The Potential Donald Trump Indictment: The New York Grand Jury, Defense Strategy to Date, Potential Charges, & Arrest Through Arraignment

The Basics: The New York County Grand Jury

The Manhattan Grand Jury investigating former President Donald Trump is comprised of 23 New York County residents. At any given time, 16 of those jurors must be present in order to have a quorum. While the People, aka, prosecutors, call witnesses, Grand Jurors can also ask the prosecution to secure the presence of witnesses as well. Similarly, Grand Jurors can either accept or deny a defendant’s request to hear from a witness. No matter what a Grand Jury decides, an accused has a right to testify in his or her own defense. Not a trial where there must be proof beyond a reasonable doubt, a Grand Jury must ultimately decide if there is reasonable cause to believe a felony has been committed. If they do, a Grand Jury will vote a “true bill”.

The “Trump Grand Jury”: An Ever-So- Slightly Deeper Dive

The “Trump Grand Jury” is really no different than any other Grand Jury other than the fact that unlike a “regular” Grand Jury, they are empaneled to hear evidence about the former President and not multiple cases a day ranging from rape and drug sales to burglaries and larcenies. Similar to other Grand Jury proceedings, Trump was provided the opportunity to testify and ask that witnesses be called on his behalf.

The “Trump Grand Jury”: Defense Strategy

No Trump Testimony

As much as he may have wanted to testify, the ex-President did not want to risk finding himself indicted after testifying before the Grand Jury. If he did so, and they voted a true bill, the perception of Trump’s guilt would further become reality. There are also practical reasons, however, why Trump did not exercise his right to testify. Unlike at trial where a defense attorney can object, direct, and re-direct, counsel for the defense can only advise a client in the Grand Jury. Whether Joe Tacopina, Oliver Wendell Holmes, or Daniel Webster (Trump’s attorney is not the latter two), fixing or controlling a client’s testimony in the Grand Jury is no easy task. Simply, a defendant’s lawyer must remain fairly silent. As such, Trump, who is prone to go off script and lean towards bombastic at times, likely would not do himself any favors. Whether he would pull a Colonel Jessup, I cannot say, but he might find himself locked into testimony that could very well be used against him in the Grand Jury or later at trial.

Defense Witness Bob Costello’s Testimony

Distinct from Trump, however, Robert “Bob” Costello testified today [presumably] regarding Michael Cohen, Trump’s former lawyer who paid Stormy Daniels $130,000 in “hush money”. When doing so, prosecutors likely opened the floor to Costello to share whatever relevant evidence or information he had about the investigation, Trump, and Cohen. After doing so, an Assistant District Attorney questioned or cross examined him and the Grand Jurors were allowed to make their own inquiries. In Manhattan, this is often done by a Grand Juror raising his or her hand, whispering their question to the prosecutor, and the prosecutor, assuming it is appropriate, then identifying the question as coming from a Grand Juror before asking it to the witness.  Remember, even if Costello has counsel with him, the Grand Jury is not a trial jury where objections and similar conduct is permitted.

Briefly, it is worth noting that from the standpoint of perception, it is likely prosecutor would have no issue with Costello testifying even if his statements were not fully on point or relevant. First, prosecutors get a free shot at a defense witness and a preview of potential trial testimony. Second, not only can they call Cohen back if necessary to controvert Costello’s testimony, but if they, or the Grand Jury more appropriately, denied Costello’s testimony it would be another Trump talking point how Manhattan District Attorney Alvin Bragg is an unethical lawyer engaged in a political witch hunt.

Four Corners of the Indictment: Potential Criminal Charges

Falsifying Business Records

The speculation is that the Grand Jury may indict Trump on Falsifying Business Records in the First Degree, New York Penal Law 175.10. A class “E” felony, First Degree Falsifying Business Records is punishable by no mandatory minimum and as long as one and one third to four years in prison.

