Much remains unknown about the criminal charges being brought against former President Donald Trump in Manhattan, Heritage Foundation senior legal fellow Cully Stimson says.
“The indictment is sealed, which means it hasn’t been released to the public,” Stimson says. “We don’t know when it will be unsealed. We’ve also seen news reports that there’ll be an arraignment on Tuesday of next week.”
According to some news reports, there may be “up to 30-some charges in this indictment,” the Heritage legal fellow says. (The Daily Signal is Heritage’s multimedia news organization.)
Trump is the first former president in U.S. history to face criminal charges. News of his indictment broke Thursday evening following a monthslong investigation led by Manhattan District Attorney Alvin Bragg, a Democrat.
“Alvin Bragg is a Soros-bought-and-paid-for rogue prosecutor,” says Stimson, also deputy director of Heritage’s Meese Center for Legal and Judicial Studies. “He has refused to prosecute entire categories of misdemeanors in his jurisdiction. He’s watered down most felonies to misdemeanors. So it takes a lot of chutzpah to indict somebody for essentially a scrivener or bookkeeping error for an alleged incident that occurred almost a decade ago.”
Stimson joins “The Daily Signal Podcast” to explain what is likely to happen next and what Trump’s legal team is likely doing as it waits for the details of the indictment.
Listen to the podcast below or read the lightly edited transcript:
Virginia Allen: We are joined by a Heritage Foundation senior legal fellow, Cully Stimson. Cully, welcome back to the show.
Cully Stimson: Thanks for having me.
Allen: Let’s get right into this. What do we know about the charges that former President Donald Trump is facing?
Stimson: Well, what we know is that there are news reports and Donald Trump’s own defense attorneys indicating that the grand jury has indicted him. The indictment is sealed, which means it hasn’t been released to the public. We don’t know when it will be unsealed. We’ve also seen news reports that there’ll be an arraignment on Tuesday of next week. We don’t know what’s in this indictment, what the gravamen of the offense is in this indictment.
We’ve heard that there may be up to 30 some charges in this indictment. And we don’t know whether the governor of Florida is going to cooperate with the extradition request, although that would be a decision that the former president could make to say, “Look, I’ll waive extradition and I’ll show up to be arraigned whenever the arraignment is.”
Allen: I want to talk a little bit more about Florida Gov. Ron DeSantis in a moment and his comments. But what is likely going to play out here? Are we going to see Trump in handcuffs and put behind bars?
Stimson: I think it’s really important not to get ahead of the facts and the story here. “We don’t know what we don’t know,” to quote my old boss, [the late Defense Secretary] Don Rumsfeld. In a typical case, and this is not a typical case, where it’s a misdemeanor or low level felony, somebody’s not going to be put in handcuffs, there’s not going to be a perp walk.
It’s happening right now as we speak across this country, people being charged with misdemeanors. The rubicon that’s been crossed, however, is indicting a former president. Whether it’s a misdemeanor or felony, that is a huge deal, and that will have ramifications down the road for this president who’s currently in office, former presidents and future presidents, and it’s a really bad precedent.
Allen: Cully, in your career, you’ve indicted in dozens of cases. Can you explain the difference between an indictment versus actually proving someone as being guilty of certain crimes?
Stimson: Sure. In the states where most of the crimes are prosecuted, the DA has, depending on the state law, the ability to either take a case to a grand jury, which is a secret proceeding, there’s no judge and there’s no defense attorney, and ask them to consider handing down an indictment on certain charges. And the standard is probable cause, that’s it. It’s a low standard. So you hear the expression, Virginia, you can indict a ham sandwich; you always hear that expression. You can’t indict a ham sandwich, it has to be a person.
But secondly, there’s a huge gap evidence-wise between, and proof-wise between, getting to probable cause at an indictment and then pulling together and marshaling all the evidence and bringing the witnesses to trial and having them testify consistent with what you believe the evidence is to prove the case beyond a reasonable doubt.
So probable cause is a low level; beyond a reasonable doubt means you are firmly convinced that the evidence points to this person and he or she is guilty. And so there are a lot of cases that fall apart between indictment and a verdict.
The ethical standards of prosecutors, either at the state or federal level, is you should not bring a case, even to a grand jury, unless you have a reasonable likelihood of success on the merits at trial. So if you think it’s a loser, you don’t take it to a grand jury. Now, there may be reasons you want to take a case to a grand jury, like for example, it’s pretty routine if a police officer is involved in a fatal shooting, some jurisdictions will take the police officers, if there’s a question as to his criminal culpability, to a grand jury.
And if the grand jury refuses to indict, that means no bills; you hear that expression, “no bills in the indictment.” Well, then. that’s the end of it. But here, we don’t know what charges are under this indictment. We don’t know if there is a failure of proof from indictment to a trial, if there ultimately is a trial. And so I just don’t think we should get too far out ahead of this until we see the actual language in the indictment.
