How are Trump's federal charges different from the New York indictment? Legal experts explain the distinctions

Former President Donald Trump left his golf club in Bedminster, New Jersey, on Monday en route to Miami, where he will be arraigned on federal charges Tuesday. The scene was a familiar one: Less than three months ago, Trump left his Mar-a-Lago golf club for New York City to be arraigned on a different set of criminal charges. What are the differences between the two cases?

What is an arraignment?

An arraignment is different from an arrest in that it follows an indictment. An indictment comes when a grand jury determines a person can be charged with a crime, based on evidence presented to them by prosecutors, whereas an arrest is made by law enforcement if there is probable cause someone has committed a crime. 

When someone is indicted, they appear in court to hear their charges. This is the arraignment, where they are read their rights and can also receive a court-appointed attorney, if needed. 

How many times has Trump been indicted?

The former president has been indicted twice. The first time, state charges were brought by the Manhattan district attorney, and the second, federal charges were brought by a special counsel on behalf of the Justice Department.

He was also investigated by a House select committee looking into the insurrection on Jan. 6, 2021, which recommended he be criminally prosecuted for his involvement in the insurrection. 

He faces a separate investigation by the Fulton County District Attorney's Office in Georgia for allegedly pressing Secretary of State Brad Raffensperger to "find votes" and help him overturn the presidential election in the state. District Attorney Fani Willis said she will announce whether or not Trump and others would be charged this summer.  

What was involved in the New York arraignment?

On April 4, Trump was arraigned on criminal charges of falsifying business records related to "hush money" payments, following his indictment in the case the previous week.

A grand jury found Trump should be charged for allegedly illegally disguising payments to his "fixer" Michael Cohen, who paid adult film star Stormy Daniels ahead of the 2016 election to stay quiet about an alleged affair with Trump. Trump has denied the affair and any wrongdoing. He was charged with 34 counts of falsifying business records in the first degree. The charges were not revealed until Trump heard them in court, unlike the second indictment, which was unsealed on Friday and revealed 37 counts against Trump. 

In April, he spent about an hour inside the Manhattan courtroom with his legal team and became the first former president in U.S. history to face criminal charges. There was a heavy security presence at the courthouse and a crowd of protesters and counter-protesters surrounding the building. 

What will happen during the Miami arraignment?

Trump will be arraigned at a federal district court in Miami on Tuesday. On Friday, he was indicted on 37 counts for his alleged mishandling of sensitive documents, which he and his staff allegedly took from the White House and brought to his Mar-a-Lago golf club. 

The 44-page indictment claims the former president "endeavored to obstruct the FBI and grand jury investigations and conceal retention of classified documents." His aide, Waltine "Walt" Nauta, also faces charges, including for allegedly lying in an FBI interview about the documents.

What are the differences between Trump's arraignments?

In the New York City arraignment, Trump did not do a so-called "perp walk," where the accused is handcuffed and escorted into the building. 

"I think it is entirely possible that none of this happens in public, that he comes in through a back entrance. There are — particularly for federal courthouses — highly secure entrances. That he exits the same way and we never see him," Jessica Levinson, a CBS News legal contributor, says. "And of course, there are no cameras in federal courthouses." 

When he was arraigned in New York, authorities did not take his booking photo. Even if he does have one taken in Miami, federal courts do not release these photos, CBS News legal analyst Rikki Klieman said. 

"The arraignment process, whether state or federal, is really very similar," Klieman said. Since the charges have already been made public, his lawyers could waive the reading of them. They will then enter a plea, which is expected to be "not guilty," just as it was in the New York case. 

As in New York, Trump will not need to post bail, Klieman said. The court, however, may pose restrictions on him. 

"But whatever those may be — obviously because he is running for president of the United States — I would think if there are any restrictions they would be minimal," she said. "I really can't image that he's going to have to have one of his staff or himself report his travel or surrender a passport or anything like that." 

She added that it is still possible they set conditions like this to ensure Trump's follow-up appearances in court. Conditions were not set during his New York arraignment. 

What are the differences in Trump's charges in the two cases?

The New York "hush money" investigation was led by the Manhattan District Attorney's Office, whereas the investigation into the documents was led by special counsel Jack Smith and federal prosecutors, who met with Trump's attorneys last week. 

In the Miami case, Trump is facing federal charges. The New York charges of falsifying business records are typically a misdemeanor offense, but in Trump's case, prosecutors argued they were committed with the intent to commit or conceal another crime and violated election laws, raising them to felony charges. "In the scheme of things ... [the New York charges are] really modest charges," Klieman said. "This indictment on the other hand has substantial charges, meaning these are really serious." 

"What you have here, if you were to add up the punishments in a case like this, there are hundreds of years, which of course is not only unrealistic, but ultimately irrelevant," Klieman said, adding that if he were convicted, Trump's sentence would be set based on other people's sentences for similar crimes. 

If he is only convicted for the retention of the classified documents, the average sentence would be four to five years in prison, Klieman said. However, he also faces obstruction of justice and conspiracy counts, and if he is convicted of the majority of the counts against him, he would be facing more prison time, she added. 

Just because Trump's alleged crimes in New York may be considered "minor," doesn't mean he wouldn't face prison time, she said. 

Another distinction between the two: Federal cases tend to move faster than state, due to the Speedy Trial Act, which aims to get cases to trial within six months, Klieman said. However, this is a complex case, so it is unpredictable if it will be able to go to trial in just six months, Klieman said.

Levinson said the Trump-appointed judge presiding over this case, Aileen Cannon, may allow the case to be delayed. She also said that Cannon will likely not put any restrictions on the former president's travel. 

"For me the difference between the two cases is huge. It's not just state versus federal, it's also the severity of the crimes, it's the amount of evidence that's been amassed," Levinson said. 

"Falsification of business records obviously does undermine the former president's credibility and it did arguably affect the election, because the hush money payments were made in order to help him become elected," she said. "But the federal case strikes me as, in magnitude, more serious and goes to the heart of his ability to be a public servant and in fact, if the allegations are true, very directly put our entire nation at risk," she said about the alleged mishandling of the documents that included information about nuclear weapons, the military and other sensitive information. 

In:
• Donald Trump
• Indictment

Caitlin O'Kane

Caitlin O'Kane is a digital content producer covering trending stories for CBS News and its good news brand, The Uplift.