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Waiting on Manhattan
Monday and Tuesday passed in Manhattan without an indictment. Trump, who claimed in a “truth” message that he would be arrested on Tuesday, was wrong. Again. Fox News is reporting tonight that Trump has not been formally notified as to whether Manhattan District Attorney Alvin Bragg plans to bring charges against him.
In fact, it’s unlikely that Trump will be arrested at all, unless he declines to voluntarily surrender. Typically, defendants charged in nonviolent crimes are given that opportunity. If Trump is indicted, an agreement will likely be reached between prosecutors and Trump’s lawyers for him to turn himself in. Trump’s Secret Service detail will facilitate a safe booking process, with an agent accompanying the former President throughout.
Fox is also reporting that one more witness, who has not been identified, is expected to testify when the grand jury reconvenes at 2 p.m. Wednesday and that there is a “real chance” the DA will not seek an indictment. Wherever the truth lies about what’s going on in Manhattan, that timeline suggests there may not be an indictment tomorrow or even this week.
On Monday, Bob Costello, a lawyer who key witness Michael Cohen once sought advice from about his potential criminal exposure in the Stormy Daniels matter, testified in front of the grand jury. Costello, who held a little street-side press conference after his testimony, called Cohen a liar and said that Cohen told him he’d cooked up the scheme to pay off Stormy Daniels on his own, and had taken out the loan for the $130,000 to pay her without any sort of deal with Trump. Costello didn’t offer any explanation as to why Trump, who is known for non-payment of his own legitimate expenses, would have reimbursed Cohen for something he’d come up with on his own. Trump repaid not only the $130,000 but also significant additional increments to cover the tax burden on Cohen because the payment was characterized as being for legal services, not repayment of a loan Cohen took out on Trump’s behalf. It’s all there, with Trump’s Sharpie-signed signature on some of the checks, for the Manhattan DA to offer into evidence if he brings charges.
Cohen, who stayed on call for the grand jury Monday afternoon, was not asked to return to testify. It seemed that Costello was more impressed with his own testimony than the grand jury was.
In April 2018, Costello spoke with President Donald Trump’s then-lawyer Rudy Giuliani on Cohen’s behalf, subsequently assuring Cohen in an email that he could “sleep well tonight” because he had “friends in high places.” Currently, Costello is Giuliani’s lawyer.
Last night, the circus escalated when Cohen took to Ari Melber’s show on MSNBC to counter Costello’s allegations that he was a liar. I can’t have been the only prosecutor who was cringing to see the case being tried on television before an indictment had even been obtained, instead of waiting for the witnesses to testify in a courtroom. It was quintessentially Trumpian.
Grand juries don’t have to be persuaded a crime was committed beyond a reasonable doubt in order to return an indictment. They need only find probable cause to believe it. Of course, prosecutors—who know they must ultimately face a judge and a jury—don’t seek indictments, especially in a case of this magnitude, unless they are confident about their evidence.
There have been lots of assessments of “the charges” that will be brought against Trump. But we haven’t seen the charges, and until we do, an assessment of how strong and significant they are is largely premature. We do know from what witnesses have said that the DA seems to be focusing on a New York State charge involving falsification of business records. It’s a misdemeanor when brought on its own, but it morphs into a felony when the defendant’s “intent to defraud includes an intent to commit another crime or to aid or conceal the commission thereof.” So the big issue is, is there “another crime”?
There has been a great deal of back-and-forth about what crimes might qualify, including whether the statute is limited to other New York State crimes or whether a federal charge could pass muster. There are a number of possibilities, ranging from tax to federal or state campaign finance charges, to conspiracy to interfere with an election. There may well be others, depending on the testimony Bragg has elicited from witnesses appearing before his grand jury, which remains unknown to the public. Cohen vehemently insisted on cable television Monday night that everything he’d testified to was corroborated by other evidence. That suggests documents and perhaps even a new cooperating witness or two. The reality is, we simply don’t know, beyond the simple misdemeanor, how strong Bragg’s case is and what kind of charges he is contemplating at this point.
Even without an indictment, it’s been a full couple of days:
Republicans in Congress want to engage in oversight of the Manhattan District Attorney. They sent him a letter. They want details about Bragg’s criminal investigation into Trump.
