Is the district attorney having misgivings? We don’t know . . . yet.
Turns out the state grand jury in Manhattan, which is investigating former president Trump’s Stormy Daniels escapade, will not convene this afternoon. The grand jurors, whose proceedings occur in afternoons, usually between 2 and 5 p.m., on Mondays, Wednesdays, and Thursdays, had been on “standby,” waiting for prosecutors to tell them whether they’d be needed today. It is unclear whether, in keeping them on standby, Bragg’s office contemplated presenting testimony from one or more additional witnesses, or asking the grand jurors to vote on an indictment.
By law, grand-jury proceedings are secret, so unless there are leaks, the public cannot know what is actually happening. In my many years in law enforcement, I found that many leakers are uninformed or ill-informed. What’s reported, then, has to be taken with a grain of salt.
There are 23 members on a grand jury. A quorum of 16 must be present for any session to proceed. Unlike a trial jury, unanimity is not required for a finding against the subject of the investigation. A majority of the 23 (i.e., twelve yea votes) is needed to return an indictment. Despite the current screeching of Trump and his sympathizers that Bragg is hiding exculpatory documents, there is no requirement to present evidence favorable to a defendant. That’s because the grand jury’s purpose is merely to determine whether the prosecution has enough evidence to warrant having the case proceed to trial. (The standard, probable cause, is not a high burden.) It is at trial that an accused enjoys the full array of due-process rights to challenge the allegations, including discovery of exculpatory evidence, the right to present a defense, and the right to be found not guilty unless the prosecutor proves the charges beyond a reasonable doubt (a very high burden).
With that as background, the Trump camp is making hopeful noises. Whether they are based on reliable information or wishful thinking is unclear.
Fox News is reporting that there is alarm about the case among at least some prosecutors in the office of Alvin Bragg, the elected progressive Democratic DA (for whom prior litigious aggressiveness against Trump was a major campaign selling point in blue, blue Manhattan). Concerned prosecutors may include Bragg himself, as well as at least one prosecutor who frets that the “weakness” of the case may make grand-jury members hesitant to vote in favor of the indictment.
The Fox News report is based on two unidentified sources; from the context, it is fair to infer that one of them may be inside the DA’s office and very knowledgeable about the case, but that is not stated outright. The report, though unconfirmed (the DA’s office refused to comment publicly), shouldn’t be dismissed lightly. Objectively speaking, the case is very weak, with its contemplation of a falsifying-business-records charge, generally a misdemeanor that is virtually never prosecuted in New York.
Based on experience, moreover, we can deduce that Bragg has misgivings because he has already moth-balled the investigation at least once, over a year ago. He resuscitated it under pressure from anti-Trump progressives and a pair of disgruntled prosecutors who quit over his refusal to move forward. One of those prosecutors, Mark Pomerantz, recently published a book, People vs. Donald Trump: An Inside Account, which takes Bragg to task for failing to green-light an indictment of Trump. But on that score, his focus is not the Stormy Daniels caper per se. Pomerantz instead compares Trump to Mafia boss John Gotti and opines that the former president “is guilty of numerous felony violations of the penal law.” The author’s target is Trump’s financial empire, which he suggests the Justice Department would have been better equipped to investigate than the Manhattan DA. That is redolent of the massive fraud allegations leveled in the civil complaint filed by New York AG Letitia James, not the fiasco of the Trump company’s accounting for a hush-money deal with a porn star. It should be observed, in any event, that federal prosecutors in the notoriously aggressive Southern District of New York (where Pomerantz, who is a superb lawyer, once ran the Criminal Division in which I served) had an investigation of Trump but decided the evidence was too weak to merit an indictment; and Tish James’s case is civil, rather than criminal, because Bragg’s office — pace Pomerantz — decided it could not be proved beyond a reasonable doubt (and James has yet to establish that she can prove it under the less burdensome civil standard).
It is also worth noting that the last witness from whom the grand jury reportedly heard, Bob Costello (who appeared on Monday), has publicly stated that he gave nearly three hours of scathing testimony about Bragg’s key witness, Michael Cohen. Costello further indicates that he provided the DA’s office with hundreds of emails and other documents painting Cohen as an incorrigible liar — and encouraged the grand jury to demand to scrutinize all of these documents rather than content itself with the half dozen or so that, he says, Bragg’s prosecutors cherry-picked to ask him about. (As noted above, prosecutors are not obligated to present exculpatory evidence to a grand jury; the grand jurors, however, are at liberty to ask prosecutors to show them evidence — and, if the prosecutors demur, to hold it against the state if they are asked to vote on an indictment.)
