A Special Grand Jury Is Secretly Hearing From Witnesses in the Manhattan
DA's Trump Investigation.
By Jacob Shamsian, Business Insider
08 June 21
nI a courtroom in downtown Manhattan, the district attorney's office is
marshaling paperwork and secretly whisking witnesses in front of a "special"
grand jury for what may be one of the most consequential criminal cases in
the history of the United States.
The grand jury is "special" in two ways. It'll be convened for six months,
rather than one month, which is standard. It also could be asked to do
something no one has ever done before: indict a former president.
The Manhattan District Attorney's investigation into Donald Trump's and the
Trump Organization's finances appears to have reached an advanced stage.
Prosecutors are expected to announce whether they're bringing any criminal
charges before the end of the year, and the special grand jury - a group of
23 ordinary citizens - will be the ones to make the final call.
Here's how the process works.
What does a special grand jury do?
The precise rules for grand juries and criminal charges vary by state. Under
New York law, which governs the Manhattan District Attorney's office, a
felony charge - a criminal charge that would result in a year or more in
prison - may go to trial only if a grand jury decides to file an indictment.
A grand jury in New York consists of 23 people. Sixteen jurors must be
present in order to make charging decisions, and 12 must vote in favor of
bringing an indictment. They must meet in secret and are not permitted to
discuss the case with anyone outside the jury. Grand juries can also issue
subpoenas and compel witnesses to testify.
Most grand juries meet for one month and hear multiple cases. According to
The Washington Post, the Manhattan DA has empaneled a "special" grand jury
that will last up to six months in order to hear evidence from the Trump
investigation and decide whether to bring an indictment.
Special grand juries are typically empaneled to review evidence for more
sophisticated cases like Trump's, which spanned two years and involves
possibly millions of pages of documents. Court documents suggest that the
office of Manhattan DA Cyrus Vance Jr. has been investigating whether the
Trump Organization, its executives, or Donald Trump himself broke tax laws
by keeping two sets of books. One set would have shown assets of little
value, in order to pay little in taxes; another would have shown significant
profits in order to receive favorable loan and insurance rates. Legal
experts expect Vance to make a case for tax, bank, and insurance fraud
charges.
A judge may extend the special grand jury beyond the allotted six months,
though Vance is widely expected to announce a charging decision before he
retires at the end of December. The special grand jury, like regular grand
juries, may also hear more than one case depending on how Vance's office
decides to schedule it.
Grand juries are meant to function as a check on government power.
Prosecutors need to convince a majority of jurors that there's probable
cause to charge someone with a crime; only then can a case go to trial.
"The grand jury was designed to say, 'Hey, wait a minute, government, before
you just start taking anybody you feel like to trial and convicting them and
tossing them into jail or cutting their heads off, we're going to make you
present evidence first and satisfy a group of people to show that we have a
case,'" said Randy Zelin, an attorney at Wilk Auslander LLP and former
prosecutor.
But in reality, defense lawyers like Zelin say, grand juries almost always
agree with prosecutors.
In a trial, a judge oversees the process, defense lawyers can put up a
defense or call their own witnesses, and prosecutors must overcome the
challenge of getting a jury to reach a unanimous verdict.
But prosecutors determine which witnesses to bring and what evidence to show
a grand jury - and the verdict doesn't need to be unanimous.
What evidence will jurors review?
Earlier this year, Vance's office won what's likely the biggest prize in
their investigation. After two Supreme Court decisions, the district
attorney's office was finally able to obtain the Trump Organization's tax
documents in February.
Those documents include Trump's tax returns, which he has fought
vociferously to keep from the public and which he has repeatedly lied about.
Legal experts say the documents also likely include email communications
between Trump Organization officials, insurance brokers, third-party
accountants, and banks about what would go into those tax returns. If the
communications show that Trump Organization officials sought to distort the
true value of the company's properties, that could amount to tax and wire
fraud, according to the legal experts.
Prosecutors have been examining that documentation for months. Now, they
will present those documents as exhibits before the grand jury.
Aside from the subpoenaed tax documents, prosecutors may present jurors with
financial documents provided by cooperating witnesses.
Jennifer Weisselberg, the former daughter-in-law of Trump Organization CFO
Allen Weisselberg, obtained seven boxes of documents as part of an
acrimonious divorce from Barry Weisselberg, Allen's son. She gave those
documents to prosecutors in the fall, and in interviews with Insider said
they may include evidence that Allen Weisselberg distorted employee
compensation in a way that may break tax laws.
Barry Weisselberg is also a key Trump Organization employee, as the manager
of the cash-only Wollman rink in Central Park. Prosecutors may also be
examining documentation about the rink's operations for potential tax fraud,
according to people familiar with the investigation.
The financial documents investigators gathered may be complex and difficult
for a grand jury to comprehend. That poses a challenge for Vance's office.
Under New York state law, prosecutors can't present "hearsay evidence," or
prosecutors' personal summaries of the evidence, to grand juries. Instead,
prosecutors must provide the underlying documentation directly to the
jurors.
Prosecutors can also get third parties to present evidence, including charts
and summaries, for them. Vance's office is working with FTI Consulting, a
forensic accounting firm, to analyze Trump's documents, and those
accountants may present their analysis to a grand jury.
