What are grand juries? Who gets picked for one? What does an indictment mean? What's next? Why does it seem like this process is taking so long??
Today we explain all the legal processes surrounding the recent indictment of former president Donald Trump, as well as what the Constitution has to say about all of this.
With us is Albert "Buzz" Scherr, professor of Criminal Law and Justice at UNH Law.
Transcript:
Archival: And we begin tonight with the breaking news. Multiple sources telling ABC News that former President Donald Trump has now been indicted.
Archival: Trump was under investigation by the DA's office for his alleged hush money payment to adult film star Stormy Daniels during the 2016 campaign. This indictment is under seal, according to sources, and the exact charges are not yet known at this time.
Archival: But this is a moment in history, the first time ever, that an American president or former president has been charged with a crime. [00:00:30]
Nick Capodice: You're listening to Civics 101. I'm Nick Capodice.
Hannah McCarthy: And I'm Hannah McCarthy.
Nick Capodice: And today we are going to explain the basics of the legal procedure that is currently going on in New York involving former President Donald Trump. We are going to focus on systems and definitions here. We're going to define grand juries, indictment, arraignment, extradition, the role of a district attorney and what the Constitution says or does not say about all of this. And we're going [00:01:00] to be as specific as possible. But I want to say two things right off the bat. First off, Donald Trump is currently the subject of several criminal investigations, but this episode is going to focus on the one in New York centered on the payment of $130,000 to Stormy Daniels, an adult film actor. And number two, Hannah, when we're talking about legal procedures, we have your favorite uniquely American caveat.
Hannah McCarthy: Federalism.
Nick Capodice: Federalism.
Albert Scherr: You [00:01:30] know, there are 51 different criminal jurisdictions in the United States. And so New York is different than mass is different than California is different than Texas.
Nick Capodice: That is Albert "Buzz" Scherr, Law professor and chair of the International Criminal Law and Justice Program at UNH Law.
Albert Scherr: At a certain level of generality, an indictment is an indictment. A grand jury is a grand jury no matter what. But the more you descend into specific procedure, the more variation [00:02:00] you get.
Hannah McCarthy: Okay, given that we are both One nation and 50 nations bundled up, I think the first thing we have to define is a grand jury. What does it do?
Albert Scherr: A grand jury is a judicial body interposed in between the government, the prosecutor's office, and an individual to protect an individual from a prosecutor [00:02:30] who is just engaging in charging people by virtue of not liking somebody. And it is a body of individuals, varies from state to state, usually 17 to 23 or so. The prosecutor puts evidence in front of them in secret without any defense lawyer there, and they at some point decide whether there is probable cause to believe the crime has been [00:03:00] committed.
Hannah McCarthy: So a grand jury guards against prosecutors just bringing anyone to trial for anything whatsoever.
Nick Capodice: Yeah. And New York, along with many other states, does grand juries this way. The prosecution shares evidence, sometimes brings witnesses in to testify, and the grand jury decides whether or not to go to the next step, which is indictment. At least 12 members of that grand jury have to vote and say, yes, there is a case here. This person should be [00:03:30] charged.
Hannah McCarthy: And Buzz says there's no defense lawyer there. Does the defense or the person under investigation get to participate in any way whatsoever with this step?
Nick Capodice: Nope, not at all. That happens during the trial itself.
Hannah McCarthy: Who gets to be on a grand jury?
Nick Capodice: Grand jurors are selected the same way as other jurors in your district. Be that from voter rolls, car registration, etcetera. But unlike a petit jury which deliberates during a trial in a grand jury, there is no voir dire. That [00:04:00] is no process to ensure that a jury is impartial.
Hannah McCarthy: So it's random selection. There are no lawyers debating on whether or not one juror or another should be struck for cause.
Nick Capodice: Right. And I mean, you know, the judge will ask if you're related to anybody in the case, for example. But it's not like a petit jury where you're interviewed about your beliefs and your legal history and all that. Also, serving on a grand jury can take a long time.
Albert Scherr: A grand jury sits for anywhere from a month to two months, depending [00:04:30] on the jurisdiction, and they hear evidence on a whole bunch of crimes. It would be startlingly inefficient to have a separate grand jury called in for each potential crime. The grand jury will sit for two months, maybe not every day in every weekday in the two months, but they'll sit frequently during that two month period. And the prosecutor will bring in evidence most frequently a police officer [00:05:00] who's investigated the case to testify. This is what's happened in this case. This is what this person said. This is what that person said. You know, the rules, excluding hearsay and all that, don't apply. The rules of evidence don't apply at grand juries. So it can be a more efficient process. But, you know, the grand jury may hear evidence of, you know, 10 or 20 potential crimes in a day.
