Former President Trump still has room to breathe, but he must be feeling as though the screws are tightening from the activities of New York’s law enforcement officials during the past two weeks. First, the Attorney General of New York State, Letitia James, announced that a civil inquiry into the Trump Organization had become criminal and she would join forces with the Manhattan District Attorney, Cyrus Vance, in a joint criminal investigation. Secondly, the Manhattan District Attorney’s Office leaked to the media that there is enough evidence to convene a grand jury proceeding involving Trump and the Trump Organization. According to press accounts, the grand jury would take testimony three days a week for as long as six months into the future.
Understand that in the real world of complex criminal investigations, law enforcement officers do not announce a criminal probe and a lengthy grand jury investigation if they expect to come up dry and not return an indictment. There is no way that the created media about the investigation would ever happen if James and Vance did not believe they would end up with a major prosecution of either Trump and/or the Trump Organization. Additionally, in the past months there had been stories about prominent lawyers leaving private practice to work in Cyrus Vance’s office to be part of this probe. These highly respected trial lawyers would only be going back to government if they thought they would be part of a historic prosecution.
The type of grand jury that Vance and James are convening is called an investigative grand jury. Although it is more time-consuming, the investigative grand jury provides the prosecution with a number of tactical advantages it would not otherwise have: 1) it allows the prosecution to lock a reluctant witness into certain testimony under oath, so that if the witness ever recants at trial the prosecution can read the grand jury testimony to the trial jury as substantive evidence; 2) the prosecution can require reluctant witnesses who do not want to hurt the target of the investigation to testify before the grand jury even if the witness declines to be interviewed by a detective outside the grand jury. When people are asked questions subject to the law of perjury they will frequently admit to facts which may hurt the target because they don’t want to be criminally charged with perjury; 3) sometimes the investigative grand jury stumbles on other crimes during the testimony; and 4) the grand jury can also obtain evidence of wrongdoing by an associate of the target which will put enough pressure on the associate to become a cooperating witness in order to minimize their criminal exposure.
The person identified in the media as to the most critical witness against Trump in the Trump Organization is Allen Weisselberg, the longtime CFO for all the Trump enterprises. If there is proof of fraudulent activities and/or tax violations, Mr. Weisselberg might be right in the middle of it and he would have knowledge if others were involved, including Donald Trump. Weisselberg becoming a cooperating witness may not be essential to a criminal prosecution, but Trump should hope that the old Hudson County adage does not come to pass: “You are indicted by your enemies but convicted by your friends.”
During the past two weeks, the possibility of a criminal prosecution against Donald Trump has morphed from the theoretical to the real. I suspect in the next few months the vise will only tighten and it will be harder to breathe.