UPDATE (Friday, March 31, 2022, 12:09 a.m. ET): Former President Donald Trump was indicted Thursday in New York by a Manhattan grand jury.
Donald Trump’s potential indictment in New York would be unprecedented for a former president. But regular people are indicted at the Manhattan District Attorney’s Office all the time, as I witnessed firsthand as a prosecutor there. Here’s what could happen with Trump if he’s charged.
Often when grand juries vote to indict someone, the person has already been arrested and charged based on an officer’s complaint, and the indictment is what’s needed to move the case forward. But when it comes to investigations, like the Stormy Daniels hush money case, grand juries can vote to indict people who haven’t been arrested yet. When that happens, a state arrest warrant is generated, and the person is arrested based upon that warrant if the individual is in New York.
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That raises the question of whether Trump could meaningfully fight extradition if he’s out of state. Could Florida Gov. Ron DeSantis, for example, somehow keep Trump “safe” in his state? I don’t think so, even if DeSantis is inclined to try.
By fighting extradition, Trump might delay things, though not indefinitely or for long at all. It’s more a matter of processing paperwork from one state to another, and making sure you have the right guy — not whether the charges can be proved beyond a reasonable doubt, which is what trials are for.
Of course, Trump could negate the extradition issue by surrendering. But however he gets to New York, a question is whether Trump would be would be “perp walked” — that is, strutted before the flickering lights of press cameras while handcuffed and escorted by officers into the downtown courthouse.
The answer to that question would be more of a policy choice by Manhattan DA Alvin Bragg than a legal choice, but it could turn at least partly on Trump’s level of cooperation with his surrender. Trump lawyer Joseph Tacopina told NBC News that the former president will follow normal procedures if it gets to the point of having to surrender to the DA’s office.
As former U.S. Attorney Chuck Rosenberg, a frequent MSNBC commentator, said Monday on “Morning Joe,” it seems unlikely we’ll see Trump put in handcuffs. “I can’t imagine that the government here would move for Mr. Trump’s detention or, even if they did, that a judge would grant it,” he said. Trump would, however, likely need to be fingerprinted and photographed at Bragg’s office in lower Manhattan, right next to the courthouse — that would be the infamous “mug shot.” Unlike a perp walk, fingerprinting and photographing wouldn’t be done for show but, like with extradition, to officially record that it’s the right person who’s arrested in connection with the warrant generated by the indictment. While there’s no question that Trump is Trump, that’s not a process he would likely be able to forgo. The former president could then be brought into court and arraigned on the indictment, where the charges are formally unveiled. He would most likely enter a plea of “not guilty.” From there, the judge could set a schedule for litigating pretrial issues or address whatever other preliminary matters there are to address. As for bail: Again, don’t expect Trump to be held pending trial, especially if we’re dealing with lower-level charges. What happens from that first appearance, however, is anyone’s guess.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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