Nick Capodice: There are special grand juries, by the way, like investigative grand juries. But that's not what we have here. [00:05:30] The grand jury that voted to indict Donald Trump on March 30th was a regular grand jury.
Hannah McCarthy: Okay. Can we move on to that next step? What exactly is an indictment?
Albert Scherr: Indictment is a formal charge that says a grand jury has found probable cause to believe you've committed this crime. And it's a written document that details the elements of the crime the individual is alleged [00:06:00] to have committed. And a summary of the factual information supporting that legal allegation.
Nick Capodice: As of recording these words, 6 p.m. on Sunday, April 2nd, 2023. We do not know the exact nature of the indictment. It is sealed, but CNN has reported that there are at least 30 counts related to business fraud.
Hannah McCarthy: Okay. We've got the grand jury which heard evidence from the prosecution. They voted to indict Trump. What is the next step in the process?
Nick Capodice: After indictment, we [00:06:30] move to arraignment.
Albert Scherr: Arraignment is... Two things usually happen at an arraignment, 2 to 3 things. One, you enter a plea of guilty or not guilty. Two, if you don't have appointed counsel, you are appointed counsel before the arraignment. If you can't afford counsel. Number three, bail is set.
Hannah McCarthy: Will bail be set for former President Trump?
Albert Scherr: Yes, bail will be set in New York. You can't [00:07:00] be held in jail in lieu of bail on a nonviolent offense. So, you know, bail may be set in a certain amount, but certainly Donald Trump will be able to. It's not going to be the case that he's going to be arraigned and be held.
Hannah McCarthy: There will be bail, but he likely won't be held.
Nick Capodice: Right, he's not going to be kept in a cell or at a police station until the trial. The arraignment, by the way, is when booking happens. That's, you know, fingerprints, mug shots, etcetera. And [00:07:30] here is a moment where what's going on with Donald Trump deviates from what usually happens.
Albert Scherr: In those states where the norm is more often as it is in New York, where the norm is more often, that the police arrest you and your booked and they charge you with a felony and then you're arraigned and then you wait until the grand jury decides whether to indict you or not. Once you're indicted by the grand jury, [00:08:00] there's another arraignment on the indictment rather than the more informal charge that originally was placed against you. He has not been arraigned because this is, you know, sometimes they don't arrest them until the grand jury returns the indictment. It looks like it's less a political charge by the prosecutor if he funnels all the evidence that the prosecutor has through the grand jury, rather than he or she and the police make a decision and charge them and [00:08:30] then wait to go to the grand jury, It just it's better optics for the prosecutor to depoliticize what is happening.
Hannah McCarthy: I saw a tweet from our dear friend and social studies teacher, Andrew Swan, who was preparing a lesson for how he'd talk about this with his students. And he asked what would happen if Donald Trump refused to leave Florida to go to New York for the arraignment.
Nick Capodice: All right, Here is where we get into the next entry in our glossary, Hannah: Extradition. But first, we've got to take a quick break.
Hannah McCarthy: And as always, [00:09:00] before the break, Nick and I like to tell our listeners that we have a sometimes serious, usually not so serious newsletter that you should subscribe to. It is called Extra Credit, and it comes out every two weeks. Check it out, as well as hundreds of other free episodes and a ton of other stuff at our website, civics101podcast.org.
Hannah McCarthy: We're back. We're talking processes and definitions related to the recent indictment of former President [00:09:30] Donald Trump. And Nick, you were just about to get into what happens if, hypothetically, Trump refused to leave Florida.
Albert Scherr: Then extradition proceedings would ensue.
Nick Capodice: Again, that's Buzz Scherr, professor of criminal law and justice at UNH Law.
Albert Scherr: The Constitution basically says if somebody is charged in one state with a crime and they flee the state, the other state shall render that person back to the the charging state. There's [00:10:00] a procedure, the interstate extradition compact, that all the states in the country have agreed to that outlines a procedure. And the state of New York would get certain documents to a court in Florida. They would seek extradition of Donald Trump. The court would look at those documents. There would be a hearing to see if those documents were adequate. And then if the court grants it grants the request for extradition, then [00:10:30] the governor orders that the person be arrested.
Hannah McCarthy: The governor orders the arrest.
