Why didn’t Trump appear before the New York grand jury?

Trump said it’s all “Scam, Injustice, Mockery, and Complete and Total Weaponization of Law Enforcement in order to affect a Presidential Election!" It is possible that this is what Trump really believes, although it is not at all clear that the predicate “really believes” is one of easy application to Trump. What he says in making pronouncements of this ilk is wholly a function of what he thinks it is in his interest to say. That matters of truth or belief even enter his consciousness is doubtful.

Were he to believe that the prosecution is a scam, however, appearing before the grand jury might be an excellent way of bringing it to an end. His able counsel, Joe Tacopina, would go over with him the provisions of the New York Penal Law presumably at issue and the facts to which Trump could testify that would show the grand jurors that no possible charge could be anything but a scam and a mockery.

Suspects do talk their way out of indictments in a Manhattan grand jury, as I know at first hand. Trump has more than the average suspect’s confidence in his powers of persuasion. It would not hurt that there are probably some strong Trump supporters among the essentially unvetted 23 citizens called randomly for the grand jury. The Trump fans would, no doubt, show great energy in bringing out any evidentiary failures of any count proposed by the prosecutor.

Even if the grand jury were to bring in a “true bill,” Supreme Court (trial court) Justices can and do dismiss indictments if they are unsupported by the evidence. Trump, prepared by Tacopina, could make it clearer if the evidence were insufficient.

I was on the prosecution side in several cases in which I thought the defendant’s best hope of avoiding prison would have been to testify in the grand jury. (Not that they weren't guilty, but they had no hope at all at trial, and a smidgin of hope in the grand jury.) Such testimony, however, was in my cases, and is in general, rare, much rarer than it should be.

I think a chief reason that defense lawyers don’t put their clients into the grand jury is that the lawyers are afraid of their client’s being cross examined at trial on testimony that they gave before the grand jury. That testimony is, of course, taken down by a court reporter and is given to the prosecutor before trial.

Defense lawyers are very good at cross examination. That is their stock in trade. They often make perfectly truthful and intelligent prosecution witnesses look as if they may well be lying. Agaiinst the prosecution's trial witnesses who have testified in the grand jury, they bring out in excruciating detail every discrepancy between trial and grand jury testimony, and there are always some discrepancies. “Didn’t you testify that you had just crossed the street when you heard the shot? . . . But don’t you now claim that you were walking downtown when you heard the shot? Which was it, had you just made it to the curb or you in the course of a downtown walk?  …  Were you lying then or are you lying now?”

Prosecutors, in general, are not nearly as good as defense counsel at cross. The prosecutorial mastery is of direct examination. Defense counsel, I speculate, projecting their own skills onto the prosecutor, are more afraid than they should be of their clients’ being cross examined at trial from their grand jury testimony. For that reason are overly cautious when deciding whether to advise clients to exercise their right to testify in the grand jury.

I do not accuse Tacopina of making this mistake. I also, however, am confident that he advised Trump not to testify in the Grand Jury and that this advice had little to do with his claim that "It is a proceeding that we — and most election law experts — believe has absolutely no legal merit."

The election law issue is contestable. You will note that Taccopina tacitly concedes that some election law experts do think that an election financing count would have legal merit. He neglects to mention the falsification of business records, a count that appears to be well evidenced.  Without enhancement by the election financing count, the business records count would be only a misdemeanor, but grand juries can indict on misdemeanors. The DA will seek both these counts at a minimum. If there is judicial dismissal of the election finance count, and the business records count remains as only a misdemeanor, it still remains.

The real reason that counsel surely advised his client not to accept the invitation to appear before the grand jury is that his client is Donald Trump, and the prospect of having Donald Trump testify under oath is terrifying. No matter how well prepared, he might say anything. That he would actually incriminate himself is a real possibility. Consider again that risk to which defense counsel are often over-sensitive: the client’s producing damaging cross examination material for the prosecution at trial. When the client is Trump this would be more than a risk. It would be nearly inevitable.