Allen: Let’s loop back to talking about Florida Gov. Ron DeSantis for a few moments. So shortly after the news broke, Gov. DeSantis tweeted out that he would not extradite Trump from Florida. What does that mean for this case moving forward, and specifically for Alvin Bragg, who’s been leading this investigation of Trump?
Stimson: What that really means is that it’s now in Trump’s court. If Trump just wants to agree to show up in New York next week or whenever the arraignment is, that’s the end of it. But if Trump says, “You know what? No, you can’t force me to leave Florida.”
And the governor, whoever the governor is, right now it’s Gov. DeSantis, says: “You know what? We’re not going to cooperate with the extradition request from New York.” Ultimately, he will be extradited. There’s no real legal grounds, I think, for them not to ultimately.
Because it would go to a judge, a state court judge, the New York prosecutor would have to show up in the state court in Florida and argue, “Look, there’s nothing within the four corners of this indictment that is seems untoward. You can’t look underneath the indictment to test the quality of the evidence.”
And if a state court judge is going to find herself in the position of saying, “Well, I’m not allowed to look under the four corners of the indictment or question the veracity of the witnesses, and therefore Mr. Trump, I’m inclined to grant the extradition request.”
Trump may decide to appeal to an appeals court. They may ultimately go to the Supreme Court. But at the end of the day, unless there’s a defect in the indictment or in the extradition request itself, he’s going to end up in a New York court.
Allen: So it sounds like, if anything, it would just drag the process out longer?
Stimson: Right, right. And there may be tactical and strategic reasons from the defense to do that. A governor is the chief law enforcement officer of that state, and the governor can either agree to cooperate or not cooperate, but at the end of the day, unless there’s a defect in the indictment or in the extradition request itself, almost every single extradition request ultimately is granted or is carried out.
Allen: Looking at what we know about what this grand jury, the information that they were looking at and District Attorney Alvin Bragg’s investigation into Trump, what do you make of this whole investigation?
Stimson: Well, first off, we have a whole chapter in our upcoming book on rogue prosecutors about Alvin Bragg; he’s one of the eight prosecutors we talk about. Alvin Bragg is a Soros-bought-and-paid-for rogue prosecutor. He has refused to prosecute entire categories of misdemeanors in his jurisdiction. He’s watered down most felonies to misdemeanors. So it takes a lot of chutzpah to indict somebody for essentially a scrivener or bookkeeping error for an alleged incident that occurred almost a decade ago.
But the theory, as we understand it from public reports, and we won’t know, Virginia, until we actually read the words in the indictment, but let’s just go with the stuff that’s out in the public domain. [The theory] is that Donald Trump’s then-lawyer Michael Cohen engaged in a legal settlement with Stormy Daniels and paid her money consistent with that legal settlement so she would not air a prior relationship of some sort with … Donald Trump, back in 2006, I think. And legal settlements happen all the time. It happens in Congress, it happens in the media, it happens in corporations. I mean, people engage in legal settlements every day.
And later on the Justice Department investigated, and so did the Federal Election Commission investigate whether or not that $130,000 in that legal settlement was actually an illegal campaign donation that should have been reported on his campaign related finance reports as he was running for president. And they open the investigation and both the Justice Department and the FEC closed those investigations without taking any action. So there were no federal crimes or offenses alleged.
The theory here is that even though the entity that has the job of looking to see whether there’s a federal election fraud or campaign-related finance lack of disclosure, even though they waived off on it, at the state level, he should have kept better bookkeeping. And therefore that’s a state misdemeanor, and they’re trying to turn this state misdemeanor into a state felony.
And so I’m going to be really interested in reading the language of how they get from A to B to C in this, because essentially it’s a bookkeeping theory, that he should have reported on his state business records a bookkeeping numerical number of $130,000 and somehow that violated state law.
Now when you have 30-some charges, maybe there are other things out there related to other aspects of the Trump legal business organizations, so we just don’t know what else is there. But if the whole focus of this indictment is on this bookkeeping error … And by the way, the state has no jurisdiction to look into presidential or federal office holders or candidates’ money payments. A state can look at state office holders or state candidates, but the federal stuff that happened at the federal level, the stuff that happened with his presidential run, the state has no say in that. And especially when the federal government and the FEC waived off on that.
Allen: So why do you think Alvin Bragg is pursuing this? I mean, correct me if I’m wrong, but a term that you’ve sort of coined is rogue prosecutor, and you’ve done so much work on rogue prosecutors [and] you mentioned your forthcoming book. What do we know about Alvin Bragg’s possible motives here? And if he is an individual who has said, “I am not going to prosecute certain misdemeanor crimes in the name of equity, in the name of social justice,” why is he prosecuting this one?