Nick Capodice: Yeah.
Hannah McCarthy: Which is Ron DeSantis.
Nick Capodice: It is indeed. Ron DeSantis has not formally announced his 2024 presidential campaign, but he has spoken of it in private. Governor DeSantis tweeted on the night of Trump's indictment, quote, Florida will not assist in an extradition request. His tweet also included some incendiary and inaccurate language I'm not going to include here, by the way.
Hannah McCarthy: Can [00:11:00] a governor do that, though? Can they refuse?
Albert Scherr: It's rarely tested, but it could be unconstitutional for a governor to refuse to extradite somebody who's made it through all the process that the uniform extradition statute allows for, Because the Constitution does not say the governor may send him back to the charging state. It says it shall send him back. So, you know, it's an interesting constitutional question [00:11:30] whether Governor DeSantis, if he refuse to finish off the extradition and send him back, whether that would be constitutional or not.
Hannah McCarthy: I want to go back to the person in charge of the prosecution in this case, district Attorney Alvin Bragg.
Archival: There you can see him there, Alvin Bragg, the Manhattan district attorney. He and his office now have just put out a statement. It says, This evening we contacted Mr. Trump's attorney to coordinate his surrender to the Manhattan district attorney's office for arraignment on a [00:12:00] Supreme Court indictment, which remains under seal. Guidance will be provided when the arraignment date is selected. All right. So not much from Bragg's office, but at least something. I'm going to read it again...this evening...
Hannah McCarthy: What are district attorneys?
Albert Scherr: They are the most powerful players in the criminal legal system in any jurisdiction in this country. They have the exclusive authority to [00:12:30] decide whether to charge somebody or not, either by bringing evidence in front of a grand jury or with misdemeanors charging them without the requirement of going through a grand jury. They have a relatively unfettered discretion on who to charge. Fettered only by can they get an indictment from a grand jury.
Hannah McCarthy: So district attorneys are the chief prosecutors in a given district.
Nick Capodice: Right, and they're not always called district attorneys. Some states call them county attorneys. Some states call them state attorneys. South Carolina [00:13:00] calls them solicitors. There are about 2300 of these chief prosecutors in the United States, and anyone can contact them.
Albert Scherr: Anybody. You could contact the district attorney and say, I have evidence that, you know, Buzz Scherr committed a crime, Here's my evidence, and they could send off their investigator. The district attorney's investigator is the local police department to to investigate the evidence you present to them So anybody can contact the prosecutor [00:13:30] and say, you know, time to go after Buzz for these. Here's all the evidence that I have. And then in theory, at least, they'll do an independent investigation and they'll trot it in front of the grand jury.
Hannah McCarthy: Are DA's elected by the people? Or are they appointed in some way?
Nick Capodice: They're usually elected. Though three states appoint them.
Hannah McCarthy: Okay. Before we move on from the DA, Nick, I've heard it mentioned often on social media over the last three days. District Attorney Alvin Bragg is a Democrat and Donald Trump is a Republican. [00:14:00] Does party affiliation have anything to do with this process?
Albert Scherr: In terms of political optics? Yeah. It's being made an issue of. But, you know, there is no jurisdiction in the country that says you can only indict a Democrat if you are a Democrat, you know, or you can only indict a Republican if you're a Republican. The PR campaign that's been at play for some time is trying to make something [00:14:30] of that. Yet another reason for interposing the grand jury in between the prosecutor and the individual. I mean, that's a perfect example. It cleanses to some extent the prosecutor from a charge of you're just doing it because you hate Trump.
Hannah McCarthy: It feels like it's taken a long time. Donald Trump's former private attorney, Michael Cohen, pled guilty to campaign money violations for this in 2018. Has [00:15:00] it taken an inordinate amount of time for this or is that just how it works?
Nick Capodice: It has taken a long time. Hannah and Buzz says part of the reason for that is that the prosecution is being very, very thorough.
Albert Scherr: The district attorney, Alvin Bragg, wants to make all the obvious reasons abundantly certain before he charges Trump that he his investigated this case as fully as he possibly can and [00:15:30] developed all the possible evidence that he can on either side of whether he committed the crime or not and put it in front of the grand jury. It's been vetted as deeply as possible. That actually is unusual. Truth be told, Donald Trump has gotten way, way, way more process out of the grand jury than the regular New York resident gets. Not that you'll ever hear that coming out of his [00:16:00] PR people's mouth or his lawyer's mouth. Alvin Bragg knows for certain that this is the case of his lifetime and he wants to have as many ducks, chickens and other animals in a row as possible before he the charge comes out.
