By Zachary Margulis-Ohnuma
I was in the elevator of my new building on Lexington Avenue when the news came down that a Manhattan grand jury returned a “true bill” against the 45th president of the United States. The exact charges remain unknown but they appear to stem from Donald Trump’s use of his business right before the 2016 election to pay porn star Stormy Daniels to keep quiet about their 2006 sexual encounter. If he characterized those payments as legal fees, as his sometime attorney Michael Cohen alleges, that’s a clear violation of New York law, albeit only a misdemeanor. If he did it to facilitate an illegal election donation, it could be a felony.
Trump lawyers Joseph Tacopina and my old boss Susan Necheles confirmed the news later in the evening (I worked for Susan’s white collar defense firm, Hafetz & Necheles, from 2002 to 2004).
Trump claims the charges are false and politically motivated; given Manhattan District Attorney Bragg’s unblemished record and cautious restraint in charging Trump, that self-serving claim by Trump is intellectually unsupportable. It’s not a legal defense, but a call to racism and a subtle, anti-metropolitan form of anti-semitism (Susan is well-known for her defense of members of the Orthodox Jewish community who face criminal charges).
So the defeated ex-president is indicted for the first time in U.S. history.
What happens next?
When most people are indicted after a grand jury investigation, they don’t hear about it until the police come to take them away in handcuffs. If they are out-of-state and the case is big enough, the New York police coordinate with local authorities, say in Florida, to effect an arrest and present the person to a judge for “extradition” from the other state. Being held out-of-state to challenge extradition is an unpleasant experience and most people waive extradition proceedings or are released on bail so they can make their own way to the jurisdiction where the indictment was returned.
But occasionally prosecutors will invite the person who has been indicted to “self-surrender.”
Especially when the person is so famous that flight would be impossible, or when the person is surrounded at all times by armed federal agents.
In this case, Tacopina re-assured the Daily News more than two weeks ago that Trump would not resist being arrested: “There won’t be a standoff at Mar-a-Lago with the Secret Service and the Manhattan DA’s office.”
When he does surrender, Trump will be “processed” by the police like anyone else arrested in New York. Police will take fingerprints, send them to Albany, and confirm the person’s identity and whether or not they has a criminal record. New York’s infamous “perp walks” happen (I’d prefer to call them “public show-offy power displays by insecure police of people accused of crimes who enjoy the presumption of innocence”) either when the police take the person from the place of the arrest to the police station or, later, from the stationhouse to central booking—the frightening holding cells in the old Manhattan criminal courthouse—after the prints come back. From the time of the arrest, the person arrested has a right to see a judge within 24 hours. Normally, the judge would be chosen from among the criminal court judges sitting in the arraignment part at 100 Centre Street when the case is ready to be called. In this case, the arraignment has already been assigned to Supreme Court Justice Juan Merchan, who presided over the trial of Trump’s company last fall.
Trump will likely be released, either on his own recognizance or on a “least restrictive” bail package depending on the exact charges filed. Whether or not he will be taken on the perp walk he has been obsessing about remains to be seen.
Then the case gets started.
Under the new discovery rules, the district attorney has to deliver pretty much their full file to the defense within 35 days. Dates may be set for motions to be filed. (Trump will surely file one of his nonsense motions about being above the law because he is a former president — what, you never heard of the president’s special constitutional privilege to hide payments to porn stars?). The file will be reviewed, analyzed, and, no doubt, selectively leaked to the press. The contours of the case will become clear. In all likelihood, a trial date will be set in a few months. Trump and his legal team seem to have closed off most of their options by trashing the prosecution before it even happened. A trial seems inevitable. If the case is only a misdemeanor (which I doubt), there will be six jurors deliberating at the trial, unlike the usual twelve jurors who sit in a felony trial.
By the time the case gets to a jury, one or more of the far more serious cases against Trump might lead to an additional arrest and overlapping jurisdiction. He faces likely charges for trying to tamper with the 2020 presidential election results in Georgia, for having his lawyers lie about his retention of classified documents he stole from the federal government when he left office, and—most importantly—for organizing the deadly assault on the U.S. Capitol on January 6, 2021.
Any of these cases could come down while his Susan and Joe are preparing for trial against the Manhattan District Attorney’s Office. With Trump joining roughly six million Americans “in the system,” the door has been opened to more charges and, one hopes, a fulsome accounting of Trump’s rampant criminality.