Awaiting the (Potential) Indictment of Trump

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Brian Lehrer: Brian Lehrer on WNYC. Well, all eyes are on Lower Manhattan where a grand jury is concluding a criminal investigation of former President Donald Trump, as if you didn't know. The Manhattan District Attorney Alvin Bragg is expected to announce an indictment or a decision not to indict Trump over hush money connected to an alleged affair with Stormy Daniels, that hush money that he allegedly paid before the election in 2016. That could come as soon as today, though we don't know.

Joining us now to share the latest legal analysis of the case and what might happen next, especially if there is an indictment is Andrew Weissmann, professor of criminal and national security law at the NYU School of Law, former general counsel for the FBI under Robert Mueller, and lead prosecutor in Mueller's special counsel's office during the Russia investigation. He's also author of the book Where Law Ends: Inside the Mueller Investigation and has an op-ed about this case in the New York Times today. Andrew, always good to have you. Welcome back to WNYC.

Andrew: It's always great to be here, Brian.

Brian: Should we say off the bat that we actually don't know if Alvin Bragg at the end of this process is going to indict or decide not to indict?

Andrew: I think what we should say is that it is possible that Alvin Bragg will make a decision not to go forward and it is possible that the grand jury will find that there's insufficient evidence to bring a charge based on the legal standard of probable cause. Those are both possibilities. I think they're highly remote possibilities at this juncture.

Brian: So you think there's going to be an indictment. Assuming they are really done hearing witnesses, is it DA Bragg himself who then addresses the grand jury and makes a case for a vote to indict?

Andrew: It certainly would be something that the DA could do. It would be probably fairly unusual for the DA to do that. He's got a very, very large staff of career people who have been handling this like all other cases. I would suspect he would want to follow normal procedures, but it would be possible for him to do it. One way or the other, I think there will be senior prosecutors assigned to this matter who'll be presenting the proposed charges to the grand jury.

Then the grand jury will have to decide whether based on the evidence, including what they heard yesterday from a Trump-assigned witness, Mr. Costello, whether they believe there was probable cause to bring these charges. Of course, a very different standard than a trial jury would have to find which is beyond a reasonable doubt.

Brian: It's also only a majority of 23 people, so 12 out of 23. I've sat on a New York Manhattan grand jury, it doesn't have to be unanimous like in a jury trial, right?

Andrew: That's right. It is majority. It's 12 out of 23 and it's the standard of probable cause. That is why many people like to say a grand jury would indict a ham sandwich, but it's really not. That truism is really not fair because the standard is just relatively low. As you said, it only requires a majority vote.

The prosecutors and police officers who present evidence are aware of that standard and make sure that what they're presenting will meet that standard, of course. People should be aware, very different than what a trial jury has to find, which is unanimity whether it's to convict or to acquit in the case.

Brian: What is it about the hush money payment that could rise to the level of a felony?

Andrew: There's an unusual aspect of New York law, which is that filing false business records is a misdemeanor if it's just the simple crime of filing a false business record with intent to defraud somebody. If you do that crime in aid of or to cover up another crime, then it is a felony. You need that linkage. You only need though to show that it was intended to help another crime.

A recent example would be prison guards who beat up an inmate, falsified prison records to hide the assault. They filed false business records in aid of covering up the assault on a prison inmate. They could be charged with both the misdemeanor of filing false business records, the felony of filing the false business records, and of course if the government could prove it, also the assault.

Brian: I was interested to see your op-ed in The Times today, which took on the question, which is one of the ones I was thinking about, and which I think a lot of people are probably wondering, we have these huge things out there that Donald Trump is being investigated for. Inciting an insurrection with respect to January 6th, interfering with the administration of election in Georgia. That grand jury is still investigating.

Hiding classified documents from the National Security Archive, and here of all things, he might be indicted for relatively modest payment to an adult porn star to give them a little bit of an advantage in the 2016 election. Is this really the battle that they want to go to legal war over?

