It’s Dark in Trumpland today. But Is It Stormy?

Stormy Daniels and Donald Trump. Photos by: Heidi Guttman and Brandon Bell / Getty Images

The New York Times broke the news Thursday evening that Manhattan District Attorney Alvin Bragg, having recently had a come-to-prosecute-Orange-Jesus moment, has invited ex-president Donald Trump to testify before the grand jury investigating possibly illegal hush money payments to porn star Stormy Daniels.

Pessimists gave this a big yawn. After all, Trump hasn’t actually been indicted yet; the underlying crime he’s presumably accused of is only a misdemeanor of falsifying business records; the case is fairly stale, with a key witness himself a convicted felon not to be believed; the charges are likely time barred; and really… Stormy Daniels? That’s the case you want to nail Trump on? Stormy Daniels?

Optimists on the other hand celebrated. An invitation to appear before the grand jury is usually the last step before an actual indictment; the crime of falsifying business records bumps to a felony if committed to further another crime like election fraud; there are new witnesses like Hope Hicks, Kellyanne Conway and David Pecker (yes, Pecker) who have appeared before the grand jury; Trump blew his own statute of limitations argument by stopping the clock when he moved to Florida; and yes, Stormy Daniels, because silencing a witness with a $100K+ hush money payment and then covering up the scandal on the eve of a national election must be considered a serious crime.

So which side has the better argument? Let’s review where most legal experts have landed, and then I’ll give my own perspective on why all of this is a bit of “sound and jury” in advance of what is yet to come.

Is it really going to happen this time?

For those who want to see Trump finally held accountable in an actual court of law for his crimes, this development should be welcome news. Legal experts agree on at least one thing: It is very rare for a likely defendant to be invited to argue his side before a grand jury unless an actual indictment is imminent. 

So I would say that an indictment is more than 95 percent likely now, going on past stats and even accounting for the extraordinary nature of this case. I should note that a grand jury in Manhattan isn’t likely to be packed with secret Trump supporters unwilling to indict, but it is of course possible.

But why just an invite? And won’t he simply ignore it?

Legal experts agree on something else: Prosecutors “invite” defendants at such moments knowing that very few ever accept it. New York provides this opportunity to potential targets of investigations as a matter of law, even though prosecutors know that they could simply resist a subpoena compelling their testimony on Fifth Amendment grounds.

Prof. Joyce Vance in her newsletter pointed out at least one exception to defendants generally declining grand jury invitations: Virginia Democratic Senator Chuck Robb. Sen. Robb decided to appear before a federal grand jury in Norfolk, Virginia, to argue against his indictment for a wiretapping scheme. And he actually convinced them not to indict. So it’s not inconceivable that Trump would actually show up and attempt the same.

Trump’s lawyers will tell him to ignore the invite, but this is Trump we’re talking about. And while it would be very stupid to actually appear to protest a possible indictment, under oath, with anything said possibly usable at the later trial, he may find the opportunity to turn this into a political circus irresistible. He is already panic-posting on his own platform “Truth Social” and spouting fairly unhinged, “I am the victim” nonsense.

(And Donald Trump, if you’re somehow hearing about the example of Chuck Robb turning back the indictment, are you going to let some Democratic senator succeed while you’re too chicken to try?)

Is Bragg serious this time?

District Attorney Bragg has proved maddeningly unaggressive in his approach to Trump, putting on ice the case that many viewed as the best one the state had against the former president: charges based on his fraudulent disclosures of improperly inflated real estate to banks, insurers and tax authorities. That case had the advantage of aligning with Trump’s well-known shady business practices. It was also unconnected to his political career and in some ways, therefore, without as much baggage. Bragg’s apparent shelving of the matter came after years of work by his predecessor and a highly expert team, to the great disappointment and anger of many observers. 

Bragg also declined to name Trump in a tax fraud case involving off-the-book perks paid to Trump Organization employees. That case resulted in a guilty plea by CFO Allen Weisselberg and a guilty conviction of the company by the jury. This of course raised an obvious question: If the CFO and the company were so guilty, where was Trump in all of this? Prosecutors seemed to acknowledge this by constantly bringing up Trump in their arguments before the jury, even though he was technically not on trial. 

