By Zachary Margulis-Ohnuma
Every criminal lawyer knows that feeling when you get the call from the prosecutor telling you: your client is getting indicted, does he want to testify? Your stomach sinks. It’s different from hearing that your client is worried he did something wrong, or knows he is under investigation. It means the case is going to court.
That seems to be exactly what happened to the former president of the United States and New York media personality Donald Trump.
The New York Times is reporting that four people with knowledge—likely people close to Trump, because it would be unlawful for the district attorney to leak the news—are saying that he was notified he could testify at the grand jury investigating payments to porn star Stormy Daniels in exchange for her silence about their relationship just before the 2016 elections.
That kind of notice is a quirk of the New York Criminal Procedure Law known at CPL 190.50 notice. If a target’s lawyers serve “cross grand jury notice” on the prosecutors, in other words let it be known that their client might want to testify at the grand jury, then prosecutors have an obligation to give the defendant an opportunity to testify before they can ask the grand jury to vote on an indictment. That does not mean prosecutors are seeking or compelling the person’s testimony. In fact, in most cases it’s a trap and the defendant knows an indictment is all but assured and his testimony won’t make a difference and can later be used against him. But the People cannot obtain an indictment until the defense is notified and the defendant has a reasonable opportunity to appear.
The defendant himself has an absolute right to testify. His lawyers can even propose other witnesses to come before the grand jury. If they do, the prosecutors are compelled to notify the grand jurors (there are 16 to 23 regular people sitting on any given grand jury, they sit for days at a time, and 12 have to be present to take a vote) and they can decide whether they want to hear the defense witnesses or not.
Our office once won a case because we sent a defense witness to the grand jury and the prosecutor shut it down before he got a chance to testify.
Trump seems to have shifted from expensive “white collar” criminal attorneys used to complex financial cases to the kind of attorneys who mostly represent rich guilty people and get paid up front (Trump famously never pays his last legal bill). He won’t present a subtle legalistic defense in the grand jury and he surely won’t testify. But the fact that he has been served with CPL 190.50 notice means the grand jury is ready to vote on an indictment, known as a true bill. That means New York District Attorney Alvin Bragg’s prosecutors feel they have enough evidence to show reasonable cause that ex-President Trump himself violated the New York Penal Law by orchestrating or hiding payments to Stormy Daniels.
A state’s indictment of an ex-U.S. president is a historic, unprecedented event, especially coming from a thoughtful district attorney who early last year passed on advice to prosecute Trump over tax violations, but won a civil case against Trump’s company and has managed to turn at least some of his confederates against him.
Unnamed sources announcing grand jury notice to the New York Times is the rumor. Stay tuned for the news.