The Manhattan DA Has Convened a Grand Jury To Possibly Indict Trump. So Now What?

With the news breaking yesterday that Manhattan District Attorney Cy Vance has convened a grand jury to investigate and potentially indict former president Trump for criminal acts, it’s a good time to review what exactly a grand jury is, how it deliberates, what it will look at in this case, and what the likely outcome is. I’ll confine my answers to how things work in New York State, as the rules and procedures may vary in other states.

What is a grand jury?

Grand juries are a mechanism by which ordinary people determine whether their fellow citizens should be put on trial. Specifically, grand juries decide whether there is “probable cause” to try a defendant for a crime. They were conceived as a bulwark against rulers using the court system to harass or incarcerate innocent political opponents by spuriously charging them with crimes. In New York, if there are felony criminal acts alleged, a District Attorney must in most cases refer the matter to a grand jury to determine whether probable cause exists to hold a trial.

In New York, as in most jurisdictions, the grand jury typically meets in secret to prevent intervention and intimidation in the proceedings and to not permit an innocent person to be slandered simply by being the subject of an investigation.

What does the grand jury do?

The grand jury receives potential charges against a defendant contained in a written indictment. The grand jurors then conduct an investigation—hearing from the prosecution, listening to witnesses, and examining records—to determine whether to return the indictment as a “true bill.” The jury can also issue a written accusation (called a “presentment”) that requires the District Attorney to investigate the facts alleged and submit bills of indictment if appropriate.

Note that the grand jury hears arguments only from the prosecutor’s office. If an accused person chooses to testify, then defense counsel may be present but is not allowed to ask questions, object or speak with the grand jury. No judge is present after the selection of the grand jury.

Why is this going to take so long?

A grand jury in Manhattan is typically convened for an entire six-month period, meeting a few times a week. It’s often the case that several matters are considered during that period. That is the case here.

The fact that the grand jury will convene for six months does not mean, however, that it will necessarily take six months for them to return a true bill indicting Trump. If a true bill issues, that could come earlier—perhaps far earlier—depending on the quality and the amount of evidence, the number of witnesses, and other factors. 

How does the grand jury make its decision?

The grand jury in New York generally consists of 23 persons, though 16 are needed to form a quorum. This cushion is so that if any drop out or miss important testimony (the process can go on for months sometimes) there will still be a quorum. For a true bill to issue, 12 grand jurors who have been present to hear all of the witnesses and review all of the evidence must vote in favor of it.

What is the grand jury investigating and deciding in particular in this case?

Manhattan District Attorney Cy Vance’s office has been investigating suspicious transactions and financial statements by the Trump Organization, which include allegedly providing wildly different valuations on the same properties in order to take advantage of tax credits, avoid high tax payments, or qualify for bank loans. There was also at least one nine-figure real estate loan for a property in Chicago that was suspiciously forgiven. Prosecutors are further investigating the alleged use of in-kind payments, such as free apartments and school tuitions to key employees, to reduce the Trump Organization’s payroll tax liabilities while enabling income tax evasion on the part of the recipients.

Is a grand jury really likely to indict the former president?

Because the grand jury process is highly one-sided, with the prosecution able to make whatever case it wants based on non-hearsay evidence, it’s often said that a grand jury would indict a ham sandwich if asked. Critics charge that the grand jury is a cumbersome and expensive way to achieve a foreordained result, given that between 95 and 99 percent of grand juries choose to indict. Based on these statistics, and assuming neither Cy Vance nor his successor wants to go down as the DA whose grand jury failed to nail the most famous crooked politician in American history, the chances are very good that the evidence against Donald Trump is solid and that the grand jury in Manhattan will indict.

That said, nothing ever seems to be normal and customary when it comes to Donald Trump. Stay tuned.