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Former Manhattan prosecutor: Case against Trump not a slam-dunk

A former New York prosecutor weighs in on the process for indicting former President Trump and how long the legal process could play out.
Former Manhattan prosecutor: Case against Trump not a slam-dunk
Posted at 9:39 AM, Mar 31, 2023

Michael Scotto has tried a number of cases in the Manhattan District Attorney’s Office. During part of his 22-year tenure with the office, Scotto led its racketeering bureau. 

One day after Manhattan District Attorney Alvin Bragg confirmed a grand jury returned an indictment against former President Donald Trump, Scotto said he was not surprised by the speed of the grand jury’s deliberations. 

“The speed at which it happened, not a surprise. Again, the grand jury has been hearing evidence in this case for quite some time,” Scotto said. “It's a very simple case. There's just a couple of statutes that the grand jury would have to be charged on before returning indictment. They would be instructed on the law. The D.A. would tell them what the theory is.”

New York law prohibits grand jurors from talking about the case. All that is known is that it takes a simple majority of 23 grand jurors to return an indictment. This stands in contrast to a trial, where typically a jury has to vote unanimously to find someone guilty. 

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Scotto also noted that unlike in a trial where a jury considers if a person’s guilt is proven beyond reasonable doubt, a grand jury only has to consider if there was probable cause a crime was committed. 

Also, because the indictment remains sealed as of Friday morning, it is unknown what evidence the Manhattan District Attorney’s Office has against Trump, and what charges will be pressed against the former president. 

“Basically an indictment is just an accusation, right? It’s a very minimal standard,” Scotto said. “A former chief judge in the state of New York once opined that a grand jury would indict a ham sandwich if the prosecutor asked them to. So it's a very low standard.”

The charges are related to hush payments made by Trump to adult film star Stormy Daniels through attorney Michael Cohen. The payments were made in the leadup to the 2016 presidential election. Scotto agreed with many legal experts that the case against Trump is not a “slam-dunk.”

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Scotto noted a number of arguments Trump’s legal team could make, including whether a state court can charge someone for a violation of federal election rules, and whether the statute of limitation still applies given the number of years since the payments were made and that Trump no longer is considered a New York resident.

Scotto said that given how complicated the case is and Trump’s status as both a former president and a 2024 candidate, the case could drag on for some time.

“I'm not being critical of the prosecution’s case, but there certainly are issues here that would cause a judge to take some time and review the evidence and the nature of the charges and the applicable law,” Scotto said. “If I had to say, we will not have this case go to trial for another year just on the basis of motions.”