A quick factual lesson on New York Constitution, Laws and Rules governing Grand Juries and Special Grand Juries.
At all relevant times I will endeavor to provide you with original source documents. If I’m making an “opinion” I will make that obvious but I think it’s time to help you understand the process
Unless otherwise specified this is strictly a discussion of New York
…in general I try to refrain from overtly criticizing Reporters. But I beseech you to ignore tweets (like this one) from Maggie Haberman. In my opinion she’s long held a weird and sometimes abjectly bias deference for Trump. And while I have zero proof that she’s “in the tank for Trump” —I genuinely think her articles and tweets largely do Trump a favor. I should also disclose that her articles about Stephanie Winston Wolkof made me feel incomprehensible distain for her . Which likely contributed to her and Ken Vogel blocking me on Twitter but I digress.
I previously walked you through the various conservation/preservation easements. To be fair Trump doesn’t have these easements on all or even most of his properties. So ICYMI the previously published article can be found here
New York Constitution & Grand Juries
New York Constitution https://www.nysenate.gov/new-york-state-constitution
NYS Bar 2014 Report: https://nysba.org/NYSBA/Coursebooks/Fall%202014%20CLE%20Coursebooks/_Criminal%20Law%20for%20Criminal%20and%20Civil%20Lawyers/3_1_Arshack_The%20Grand%20Jury.pdf —YES, I know I could provide a “tiny url” but I want my readers to feel comfortable with the provenance of the documents and links including throughout this article. I’m not one to withhold documents especially if they are in the public domain. Essential I’m not an “information hoarder” and subscribe to the “sharing is caring” doctrine.
New York Constitution; Article I - Bill Of Rights - Section 6 - Grand jury; protection of certain enumerated rights; duty of public officers to sign waiver of immunity and give testimony; penalty for refusal
“No person shall be held to answer for capital or otherwise infamous crime (except in cases of impeachment, [certain military offences], and in cases of petit larceny...), unless on indictment of grand jury..”1
Generally speaking, a grand jury makes one of three decisions/determinations;
1) The grand jury may vote to formally accuse someone of a crime. This accusation is called an “indictment,” also known as a “bill” which is short for “bill of indictment.”
2) The grand jury may vote to dismiss the charges, also known as a “no-bill.”
3) The grand jury may direct the prosecutor to file an information accusing the person of an offense less serious than a felony
Why is secrecy in Grand Jury proceedings necessary?
There is a distinction that some wittingly or unwittingly conflate. Seated/Sworn Grand Jurors, are as prescribed by law, jurors are barred from disclosing any and all Grand Jury proceedings.
As to the secrecy, The New York Court of Appeals, the policy reasons are to:
prevent a person who is about to be indicted from fleeing;
protect the grand jurors from interference by a person under investigation;
prevent a person under investigation from tampering with prospective witnesses or lying at trial if the grand jury gives an indictment;
protect an innocent person from unfounded accusations;
assure prospective witnesses that their testimony will be kept secret so that they will be willing to testify freely.
…the secrecy surrounding Grand Jury is this in perpetuity ?
This might surprise you, in New York the answer is “no”. A court may issue a written order directing that grand jury information be revealed if the court decides that the public in knowing it outweighs the need to keep it secret
How many Grand Jurors?
In New York - a grand jury seats 23 jurors. In order to establish a quorum, 16 jurors must be present. Unlike Jury trials, which typically require a unanimous vote by the jury, a New York Grand Jury requires a vote of 12 jurors order to make a decision. Meaning 12 out of 23 jurors can vote to make a decision. Moreover this requires that the 12 grand jurors “who have heard the essential and critical evidence”
Random Filey Thought:
We know that Manhattan District Attorney Vance (lawfully) obtained Trump Tax Returns, and that was likely share (in whole or in part) with a previous grand jury. It would also make sense that part of the reason DA Vance and New York Attorney General James are working in concert —that would likely mean it would be absolutely permissible for Vance to share that info with James. But I don’t have any public documents that can support my “random Filey thought” so it’s okay to be skeptical or even disagree with my assertion - I won’t take it personally.
