According to media reports this week, the Manhattan District Attorney’s Office “has convened the grand jury that is expected to decide whether to indict former president Donald Trump, other executives at his company or the business itself, should prosecutors present the panel with criminal charges.”
If the Manhattan DA presents criminal charges to the grand jury about Mr. Trump, there is a very high likelihood that he will be indicted.
Neither federal nor state prosecutors release statistics showing what percentage of cases presented to a grand jury result in indictments, but I’d guess it’s very close to 100%. A grand jury need only conclude that there is “probable cause” that the target committed a crime to vote to indict. And since the target is not allowed to present his own evidence and witnesses to the grand jury, it’s a completely one-sided presentation of evidence by the prosecutors.
As an aside, I could write a blog post—or ten—about how shocking Mr. Trump will find his lack of power or influence if he is indicted. I’ve found that the more successful my clients are before indictment, the more difficult a time they have in the process. There’s no doubt that wealthy (and white) white-collar criminal defendants are treated better by the criminal justice system. Even so, it’s not an easy transition from “citizen” to “defendant.”
New York Grand Juries – Who May Serve and How Are They Selected?
According to the New York State Unified Court System Grand Juror’s Handbook, grand jurors must meet a few qualifications:
1) a United States citizen,
2) at least 18 years old, and
3) a resident of the county to which you are summoned to serve
The Manhattan DA has jurisdiction over cases in, well, Manhattan. Manhattan is in New York County, and therefore the grand jurors must be residents of New York County.
The Handbook also explains how grand juries are chosen:
The actual selection process is conducted by the Commissioner of Jurors or by the judge, who are the only people authorized to excuse summoned grand jurors. After assuring that all summoned grand jurors are qualified to serve, the Commissioner or judge explains the grand jurors’ duties, and 23 jurors are randomly selected from among those who are qualified.
Grand juries in New York have 23 members. To indict someone, you need 16 jurors to hear the evidence and then 12 jurors to vote for indictment.
New York state practice is a little different from federal practice in that a witness’ lawyer can be in the grand jury room when the witness is testifying. So, if a target chooses to testify (which never happens), the defense lawyer may be in the room. The defense lawyer cannot ask questions of the witness or make any argument to the grand jury.
The Grand Jury Pool’s Political Leanings
When I heard this news about Mr. Trump, I wondered who would be in the eligible pool for grand jurors. Given the obvious political overtones of this case, would those jurors represent a cross-section of political views?
We’d all like to pretend that politics don’t play a role in these things, but they do. A grand jury in the Eastern District of Virginia is more likely to have several members who are former military (who lean conservative) than a grand jury in the District of Columbia. Mr. Trump is a polarizing figure on both sides of the aisle.
According to Politico, Mr. Trump won 12.3% of the votes in the 2020 election in New York County. He may have considered himself a New Yorker, but he did not win over his neighbors.
If the statistics bear out, then, we can expect about 87% of the 23 grand jurors to have voted for President Biden. That would be about 20 jurors. Twelve votes are needed to indict.
Of course, we hope that the grand jurors will be fair and will listen to the evidence. They shouldn’t decide whether to indict someone based on their political views. If Mr. Trump is going to be indicted, it should be because of what he did and not his politics. That’s a dangerous bridge to cross.
Grand Jury Secrecy – But Expect Leaks
Grand jury proceedings are secret. The DA’s office won’t talk about what happens there. The witnesses who testify can talk about it—so we may see some leaks in the coming weeks about what is happening inside the grand jury room. The prosecutors will no doubt ask the witnesses to keep confidential what they are asked during the grand jury proceedings. If the witnesses are cooperating with the government, then they will likely stay quiet.
That said, there will be a lot of people who know about the grand jury, from witnesses to the witnesses’ lawyers, to friends of the witnesses, and so forth. Word is going to get out.
Once prosecutors decide to go to the grand jury, it’s a good bet that the target will be indicted. Mr. Trump’s former role as President doesn’t change this prospect.