No, the deep state didn't indict Trump
The New York grand jury simply did what grand juries do — hear the evidence and decide whether to indict.
By Lisa Needham
So, Donald Trump has been indicted. No one knows what the charges are yet, nor what the outcome will be. But over in the fact-free playground of conservative media, they’re pretty certain it’s a frame-up, the product of a Soros-funded corrupt Democratic district attorney working in concert with the deep state.
People who should know better, like former Attorney General Bill Barr, claim it’s a “pathetically weak case.” Since the indictment won’t be unsealed under Tuesday, how would he know? He wouldn’t. Nor does Florida Gov. Ron DeSantis, who complained that Bragg indicted Trump on “misdemeanor offenses.” Innumerable additional examples of Republicans recklessly framing Trump’s indictment as the fruit of a nefarious conspiracy could be cited.
All we know for now is that the indictment concerns hush money payments to adult film actress Stormy Daniels during the election, and, for what it’s worth, CNN reported that Trump’s facing more than 30 charges related to business fraud.
Despite the conservative fever dreams to the contrary, Alvin Bragg, the duly-elected district attorney for New York County, isn’t part of the deep state. He isn’t even part of the federal government. He isn’t backed by George Soros, though it is a favorite anti-semitic trope of conservatives to invoke Soros’s name as a shadowy Jewish person bent on destroying America. Soros has donated to a group that promotes the election of progressive prosecutors who back judicial reform, and that group supported Bragg, but that’s it.
Nor is Bragg the one bringing the charges against Trump. Rather, Bragg presented evidence to a grand jury, and the real story behind a grand jury indictment is much more routine and mundane than all of the furor being whipped up by Trump’s toadies.
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Grand juries, briefly explained
Grand juries are a staple of the American justice system, but they’re not juries in the way we typically use the term. “Jury” typically refers to trial juries, where members of the public decide on a verdict after hearing from both sides in a criminal or civil case. A grand jury doesn’t oversee a trial or go to a courtroom. Instead, they hear evidence from a prosecutor and decide whether the evidence warrants an indictment. Importantly, unlike criminal trials where the standard for conviction is proof beyond a reasonable doubt, the standard for grand jury indictments is merely probable cause.
Under the Fifth Amendment, grand juries are required when the federal government wants to bring felony charges. At the state level, each state can decide whether to use a grand jury. For example, in Minnesota, a grand jury is convened only when “required by the public interest or whenever requested by the county attorney.” California not only has criminal grand juries but also has a civil grand jury to investigate local governments. Other states don’t use them at all.
In New York, the state constitution requires a grand jury for all felony-level indictments. Grand juries are selected from the same juror pool as trial juries, which in New York means jurors must be over 18, a citizen of the United States, a resident of the county in which they are called to serve, proficient in English, and cannot have a felony conviction. Grand juries in New York have 23 members but can meet if they have a quorum of 16 people, and at least 12 of them must vote on the evidence they hear. Grand juries sit for one or two days per week, typically for a two-week or month-long stretch, though they can be required to meet for longer.
Typically, defendants don’t testify before grand juries, but if they choose to, they can have their attorney present. However, their attorney can’t ask questions, make objections, or address the grand jury. Trump was invited to testify before the grand jury in this case. It is technically unknown if he chose to, but it seems wildly unlikely.
Grand juries are not specially invented or convened to harm Donald Trump. Indeed, the very act of having a grand jury gives Bragg some cover here. That’s because, while the district attorney brings the evidence and possible charges to the grand jury, only the grand jury can indict someone unless the defendant waives that right and lets the charges proceed against them without the grand jury indictment.
When they function as they are supposed to, grand juries cut the prosecutor out of the process of deciding whether the evidence is sufficient to charge someone with a crime. That’s why allegations that Bragg somehow single-handedly indicted Trump are absurd. His job was to present evidence to the grand jury, but it was their job to decide the charges.
Grand juries actually have a long history of protecting the powerful
To be fair, there is a notorious history of prosecutors using grand juries to get a preferred result. Most often, and most depressingly, this has happened when grand juries were convened after police killed someone. In those instances, grand jurors, whether by their own inclination or in how the evidence is presented or both, have often declined to indict the police officer. If anything, that shows grand juries can be easily manipulated to protect the powerful, rather than the other way around, as with Trump.
An additional layer of outrage from conservatives here comes from their willfully misguided belief that presidents are somehow immune from legal jeopardy. But that argument makes no sense in the face of history. In February 1974, a grand jury was prepared to indict Richard Nixon on charges of bribery, conspiracy, obstruction of justice, and obstruction of a criminal investigation before Gerald Ford issued his predecessor a “full, free, and absolute pardon.” Both the potential indictment of Nixon and his subsequent pardon would have been unnecessary if presidents were somehow uniquely inoculated from ever facing criminal charges.
Conservatives have also memory-holed what happened to former president Bill Clinton. In the wake of the Lewinsky scandal, Clinton faced the possibility of indictment for making false statements under oath. He essentially cut a deal right as he left office, agreeing to admit he gave false testimony and surrendering his law license for five years. As with Nixon, such a deal would not have been necessary if somehow Clinton could have just said it was impossible to charge him criminally.
During the Mueller investigation, Trump backers relied heavily on a Department of Justice memorandum issued during Bill Clinton’s second term. That memo said that sitting presidents couldn’t be indicted or prosecuted because it would “unconstitutionally undermine” the ability of the executive branch to function. However, the memo doesn’t address former presidents at all, making it useless for Trump here.
Conservative outrage over Trump’s indictment is also absurd given that his entire political career has been marked by his open demands that his political opponents be prosecuted. This was true of Hillary Clinton when she ran against him in 2016 and again of Joe Biden in the 2020 election. He also called for the Democratic governor of Michigan, Gretchen Whitmer, to be locked up.
So what happens next? Trump promised “death and destruction” if he was charged, and his far-right followers appear ready for just that. DeSantis said he wouldn’t cooperate in extraditing Trump to New York, but that explicitly violates the Constitution, and Trump’s attorneys have already made arrangements for him to surrender and make his first court appearance on Tuesday anyway. At that time, we’ll know much more about the charges and the evidence underpinning them, but that likely won’t matter to Trump’s rabid fans — nor will it to Republicans who had no shame about framing the indictment as a witch hunt before they even knew the facts.
So, did I miss anything on vacation?
By Aaron Rupar
Welp, I picked a helluva time to take a few days off.
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