Andrew: I think there are a number of things to say about that. The first is there's no question that the crime that we anticipate Donald Trump will be charged with is not the most serious of the various crimes that we know about that he's being investigated for, for the reasons you just articulated. That doesn't mean that it's inappropriate to bring these charges. First, it's not an either-or, it is the case that we may find ourselves in a short period of time with some if not all of those things being charged. It's just the fortuity of this one being first that is grabbing our attention right now.

It may become something that's a bit of a footnote that this happened to have been brought first. The second is I think a really serious question, which is, you should bring charges that would be brought no matter who the person is, regardless of politics or what you think about them personally. Meaning that you're looking to see that there isn't selective prosecution, are these crimes that would normally be charged? Now when we're dealing with the insurrection or the stealing of classified information and obstructing that investigation, that's a relatively easy thing for people to understand that anybody would be charged.

In fact, many people have been charged. The idea that Donald Trump would be charged with that doesn't strike anyone as selective prosecution or shouldn't if you look at the facts. One of the reasons we wrote the op-ed today in The New York Times was to deal with that issue to point out that Alvin Bragg, the Manhattan District Attorney's Office, and other DA's offices in New York have brought these types of charges in cases that are comparable in various ways. They're not on all fours, but there you can see that these are not unusual charges.

What you say if you're a prosecutor is the rule of law applies to everyone. The fact that Donald Trump used to be president, in other words, it's his former job doesn't mean that he should be treated any better or worse than other people who have faced these similar charges. It's trying to address this serious issue of selective prosecution that we're holding everyone to account but by the same standard.

Brian: Well, to that point as a former prosecutor, do you want to react to the Republican political line that's been spoken a lot the last few days that Alvin Bragg isn't prosecuting crime in New York as much as people want, like street crime, but it's considering this, which indicates its political?

Andrew: I was struck by an ad I heard where I would say that attacking Alvin Bragg for being soft on crime is not a terribly compelling argument when it's made on behalf of somebody who's under criminal investigation. Again, I know that's not exactly your point, Brian, but it's this again, is something where people can walk and chew gum. It is not simply a case of, "Gee, he shouldn't spend time on this because there are other things to do." He can do both, it's a very large office. It's important that people formerly in positions of power be held to account.

I spent much of my career prosecuting very senior executives and corporations when there was wrongdoing. It's important for people to see that those people can face justice and there aren't two systems of justice here. I do think that is very much going to be a demarcation between the people, who, on the one hand, are saying that Trump is being singled out, and other people, which, I'm in that camp, who think, "No, by prosecuting him, you are actually holding him to the same standard as other people, and it's not political."

Brian: I think it's also important to remember that the campaign finance system and transparency in the campaign finance system is important in our electoral democracy. That's the alleged potential crime here, hiding the fact that there was campaign spending, which in this case, would be the hush money. What if he's indicted? If we presume he's at home at Mar-a-Lago, does the NYPD have to go down there and arrest him? Does Florida have to extradite him? How does that work?

Andrew: Unlike the federal system where he could be arrested if he didn't voluntarily self-surrender because we're dealing with a state charge, New York absent to the voluntary surrender of Donald Trump or anyone who's in a different location, would have to extradite that person from one state to another. We have heard some reports that Donald Trump would surrender to the charges. I think that is highly likely.

The prospect of him hiding from the charges doesn't strike me as something that he would want to do or to signal that he's somehow afraid of these charges. I do think that the DA's office would say to him, "Will you just self-surrender?" They would work out a bail package so that he is not going to be detained, and he would be released then.

Brian: Would there be no perp walk with handcuffs?

Andrew: I can't say that there wouldn't be, but I would be surprised to see that. There is very little reason in a case where there is no risk of flight or danger to the community to see that kind of thing. It has been done in the past. I have to say, I'm not a proponent of it because the person who has been arrested and charged is presumed innocent, and there's no reason to parade somebody needlessly in front of the press in handcuffs.

Brian: We have to leave it there because we're out of time. Andrew Weismann now with the NYU Law School, author of Where Law Ends: Inside the Mueller Investigation, we really appreciate you coming on. I know you're busy today on this.

Andrew: No problem. My pleasure.

 

 

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