Bragg, who had a very rocky start to his new job, will not want to admit he pulled punches in those cases because he was afraid of losing them. He may have gained some confidence having recently scored a recent win against the Trump Organization itself. It seems he has ultimately decided to lean in on the Stormy Daniels hush money payments, which many are calling the “zombie case” that wouldn’t die, despite its many challenges. To do this, Bragg has to be prepared for a time to become the focus of national attention, Fox News and other right-wing media ridicule, and MAGA hatred and threats. Nonetheless, by this move, it looks like Bragg has made up his mind to proceed.

Why this case feels like a warm-up band

Here is why I’m not getting terribly excited about a Trump indictment issuing from the Manhattan grand jury: It’s probably just the beginning of what will be a long legal showdown. And you can bet, Trump will fight any indictment and tie things up legally for a while before he ever appears in a Manhattan courtroom, including moving to dismiss the case as time-barred. It also is very unclear whether the case is on solid legal footing, since the “crime” that might boost this presumptive misdemeanor to a felony lies within federal election law, and not New York state law, so any conviction could be vulnerable on appeal. And finally, Trump has some viable defenses to the claim, like that he paid the hush money to Daniels not to shift the election in his favor but to avoid embarrassment at home—a tactic that legal expert Renato Mariotti noted worked successfully for one-time presidential candidate John Edwards.

In my view, Bragg is best understood as the opening act to a far more spectacular show, and while we should give him props for volunteering to be a warm up performance, the ticket we all paid for is the prosecution of more recent crimes by Trump surrounding January 6 and his illegal actions after he left office. It’s also why the question of whether Bragg ultimately will or will not win his case will likely fall by the wayside as soon as the headliners actually take center stage.

With respect to those headliners, Trump is facing legal jeopardy from “imminent” charges for election interference from the District Attorney in Fulton County, Georgia, Fani Willis. What “imminent” means isn’t exactly clear, but her office convened a new grand jury in Atlanta this week, and it’s very likely Willis is now walking its members through the evidence presented to the investigative grand jury, whose report had made recommendations to indict at least a dozen as-yet-unnamed individuals. 

Trump is also facing more dangerous possible charges from Special Counsel Jack Smith in D.C. on a range of crimes including obstruction, mishandling of classified material, conspiracy to defraud the United States, conspiracy to obstruct and actual obstruction of Congress, wire fraud, espionage, and even possibly incitement of insurrection and seditious conspiracy. While Smith likely won’t charge on all of these grounds (I’m banking on the first four I listed, but that’s just a guess), the case for some of them is very strong, and Smith is being very aggressive on all fronts. He has not been shy about subpoenaing key inner Trump circle witnesses to appear before two different federal grand juries. These witnesses have included Jared Kushner, Ivanka Trump and even Mike Pence, whose subpoena Trump has now moved to block.

Indeed, Justice Department lawyers were in court just yesterday before the chief U.S. district judge for the District of Columbia, the Hon. Beryl Howell, to argue that Trump’s lawyer, Evan Corcoran, cannot hide behind the attorney-client privilege and avoid testifying before the grand jury. They argued that the “crime-fraud” exception to the rule applies here—meaning they believe Corcoran was either a willing or unwitting participant in the crime of obstruction, in this case the intentional hiding of additional highly classified documents from the government by Trump. The key takeaway from this is clear: The government believes the crime of obstruction occurred and is willing to go so far as to haul Trump’s lawyers in to prove it. Lawyers are almost never fact witnesses, and the crime-fraud exception is a rare move. So I cannot overstate how unusual it is that we are now at this point.

If and when one or more indictments issue from Bragg’s grand jury, the best response is to understand that these are likely the first of many, but the doors of the hall are now open, and the music has begun to play. Trump likely will howl and cry “witch-hunt” but he had best think this through, which I understand is a tall ask. The public may soon tire of his constant protestations, particularly if they all sound the same note. The media soon will begin to report and remind us all of the actual facts of each case, and it will be incumbent upon us, as serious members of the public, and more importantly ultimately the juries in various jurisdictions, both federal and state, to carefully and soberly assess the charges and the evidence and apply the relevant law. Trump’s histrionics online won’t be relevant to us, nor to those juries. The only things that will matter in the end are the facts, the evidence and the law.

I’ll be here, of course, to help guide us through the legal complexities, fact developments, and the broad and often zany cast of characters in what I hope will at last become a year of accountability.