A person is guilty of First Degree Falsifying Business Records when, pursuant to subsection one, with the intent to defraud another, he or she makes a false entry in the business records of an enterprise. Similar to this subsection, there are other grounds to charge this offense if the accused fails to make an accurate entry, alters, deletes, or prevents the making a true entry, among other actions with certain qualifications. It is certainly possible for prosecutors to charge more than one subsection of this or any crime. What bumps this offense up from Second Degree Falsifying Records, Penal Law 175.05, is the additional element that the accused has the intent to commit a separate crime or conceal the commission of a different offense. The belief shared by many is that this potential other crime is one or more offenses involving campaign fraud tied to the payment.

Here, the basic argument would be made that when the false entry of a $130,000.00 legal expense to Cohen was entered into the records of the Trump Organization, or some variation of this amount in different ways, it was done with the intent to defraud and coverup the payment to Stormy Daniels, Trumps purported former affair. This alleged coverup, which may have been a campaign law violation, was the crime that Trump intended to commit or hide. As a result, the Grand Jury could vote to indict on felony First Degree Falsifying Business Records. If the Grand Jury disagrees, they could vote a true bill solely as to Second Degree Falsifying Business Records, a class “A” misdemeanor punishable by up to one year in jail (yes, Rikers Island in NYC), or no indictment at all.

Criminal Tax Fraud

Though there has been limited discussion on a tax related offense, evidence could point to a Criminal Tax Fraud crime as set forth in New York Tax Law Section 1800. In short, if you intentionally file a tax return with materially false information, then, depending on the tax liability that was unpaid to the state, you could be charged with a degree of Criminal Tax Fraud. If the theory is that Trump wrote off $130,000 as attorney’s fees when he knew it was a payment to Stormy Daniels, a tax filing reflecting the deduction, even if nominal in the scheme of the entirety of all his deductions, could be deemed a felony offense. Criminal Tax Fraud can range from a class “A” misdemeanor to a class “B” felony with sentence guidelines for each of the crimes.

Am I right about the above crimes? Maybe not. Could there be other offenses being considered such as Offering a False Instrument for Filing? Sure. I’m not sitting around any table in the DA’s Office, and don’t expect an invitation to that party anytime soon. Like you, I am not privy to any information beyond that provided to the public.

The Manhattan DA “Leak”: Tuesday Arrest

It seems reasonable to conclude that the “leak” by Manhattan prosecutors was anything but that. Instead, it was likely an attempt by the former President, in consultation with his counsel or not, though the latter seems more likely, to get out in front of what he believes is a looming indictment. When it is central to your defense that your prosecution is a political one born from unethical conduct on the part of DA Bragg, calling out prosecutors’ leak of your arrest corroborates the narrative even if you are the one who could have very well created the “fake news” (the leak) of your Tuesday surrender.

What I believe is a fake leak aside, if Costello finished his testimony and Cohen is not called back to testify as reported, and neither the Prosecution nor the Grand Jury has sought to call more witnesses, it’s feasible that the Grand Jury could vote a true bill and an indictment could be filed as early Tuesday…or the Grand Jury could just dump the case too.

Beyond an Arrest: Indictment to Arraignment

Filing of the Indictment & Return to Court

Whether it was this evening, or is tomorrow or any day in the weeks ahead, if an indictment is filed, Trump’s team will be advised by the DA’s Office. Often referred to as an “NA”, or no/non-arrest, indictment because the accused has not yet been arrested, a warrant is generally issued to arrest the named person. If he or she is out of state, like Trump, a Governor’s warrant can be issued to extradite the defendant. Though a defendant is able to fight or waive extradition, this case will never reach that point. Simply, prosecutors and Trump’s counsel will be in communication to work through a surrender. It doesn’t behoove Trump to run and hide from state to state. Running away has never been a part of his vernacular and it sure as heck isn’t gonna’ be added now. Further, unlike an unknown person, Trump’s persona is beyond celebrity, he is running to serve as the second coming of Grover Cleveland, and it would blow up his image of virile masculinity worse than a horseless, shirted Vladimir Putin, if he refused to face the charges.

