal charges of causing an unlawful campaign contribution and making an excessive campaign contribution tied to the hush money scheme. The U.S. Attorney’s office in Manhattan has not charged Trump, who it referred to in its charging document against Cohen as “Individual-1,” with any crime. In an interview with Reuters in December 2018, Trump said the payment to Daniels “wasn’t a campaign contribution” and “there was no violation based on what we did.”

How could Bragg overcome Trump’s arguments?

While Cohen’s perjury conviction could provide fertile ground for Trump’s lawyers, Cohen has already been sentenced and served time. That could blunt any attempt by Trump to argue that Cohen is falsely implicating him to try to win a lenient sentence, a common argument criminal defendants make against cooperating witnesses.

Trump would almost certainly appeal any conviction. Photo: AFP via Getty

Cohen also recorded a conversation he and Trump had about the McDougal payment. Prosecutors have said the two of them met with former AMI chief executive David Pecker to plot the “catch-and-kill” scheme.

Testimony from Pecker and Cohen’s recording, if played for the jury, could undermine Trump’s arguments.

American Media reached a non-prosecution agreement with federal prosecutors in 2018 after admitting it worked with Trump’s campaign to make the payment to McDougal.

What would be the consequences of a Trump conviction?

Felony falsification of business records carries a maximum sentence of four years in prison. However, others convicted of that offence alone have been sentenced to less than one year. Any sentence would be determined by the judge in the case, Justice Juan Merchan, based on a range of factors.

Trump would almost certainly appeal any conviction.