"There could be summary charts or analyses that are put together by the
person who has done that analysis to help the grand jury understand the
documents," said Rebecca Ricigliano, a former first assistant attorney
general for the state of New Jersey and longtime federal prosecutor in
Manhattan. "You see that all the time in regular trials where there's
complicated financials or complicated issues concerning voluminous
documents."
What witnesses will jurors hear from?
The person or entities under investigation don't have any say in who's
called as a witness before a grand jury. It's up to prosecutors to decide
who testifies.
By default, anyone who gets called as a witness in front of a grand jury in
New York gets "transactional immunity," meaning they get total immunity from
prosecution for any possible crimes related to their testimony.
Transactional immunity protects people from being subpoenaed and forced to
incriminate themselves.
It also means prosecutors need to secure cooperating witnesses before going
to a grand jury. The names of some of those witnesses in the DA's
investigation are already public.
Michael Cohen, a former Trump Organization executive and personal lawyer for
the ex-president, told Insider he's spoken to prosecutors more than a dozen
times. Jennifer Weisselberg has helped prosecutors understand the company's
inner workings, which she's described as corrupt. Both will likely serve as
grand jury witnesses, and both declined Insider's request to discuss their
possible role, saying they don't want to jeopardize the legal process.
On Friday, ABC News reported that Vance's office brought Jeff McConney, a
senior vice president and controller for the Trump Organization, to testify
in front of the special grand jury.
Prosecutors also may have secured less boldfaced names, like tax preparers
at Mazers, the firm used by the Trump Organization, or officials at the
insurance firm Aon.
It's unclear whether prosecutors have secured cooperation from Allen
Weisselberg, who is widely viewed as a potential key witness for the case.
He's worked for the Trumps for more than four decades, and knows the
company's as well as the family's finances inside and out. Prosecutors
reportedly want him to testify about those finances.
But prosecutors wouldn't want to just call Weisselberg as a grand jury
witness, which would give him immunity from prosecution for any financial
crimes he may have committed in his role as CFO.
Ricigliano noted that people shouldn't assume Weisselberg will make or break
the DA's case.
"It's hard to judge whether he's really a make-or-break figure, or if they
have been able to compile the evidence they need from multiple other
sources," Ricigliano, now an attorney at Crowell & Moring, told Insider.
"You can build a case like building a house. You can either get a crane to
drop down a prefab house, or you can build it brick by brick."
Does Trump himself play any role?
If Trump himself is a subject of the DA's probe, he wouldn't be called as a
grand jury witness. If prosecutors want to charge him, giving him
transactional immunity would defeat the purpose of their investigation.
Still, if a lawyer knows their client is a subject of a probe, they can
serve a "grand jury notice" to the district attorney's office, Zelin told
Insider.
If that notice is served, prosecutors may be forced to inform the special
grand jury that a particular witness named by the defense attorney is
willing to testify. The jurors may then decide to subpoena the witness,
giving that person transactional immunity against the prosecutors' wishes.
"It's sometimes a sophisticated and savvy move on a defense attorney's
part," Zelin said.
To head off that scenario, prosecutors will try to make a deal with
potential witnesses - called a cooperation or plea agreement - where they'd
testify in front of a grand jury and agree to waive transactional immunity.
"Prosecutors are very strategic in thinking through their presentation of
evidence to ensure that they are not immunizing a witness who they shouldn't
be immunizing," Ricigliano said.
What charging decisions can the special grand jury make?
It's not clear whether Vance will seek to charge Trump, Trump Organization
executives, the company - or not bring charges at all.
Former New York Supreme Court chief judge Sol Wachtler said a grand jury
would "indict a ham sandwich" if a prosecutor told them to because of the
amount of control they have over the process. Zelin said because of that
dynamic, grand juries can offer prosecutors political cover.
If prosecutors don't want to pursue a politically inconvenient case, they
can blame the grand jury for not bringing an indictment.
But grand juries can also offer protection: Trump has already attempted to
tarnish Vance's investigation by describing it as politically motivated. If
a grand jury brings an indictment against Trump, Vance could persuasively
say that fellow citizens, not just his office, believe the former president
may have committed a crime.
Any charging decisions in this case will be controversial. Democrats sore
over Trump's apparent ability to wriggle out of every scandal will be
further rattled if he isn't personally charged. Trump supporters may be
scandalized if he's held responsible for financial wrongdoing that may have
been engineered by other executives like Weisselberg.
Daniel R. Alonso, a former top Vance deputy, previously told Insider there's
a good chance the DA may ask the grand jury to bring charges against only
the Trump Organization.
Charging the Trump Organization alone would be a smart strategic move that
would further puncture Trump's image as a successful businessman, possibly
cut into his family's reputation, and provoke less backlash from the 74
million people who voted for him, Zelin said.
"An argument could be made that it's more devastating," Zelin said. "If you
kill the Trump Organization, basically you kill the Trump family's means and
a rather extravagant high-profile and lavish lifestyle."
Ricigliano told Insider that prosecutors don't typically think about
political considerations when they bring cases in front of a grand jury.
She emphasized that prosecutors in Vance's office - as well as prosecutors
with New York Attorney General Letitia James' parallel investigation -
gathered massive amounts of information over the course of their two-year
probe, and the public only is aware of a small fraction of it.
Those prosecutors will ultimately bring the best case they have based on the
evidence, she said.
"I don't think that prosecutors view the grand juries as potential
scapegoats or ways to alleviate pressure," Ricigliano said. "It's part of
the system that's been part of the country since the dawn of the
revolution."