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By Elie Honig

Dear Reader,

When I was a brand-new, first-year prosecutor in the Southern District of New York, I had one colleague who just couldn’t hack it. He was the only one in my first year unit who wasn’t up to snuff, and it was exceedingly rare in the mega-proficient SDNY for anybody to lack competence (or confidence, though this particular prosecutor was bizarrely brash, despite his deficiencies). The job just wasn’t right for him, and he just wasn’t right for the job.

One low point came when this fellow prosecutor went into a grand jury on a routine gun case and somehow walked out with a “no bill” — that is, a vote by the grand jury not to indict. Candidly, we generally viewed the grand jury as all but a formality, a rubber stamp, and it became SDNY comedic fodder that this prosecutor could present his case to the grand jury and get voted down. Indeed, it is so easy for a prosecutor to convince a grand jury to indict that this isolated failure still sticks in my mind for its abberrance, over fifteen years later.  

The inner workings of the grand jury are particularly relevant now, of course, because the Manhattan District Attorney has convened a special grand jury in its investigation of former President Donald Trump and the Trump Organization. The big question: how likely is it that Trump himself will get indicted? On paper, it might appear quite likely. But in reality, it will be a difficult uphill climb for prosecutors.

The rules governing the grand jury make it exceedingly easy for prosecutors to indict. In New York state and many other jurisdictions, a grand jury is comprised of up to 23 members, randomly drawn from the population. It only takes 12 of those grand jurors — a bare majority — to indict. (Of course a trial jury, by contrast, must be unanimous to convict.)

The presentation of evidence to a grand jury is one-sided. There is no judge, and defense attorneys generally cannot be present; it’s just the prosecutor, the grand jurors, the witness (sometimes), and a court reporter. No cross-examination by the defense, no evidentiary rulings from the judge. And just to make it even easier for the prosecutor, the burden of proof is mere “probable cause” — meaning, essentially, it’s more likely than not that a crime was committed. There is a yawning gap between “probable cause” and the stringent “beyond a reasonable doubt” standard that a prosecutor must meet to secure a conviction at trial.

Speaking of yawning: grand jurors aren’t always super-attentive. It was common to see grand jurors flipping casually through the New York Post during the technical portions of our presentations. They’d sometimes vote to indict within minutes, seemingly with minimal if any meaningful deliberation.  

Given all that, you’re probably delighted if you yearn to see Trump indicted, or terrified if you hope he escapes uncharged. But, first, know this: no decent, responsible prosecutor actually seeks an indictment based merely on probable cause. If the prosecutor’s proof only just clears that low legal bar — if the proof establishes only that it’s, say, 51% likely the defendant is guilty — then an indictment sets the table for failure at trial, where the defendant will have zealous legal representation and the prosecutor’s burden of proof is far higher. 

Typically, before any indictment, a solid prosecutor will reach a point of confidence that she can prove the case beyond a reasonable doubt, or at least that the proof is within shouting distance of that standard.  And, while we don’t like to think the bar is any higher for one defendant than the next, the reality is that New York prosecutors have to bring extra scrutiny to any decision to seek an indictment of Trump. If they do charge him, these things are certain: (1) it will be a first the first time in U.S. history that any former president has been indicted, (2) the media and the general public will scrutinize every nuance of the case, and (3) Trump and his legal team will fight like a cornered badgers to escape conviction (as any person has the Constitutional right to do). If the Manhattan DA picks this fight based only on probable cause, without more, it’ll get ugly for the prosecution.

The nature and quality of the proof matters as well. It’s not enough for prosecutors to establish that some fraud happened within the Trump Organization. To charge Trump (or any individual), prosecutors must prove that he had the requisite criminal intent — meaning he knew about the fraud and authorized it or somehow participated in it. And it’s not enough to say, essentially, “Oh come on, of course he knew, he was the boss, he had to know.” That assumption may be logical, and it may even be true — but it’s meaningless without evidence.  

Thus far, based on what we know publicly, the Manhattan DA does not have smoking gun proof of Trump’s criminal knowledge or intent. (Though it bears noting: we likely have only a small glimpse of the totality of the evidence amassed by the DA thus far.) Michael Cohen has testified in Congress, and stated elsewhere, that the Trump Organization engaged in various frauds (including the intentional inflation or deflation of the value of its assets) and that of course Trump knew what was happening. But Cohen was not enough of an insider to point to any specific fraudulent transaction that Trump directly authorized (other than perhaps the hush money payment to Stormy Daniels, though that appears to be a peripheral focus, at most, of the current investigation). And even if Cohen did have such knowledge, his credibility is imperfect given his own history of crimes, and his often-articulated personal beef with Trump. We also know Trump does not email or text, so there’s little chance of a smoking gun-type document. And we don’t know of any wiretaps or other recordings of Trump that would go to the heart of the matters under investigation.

The best chance to score a clean shot at Trump is Allen Weisselberg, longtime Trump Organization Chief Financial Officer. Prosecutors reportedly are trying to build a tax case on Weisselberg to pressure him to flip, which is the smart play; he’s exactly who I would focus on, given his insider access to the Organization. It’s tough to say whether Weisselberg will flip. On one hand, he has long roots with the Trumps, and he hasn’t caved yet. On the other hand, I’ve seen plenty of hardened criminals crumble when the cuffs come out (and in this case — that’s “if” the cuffs come out).  

We almost certainly will get an answer on all this before the end of 2021. The Manhattan grand jury will sit for six months, though it could end early or be extended as needed. More importantly, longtime DA Cy Vance is not running for re-election, and his term expires at the end of the year. (Disclosure: I have publicly endorsed my former SDNY colleague, Alvin Bragg, for the DA position.) Vance is all but certain to make the call — charge or no charge — and to announce it before he leaves office. It would put his successor in an extraordinarily difficult position for Vance to punt on the decision, and it will be difficult for critics to credibly accuse Vance of playing politics, given that he is about to leave politics altogether.  

Truth be told, the grand jury isn’t much of a check on prosecutorial power. If anything, the grand jury tends to enhance the prosecutor’s position by providing subpoena power, followed mostly by a rubber stamp for any proposed indictment within the realm of reason. The failure to indict is so rare that it can be a source of prosecutorial ridicule, like we heaped on my unfortunate first-year SDNY colleague. An indictment is usually there for the taking, if prosecutors want it. But when it comes to Trump, the road to indictment runs uphill.

Stay Informed, 

Elie
Elie Honig is the author of the forthcoming book, “Hatchet Man: How Bill Barr Broke the Prosecutor’s Code and Corrupted the Justice Department,” now available for pre-order.