Is It Really Indictment Week? Great! But, So Now What?

Photo: Tom Brenner for The New York Times

Like “infrastructure week” under Trump, “indictment week” under Biden’s Justice Department and district attorneys in New York and Georgia has been a long time coming. But now, with multiple signs that the grand jury in Manhattan is really about to pull the cord, we might soon see history made with a first-time-ever indictment of a former U.S. president.

But what should we expect to happen if and when that moment comes, as early as tomorrow but possibly later this week or next? Let’s walk through the various scenarios so that we can all at least be a bit better mentally prepared for it.

It’s Tuesday, right?

The precise timing of Trump’s arrest isn’t actually as clear as many initially believed. The only reason Tuesday looms large is because the ex-president happened to have said so. But frankly, his word is not worth anything on which it’s posted. Trump allies seemed surprised that he would have special knowledge of a Tuesday arrest based on claims of “illegal leaks,” and his allegations haven’t been substantiated. And objectively speaking, a Tuesday action is certainly not a given based on a number of factors.

First, there is likely still one witness left to hear from, Robert Costello, who was put forward by the defense to cast doubt about the credibility of one of the prosecution’s chief witnesses, Michael Cohen (more on that below). If the grand jury decides it wants to hear from Costello, and that takes place on Monday, a Tuesday indictment seems like a stretch. Bragg might want, for example, to recall Cohen to the grand jury to rebut what Costello has said. 

Second, if local and federal law enforcement and the Manhattan DA’s office are concerned about protests that might turn violent, it doesn’t make much sense to follow the ex-president’s announced timeline. He had exhorted his followers to come “protest” and “take our nation back” in a post on Saturday on his Truth Social site. And while so far that has received a rather muted response from his supporters (more on that below as well), it seems imprudent to allow Trump to manipulate the timeline to his advantage.

Third, and in reference to manipulation by Trump, if Costello is testifying Monday but everyone is “expecting” a Tuesday arrest that then doesn’t happen, Trump could in theory start to claim that the prosecution is falling apart and that the grand jury is somehow deadlocked. That narrative would serve his narrative well, even if it’s meritless, so I wouldn’t put it past him. We need to be ready to rebut that claim in the court of public opinion.

So put Tuesday out of your minds, and help others understand that a Tuesday arrest is just a thing Trump put out, likely for his own reasons. The arrest could happen then, sure, but it also could be days or even a week away, and silence from the grand jury should not be misconstrued as weakness in Bragg’s case following key testimony from Costello.

Okay, so who is Robert Costello?

Costello was an erstwhile legal adviser to Michael Cohen back when Cohen was facing federal charges for covering up the very thing that has Trump in legal trouble now—that payment to adult-film star Stormy Daniels and its subsequent cover-up. Trump’s legal team believes Costello somehow can muddy the waters around Cohen’s testimony concerning the payment of the hush money and its mischaracterization as legal fees paid to Cohen.

Generally speaking, in New York, any person who expects to be indicted can request a witness appear on his or her behalf. Trump declined an invitation from Bragg to himself appear, but his lawyers have asked that Costello testify. 

So why would they do that? Cohen is a known liar, felon, tax evader and fraudster. Whether that makes him a good or bad witness, however, given how close he was to Trump, remains to be seen. But Costello has something else pretty valuable to Trump’s defense: private conversations between himself and Cohen around the Stormy Daniels cover-up. What precisely they discussed isn’t clear, but Costello claims that Cohen has waived any privilege and therefore he’s free to discuss their conversations. 

Notably, Costello is himself a rather shady fellow, which should come as no surprise given who he works for. Costello even got a mention in the Mueller report. He had spoken with Cohen after the FBI had raided Cohen’s office and a hotel room and seized files, including Stormy Daniels-related evidence, back in April of 2018. Costello told Cohen that he had a “backchannel” to Giuliani, and he implied that if Cohen stayed loyal there would be a pardon waiting. “You are ‘loved’” Costello wrote Cohen in an email, “they are in our corner. … Sleep well tonight[], you have friends in high places,” the Mueller report read.

The New York Times reported that, ultimately, Costello contacted one of Trump’s lawyers to ask if the then-president might issued that pardon for Cohen. But that never materialized, and Cohen never formally hired Costello as his attorney.

