Our whole criminal justice process – whether for ex-presidents or the lowest level embezzler or tax cheat — has five basic steps, which we’ll take up in turn. Because Donald Trump is in great legal peril in multiple jurisdictions, at this juncture no one can yet say with any certainty if or when he will complete the legal journey from flying in Air Force One to making license plate number one.
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Step 1: Impaneling A Grand Jury
After a prosecutor – usually a local district attorney, a state attorney general, or a U.S. attorney – has determined the high likelihood that the target of an investigation is guilty – she or he asks a judge to impanel a grand jury.
A grand jury is usually composed of either sixteen or twenty-three citizens selected by the judge from a jury pool of ordinary citizens. After the prosecutor presents evidence, the members of the grand jury vote on whether or not to indict the defendant.
Generally, it takes a two-thirds or three-quarters majority of the vote to indict. But considering that the members of the grand jury have heard evidence presented only by the prosecutor – who believes the defendant is guilty – nearly all grand juries vote to indict defendants. If the grand jury hands up an indictment, the case is then scheduled for trial.
Step 2: Scheduling A Trial
It is almost always several months before a trial is scheduled to begin. And then too, either the defendant or the prosecutor can ask that the trial be postponed. It would appear then, that the earliest Trump will go on trial would be late this year, or perhaps even early next year.
Step 3: The Trial
Almost all criminal trials are jury trials. There are twelve jurors who hear and view the evidence, and who then attempt to reach a unanimous innocent or guilty verdict. If, after days of deliberation, they are unable to reach a verdict, the judge will usually declare a mistrial.
Occasionally, a bench trial is held, in which the judge alone decides whether the defendant is innocent or guilty.
In every trial, the prosecution makes its case and the defense tries to prove the defendant innocent. Criminal trials sometimes last less than a day or two, or can go on for several weeks.
Step 4: The Verdict
After jury trials end, the jury will discuss the evidence and eventually reach a decision as to the innocence or guilt of the defendant for each charge. This may take just a few hours, or even several days. Bench trials take considerably less time to reach a verdict since the judge alone is the decision-maker.
Step 5: Sentencing
If the defendant is found guilty, a few months after the trial the judge pronounces her or his sentence. Depending largely on state or federal guidelines, the judge usually has considerable latitude as how as to the terms of any prison sentence.
What will happen during the next few months?
We actually have a fairly good idea of what will happen over the next few months, but any predictions beyond the summer become increasingly speculative. Right now, we know that at the request of Cyrus Vance Jr, the Manhattan District Attorney, a state judge has authorized the impaneling of a grand jury, which has been presented with multiple criminal charges.
Very probably, within a couple of months, the grand jury will hand up an indictment to the court, and the judge will arrange for a trial to take place before the end of the year. Trump’s attorneys will predictably request a trial date well into 2022, and will be rebuffed by the judge.
This will be the first of at least a few trials over the next few years in which Trump will be charged with such serious crimes as federal and state income tax evasion, racketeering, money laundering, obstructing justice, election fraud, and inciting an insurrection.
As most Americans know, ex-President Trump is also under investigation by Liticia James, the New York State Attorney General, and prosecutors in several other jurisdictions such as Fulton County, Georgia and Washington D.C. Within months, some of these prosecutors will be presenting evidence to grand juries in those localities.
Right now, we’re in the early stages of a legal process that will take years to fully play out. But Trump will soon be fighting major legal battles on multiple fronts. Not only will he be put on trial in several criminal suits, but also in perhaps a dozen civil suits – largely brought by women who have accused him of sexual harassment and even rape. Although the statutes of limitation for criminal suits have passed, each of these civil suits will not just be very time consuming, but they may set Trump back by hundreds of millions of dollars in damages.
How likely is it that Trump will go to prison?
Let us begin with several unforced errors in judgement that Trump has already made, which have substantially raised the odds that he will eventually go to prison. His first mistake was not pardoning himself and his children, or temporarily vacating his presidency to Vice President Mike Pence to issue those pardons.
His next mistake was to pin his hopes of avoiding prosecution by winning reelection – and then expending most of his time and energy in denying that he had actually lost. Had he been able to hang to the presidency, that would have given him four more years of protection against prosecution for any crimes he might have committed.
As most Americans know, a presidential pardon would exempt people from being prosecuted for any federal crimes they may have committed. But it doesn’t exempt them from prosecution for state crimes. The case introduced against Trump by Manhattan D.A. Cyrus Vance, Jr., as well as potential cases introduced by New York Attorney General Liticia James, and possibly by the Fulton County, GA prosecutor would involve state crimes.
Still another handicap that the ex-president must bear is his overwhelming self-regard. At each major juncture in the legal process, a prosecutor may tell a judge that Trump is a flight risk, and that he should be ordered to surrender his passport. And if it should appear likely that Trump would be found guilty of a serious crime, the prosecutor might ask a judge to place him under house arrest.
Before that happened, many other defendants facing possible long prison terms would have fled the country. But Trump’s monumental ego will prevent him from ever trying to escape.
Donald Trump and the Trump Organization have been defendants in countless lawsuits over the last four decades. Their strategy has been to drag out the legal process for years, filing appeal after appeal, and financially outlasting their opponents. There is no question that even if Trump were to lose multiple criminal cases, he would try to drag out the appeal process for the rest of his life.
Now, let’s answer the question we posed at the beginning of this article: Will Trump go to prison? Call it a cop-out, but no one can make an accurate prediction. It is virtually certain he will be indicted for multiple major crimes. I predict that he will eventually be found guilty of several major crimes and be sentenced to serious prison time.
But at each stage, he will stall the legal process for as long as possible. Still, it will take just one conviction and one denied appeal to send him to prison, probably for several years. So, I would bet that if he can stay alive, there’s a much better than fifty-fifty chance he will end up in prison.
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