Analysis

The Sealed Indictment: How Trump Could Be Secretly Charged

Law360 (August 13, 2020, 9:28 PM EDT) -- The footsteps of an assistant district attorney echo down the long halls at 100 Centre St. in Manhattan as he leaves a guarded courtroom clutching a document. The ink from a grand jury foreperson's signature is still damp on the paper.

At the Indictment Unit, a clerk takes the paper, opens a manila accordion file and stamps it with an indictment number. The defendant's name on the paper is strictly secret. An arrest warrant is issued — and that too is secret.

So it goes with "no arrest" or "NA indictments" in Manhattan, known as "X indictments" in Brooklyn, which are kept under seal indefinitely until the defendant can be brought to justice.

As Manhattan District Attorney Cyrus Vance Jr. pursues a broad investigation of President Donald Trump's business amid a subpoena battle over the president's tax returns, several sources familiar with the city's arcane grand jury process say the DA could secretly secure an indictment and even an arrest warrant for the president, beating legal deadlines, and then pause prosecution for months or even years.

An unsealed NA indictment "jacket" in the Manhattan criminal court clerk's office at 100 Centre St. (Frank G. Runyeon | Law360)


Former state prosecutors and retired judges told Law360 that a five-year statute of limitations deadline to file felony charges may push Vance to file a sealed indictment against the sitting president if the grand jury votes to bring charges. That seismic document could remain locked away in an indictment clerk's filing cabinet until after the 2020 election and, if Trump wins reelection in November, potentially until he leaves office in 2025.

"Theoretically, they can just file it and keep it under seal for four years if Trump gets reelected," said former New York state judge Barry Kamins, an evidence expert who is now a partner at  Aidala Bertuna & Kamins. Such a move could preserve felony charges, for example, which must be filed within five years of the last criminal act.

Veterans of the grand jury process cautioned that such a scenario calls for a cascade of speculation. It assumes the DA obtains the evidence he seeks in the face of Trump's fierce opposition in federal court, that he believes the president commited a crime and, crucially, that he secures an indictment from 12 out of 23 grand jurors.

But a sealed indictment is a viable path forward, several alumni of the district attorney's office told Law360.

"If the DA believes he has enough evidence to charge the president and he believes he has that evidence now or some point before the election, my best guess is that he would do the responsible thing and not influence the outcome of the election by making public the fact that he has this warrant for his arrest," said Daniel R. Alonso, a former chief assistant district attorney who oversaw every case in Vance's office between 2010 and 2014 and is now a partner at Buckley LLP.

"He would probably keep it under seal until after the election," Alonso speculated. "And possibly until after the president's term."

The Manhattan District Attorney's Office declined to comment on the possibility of a secret indictment. Counsel for Trump did not immediately respond to a request for comment Thursday.

Regardless of what Vance might hypothetically do with such an explosive indictment, his prosecutors would still follow a well-worn but little-understood path to securing what the office calls an NA indictment.

Tracing the contours of that secretive and archaic grand jury process in New York County, Law360 examined how the district attorney could go about secretly indicting Trump and what might follow.

Grand jurors are socially distant in a Manhattan courtroom on Aug. 10 on the first day new grand juries were impaneled in the county since coronavirus concerns restricted in-person proceedings in March. (New York State Courts)


A Sword and a Shield

The tradition of empowering a panel with the authority to indict a citizen is grounded in English history, when King Henry II adopted the use of an accusing jury that would levy charges against a suspected wrongdoer. Over 850 years, the system evolved and was adopted as a democratic safeguard against the government's power to unilaterally imprison and punish the accused.

The grand or "large" jury of 23 people, with 16 required for a quorum and 12 required to vote to approve an indictment, is enshrined in the Fifth Amendment of the U.S. Constitution, which mandates the use of grand juries in federal courts but not, as the U.S. Supreme Court decided, in state courts. Grand juries have been broadly discarded abroad. In fact, Liberia is the only other country that uses them.

New York, however, boasts the nation's oldest grand jury requirement, dating back to 1683, and it is among the 23 states that still mandate a grand jury indictment as the starting point of any felony prosecution. The state's Grand Jury Handbook declares grand juries to be "a sword to accuse or indict those whom there is reason to believe have committed crimes; a shield to protect the innocent against unfounded accusations."

The first roadblock to a possible indictment of Trump is the ongoing grand jury subpoena battle in federal court, which has already wound its way up to the Supreme Court and back down to the Southern District of New York.