It is very unlikely that a single witness favorable to the defense will cause either Bragg or the grand jury to have an epiphany that the case is fatally flawed in some way. It’s actually useful for Bragg to know what the Trump defense has against Cohen on the question of his credibility, so this testimony will help shape how they present Cohen to any trial jury. 

Further, efforts to paint Cohen as a liar who went to jail for lying could backfire. After all, the unspoken part is, “On whose behalf was he lying?” Not his own, for sure. Indeed, Cohen rightfully might be seen by the jury as someone who got thrown under the bus by Trump but has stepped forward to cooperate, no longer willing to do the ex-president’s bidding. In short, Cohen lied to protect Trump, but his old boss betrayed him, and he simply wasn’t willing to lie any more.

Will there be violent protests?

While Trump has put out a call for protests and seemed to summon the chaos of January 6 with his call to “take our nation back,” the social media swamp that once worked so effectively to rally his supporters to come to Washington, D.C. more than two years ago is now operating to suppress enthusiasm around a similar action this week.

Many of the ex-president’s supporters, who are notoriously quick to spread unfounded conspiracy claims, have shared rumors that this actually is a trap set by federal authorities to arrest more people, including those they didn’t nab after January 6. With over 1,000 criminal arrests by the Justice Department from that event, many seem unwilling to risk it this time.

Had the former president decided to resist the arrest, some of his fiercest supporters had pledged to surround Mar-a-Lago to try and prevent law enforcement from arresting him, prompting some to deride the “MAGA Moat” action that was doomed to fail. But Trump’s team quickly signaled that he was going to voluntarily surrender if the indictment issued, so the moat idea drained away quickly.

Top GOP leaders predictably blasted the impending indictment as politically motivated, seeming to forget their own recent politically-driven campaigns to lock-up Hillary Clinton for using a private email server and to charge President Bill Clinton with perjury and obstruction for lying about a sexual relationship with an intern. But even Speaker-in-Name-Only Kevin McCarthy (R-CA) and de facto Speaker Rep. Marjorie Taylor Greene (R-GA) cautioned against protests by the ex-president’s supporters, albeit for different reasons.

“I don’t think people should protest this, no,” McCarthy said to reporters on Sunday. “Nobody should harm one another,” he added. “We want calmness out there.”

“There are a lot of concerns about protests because of people like Ray Epps and Scaffold Commander,” Rep. Greene said on Sunday, referring to false flag conspiracy theories and expressing worry that a protest in New York would be infiltrated by federal agents. “There are a lot of reasons to believe there were feds or fed assets instigating the riot at the Capitol on January 6th,” she added, without basis.

Still, the effect of these statements and swirling online conspiracies could be that any protests that do occur will be muted and scattered. And that would come as welcome relief for prosecutors and jurors trying to do their jobs without interference.

Will Trump fight the arrest? Will he be cuffed and perp walked?

Every indication from Trump’s spokespersons is that he will not resist the arrest and will turn himself in when it happens. That at a minimum means a mugshot and fingerprinting in the DA’s office, per protocol.

But what about the other crimey things that normally happen? Trump allies such as CFO Allen Weisselberg and former chief strategist Steve Bannon were handcuffed and perp walked before cameras, for example. Won’t we get the satisfaction of seeing the same thing happen with Trump?

As great as that might be to see, it’s unclear whether the Secret Service guarding Trump would allow him to be handcuffed, which presents clear security risk issues in the event there’s an assailant. And to be honest, if Bragg wants to create a martyr for MAGA, the sight of their savior being marched before the “liberal” media in “communist” New York City would do that job nicely. Trump, who understands television well and the role of ultimate victim he now must play, might actually be hoping for something truly television-worthy. Giving him yet another unforgettable moment before the cameras seems not in the best interest of our democracy or justice.

Personally, I’d rather see the whole thing handled quietly and seriously instead of the spectacle of a cuffed perp walk of Trump in his old home town. He’s almost certainly going to be released on his own recognizance as soon as the arrest happens, and I’ll be happy with seeing a mugshot of him looking like the criminal he is, rather than the politically hounded savior MAGA deems him to be.