Criminal Procedure Consolidated Laws of New York
Part 1 - General Provisions Sections (§§) 1.00 - 70.20
Part 2 - Principal Proceedings Criminal Procedure Sections (§§) 95.00 - 470.60
Part 3 - Special Proceedings and Miscellaneous Procedures Sections (§§) 500.10 - 730.70
At all relevant times I will provide you with links from the New York State Senate. I think it’s important that you have access to this public information because I’m not an attorney (nor have I ever purported to be one) —I’m the one the attorneys tap to do research on a variety of matters, identify weaknesses in arguments (or counter arguments) and occasionally I take on the “Devil’s Advocate” role.
So let’s dive into the relevant New York Criminal Procedures, shall we?
NY Criminal Procedure Law §190.15
Grand jury; duration of term and discharge https://www.nysenate.gov/legislation/laws/CPL/190.15
A term of a superior court for which a grand jury has been impaneled remains in existence at least until and including the opening date of the next term of such court for which a grand jury has been designated…
THIS IS IMPORTANT 👇🏻because this is about witness(es) testifying before a Grand Jury (again this only pertains to New York State) and I don’t think most are aware of this..
NY Criminal Procedure Law §190.45
Grand jury; waiver of immunity. https://www.nysenate.gov/legislation/laws/CPL/190.45
Under New York law the phraseology of: transactional immunity (colloquially known as “blanket” immunity) is granted to a witness (who gives evidence to a grand jury. Immunity is automatic, except where;
a) a witness has waived immunity in writing,
b) the testimony is not responsive to the inquiry made and is gratuitously given, and
c) what is sought is document production and oral testimony, which does not afford the witness a right against self-incrimination.
NY Criminal Procedure Law §190.50
Grand jury; who may call witnesses; defendant as witness https://www.nysenate.gov/legislation/laws/CPL/190.50
…below are a few relevant excerpts that I think you should be aware of…
§190.50(2) which reads in part: “…any person believed by the district attorney to possess relevant information or knowledge…”
§190.50(3) which also reads in part: “The grand jury may cause to be called as a witness any person believed by it to possess relevant information or knowledge. If the grand jury desires to hear any such witness who was not called by the people, it may direct the district attorney2 to issue and serve a subpoena upon such witness…”
§190.50(5)(a) -an important caveat as it relates to a Defendant’s “right to testify before a Grand Jury” it requires the Defendant being arrested on a Felony charge (which is NOT the same as an indictment) -additionally the Defendant is also required to serve written notice (to the district attorney) of their intent to testify in the “Grand Jury prior to the filing of an indictment.”
NY Criminal Procedure Law §190.55
Grand Jury - matters to be heard and examined- duties and authorities of District Attorney https://www.nysenate.gov/legislation/laws/CPL/190.55
Further expands the constitutional requirements under federal law by adding authority to inquire into matters that do not involve criminal conduct. Which reads in part:
“A grand jury may hear and examine evidence concerning the alleged commission of any offense prosecutable in the courts of the county, and concerning any misconduct nonfeasance or neglect in public office by a public servant, whether criminal or otherwise.”
NY Criminal Procedure Law § 190.60
Grand jury; action to be taken - https://www.nysenate.gov/legislation/laws/CPL/190.60 -
After hearing and examining evidence as prescribed in section 190.55, a grand jury may:
1. Indict a person for an offense, as provided in section 190.65;
2. Direct the district attorney to file a prosecutor's information with a local criminal court, as provided in section 190.70…
NY Criminal Procedure Law § 190.65
Grand jury; when indictment is authorized https://www.nysenate.gov/legislation/laws/CPL/190.65
1. Subject to the rules prescribing the kinds of offenses which may be charged in an indictment, a grand jury may indict a person for an offense when (a) the evidence before it is legally sufficient to establish that such person committed such offense provided, however, such evidence is not legally sufficient when corroboration that would be required, as a matter of law, to sustain a conviction for such offense is absent, and (b) competent and admissible evidence before it provides reasonable cause to believe that such person committed such offense.
