March 30, 2023
Well, it happened. Finally. Today in Manhattan, a grand jury did what much of the country has been holding its breath in anticipation of: they indicted Donald Trump.
We don’t know what the charges are yet, because the indictment is still sealed. That’s not unusual. Typically, indictments remain sealed until a defendant is arraigned. That’s expected to happen on Tuesday.
Manhattan DA Alvin Bragg issued this statement late in the day:
Prosecutors aren’t permitted, by law, to speak about an indictment while it’s still sealed; they can’t even acknowledge its existence. So we can assume from this statement that a judge entered a limited unsealing order, permitting Bragg to confirm the fact that the grand jury returned an indictment, but not to comment on the charges themselves or other matters. Barring something unusual, we won’t see the indictment before Tuesday, when Trump’s lawyers have said he will turn himself in.
It’s a little bit odd to know there is an indictment but not know what charges are in it. Be cautious of anyone who discusses either the strength or the weakness of the indictment until we know exactly what it contains—it’s tough to assess charges when you don’t know what they are.
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Two details are being reported about the indictment so far:
The indictment, according to the New York Times, charges a felony. As you’ll recall, the false business records violation that has been discussed as a possible charge is a misdemeanor. It morphs into a felony if the false entry is made to commit or conceal another crime. For the indictment to charge a felony, Bragg must believe he has evidence to elevate the charges to felony status. There are a number of possibilities, each with its own accompanying legal issues, including tax violations or federal campaign crimes. No prosecutor wants to gamble the outcome of a case like this on an appellate court’s decision, possibly years down the road, on a previously unresolved legal issue. I’ll be paying close attention when the indictment is released to see how these charges are framed. The DA may have evidence to prove a plus-up crime the pundits haven’t yet seized upon.
The indictment contains 34 separate charges (or counts). If true, this could be because each check written to Michael Cohen would form the basis for a separate charge, but that only get us to 11 or so. It’s possible that there could be one or more conspiracy charges. That’s getting closer, but still not 34. It’s possible that Alvin Bragg could have brought unexpected charges, perhaps involving other “catch and kill” efforts or more of Trump’s financial misconduct. We will have to wait and see. But this, is correct, is an intriguing detail.
Expect a circus in the courthouse on Tuesday when Trump arrives for arraignment. He is a different kind of defendant, so there will be some differences in how he’s treated—for one thing, he’ll be accompanied by at least one Secret Service agent as he goes through the booking process and there will be a focus on safety so don’t expect a traditional “perp walk”. But essentially, Trump will find himself in the same position as any other defendant, submitting to the booking process, being fingerprinted, photographed and arraigned in open court. He will also face a judge. There has been some suggestion it will be Judge Juan Manuel Merchan, who was in charge of the Manhattan DA’s prosecution of the Trump Organization, and who ran a tight ship.
It’s already clear that while the district attorney will try his case in the courtroom, Trump is thoroughly committed to trying his on the courthouse steps. He’s already begun. Some folks think we shouldn’t give anything he says oxygen, and they have a point, but increasingly I think it’s important to examine his efforts to spread his particular brand of malice and disinformation to try to rally people to his side with lies, and even deniable but not-so-subtle calls for violence.
Juxtaposing today’s Trump post with yesterday’s reveals just how transactional his assessments are—if he thinks the grand jury is on his side, they’re doing a good job; if they indict him, they are thugs and radical-left monsters. It’s almost too childish to be taken seriously, except that far too many people still buy his untruths.
It is a long way from indictment to conviction to affirmance on appeal. Prosecutors must play constant defense—permitting even one serious error to take place can lead to a reversal on appeal of any convictions that they might obtain. Trump’s rights must be strictly respected, both because it is the right thing to do and because if they are violated, again, any convictions that are obtained can be reversed. He is entitled to due process of law, as is every defendant. The message that will be sent if he is convicted following a trial where he is given every benefit of a legal system that he would have denied to other people (“lock her up”), will be an important one for the future of the country.
That’s not to say we can’t be simultaneously committed to a fair process and celebrate the indictment. The simple fact that the former president was investigated and charged by a grand jury like anyone else is an enormous victory for the rule of law. Today we celebrate twin American principles: no one is above the rule of law, and everyone is entitled to its protections.
