McCarthy: I would not expect Trump to be “arrested” in the familiar sense of that term — i.e., police taking him into custody and placing him in handcuffs. .
Judge puts Gag order on Trump in Manhattan Case - May 8, 2023
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Former Assistant U.S. Attorney @AndrewCMcCarthy: "If the judge does his job right here, the case should be dismissed…I would dismiss it on its face because it fails to state a crime. Here, it fails to state a crime 34 times!" pic.twitter.com/JVlUsX55JE
— Trump War Room (@TrumpWarRoom) April 4, 2023
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by Andrew McCarthy, National Review, March 19, 2023
There seems little doubt that Manhattan District Attorney Alvin Bragg’s indictment of Donald Trump is imminent (Until this Week!). As I said Friday, I’d bet on the early part of this coming week because (a) the grand jury that has been hearing evidence in the matter appears to meet on Mondays and Wednesdays; (b) most of the critical witnesses have been interviewed, including Trump’s former self-described “fixer,” Michael Cohen, who testified last Monday and Wednesday; (c) the prosecutors also reportedly touched base last week with Stormy Daniels (the porn star whose real name is Stephanie Clifford) to make sure she was ready and willing to testify; and (d) the prosecutors invited Trump himself to testify (he declined, as one would expect), and such an invitation to the target of a grand-jury investigation is typically one of the last steps, if not the last step, taken by the state before asking a grand jury to vote on a proposed indictment.
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All that said, though, reports that Trump will be arrested on Tuesday are premature and probably inaccurate. They appear to have been generated by the former president himself and apparently are not based on discussions between the Trump camp and the DA’s office.
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"Although it may be politically popular (to some), the case is legally pathetic."
At least that’s what the New York Times reports. The Times has excellent sources in Bragg’s office and in Trump world (Trump himself has been a frequent source for Maggie Haberman, who is the lead reporter on today’s article).
If the paper is right, then Trump’s combustible post this morning on his social-media platform — which concluded, “THE FAR & AWAY LEADING REPUBLICAN CANDIDATE AND FORMER PRESIDENT OF THE UNITED STATES OF AMERICA, WILL BE ARRESTED ON TUESDAY OF NEXT WEEK. PROTEST, TAKE OUR NATION BACK!” — is the product of speculation by people around him, based on news reporting, not discussions with prosecutors. It’s undoubtedly educated speculation, at least regarding the high likelihood that an indictment is imminent. But I wouldn’t take to the bank the assertions that Trump will necessarily be “arrested” and that this arrest will happen on “Tuesday.”
The Times says state prosecutors are still tying up some loose ends. This potentially includes the presentation of another (unidentified) witness to the grand jury. If that’s true, it could result in some delay in the grand jury’s voting of the indictment — depending, of course, on how critical the witness is, and how extensive the examination will be (as noted above, Cohen’s testimony last week took two days).
In addition, I would not expect Trump to be “arrested” in the familiar sense of that term — i.e., police taking him into custody and placing him in handcuffs. The former president has Secret Service (USSS) protection.
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Although the Trump and Bragg camps have no use for each other, the USSS and the NYPD have good relations. They coordinate frequently because Secret Service protectees are often in the Big Apple. We can be confident that they will cooperate in a manner that ensures each side’s concerns are addressed: The USSS will keep Trump secure, and the NYPD will make sure he is efficiently processed and produced for his court appearance.
Naturally, Democrats crave iconic images of Trump in handcuffs, being perp-walked by uniformed cops. I’d be shocked if that happens. The DA’s office, the NYPD, and the USSS will make some arrangement in which Trump is brought to some secure location proximate to the courthouse and police headquarters, where he will be fingerprinted and photographed. (Note Rich’s allusion to the mug shot, which we probably won’t see, at least for now.)
Trump will then be brought to a courtroom and presented before a judge. In an initial appearance, the judge will ensure that Trump knows why he has been brought to court and will set bail.
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Ordinarily, a plea would not be entered in a first appearance; that happens later, at the arraignment. In this instance, however, Trump will already stand formally indicted (as opposed to being arrested on a sworn police complaint), so there could be an arraignment and entry of a not-guilty plea. Indeed, because it will be a logistical and security nightmare to conduct proceedings in this case, I expect the parties to try to get as much necessary procedure accomplished as practicable in the first appearance. That would avoid the need to have Trump, who resides in Florida and spends much of the summer in New Jersey, come to court in New York City more often than is necessary.
Based on what’s been publicly reported about the case, we can assume that Trump will be charged with felony falsification of business records. We haven’t seen the indictment yet, so we should reserve judgment about how strong the felony charge is (I’ve contended that it’s a dubious charge, and there could be knotty statute-of-limitations issues, but let’s see what the state thinks it can prove). But falsification of business records is a non-violent crime and generally a misdemeanor in New York. Consequently, Trump will not only be granted bail pretrial but should be released on his own recognizance. If the parties’ lawyers are acting like adults, that should be agreed to ahead of time. The court session should be quick.
Trump being Trump, his social-media post calling for “PROTEST” is irresponsible. To be sure, it is completely legal — calling for protest is classic political speech protected by the First Amendment. As a matter of law, he did not call for violence and could not be deemed legally liable if his most rabid supporters interpret “PROTEST” as encouragement to riot. As a matter of common sense, though, it is shameful for Trump to speak this way after his fiery Ellipse speech was followed by a riot at the Capitol.
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The practical consequence is likely to be that nothing happens on Tuesday. The state authorities will try to orchestrate Trump’s surrender in a way that allows for minimal notice to his supporters. Fanatical crowds (both Trump supporters and those who despise him and his base) can’t be avoided, but late notice would reduce their size. If nothing happens Tuesday, then any future Trump claims about the timing of his court appearance would have less credibility. Fewer protesters would show up.
Moreover, the NYPD is the best police force in the world. It will not tolerate a January 6 reprise. A more than sufficient deployment of the force’s 36,000 cops will ensure that they will not be overwhelmed, and the NYPD is adept at managing crowds in a way that lets them protest lawfully but conveys that rioting will not be tolerated.
Bottom line: It looks like this is happening, but it is probably not happening on Tuesday.