2. The offense or offenses for which a grand jury may indict a person in any particular case are not limited to that or those which may have been designated, at the commencement of the grand jury proceeding, to be the subject of the inquiry; and even in a case submitted to it upon a court order, pursuant to the provisions of section 170.25, directing that a misdemeanor charge pending in a local criminal court be prosecuted by indictment, the grand jury may indict the defendant for a felony if the evidence so warrants.
3. Upon voting to indict a person, a grand jury must, through its foreman or acting foreman, file an indictment with the court by which it was impaneled.
Just to reiterate because this is important, in New York a grand jury and special grand jury seat 23 individuals and in order to return an indictment - only 12 out of the 23 jurors need to affirmatively vote on an indictment.
Meaning upon hearing the evidence the 12 jurors must also agree on:
“…legal instructions must agree that there is legally sufficient evidence and reasonable cause to believe that the accused person committed a crime”
NY Criminal Procedure Law § 190.80
Grand jury; release of defendant upon failure of timely grand jury action https://www.nysenate.gov/legislation/laws/CPL/190.80
This is important, so please pay attention; typically there’s a clock for a Grand Jury. Generally speaking a Grand Jury’s term New York it’s typically 30, 45 or sometimes 60 days, the reason the Special Grand Jury is important is this allows them up to six months and the prosecutor can ask a New York (state NOT federal) Court to “extend the Special Grand Jury for an additional term”
Special Grand Jury;
By empaneling a Special Grand Jury that means there’s some evidence of a crime …probable cause - Vance has the tax returns which might include evidence and instrumentalities of various crimes. For example; financial crimes, fraud related to taxes, tax evasion. fraud related to misrepresentation of property value and fraud related to obtaining loans for said properties.
I could be wrong but the conflating a grand jury versus a special grand jury is a disservice. A special grand jury isn’t a grand jury per se…and I’m already seeing disinformation and misinformation surrounding the newly empaneled Special Grand Jury…
Unlike Federal Grand Jury - in New York Prosectors are barred from using Hearsay and/or summary witnesses, this is a very important distinction because it will require the District Attorney to call in many witnesses, preferably witnesses who can testify to the effect “I committed fraud at the direct (or behest) of Donald J Trump or for the Trump Organization” absent that kind of witness - I think it’s reasonable to infer that could be a significant factor.
One thing most overlooked is this in-depth March 23, 2021 New Yorker Article - the opening paragraph is worth rereading;
On February 22nd, in an office in White Plains, two lawyers handed over a hard drive to a Manhattan Assistant District Attorney, who, along with two investigators, had driven up from New York City in a heavy snowstorm. Although the exchange didn’t look momentous, it set in motion the next phase of one of the most significant legal showdowns in American history. Hours earlier, the Supreme Court had ordered former President Donald Trump to comply with a subpoena for nearly a decade’s worth of private financial records, including his tax return…
The hard drive—which includes potentially revealing notes showing how Trump and his accountants arrived at their tax numbers—is believed to be locked in a high-security annex in lower Manhattan. A spokesman for the Manhattan District Attorney’s office declined to confirm the drive’s whereabouts, but people familiar with the office presume that it has been secured in a radio-frequency-isolation chamber in the Louis J. Lefkowitz State Office Building, on Centre Street. The chamber is protected by a double set of metal doors—the kind used in bank vaults—and its walls are lined with what looks like glimmering copper foil, to block remote attempts to tamper with digital evidence. It’s a modern equivalent of Tutankhamun’s tomb.
In sum the fact it’s a Special Grand Jury -that’s bad for Trump and Trump Org but especially for the Trump Organization. I know that most are focused on “the Donald” but I’d like to help broaden your scope to understand the legal peril the Trump Organization might be facing. One major difference between a Grand Jury versus a Special Grand Jury - the latter is typically used for complex criminal matters.
