The Week Ahead
April 2, 2023
This week, on Tuesday, we will learn the details of the Manhattan DA’s indictment when it’s unsealed ahead of Trump’s arraignment. An arraignment is the first time a defendant appears in front of a judge after being indicted. When Trump appears on Tuesday, he will be advised of the charges against him and of his rights. He will enter a plea, one of not guilty, which is the traditional plea at arraignment even for a defendant who intends to subsequently pleads guilty.
Ignore the pundits and politicians who are already bemoaning the problems with the indictment. Since they don’t know what’s in it, they can’t analyze it. We’ll wait until Tuesday for that. But the one insight I can share with you in this regard is that this a very competent, experienced cadre of prosecutors. Anyone who thinks they haven’t anticipated the whole host of flaws people on Twitter are bandying about is wrong. The office is run be a Harvard Law–educated district attorney Alvin Bragg, who is an alum of both the U.S. Attorney’s office in the Southern District of New York (he was hired by Preet Bharara) and the New York Attorney General’s office. The notion that they would miss an issue that lawyers on Twitter readily see is specious. And, because they are good prosecutors, there is no chance that they indicted a case without confidence that their evidence was sufficient to prove guilt beyond a reasonable doubt.
My confidence in them is buttressed by the fact that very little information about the indictment has leaked. Three days in, and all we’ve seen is that a felony is charged and that there may be more than 30 counts—both the type of information that someone in the clerk’s office could learn when the indictment was filed under seal. By all indications, the DA’s office is airtight. In an environment where it would be easy to leak, the fact that they haven’t underlines their commitment to doing things right.
In anticipation of this week’s proceedings, media organizations including the New York Times, the AP, and NBC have asked the judge to unseal the indictment immediately and permit televised coverage of proceedings. They argue that “the gravity of this proceeding—unprecedented and historic arraignment of a former U.S. President—and, consequently the need for the broadest possible public access, cannot be overstated.”
The argument is a compelling one. Other high-profile cases, like the prosecution of Derek Chauvin for the murder of George Floyd, have demonstrated the benefits of having cameras in the courtroom. It’s possible to cover the trial, as the media did in that case, while protecting witnesses and the jury, but simultaneously giving Americans access to what goes on in court. The will inevitably be an enormous amount of spin, misinformation, and outright lies about the Trump prosecution. The case is critical to the future of the country. That makes public access to the proceedings even more important.
Judge Juan Merchan, who will handle the Trump prosecution, also heard the criminal tax fraud case against Trump’s company last year (Trump himself was not a defendant), in which Trump CFO Allen Weisselberg pled guilty and the company was convicted. In that case, Merchan refused to let the defendants argue that the prosecution was politically motivated and directed the attorneys to focus on the charges at hand. He is also the judge assigned to the Manhattan DA’s prosecution of Steve Bannon on charges he defrauded contributors to an organization called We Build the Wall out of more than $15 million. The DA’s office charged Bannon after Trump pardoned him just before he left office, preventing a federal case from moving forward. That case is still pending. The judge is known for his courteous but tight control of the courtroom.
Merchan was born in Bogotá, Colombia, emigrated to the United States when he was 6. He was the first person in his family to go to college. He started and stopped law school, ultimately putting himself through school while working. The contrast between the judge and the defendant who will appear in front of him on Tuesday could not be more clearly drawn. Expect the judge to honor his commitment to the rule of law and maintain a calm and steady presence through all of the nonsense, and worse, that Trump is likely to engage in.
Some people have speculated Judge Merchan might enter a gag order on Tuesday after the threatening posture of Trump’s recent social media posts, which include the baseball bat pointing towards a picture of Bragg’s head that Trump ultimately removed. But there are First Amendment issues involved in gagging a defendant, especially one who is running for political office, and while the judge may admonish the parties against trying their case in the press, I don’t think we’ll see an immediate gag order.
Even where gag orders are put in place, judges often hesitate to enforce violations because of the First Amendment problem involved in imposing a prior restraint on speech. In the Roger Stone prosecution, Stone posted a photo of the judge in what looked like the cross hairs of a gun shortly after he was charged. After he posted derogatory material about Special Counsel Mueller on Instagram, she banned him from social media posting. But the judge herself acknowledged the difficulties of enforcing gag orders, saying, "Mr. Stone, what am I supposed to do with you…whether the problem is you can't follow simple orders or won't, I need to help you out." Judges have to carefully consider the enforceability of a gag order before they impose one.
Former Manhattan DA Cy Vance (no kin) speculated on MSNBC Sunday afternoon that Trump’s social media attacks might constitute another crime under New York law: obstructing governmental administration, which occurs when a defendant “intentionally obstructs, impairs or perverts the administration of law or other governmental function or prevents or attempts to prevent a public servant from performing an official function, by means of intimidation, physical force or interference.” Vance, who stepped down as district attorney at the end of 2021 after he decided not to run again, conducted the initial investigation in the case. To add another wrinkle, he told Chuck Todd on NBC’s “Meet the Press” Sunday morning that Bill Barr’s DOJ had told him to stand down on his investigation (as federal prosecutors are wont to do to their state colleagues when there are multiple investigations) and that he was “somewhat surprised after [former Trump attorney Michael Cohen] pleaded guilty that the federal government did not proceed on the areas in which it asked me to stand down.” Those comments are certain to generate a lot more interest.
Trump is seizing the opportunity to try the judge’s patience from the outset by making out-of-court statements about the case. He’s already announced he will speak from Mar-a-Lago, the scene of another alleged crime, on Tuesday evening after his arraignment. The headlines should write themselves on that one.
In more bad news for the former president, the Washington Post reported on Sunday that the federal government has additional evidence of obstruction in the classified documents case. They reported that after speaking with witnesses, reviewing security camera footage, and examining other “documentary evidence,” they believe that, after DOJ served its subpoena, boxes containing classified documents were moved out of the storage area in Mar-a-Lago. They also believe Trump had examined at least some of those boxes. It’s an intriguing detail, indeed, that further distinguishes how Trump handled classified material in his possession from Biden and Pence. These cases are typically not charged when the possession is inadvertent. But when there are exacerbating factors like obstruction present, the arc of DOJ’s practice has been to prosecute.
Also this week, Ohio’s restrictive new voter ID law goes into effect. The deadline to register to vote in Ohio’s May election is Monday April 3, with early voting beginning on the 4th. The new law requires voters to prove their identity using a photo ID when they vote in person and changes the timeline for absentee voting. Laws like this impact people who used documents like utility bills or paychecks to establish their identity in the past the most. It can be expensive or time consuming for them to obtain approved forms of ID like a driver’s license, passport, state ID or military ID. This is another example of a situation where Republicans used virtually non-existent voter fraud to justify measure that restrict access to the ballot and suppress the vote. The confusion the new measure will lead is precisely the type of thing that keeps people from voting.
There’s lots going on. It’s going to be a week.
We’re in this together,
Joyce
Thank you for your clear voice on the legalities of the moment. When people ask me where do i get my “News,” i point to independent writers, and especially you, as to my trusted sources. Thank you for publishing on Substack. Happy to support your scholarship.
Thanks, Joyce. I hope there will be cameras in the courtroom. We can be sure Trump will spin the proceedings inaccurately and I'd like to know there will be video evidence for us to see with our own eyes.