Is paying hush money a crime?

In most cases, the answer is no. Hush-money agreements, otherwise known as nondisclosure agreements, have long been used by companies and private individuals to avoid litigation and keep embarrassing information confidential. Harvey Weinstein, the former producer convicted of rape, used such agreements for years to conceal his harassment and assault of women.

But the question is thornier when it comes to candidates in the midst of political campaigns, and it has not often been posed in federal or New York State courts.

As it relates to former President Donald J. Trump and the porn star Stormy Daniels, the Manhattan district attorney, Alvin L. Bragg, is expected to reveal his answer on Tuesday, when his office’s indictment of Mr. Trump is to be unsealed: A hush-money payment can constitute a crime if made to protect a political candidate.

Perhaps the most similar criminal case came in 2011, when a former United States senator, John Edwards of North Carolina, was charged with federal campaign finance violations for payments to help a mistress amid his own presidential run a few years earlier. The case ended without a conviction.

Federal and state campaign laws require payments made in connection with elections to be reported, and if they are made by third parties coordinating with the candidate, such as Mr. Trump’s former fixer Michael D. Cohen, they are subject to certain limits. Mr. Cohen paid $130,000, well beyond the legal federal limit, in the days before the 2016 presidential election to keep Ms. Daniels quiet about her story of a sexual encounter with Mr. Trump.

The precise nature of the charges against Mr. Trump was still unknown Tuesday morning. The indictment, which was voted on by a grand jury last Thursday, is expected to consist of more than two dozen counts, some of them charging him with falsifying business records in reimbursing Mr. Cohen for the hush money. Mr. Trump, who is once more seeking the Republican nomination for president, has denied sleeping with Ms. Daniels; called the prosecution by Mr. Bragg, a Democrat, political; and said he has done nothing wrong.

On its own, falsifying business records is a misdemeanor in New York State — but it can be charged as a felony, as Mr. Bragg is expected to do, if it is done to conceal another crime, such as a federal or state campaign finance violation.

Proving that element will most likely hinge on whether the hush money is interpreted to have been paid in the service of Mr. Trump’s 2016 presidential campaign or for personal reasons, such as shielding his wife, Melania, and youngest son, Barron, from Ms. Daniels’s story.

That is the sort of transaction that Mr. Trump’s lawyers say took place.

“A civil case was settled with confidentiality agreements,” one of the lawyers, Joe Tacopina, said on CNN on Sunday. “This was a personal expenditure, not a campaign expenditure. Had it been a campaign expenditure, he would have used campaign funds.” Mr. Tacopina called the treatment of the payment as a crime “some Twilight Zone sort of scenario.”

Mr. Trump’s team has pointed to the failed prosecution of Mr. Edwards to bolster its argument that the payment to Ms. Daniels was not a campaign contribution.

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In that case, prosecutors charged Mr. Edwards with campaign finance violations related to private payments that two wealthy campaign donors made for living expenses of Mr. Edwards’s mistress, Rielle Hunter, who had given birth to his child, and for travel expenses as she moved around the country to evade the news media during his 2008 presidential campaign.

But Mr. Edwards’s lawyers won an acquittal on one count and a mistrial on five other charges, which prosecutors then dismissed, by successfully arguing that the payments were not related to the election. His lawyers showed that one of the donors continued making payments to help Ms. Hunter after Mr. Edwards suspended his campaign in January 2008. And he had another convincing motive to keep Ms. Hunter and her child a secret: His wife, Elizabeth, was dying of cancer.

Mr. Bragg’s office might be able to make a stronger case than existed against Mr. Edwards in arguing that the payment to Ms. Daniels was made to influence the election on Mr. Trump’s behalf rather than for personal reasons.

For one thing, Ms. Daniels had tried to sell her story of sleeping with Mr. Trump for at least five years, but he had never before agreed to pay for her silence. Mr. Cohen did so weeks before the election, and days after the so-called “Access Hollywood” tape — in which Mr. Trump was heard talking about groping women — was made public, potentially tanking Mr. Trump’s campaign.

For another, Mr. Trump met with Mr. Cohen and David Pecker, the publisher of The National Enquirer, at the beginning of his campaign in August 2015 to discuss a strategy for bottling up negative stories. And Mr. Pecker’s company paid to suppress the story of another woman, the Playboy model Karen McDougal, less than three months before Ms. Daniels received her payment.

Both Mr. Pecker and Mr. Cohen have testified before the grand jury that indicted Mr. Trump, and would be expected to do so at a trial.

Jeff Tsai, a San Francisco lawyer and former federal prosecutor who worked on the Edwards case, said in an interview that because of the “elasticity” of whether money is primarily spent to help a campaign or for personal reasons, the facts in a particular case are extremely important.

“Jurors will have to decide as to whether or not these funds, putting some of the salacious details aside, are fundamentally being used for campaign purposes,” Mr. Tsai said.

One successful case brought by the Justice Department on the theory that hush money payments can violate election laws was against Mr. Cohen himself, who pleaded guilty to campaign finance charges in 2018 in connection with the Daniels and McDougal payments, while saying his actions had been directed by Mr. Trump. But because Mr. Cohen did not go to trial, the prosecution’s case was not tested before a judge or jury.

Kate Christobek contributed reporting.

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