With Michael Cohen now reportedly set to testify to the Manhattan grand jury tomorrow, Donald Trump’s criminal indictment could happen as soon as the middle of this coming week. But what’s that really going to look like? How will he be taken into custody? What happens then? Based on how the law works and how these kinds of things are typically handled procedurally, here’s my best educated guess as to how it’ll go down:
When the Manhattan DA announces Trump’s indictment, he’ll likely just instruct Trump to surrender. Trump will likely comply, because playing games would just reduce his odds of getting bail. Even after voluntarily surrendering himself, heading into arraignment, Trump will be considered “under arrest” whether he’s in handcuffs or not.
There’s a small chance Trump could stupidly refuse to surrender. But he’d then legally be considered a fugitive, and law enforcement would haul him in (the Secret Service would not and could not try to stop this). And then the judge would be less likely to grant Trump’s bail request, given that he just tried to play fugitive.
There’s also a chance the DA could send law enforcement to arrest Trump without giving him the chance to surrender first. This would be fun for us. But it wouldn’t necessarily help the DA’s cause. The entire media (not just Fox) would opportunistically portray it as overreach and right off the bat Trump would be portrayed as the victim (which is precisely what he wants). The DA’s job is to keep his case intact and get a conviction at trial, not to make grand empty gestures. If I were the DA, I’d just let Trump surrender voluntarily.
You won’t want to hear this, but Trump will likely get bail. Nonviolent charges. No criminal record. And in spite of Twitter conspiracy theories, not really a flight risk. There will be cries of “special treatment” and “anybody else in Trump’s position…” but that’s not in line with reality. Anyone else in Trump’s position would likely get bail as well.
The only thing that may work against Trump in his bail hearing is the fact that he’s also under criminal investigation in multiple jurisdictions across the country. But that comes down to the judge’s discretion. And it seems more likely to be a factor the second or third time Trump is indicted, not the first time Trump is indicted.
“But if Trump is out on bail he’ll tamper with witnesses!” Good. Let him. He’ll be monitored. He’ll get caught trying to tamper (they always do). He’ll lose his bail over it. He’ll get hit with additional charges that’ll increase his odds of conviction. Please proceed!
What may be of more interest: what kinds of restrictions the judge places on Trump. Will the judge limit Trump to only being allowed to be in New York or (his home of) Florida, and force him to request approval any time he wants to travel to another state for a “campaign” rally? Will the judge preemptively issue a gag order blocking Trump from publicly discussing the particulars of the case, or will the judge wait to issue a gag order until after Trump starts running his mouth? When Trump inevitably starts defying the judge’s orders, how quickly will the judge crack down by limiting his travel further or putting him under house arrest?
The restrictions that the judge places on Trump while he’s out on bail, and the manner in which Trump makes those restrictions more severe by trying to violate them, will go a lot further in telling Trump’s story over the next few weeks and months than whether he ends up in actual handcuffs while he’s under arrest this coming week. Remember, this is about bringing Trump to actual justice, not symbolic justice. The point is to get a conviction, so he can live out his life in a prison cell.
Bill Palmer is the publisher of the political news outlet Palmer Report