One of the biggest criticisms I’m already hearing about the indictment is that the Manhattan DA shouldn’t bring charges against Trump when federal prosecutors in the Southern District of New York, the first to consider the situation, passed on bringing them. That assessment is flawed.
Michael Cohen, Trump’s lawyer and fixer, was prosecuted, convicted, and spent time in prison for the payments to Stormy Daniels. The court filings laying out the evidence against Cohen identified Trump as Individual-1, the person who directed the criminal conduct Cohen committed. It’s unusual to charge a lower-level participant in a crime while giving a more culpable participant a pass, particularly where there appears to be strong evidence against them. So what happened?
First off, we know that Trump was protected not just from indictment but from further investigation, by federal officials during his time in office. His attorney general, Bill Barr, reportedly directed federal prosecutors in Manhattan to stand down. That, along with the notorious DOJ Office of Legal Counsel memo that prohibits indictment of a sitting president as a policy matter, explains why Trump wasn’t indicted while he was in office. But what happened once he was no longer president and after Merrick Garland became attorney general on March 11, 2021? Why not bring charges then?
We don’t know for certain. One possibility is that there was a problem with Cohen as a witness. Although there has been a lot of talk about Cohen’s credibility and the essential requirement that if he’s going to be a witness, everything he says must be carefully corroborated, that’s not the kind of problem I’m talking about here. Corroborating Cohen is important, but there’s not reason to believe that’s not possible. There is, however, another issue. Federal prosecutors in Manhattan adhere to a rule for their cooperating witnesses that not every U.S. Attorney’s office uses. In order for them to enlist a cooperator, that person must be willing to divulge information about all of the criminal activity they are aware of. And Cohen reportedly wasn’t willing to do that, perhaps unwilling to discuss family members or others he’s close to. If it wasn’t possible for DOJ to use Cohen as a witness and no one else could testify to essential elements of the case, that could explain why the time for indicting the case passed without any action by DOJ.
Viewed that way, the Manhattan DA’s entry into the case makes sense. In fact, it would be an injustice if Cohen were prosecuted but Trump, the person most responsible for the crime (if that’s what the evidence shows), avoided accountability. There’s no reason a state prosecution should be barred under these circumstances.
Expect to hear this argument and more from Trump in the coming days. Today, it wasn’t just the former president who took to social media with complaints and invective. His son Donald Junior, in a rant that has to be seen to be fully appreciated, also railed against “Communist-level shit.”
Even Florida Governor Ron DeSantis, who likely views Trump’s indictment as clearing the path to achieving his own political goals, got into the mix with some fake outrage.
There is a lot going on in that tweet. Of course it’s empty posturing, since Trump’s lawyers say he’ll turn himself in voluntarily. But the appeal to antisemitism, the Soros reference, concerns me. Donald Trump Jr. made it too. This sort of casual hate baiting is in the former president’s wheelhouse as well. Trump has always been cavalier about the impact of his words on his followers’ propensity towards violence. But if Trump summons a mob, they will come. And individuals have answered his call too, as with the attack on Speaker Pelosi’s husband. It’s appalling that neither the Trumps, nor apparently DeSantis, understand that real people can fall victim to careless language.
Southern prosecutors know the impact of hateful speech uttered by a charismatic leader. Down here it led to everything from cross burnings to lynchings to bombings. When Trump directs his invective against Black prosecutors, and especially against District Attorney Bragg in light of these charges, it’s impossible to view it innocently. It’s hard not to anticipate the next time a Trump follower, motivated by Trump’s efforts to deflect from his own trouble by demonizing others, acts out against his heroes’ “enemies.” So it’s a dangerous place we find ourselves in tonight.
Nonetheless, I still believe what I wrote to you last week, that while some people have suggested that the charges in Manhattan are insignificant, I don’t see it that way. The Stormy Daniels incident is the origin story for Trump’s confidence that he could manipulate elections and Americans to his own benefit. Far from being “ticky-tack” charges, as some have suggested, it’s important to see accountability start at the beginning for Trump.
We’re in this together,