Below are a few Special Grand Jury Reports3 (the reason I’m pointing you to these reports is multi-pronged but it also gives you a broader understanding of how a Special Grand Jury has been utilized by other New York District Attorneys
Special Grand Jury Reports Suffolk County NY
And yes while most will say all eyes on Allen Howard Weisselberg - I’d like to remind you of the Trump Foundation Depositions in the Donald J Trump Foundation 2018 Case
INDEX NO.: 451130-2018 type the number into https://iapps.courts.state.ny.us/iscroll/
For Example I found reread the “EXCERPTS FROM MCCONNEY TRANSCRIPT” (deposition) a riveting read - mainly because everyone is focused on Allen Weisselberg. Case in point (pun not intended) the following answers of the deposition transcript of Trump Org Senior Executive/Comptroller Jeffery McConney’s certainly appears to have provided the NY Attorney General’s office with the names of the following Trump Org employees and their roles/duties;
Troy Bongavonai an accountant
Julio Almonte, Accounts Receivable Clerk
Irend Caprino - Rent Management “person”
Danielle Gabaneili -accounts receivable clerk
Deborah Tarasoff -accounts payable -could write checks
Lady Barillas -accounts payable -could write checks
And of course you can disagree with my assertion that Jeffrey S McConney is a likely valuable witness, but before you do I’d like to draw your attention to this relevant (overlooked) section of his 2018 Deposition
Oh. Dear. Both McConney and Allen Weisselberg (in separate depositions) sure seemed rather eager to point the finger to Rhona Graff. And yes for the record I’m saying that of course she a prime candidate for the Special Grand Jury to subpoena both in terms of documents and oral testimony.
also in McConney’s deposition he referenced a Long Island Data (software) Company that the Trump Org and Trump Foundation uses for accounting and general ledger. The disclosure by Trump Org’s comptroller that both the foundation and Trump Org use the software is sprinkled throughout the deposition excerpts, provided you take the time to read each and every page. A highlighted and annotated copy of the NY-AGO August 2017 Deposition Excerpts of Trump Org’s Comptroller Jeffery McConney can be found on my public drive
Similarly the transcript of Allen Weisselberg’s October 2017 Deposition with the New York Attorney General’s Office (NY-AGO) provides a plethora of information. And this could (emphasis on “could”) shine a tiny bit of light on matters the newly empaneled Special Grand Jury “might” be investigating. For Example: Weisselberg under oath.
As reported last week by CNBC Allen Weisselberg is facing his own criminal investigation into taxes and his ex-daughter-in-law (based on CNBC’s reporting)
Jennifer Weisselberg, a former ballet dancer, also has provided records to Vance’s investigators for their own probe and has met with those investigators multiple times. Her lawyer, Duncan Levin, told WNBC News, “Ms. Weisselberg has been in touch with prosecutors from the criminal division of the New York Attorney General’s Office since at least March.”
Levin added: “She has provided information to them as part of their criminal investigation and will continue to cooperate in any way she can be helpful.”
Jennifer Weisselberg’s ex-husband Barry is a longtime employee of the Trump Organization. She recently told NBC News that Allen Weisselberg “discusses everything with” Trump about the company’s financial workings…Donald trusts him to continue the legacy the way his father set things up,” she said.
Keep in mind that in March of 2021 Prosecutors subpoenaed Allen Weisselberg’s bank records. And prosecutors also subpoenaed Jennifer Weisselberg for banking and tax records of her ex-husband Barry Weisselberg. Who has managed various Trump Organization properties.