Note they sent a letter, not a subpoena. A subpoena would not hold up in court, because no matter how they try to dress it up, the request lacks a legitimate legislative purpose. As with DOJ, the Manhattan DA won’t reveal any information about an ongoing criminal investigation, nor should he. But unlike DOJ, Congress lacks any oversight authority here. If Jim Jordan wants to set prosecutive priorities for the Manhattan DA’s office, he should leave Congress, move to New York, and run to be the district attorney. Voters elect DAs and entrust them with a number of decisions, including what kinds of cases to indict. It is up to the voters in Manhattan, not a trio of Republican congressmen, to decide whether Bragg is doing his job. The letter is an embarrassingly bald effort to intimidate Bragg and do Trump’s dirty work. Alas, no one, least of all the senator himself, has ever listened to the wisdom of Lindsey Graham.
To underscore the point, if Trump is indicted, a jury in Manhattan will decide whether there's sufficient evidence to convict him. It will not be up to the mega-MAGA Republican crew in the House. But the GOP continues to show a willingness to undercut our democratic institutions in order to serve Trump.
Georgia, not to be outdone by New York, was also back in the news early this week.
Trump’s legal team in Georgia filed a lengthy series of motions in Fulton County Monday morning. The unusual requests included one to quash the special grand jury’s final report and block the use of any evidence derived from it. Trump also asked the court to recuse the DA’s office from the case and remove the judge who has been handling matters until now—he wants his motion heard by another judge on the Fulton Superior Court. Much more to come.
At bottom, the motions, though complicated, seem meritless. For one thing, there is no constitutional requirement that states use a grand jury process for indictment. While the Fifth Amendment guarantees a federal defendant the right to be indicted only by a grand jury, states are not required to use them unless they adopt measures on their own. Georgia has adopted its own series of rules regarding grand juries, which are highly specific and contrary to Trump’s claims that the process violates his rights. But Trump doesn’t file motions expecting to win; he does it for purposes of delay. This is his opening salvo in Georgia, where he will file motions and appeal any losses, trying to prevent an actual trial for as long as he can get away with it.
Some people have suggested that the charges under consideration in Manhattan are insignificant, that Trump shouldn’t be charged with a mere “record-keeping error.” I don’t see it that way. The Stormy Daniels incident is the origin story for Trump’s efforts to manipulate elections in unfair ways. While paying off a woman who alleges he had sex with her to keep it from coming to light on the eve of an election may seem almost quaint after living through Russia’s efforts to help elect Trump, Trump’s efforts to withhold aid to Ukraine to get dirt on Biden, and the entire horror show of the 2020 election, it is still shocking behavior for a candidate for the presidency. Candidate Trump, knowing he was vulnerable after the release of the Access Hollywood tape in which he was captured talking about grabbing women by the p***y, kept critical information that could have influenced voters from coming to light. On its own, doing that is awful but probably lawful. But Trump and Cohen schemed to conceal it and violated the law in the process. Cohen went to prison for it. And Trump’s Attorney General, Bill Barr, suppressed any further investigation into Trump himself, and he was not indicted in federal court before the statute of limitations elapsed.
It would be a public outrage if it was anyone other than Trump. Vice Presidential candidate John Edwards was even indicted for less egregious conduct (he was ultimately acquitted). Edwards’s payment, which he argued was meant as support for a child he fathered out of wedlock, not as hush money, wasn’t made close in time to or in connection with an election. But it was enough to scuttle his political future if not to secure a conviction. Far from finding the conduct the Manhattan DA is investigating to be insignificant, it’s really an early chapter in the story of Trump’s willingness to cheat in elections and break the law in order to win. In that sense, it’s the most fitting place for prosecution to start.
I’ll close with what’s likely to be an unpopular take. I don’t find any joy in the prospect of indicting a former President, and certainly none in the fact that there are multiple criminal investigations into his conduct under way. It’s an enormously sad moment for our country. That doesn’t mean that justice shouldn’t be done—it must be. But for me, at least, it’s more a somber moment of reflection than one for busting out the champagne.
I hope we won’t become a country of people chanting, “Lock him up.” It would be as distasteful and anti-democratic when aimed at Trump as it was when he aimed it at Hillary Clinton and others. Let’s let our justice system work: slow, imperfect, but still essential to the rule of law. If the system works, we continue to be a country governed by laws, not the whims of men. Let’s not permit Trump to change who we are.
We’re in this together,
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