It cannot have been a surprise to the grand jury that Cohen is a scoundrel. They’d undoubtedly been told in the course of Cohen’s testimony (which lasted two days last week) about his fraud and perjury convictions. His credibility problems, though substantial, are not necessarily fatal in a case that, essentially, is about financial records and has a paper trail. Furthermore, to the extent the grand jurors conclude that he was a disreputable lawyer and businessman, they may also infer that this is precisely why Trump worked intimately with him for years — i.e., there is a limit to how much of the gory details of Cohen’s brass-knuckles mendacity hurt the state.
Nevertheless, we are talking about a trifling case here. In cases involving serious crimes, juries cut prosecutors a lot of slack regarding the deplorable character of their witnesses. It is common sense that upright people do not collaborate with mobsters, drug cartels, gang-bangers, terrorists, and other hardened crooks. If the prosecutor could not elicit testimony from the dodgy accomplices of criminals, then the most heinous offenders would be insulated from accountability. As long as prosecutors are forthright with the jury about the shortcomings of the state’s witnesses, and as long as the most critical testimony is corroborated, juries will not reject a weighty case on account of the witnesses’ sociopathic histories.
But that doesn’t necessarily hold true in a trifling case.
It is often rightly said that, if there is going to be a first-ever prosecution of a former president (and current presidential candidate), it ought to be over a very serious crime for which there is convincing evidence. I would add, along similar lines, that if a prosecutor is going to ask jurors to rely on an opportunistic fraudster like Michael Cohen, it should only be because a serious crime has been committed and, to prove it, the prosecutor has no choice but to elicit testimony from Cohen — which better be strongly corroborated. If a case is trifling, or if it is blatantly political, jurors will be more sympathetic to defense arguments that they should not convict based on testimony from a lowlife, and that prosecutors have sullied themselves by bringing such a case.
What I’ve just told you, in the abstract, are the considerations that go into a prosecutorial decision to charge. Now, let’s get to the down and dirty: It is one thing for a prosecutor to imagine how a competent defense lawyer could shred a case that relies heavily on a disreputable witness; it is quite another thing to watch it happen. In Monday’s testimony by Costello, who happens to be a very experienced New York defense lawyer and former prosecutor, Bragg’s prosecutors got a real-life glimpse into what is going to happen if their Stormy case against Trump goes to trial (i.e., if they charge this weak case, and it doesn’t get dismissed on legal grounds prior to trial). If Costello’s testimony has given Bragg’s office pause, that would be understandable.
At a minimum, if I were the prosecutor, I would not want Costello to be the last testimony the grand jury heard before being asked to vote on an indictment. Presumably, unless Bragg is leaning toward dropping the case all together, he will use future grand-jury sessions — maybe next week, maybe later — to present one or more witnesses who can rebut Costello and rehabilitate Cohen, at least to the extent that the grand jurors can be reminded that his most significant testimony is buttressed by the irrefutable documents in the case (the nondisclosure agreement, the invoices Cohen gave the Trump organization, the checks paid to Cohen across 2017, the Trump bookkeeping entries, and so on).
We don’t know what Bragg’s theory of the statute of limitations is. I don’t believe he can prove felony falsification of business records on the facts as they’ve been publicly reported, but he would need to prove a felony to get the five-year statute of limitations (the misdemeanor statute of limitations is two years and has probably already lapsed). Even if, for argument’s sake, Bragg has the advantage of a five-year span to file charges, he is probably brushing up against it at this point. The payments to Cohen were six years ago, but Bragg will presumably argue that they generated other business records for tax purposes in 2018, so maybe that gets him to a spring 2023 deadline, or a few months later depending on the vicissitudes of accounting.
I mention all of that because Bragg may be at the end of his statute of limitations rope, even by his forgiving standards. If that is the case, he has to fish or cut bait within the next few weeks — maybe even within the next few days.
The DA knows he is playing with fire, though. Again, the cases is so dubious he has already walked away from it once. Perhaps Costello’s appearance reminded Bragg of why he suspended the Stormy investigation a year ago. If he’s having misgivings again, that’s a good thing.
But is he having misgivings? Right now, we just don’t know. All we know is that an indictment looks less likely now than it looked when this week started.