Handing a win to Vance, the Supreme Court discarded both the argument that the president is immune from state criminal investigations while in office and the notion that subpoenas seeking the president's unofficial documents warrant a heightened level of judicial scrutiny. The president is now trying to convince U.S. District Judge Victor Marrero that there are new reasons to delay releasing the records.

In recent filings, the Manhattan district attorney also revealed that the stakes for Trump and his family may be even higher than previously thought. The DA noted that the scope of his investigation into the president goes far beyond the hush money payments delineated in a demand for eight years of records from the president's accounting firm, Mazars USA LLP. The government said the August 2019 Mazars subpoena was "issued in connection with a complex financial investigation" regarding "alleged insurance and bank fraud by the Trump Organization and its officers."

Vance's office has told the court that the withheld tax documents are holding up the work of the grand jury, which has unmatched discretion in what century-old case law calls a "grand inquest" into evidence offered by prosecutors as well as any suspicions, tips, rumors or personal knowledge of the jurors on the matter.

But despite the label of "grand jury subpoena," it is highly unlikely a grand jury panel knows about the subpoenas issued in its name, according to several former prosecutors, who requested anonymity to describe the secretive process that plays out inside the DA's office. In fact, they say it's more likely a group of 23 heard a simple pro forma announcement of an investigation — perhaps naming the president, but perhaps not.

In the vast majority of cases, criminal defendants are arrested by police before any evidence is brought before a grand jury, often for street crimes. But in more complex criminal investigations, the district attorney will approach one of several grand juries impaneled at any given time simply to inform the grand jurors that an investigation is happening in their name.

"We're not even asking them. You're simply telling them," a former chief prosecutor with two decades of experience in the DA's office told Law360. "They don't get to say no."

"Once the investigation is on," the former chief prosecutor added, "I rip off subpoenas."

Ben Rosenberg, counsel to Vance between 2014 to 2016 and now a partner at Dechert LLP, told Law360, "Usually, the ADA does the investigating. He issues a subpoena. It's called a grand jury subpoena. The person says, 'I'm acting as an agent of the grand jury.' That doesn't mean that any grand juror even knew of it."

It's unlikely that any grand jurors have reviewed evidence returned from the Trump subpoenas either, former prosecutors said.

Assuming that Vance succeeds in gathering enough information and believes the president committed a crime, his next step would be to present the case to the grand jury, likely an entirely different panel than the one that "opened" the investigation more than a year ago.

The DA's office would then likely notify the judge assigned to oversee the grand juries for that month's term that it needs a "special grand jury" to sit for many more weeks in order to allow prosecutors to carefully lay out the complex financial charges at issue.

Wooden courtroom seats are labeled to allow for grand jurors to spread out due to COVID-19 concerns instead of using the traditional grand jury rooms. (New York State Courts)


This special grand jury could sit for months, examining evidence and hearing eyewitnesses testify. The witnesses would likely include Michael Cohen, the president's former attorney, who is serving a federal prison sentence for, among other things, testifying he heeded his client's order to pay off two women who claimed to have had extramarital affairs with Trump in a bid to protect his 2016 election campaign.

Unlike federal grand juries, New York state grand jurors cannot accept hearsay witnesses, tasking prosecutors with putting central witnesses in the room. In another striking difference, these state grand jury witnesses are nearly always automatically granted immunity in exchange for their testimony, the former prosecutors said, and cannot be prosecuted even if they admit to a crime.

Furthermore, while every other person in the grand jury room — typically a stenographer, the assistant district attorney, court officer and the grand jurors — is sworn to secrecy under penalty of a maximum four-year prison sentence, grand jury witnesses are free to share the fact that they testified and what they testified about.

Even if no witnesses spoke out, one of the more than two dozen people privy to some element of the grand jury proceedings could consider himself or herself a whistleblower and leak information to the public in spite of the potential jail time.   

These factors, the former prosecutors noted, would prove a serious obstacle to any effort to truly keep secret the fact that a special grand jury is investigating or has indicted the president.

Another potential wild card is whether Trump himself would ask to testify before the grand jury, Kamins noted.

"If he learns about it somehow, as Trump would learn about it, he can ask for permission to do that," Kamins said. "Vance would have to allow him to testify subject to a waiver of immunity."

Such a move, however, would expose the president to incriminating himself before the grand jury. The foreperson could then call further witnesses to investigate other crimes.

