Importance of Trump grand jury probe cannot be overstated

The world learned this week that Manhattan District Attorney Cyrus Vance, Jr., has convened a “special” grand jury to investigate the Trump Organization, its employees, and maybe even Donald J. Trump himself. The staggering reality is that we are now one step closer to the possibility of a criminal indictment against a former president of the United States. 

A scant four years ago, the very idea seemed inconceivable, if not abhorrent. In Federalist No. 64, Alexander Hamilton opined “that the President . . . so chosen will always be [someone] whose reputation for integrity inspires and merits confidence.” Although two presidents — Andrew Johnson in 1868 and Bill Clinton in 1998 — were impeached before him, Trump was the first to be impeached twice. Critics on both sides of the political spectrum have denounced that process as hopelessly politicized. But the judicial system is different. Courts are bound by rules of evidence, legal standards, procedural rules and appellate review. If Vance’s grand jury proceeds with indictments, howls of another “witch hunt” won’t insulate Trump from legal accountability.

Vance has already been operating with a grand jury in this matter for many months. His Trump investigation began in 2019, and reached a critical milestone in October 2019, when the U.S. Supreme Court greenlighted his legal authority to subpoena Trump’s personal accounting firm for financial records relating to him and his businesses. With regard to private papers, Chief Justice Roberts wrote for a 5-4 majority that a sitting president stands in “nearly the same situation with any other individual” when it comes to responding to a grand jury subpoena. A spokesperson for Vance’s team confirmed in February of this year that the Manhattan D.A. is now in possession of eight years of Trump’s illusory tax returns. 

Vance initiated the probe to investigate possible insurance, financial and tax fraud by Trump and/or his businesses, as well as hush-money payments made by his former lawyer, Michael Cohen, to two women in 2016 in exchange for keeping quiet about their alleged sexual relationships with Trump. Cohen went to prison for his role in the scandal.

It was also recently made public that the decades-long CFO of the Trump Organization, Allen Weisselberg, is under criminal investigation by Vance in connection with his own taxes. Weisselberg participated in the $130,000 hush-money payment scheme involving Stormy Daniels. Because fraud crimes require proof of a state of mind — i.e., the representation of a material fact known by the maker to be false — prosecutors will likely need corroborating testimony by the likes of Cohen or Weisselberg to establish Trump’s knowledge of any fraudulent transactions or filings that could form the basis of an indictment. Without witness testimony, the trove of documents amassed by Vance and his state counterpart, Attorney General Letitia James, who has been pursuing a parallel civil probe and recently announced that prosecutors in her office have joined Vance’s criminal investigation — could be insufficient to establish a fraud case beyond a reasonable doubt. Notably, Cohen said of Trump in his testimony before the House Oversight Committee, “He knew about everything. Everything had to go through Mr. Trump and had to be approved by Mr. Trump.”

Which is why Vance’s decision to empanel a special grand jury is so significant. Unlike regular, or “petit” juries, which hear evidence at trial and decide whether not to convict, grand juries operate in secret to hear evidence and decide whether to charge a person or corporation with a crime in the first place. Grand juries date back to the reign of Henry III in medieval England (1216-1272) as a means of pushing back against arbitrary oppression by the Crown. The idea of airing evidence before a group of citizens made its way into the U.S. Constitution. Under the Fifth Amendment, individuals cannot be charged with “a capital, or otherwise infamous crime” (which courts have construed to mean one that triggers a sentence of a year in prison or more) except by grand jury, although individuals can waive that right. Absent a grand jury indictment, prosecutors often file charges on their own through what’s known as an “information,” a practice that is commonly used against corporations because they cannot go to jail. 

At the state and local levels, criminal charges can likewise be brought by either grand jury indictment or by information. According to the Manhattan D.A.’s website, “the Grand Jury must determine that the evidence is legally sufficient and that it provides reasonable cause to believe that the defendant has committed the crime” before it can issue an indictment. Vance’s new grand jury is composed of 23 citizens, 16 of which must be present for it to hear evidence; twelve must vote to indict. In Manhattan, special grand juries are convened to hear evidence on particular, long-term matters and work for longer terms than routine grand juries. Vance’s special grand jury is set to meet three days a week for six months, and can vote to extend. According to Vance’s former chief assistant, Daniel Alonso, in an interview with the Wall Street Journal, “Special grand juries are common when state prosecutors get to the point where they are ready to seek an indictment but the evidence is too complex or lengthy to present during the normal four-week term.” Vance’s prosecutors have already reportedly notified at least one witness to prepare for grand jury testimony. 

The importance of what Vance and James are doing cannot be overstated. The U.S. presidency is decidedly not a monarchy, yet as the aftermath of the Jan. 6 insurrection at the Capitol demonstrates, one of the two major political parties is willing to shed accountability and maybe even democracy by the people in deference to former President Trump. Congress abdicated its oversight prerogative when it comes to Trump, setting a terrible precedent for future presidents who might be similarly inclined to smash norms, including legal ones, with impunity. It’s now up to the states — New York and Georgia, which is also investigating Trump for his infamous call to Secretary of State Brad Raffensperger seeking to “find” votes — as well as the city of New York to carry the constitutional water for the rest of us.

Kimberly Wehle is a professor at University of Baltimore School of Law and author of the books “How to Read the Constitution — and Why,” and “What You Need to Know About Voting — and Why.” Follow her on Twitter and Instagram @kimwehle.