Stimson: No clue. And yes, [Heritage Foundation legal fellow] Zack Smith and I, my co-author in our book and all of our scholarship for the last three years, coined the term rogue prosecutor. But you can’t really get into the mind of why Alvin Bragg decided to do this. And by the way, he, Alvin Bragg, hired a former federal prosecutor who did white-collar crime from the Southern District of New York in the U.S. Attorney’s Office into his office specifically to investigate Trump and this bookkeeping-scrivener error and this payment to Stormy Daniels under this legal settlement.
And when Alvin Bragg had some skepticism about bringing these charges, this person quit in a pique of anger. And he wrote a book that came out in February [“People vs. Donald Trump: An Inside Account”] a tell-all book explaining why Alvin Bragg should have indicted Trump. Well, obviously if the stories are true, Alvin Bragg has had a change of heart and now he has brought the indictment. We don’t know if any additional evidence has been developed during the grand jury process.
So it looks, at least from this book and from the news reports, that Alvin Bragg had some skepticism, as he should have, about indicting him in the first place for this bookkeeping error. Again, if that’s the gravamen of the offense and that’s it, charged 30 some different ways, that’s going to be a tough lift. And even The Washington Post and The New York Times, as [Meese Center Director] John Malcolm and a couple other colleagues at Heritage have written in The Daily Signal … I hope your listeners look at The Daily Signal article called “The Indictment of Donald Trump: The Players and the Cards They’re Playing,” which came out last night. It is hard to understand how they can sort of turn this bookkeeping-scrivener error into a felony offense.
Allen: What is the timeline, the likely timeline that we’re looking at here? I know there’s a lot of factors that could make things go longer, but in all likelihood, how soon do you think it’s going to be before we learn the details of the charges brought against Trump?
Stimson: So the order of march typically would be: You notify the defense attorney that the person’s been indicted; apparently that’s happened. Second, you notify the defense attorney that the arraignment has been scheduled for X date in the future; apparently that’s next Tuesday. We’ll see whether that turns out to be the case.
Typically, a defendant will just show up for the arraignment. Now if [Trump] wants to honor the extradition request and just go to New York, that’s it. He’ll be arraigned on Tuesday and arraignment takes five minutes, and that’s it. And then the case is set forth. The judge will set a motions calendar and then the judge will set a trial date in the future, probably six months or more down the road, and there’ll be motions and pretrial motions between that.
That said, if Trump says, “I’m not going to go to New York; you got to force me,” and he wants to drag this out, and the governor is going to honor the defendant’s skepticism and not automatically grant the extradition request, that could drag out for a few weeks in Florida courts.
Allen: What are the possible outcomes? What’s the best outcome for Trump, and what’s the worst outcome for Trump?
Stimson: Well, I’m not going to talk about the political good or bad outcomes, because I’m just the legal beagle here, and I’m just going to give you the legal answer. Obviously, the best outcome is for him not to have been indicted. Now that the indictment has been handed down, the next-best possibility would be that they withdraw the indictment, which they could do. The likelihood is probably small.
The next-best outcome would be that the arraignment takes place, pretrial motions happen, and one of the motions is a motion to dismiss the indictment and the judge grants the motion to dismiss the indictment. The next-best outcome would be they chip away at some of the charges or most of the charges during the pretrial motions that will take place in the next weeks and months. So that it boils it down to just a few charges.
And of course, the next [outcome] would be he goes to trial, and at the halfway point of the trial, after the government’s finished putting on their case in chief, the judge grants a motion to dismiss the charges. Because at the halfway point of a trial, even though the judge has to view [it in] the light most favorable to the government, the judge can take the case away from the jury at the halfway point.
And then the final best outcome would be for him to go through the whole trial and then to be acquitted. So there’s a lot of off-ramps along the way, and we have no clue as to how this is going to play out.
Allen: If you were one of Trump’s lawyers, what would you be doing right now?
Stimson: Well, I’d be waiting to see what the indictment says. And I’d be telling everyone else to calm down and take a deep breath. And then I would make sure that the political types who advise him do whatever the political types do. I don’t play in that world, but as the lawyer, you have to be cool, calm, and collected. You have to be forthright, honest, and direct with your client. You have to explain that we don’t know what we don’t know.
And then you have to decide, as a matter of course, whether you’re going to try to fight the extradition, pluses and minuses, or whether you’re not going to fight the extradition, pluses and minuses. And assuming he does not fight the extradition, what he would come to expect during the arraignment and during the pretrial process, et cetera.
Of course, Donald Trump is a sophisticated person. He’s had lots of lawsuits he’s been involved in, either as the plaintiff or defendant, throughout his whole career. His sister’s a federal judge, and so he’s a pretty sophisticated client. But still, it’s important as the lawyer to explain to your client what the future looks like legally.
Allen: Cully Stimson, senior legal fellow at The Heritage Foundation. And for all of our listeners, if you want to hear more from Cully, if you want to read his writing, his reporting, you can do so at heritage.org as well as The Daily Signal. Cully, thank you for your time today and your expertise on this.
Stimson: Thanks for having me.
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