Perhaps more likely, several sources noted, is that the president could freely tweet about the fact that there was an ongoing grand jury proceeding.

Indicting a Ham Sandwich, or a President

If the grand jury sits while the court's COVID-19 restrictions are in place, the grand jury room itself will not feature the padded leather chairs often seen in former Manhattan District Attorney Robert Morgenthau's press photos. Instead, grand jurors will be spaced out on the hard wooden benches of a criminal courtroom's gallery wearing face masks, a state courts spokesman confirmed.

Prospective grand jurors weave through socially distanced lines on Aug. 10 in front of the Manhattan state criminal courthouse on the first day new panels were seated in the borough since the outbreak of COVID-19. (New York State Courts)

Probably weeks later, after hearing all the evidence, grand jurors would be asked to indict Donald Trump and any other defendants on specific charges drawn up by the DA's office. An assistant district attorney would instruct grand jurors on the law, much like a judge instructs a trial jury, the former prosecutors noted. Then the jurors would be left alone to deliberate and decide.

A foreperson would likely be given a paper rubric to record the jury's vote on each of the charges, noting the consensus decision of at least 12 jurors on each charge. The jurors would summon the court officer acting as their warden and hand over their decision: either a "true bill" indicting the president or "no true bill" dismissing the charges and putting an early end to the case.

If the past is any guide, however, the grand jury is unlikely to completely reject an indictment. In 2019, New York County grand jurors rejected a felony indictment less than 1% of the time — in just 17 cases — compared to 3,085 indictments, according to state justice statistics.

That number undergirds longstanding criticism that grand juries are merely a rubber stamp. In 1985, then-New York Chief Judge Sol Wachtler proposed doing away with grand juries altogether, famously telling the New York Daily News that prosecutors hold such sway over the panels that "by and large" they could convince them to "indict a ham sandwich."

Christopher Day, a stenographer for the New York state courts who personally transcribed the secret grand jury proceedings in late 2014 and early 2015, says that may be less true today.

"I didn't get that sense," Day said. "Maybe in the 1980s, maybe you could indict a ham sandwich. But now I think New Yorkers say, 'No, we're going to take this as seriously as we can because we're charged with this.'"

Prosecutors who spoke with Law360 said that when they had presented cases to special grand juries, the panels seemed deeply invested in the process, questioning witnesses that came before them.

If a Manhattan grand jury were to return a "true bill" against the president, the foreperson would sign the final drafted indictment, including only the approved charges, which would then be carried to a special division of the Supreme Court clerk's office.

The Indictment Unit clerk would then formally file the indictment under seal and be responsible for maintaining that record in secret.

While prosecutors often quietly investigate and obtain sealed indictments before arresting a suspected criminal, it's usually a short-lived moment at the inception of a criminal case, lasting just long enough to apprehend the defendant. Still, sealed indictments can have much longer shelf lives.

"There are open warrants for sealed indictments going back to the 1970's," one clerk in the New York county clerk's office said.

The reason for those aging indictments is typically that the suspect is in the wind, somewhere outside prosecutors' reach, perhaps overseas. In a Trump case, Vance would have discretion about when to move on the indictment and whether or not to issue an arrest warrant for the president of the United States, issue a summons, or simply arrange for his surrender.

"When you think about it, what choice does Vance have really?" Kamins said. "He can go ahead and unseal the indictment and ask Trump to come before the court or not. If he does that, he's asking for another year and a half, two years of litigation to go before the United States Supreme Court to decide whether you can charge a sitting president. So to avoid that, he just holds onto the indictment and waits until Trump is out of office."

Trump's argument that he is beyond the reach of state prosecutors while in office would also serve as a double edged sword for any speedy trial argument he might make to try to invalidate a post-presidency criminal case.

"You can imagine the DA saying, 'Well, wait a minute. You've argued that you can't be prosecuted because you're the president. All we did was wait until the president's term was over, so the president can't rely on speedy trial to escape this indictment,'" said Alonso.

Such a state criminal prosecution could also let the incoming president off the hook in deciding whether to allow the U.S. Department of Justice to prosecute an outgoing president.

But what if Vance decided to unseal an indictment against Trump while he was still in office?

In a post-COVID-19 world, the president could be arraigned remotely, some prosecutors noted, perhaps with an NYPD officer going to the White House to fingerprint Donald Trump.

--Editing by Jill Coffey.


For a reprint of this article, please contact reprints@law360.com.

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