Welcome to New York
Today the New York Times reported that Manhattan District Attorney Alvin Bragg has offered Donald Trump the opportunity to testify—next week—before his grand jury. The charges the DA is considering are reported to relate to the “hush money” payments that were the subject of the criminal charges that former Trump lawyer Michael Cohen pleaded guilty to in federal court in 2018.
What happens next? Here are a few thoughts to get us started:
Defendants have the opportunity to testify and tell the grand jury their side of the story before they are indicted in New York. They don’t usually take it, for obvious reasons.
I can think of one case, and I’m sure there are others, where a high-profile elected official, Virginia Democratic Senator Chuck Robb, went in front of a Norfolk, Virginia, federal grand jury in 1993 to convince them he should not be indicted for his role in a political wiretapping scheme—and succeeded. (Robb, coincidentally, was married to the daughter of President Lyndon Johnson and had also provided a key vote to confirm Clarence Thomas to the Supreme Court. Both Robert Mueller, then the Assistant Attorney General in charge of the Criminal Division at DOJ, and Bill Barr, then the Attorney General, recused because of Republican Party ties.)
Trump might testify. He has put out a rambling statement on Truth Social that suggested how his defense might take shape—he was actually a victim of extortion. He might decide that if he testifies, he can convince the grand jury that’s the case and that he was not a presidential candidate trying to pay off a woman he’d had sex with while his wife was at home with their newborn, on the eve of an election, to protect his chances of being elected. But no competent lawyer would suggest that he do so.
Trump does have a lot of experience with successfully playing the victim, a strategy he’s used numerous times, including during the first impeachment. After saying, on Truth Social, that he’d done nothing wrong, he wrote, “Russia, Russia, Russia, Ukraine, Ukraine, Ukraine, the no-collusion Mueller hoax.” He claimed he and his supporters were “victims of this corrupt, depraved, and weaponized justice system.” Hopefully he’s getting it out of his system, because if indicted, the evidence he can offer in court will be cabined by the rules of evidence, and judges don’t take kindly to parties who try their case in the press instead of the courtroom, and it’s often limited what they can say publicly before trial is complete to avoid the risk of prejudicing jurors.
Next month, also in New York, E. Jean Carroll’s defamation case against Trump goes to trial. It would be an interesting dynamic to have a recently indicted ex-president as the defendant in that case.
Why did Bragg indict now, when he took a pass earlier? We don’t know for certain. There’s been some suggestion he was pushed by former prosecutor Mark Pomerantz, who resigned when Bragg declined to prosecute the case upon taking office and subsequently wrote a book about it.
But it’s equally possible that Bragg feels he has better evidence now that he did when he first indicted the case. For instance, when he came into office, Trump’s CFO Allen Weisselberg, though facing charges himself, declined to cooperate against Trump. Might that have changed now? And what about reports that Kellyanne Conway was seen entering the office last week? Might she, either voluntarily or under subpoena, have corroborated key parts of witness and former Trump lawyer Cohen’s story that after the payment was made, he reported it to her and she told Trump? Cohen, convicted in federal court of crimes related to the payoff to Stormy Daniels, will require powerful corroboration if a jury is going to believe him. It could be possible Bragg thinks he’s got that now but didn’t before.
What’s most likely going on here? Bragg is offering Trump the opportunity to testify because he seeks an indictment. But that doesn’t end the matter. Prosecutors can only ask the grand jury to indict; ultimately it’s up to them. And we saw with the special grand jury in Georgia that the grand jurors take this matter particularly seriously and can act independently. And we’re talking about New Yorkers here. The grand jury would still have to vote to return an indictment for any charges to be brought against Trump.
Rarely, prosecutors will let the grand jury make the call not to indict in a close case, rather than making the decision to decline prosecution. They’ll present all of the evidence and let the grand jury vote, when the circumstances might suggest the case is too weak to go forward but too controversial for anyone other than the grand jurors to make that call. That does not seem to be the case here, but of course we can’t rule it out.
What criminal charges will be brought? Since we’re in the state system, different charges are necessary than the ones Cohen faced.
The $130,000 payment to Stormy Daniels that is at the heart of this investigation was originally made by Cohen, who was later reimbursed by the Trump Organization. But it was characterized on the Organization’s books as a payment for legal services, not as a bribe to Daniels to stay quiet.
That means there is a straightforward misdemeanor charge for falsifying business records, and a complicated path through election crimes that offers the opportunity to turn it into a felony if prosecutors can prove an “intent to commit or conceal a second crime.” Plus, we don’t know what type of conspiracy or other charges Bragg may be envisioning.
Although this news was met with glee, it’s a deadly serious matter. We are getting closer to the first indictment of a former president—a dangerous moment for the Republic and our democratic institutions. It will require the grown-ups in the room to act like grown-ups, because we can count on Trump to do everything he can to abuse the process. But the reality is, in our system of justice, everyone deserves due process and a fair trial. Even Trump. People are innocent until proven guilty by a jury of their peers.
This is a good time to avoid letting any of the MAGA-right’s jingoism seep into our vocabularies, for instance the “lock her up” chant we’ve heard from Trump and his supporters in the past. Justice will be even better served if Trump is tried and convicted by a system that gives him all the constitutional protections he would deny others. It will be proof the system can work, and we will all benefit, in the long run, from patience and restraint. As Trump engages in his inevitable behavior, Republican leaders must do what they have not mustered the courage to do in the past. They must call for calm and confidence that the judicial system will provide a fair trial and a result everyone must accept. Whether they will is an entirely different question.
Some people will suggest that an indictment might lead Trump’s supporters to move towards fighting in the streets or lone-wolf terrorism. That is not an argument for giving him a pass on prosecution, but rather a solid example of why he must be held accountable. Before it is too late.
Lots of questions, not a lot of answers, including when we might see an indictment, if we are going to. But enough to get us thinking.
We’re in this together,