Donald Trump faces a risk if he testifies to the New York grand jury empaneled in his hush money case: Walking out with more charges than he had when he walked in.
It’s rare in general for defendants or potential defendants to testify in these situations, and Trump might be an even worse candidate than usual, given his awkward relationship with the truth. No doubt Trump’s legal team knows this and has taken it into account when advising the former president.
For those same reasons, prosecutors with Manhattan District Attorney Alvin Bragg’s office, who reportedly extended the invitation, would probably salivate at the chance to question Trump under oath. That’s especially true given the potentially untested legal theory they may be advancing in the hush money case if the DA’s office attempts to elevate a misdemeanor falsifying business records charge to a felony. As I wrote previously:
A New York Times report published on Jan. 30 observed the legal uncertainty of being able to bring a felony case, as opposed to a misdemeanor, regarding falsifying business records in reimbursing then-Trump lawyer Michael Cohen for the payment. A felony charge requires that falsifying records helped conceal or commit another crime (the Times noted the “largely untested” theory of violating state election law as a potential second crime).
If Trump’s conduct potentially lines up with a misdemeanor as opposed to a felony, then so be it. As I’ve discussed, the difference between a misdemeanor and felony in this case could be minimal. But a fresh perjury charge could strengthen a case that otherwise rests on a potentially contested legal theory. So while it’s unlikely for most defendants or potential defendants to testify in the grand jury, Trump doing so could be an especially dumb move. And though it’s unknown what will happen, I’d be surprised if he testified. I bet the Manhattan prosecutors would be a bit surprised, too.
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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