Non-disclosure agreement at center of historic Trump indictment

Trump is accused of attempting to overturn his electoral loss in Georgia by pressuring election officials to give him more votes.
Published: Apr. 3, 2023 at 6:22 PM EDT
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ATLANTA, Ga. (Atlanta News First) - As former president Donald Trump prepares to face a historic arraignment in New York City, questions still linger over possible charges in Georgia as well.

But experts agree that any charge Trump faces in Georgia would be far more severe than the anticipated business-related crimes the Manhattan district attorney is likely to bring on Tuesday.

Trump is accused of attempting to overturn his electoral loss in Georgia by pressuring election officials to give him more votes.

“Without being dismissive of the Manhattan prosecution, which we don’t know much about, I think it pales in significance to the possible consequences of being indicted here in Georgia,” said Clark Cunningham, a law professor with Georgia State University. “I think it’s quite possible we will see an indictment that portrays him as the head of a pretty vast criminal conspiracy in Georgia spanning over months, involving many actors, to undermine the democratic process.”

Cunningham says if that turns out to be the case, the severity of the charges would be far greater than the business-related crimes Trump is expected to face in Manhattan.

There’s been no timeline laid out for a potential indictment in Georgia. Fulton County District Attorney Fani Willis has only indicated that a decision on her end would be “imminent,” but that was several weeks ago.

Cunningham believes the canary in the coal mine for any Georgia-related charges against Trump would come in the form of state officials being charged. The prevailing thought among experts indicates Willis is likely seeking a Racketeer Influenced and Corrupt Organizations – or RICO charge – against Trump and several others.

“If, as expected, the district attorney alleges a RICO conspiracy, which is typically thought of as the mob, well you start with the little fish if you’re going after the godfather,” said Cunningham. “You don’t start with the godfather, you work your way up and get those people hopefully to cooperate.”

Several high-ranking Georgia officials could face charges tied to the former president’s alleged attempts to overturn the state’s 2020 election results, including current Lt. Governor Burt Jones and state GOP chair David Shafer.

But with all the noise surrounding Trump’s New York indictment, Cunningham is reminded of the early days of the federal classified documents case, where officials discovered classified documents improperly stored at the former president’s home in Florida.

“Before knowing any of the facts, all kinds of Republicans rushed to his defense and said ‘oh, it’s a witch hunt’,” said Cunningham, noting that many changed their minds after an inventory of the search revealed there were classified documents at the home. “And we stopped hearing much of anything from Congressional Republicans in his defense, and the media looked at it for what it was – a very serious criminal investigation.”

“We’re kind of in a similar situation here I think,” he continued. “Trump is orchestrating support and raising money and mobilizing his base when no one really knows what he’s going to be charged with.”

At the center of Mr. Trump’s case out of New York is a widely-used type of legal agreement known as a non-disclosure agreement or NDA.

In many instances, NDAs are used to protect intellectual property or technology; to hide the terms of an agreement of civil settlement.

“Other times, non-disclosure agreements are meant to sort of put a gag order on somebody,” said Jessica Gabel Cino, a partner with Krevolin Horst Law Firm. “And those tend to be in higher profile circumstances such as the Stormy Daniels instance.”

Cino says the former president’s hush money payments to the adult film star over her allegations of an extramarital affair before Trump’s 2016 run for the White House could be the centerpiece of the historic charges out of New York, even though there’s nothing illegal about hush money payments on its face.

“That sort of arrangement is a legal arrangement,” said Cino. “The problem is how it gets paid for and how it’s written off as a business expense.”

“The criminality of this isn’t about whether or not he paid hush money per say, that parts actually pretty legal,” Cino continued. “The criminality of it is how did you treat it on your business books; was there another crime related to it of campaign funds and what was being paid or how it was being paid?”