The Formal Arrest

Setting aside what will no doubt be unprecedented security, Trump may be whisked into 1 Hogan Place, the District Attorney’s Office, possibly through the judicial and DA entrance, or through the rear entry of 100 Centre, the Manhattan Criminal Court. This will be coordinated with the Secret Service, NYPD, and Office of Court Administration to limit his exposure to the public and best ensure his safety. At bottom, Trump deserves that type of protection, but it would shock no one if he chose a more pronounced entrance and strutted right through the front doors of 100 Centre Street with great fanfare and an announcement as to his political persecution.

Upon arrival, either the Manhattan DA Squad, NYPD detectives assigned to the DA’s Office, or DA Investigators will take Trump to be fingerprinted and have his mugshot taken. It is unlikely he will be placed in handcuffs or placed in a jail cell. In fact, I would expect that in the couple hours it takes to get his fingerprints back from Albany, the detectives or investigators will “sit on the body”, aka, hold him in their office with Secret Service present before walking him into court for his arraignment. While there will not be an infamous “perp” walk like in other high-profile cases (though, none of this magnitude), either the ex-President will be walked down the public hallway to the courtroom or he will be brought up through the entrance provided for the judges. Again, in fairness to Trump, and no matter your political persuasion, he deserves the greatest degree of protection and security – just as he deserves the presumption of innocence.

The Arraignment

Nothing like “Law and Order”, a [non-Trump/Tacopina] arraignment is anything but exciting. In fact, it is fairly routine especially where, like this potential case, the charges will not be bail eligible offenses. With Tacopina at his side, a plea of not guilty will be entered, and the Court will set a date for Trump’s next appearance. That date might be for the People to provide discovery, the defense to file motions, or a number of other reasons. In the interim, the prosecution will likely provide Grand Jury minutes to the Court, redacted Grand Jury minutes to the defense, and eventually a certificate of compliance and readiness to stop the speedy trial clock from ticking towards a procedural dismissal.

Having said what a “normal” arraignment looks like, one should expect that Trump’s arraignment will not be mundane. With what may be a packed courtroom, Tacopina may very well assert that the case was a political hack job, the People were wrong on the law or committed ethical violations, or some other version of how the case against Trump is unjust after the federal government did not pursue criminal charges of campaign crimes, and other people are not subject to this type of persecution, aka, prosecution.

What’s Next: Get the Popcorn

I could easily pontificate as to what’s in store, but not a one of us knows whether the Grand Jury will dump the case or indict Trump. Further, no outsider really knows what the charges will be, and while we know some of the arguments Trump’s counsel may make, whether his legal defenses (determined by the judge in response to a motion to dismiss) or factual defenses (determined by a jury where the prosecution must prove their case beyond a reasonable doubt) are viable and sound has yet to be seen.

Oh, and the question you really want to ask? The answer to that is a resounding NOPE. Neither Paulie nor the Secret Service are doin’ the prep work even if liquefied garlic sounds fabulously delicious with pasta.

One Last Thing: Don’t Let Justice be Damned

As hard as it might be, no matter whether you bleed blue or red, and regardless of whether you find Trump to be a charlatan or statesman, ex-President or not, Donald Trump deserves, is entitled to, and should never be deprived of the chiseled in stone rule of law that he is innocent until – and only if – he is proven guilty beyond a reasonable doubt. Similarly, it is fair to question DA Bragg’s motivation behind this investigation, political or otherwise, without casting aside an honest examination of the evidence provided to the public. Yes, we have an imperfect justice system and should hold law enforcement to the highest standards – and hold them accountable if they fail us – but that doesn’t mean we should let ourselves sink in the Carlson/Hannity/Ingraham Bermuda Triangle of Rhetoric either.

Jeremy Saland is a criminal defense attorney and former Manhattan prosecutor who served in Robert Morgenthau’s District Attorney’s Office. Saland Law represents clients in criminal arrests, indictments, and trials, petitioners and respondents in Family Court Article 8 Order of Protection proceedings, parties to Title IX and student misconduct hearings, and victims of Extortion, Blackmail, Sextortion, and Stalking outside the criminal justice system.

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