Having reread Allen Weisselberg’s deposition excerpts (for the 3rd time) it appears he also provided the NY Attorney General’s office with the names of the following Trump Org employees and their roles/duties but
Rhona Graff - see her Dec 2017 HPSCI Deposition Transcript
When the NY-AGO asked Weisselberg about being on the Donald J Trump Foundation Board of Directors (Foundation-BoDs), Weisselberg testified that he did not know he was named as a member of the Foundation-BoDs. No really that’s in the excerpts of his October 2017 deposition. Also of note McConney’s deposition occurred in August 2017 and Weisselberg’s deposition occurred months after. That’s important
…a fellow…the last name…Brad Parscal or something like that…I don’t recall…
For the record this is the website that Weisselberg told Trump Org Comptrollers Jeffery McConney to work with Brad Parscal -archived- I’m not asserting that Brad Parscal would likely be a witness for the Special Grand Jury. Conversely it would kind of make sense, given DA Vance is also purportedly investigating Trump, various actions in contravention of Campaign Finance laws, and the hush money payment. Especially since AMI’s David Pecker who left AMI in 2020 - also see the September 2018 DOJ-AMI non prosecution agreement and was a hair’s whisper away from being prosecuted.
To give you an idea of how many times Weisselberg used “I don’t recall” this was a forty page “excerpt” of his 2017 Deposition. A rough approximation is he said “I don’t recall” or a similar iteration some 36 times in the 40 pages. Also neat fact - when you read the NY-AGO’s questions they used a technology called mirroring, meaning they started asking questions in the following format “do you recall…” Most skilled attorneys do this to subtly make the deponent less guarded and it helps by using it in open-ended questions…
Random thought/question- if the Manhattan DA or NY-AGO’s can prove that Weisselberg perjured himself during his October 2017 deposition - see §210.05 Perjury in the third degree, §210.10 Perjury in the second degree or see §210.15 Perjury in the first degree. and preliminary research suggest that the New York Statute of Limitations is five years… As you can read for yourself in the NY-AGO’s October 2017 excepts of Allen Weisselberg’s Deposition concerning the Trump Fraud -I mean foundation…
I don’t know Allen Weisselberg, therefore the only thing I can use to make an informed opinion are his public statements and/or excerpts from his deposition, it’s hard to see how some are saying “he’ll flip on Trump” because throughout his deposition it’s clear he bent over backwards to protect Trump but threw everyone else to the wolves. For Example - Weisselberg drove a fleet of busses over Corey Lewandowski
What I would give to see transcript pages 48 thru 55 of Weisselberg’s Deposition—no really I’d give my left arm to read those pages because here’s how Weisselberg’s comments left off - talk about a cliff hanger
Because once you get to page 38 of the excerpts of Weisselnerg’s October 2017 deposition - I. HAVE. MANY. QUESTIONS…
A highlighted and annotated copy of the NY-AGO August 2017 Deposition Excerpts of Trump Org’s CFO Allen Weisselberg can be found on my public drive and I am very mindful that this article (as well as Trump’s conservation easements article) are extremely heavy on documents- I uploaded to a shared folder (Trump Conservation Easements) on my public drive —which current contains 14 documents
Also in case you forgot about “acting” New York Attorney General Underwood’s Internal Revenue Service - New York State Office of the Attorney General -Letter/Referral 2018
And your reward for slogging through this long article? Anytime that I get to use this video —100% I’ll take that opportunity. /snort
I hope that this has been informative and having access to the original documents, plus making some of the dots actually connect has been helpful. For now I have more research to do I’m having a difficult time locating a particular mortgage on one of his properties and I’m kind of like a dog with a bone. I won’t stop until I can find the documents in the public domain. To read more about the recently published Trump Conservation Easements click here
New York State - Grand Jury Handbook - February 2019 - last visited May 26, 2021 https://www.nyjuror.gov/pdfs/hb_Grand.pdf
It’s a misnomer to say the District Attorney is driving the Grand Jury bus, as you can see in numerous New York CPL, specific to Grand Jury - it’s the Grand Jury who is vested with the authority to “direct the district attorney…” on a variety of matters, for example subpoena(s), filing of a criminal information…etc
see NY Criminal Procedure Law § 190.85 -Grand jury; grand jury reports https://www.nysenate.gov/legislation/laws/CPL/190.85