Hannah McCarthy: The last thing I want to talk about here is the constitutionality of this indictment. This is the first time a current or former president has been charged [00:16:30] with a crime. Does the Constitution say anything about whether this is possible?
Albert Scherr: It doesn't say they can't be. So it speaks with silence. Formally as a legal matter, as a constitutional matter, there's not a thing in the way of charging an ex-president, you know, or Vice President Aaron Burr got charged. Spiro Agnew got charged. So [00:17:00] and the only reason Richard Nixon didn't get charged is Gerald Ford pardoned him. So there's absolutely no constitutional bar or other bar in the way of charging an ex-president.
Nick Capodice: Also, Hannah, there is nothing in the Constitution about whether a felon or even a person currently in jail can run for office, be elected and serve as president of the United States. But there is something in the Constitution, specifically the 14th Amendment, [00:17:30] about disqualifying people for running for office. This is called the disqualification clause. It's Section three of the 14th Amendment, which says that anyone who took an oath to protect the Constitution cannot serve public office in the United States if they, quote, have engaged in insurrection or rebellion against the same or given aid or comfort to the enemies thereof. Now, this clause had not been used to remove someone from office since 1869 after the Civil War until [00:18:00] September 2nd, 2022.
Archival: Our top story barred from office, founder of Cowboys for Trump and now former Otero County Commissioner Coy Griffin, punished by a New Mexico judge for his role in January 6th. So what's next?
Nick Capodice: A judge in New Mexico cited that clause to disqualify a county commissioner from holding office due to his participation in the insurrection at the US Capitol on January 6th.
Hannah McCarthy: Going back to this case, did Buzz have any predictions as to what was going to happen next in the indictment of Donald [00:18:30] Trump?
Nick Capodice: Yeah, he said not really. At this moment, as there are so many counts, not to mention all the other concurrent trials. But one thing we can count on is variety itself.
Albert Scherr: There's going to be a lot of variation, and all that matters in the end is when the prosecution puts witnesses in front of the jury. The judge is going to say to the jury at the end of the case. As to [00:19:00] each count. Here's the law that I'm telling you you are to apply. Up to you to decide whether the prosecution, given the facts that you have heard, has proven they violated this law beyond a reasonable doubt. And they'll do that. There'll be 30 different charges. Assuming all the counts get to the jury, there'll be 30 different ways of the jury evaluating them.
Nick Capodice: Something [00:19:30] just have to add at the end here, Hannah, Before I said goodbye to Buzz, there is a relevant concept that I wanted to explain to me by a legal professional. It's an idea that there exists something called the rule of law.
Albert Scherr: It's a much used term. The risk with much use terms is they lose meaning. But in fact it's as powerful a concept as exists in ordering society. When [00:20:00] a government passes a law, the rule of law is that law is followed. We don't ignore the law and do whatever the hell we want to. Your individual conduct is ruled by the law. The government's conduct is ruled by the law, be it the Constitution or a statute. Legislators conduct is is ruled by the law and without the rule of law, [00:20:30] at the most fundamental level, you have chaos. Because if following what the law says is discretionary, like, yeah, I don't like that law, so I'm not going to follow it. You know, that's not a world that over time is a healthy place. It's not healthy to live in a country like that.
Nick Capodice: That's [00:21:00] indictments. Grand juries. Arraignment. All that razzle dazzle. This episode was written and produced by me Nick Capodice with you Hannah McCarthy thank you. Our staff includes senior producer Christina Phillips, Producer Jacqui Fulton, and Executive Producer Rebecca Lavoie. Special thanks to Buzz Scherr, first time someone’s been kind enough to speak with me over a weekend, and to the many wonderful sschat teachers and others who threw questions our way; the amazing Cheryl Cook Kallio, Jamie Grettum, Mrs Cole (sorry I couldn’t get to Federalist 10 in this one, I promise I’m working on it), Brianna Davis, Eric Biggart, Liz Melahn, and the one who makes the beat go on, Andrew Swan. Music in this episode by Asura, Jesse Gallagher, KieLoKaz, Cooper Cannell, Sarah the Illstumentalist, Peter Sandberg, From Now On, Spring Gang, timothy infinite, Peter Sandberg, emily sprague, Twin Musicom, and the man whose music is unimpeachable, Chris Zabriskie. Civics 101 is a production of NHPR, New Hampshire Public Radio.