The Post reported Tuesday that Vance had convened a special grand jury relating to his investigation of matters involving Trump and the Trump Organization. The news prompted a frenzy of speculation that an indictment and possible conviction of Trump is on the horizon. The reaction may have reflected more wish-fulfillment than hardheaded analysis. This is, after all, the man who was twice acquitted in Senate impeachment trials and sidestepped trouble from the Russian-influence investigation conducted by special counsel Robert S. Mueller III.
Vance has been investigating the Trump Organization for more than two years. He and his team have invested enormous resources in going after masses of financial records that may be relevant to the question whether Trump, or others in the organization, engaged in tax fraud or bank-related fraud. The district attorney has used search warrants and subpoenas to collect records from a range of witness and potential targets.
He is leaning on Allen Weisselberg, the chief financial officer of the Trump Organization, to cooperate. Weisselberg is a longtime Trump family confidant. Last month, Vance reportedly received a trove of confidential records from Weisselberg’s former daughter-in-law. Most ominous for Trump personally, Vance in February secured eight years’ worth of Trump’s personal tax records. Trump had fought in court for 18 months to block disclosure of the records.
The signs are clear that Vance is moving toward indicting someone. The district attorney has hired a forensic-accounting firm to assist in analyzing masses of financial records. He also brought on board a high-profile defense lawyer and former federal prosecutor, Mark F. Pomerantz, whose expertise is in financial matters. The special grand jury that Vance convened will meet three days a week for six months, The Post reported, making it easier to “participate in long-term matters rather than to hear evidence of crimes charged routinely.”
Given that Vance’s term as the elected district attorney expires at the end of the year, he seems unlikely to leave the fruits of his investigation to be taken up by his successor.
But none of this means that Vance will charge Trump personally. There are many reasons to think that he will not.
Vance may have documents suggesting that financial fraud occurred within the Trump Organization, but the crucial question is whether the district attorney can show that Trump himself was party to any alleged fraud. Even Trump’s signature on documents employed in a fraud might not be sufficient to show knowledge of the fraud itself.
If Vance persuades Weisselberg to testify against Trump, that might have a significant effect: Juries in complex financial cases often need a live witness to tell the story. Jurors are often reluctant to rely solely on complex financial documents to find someone guilty beyond a reasonable doubt.
The cold reality of the jury system itself could be a critical factor in the decision regarding a Trump indictment. A criminal conviction requires a unanimous guilty verdict. For practical reasons as well as the interests of justice, prosecutors ordinarily will not seek an indictment unless they are satisfied both that they have evidence to prove guilt beyond a reasonable doubt and that there is a substantial probability that all 12 jurors will agree to convict.
All of this may give Vance pause. Even in New York City there are plenty of Trump fans — his support rose from 18.2 percent in 2016 to 22.6 percent in 2020. Even in Manhattan, the source of any eventual jury pool, 1 out of 8 voters wanted Trump reelected. A skilled defense attorney would be able to use the jury selection process with confidence that at least one or two jurors would be sympathetic toward Trump.
Trump supporters are overwhelmingly inclined to accept his version of events, even when they fly in the face of documented, objective reality. Even if Vance believes there is sufficient evidence to show that Trump is guilty beyond a reasonable doubt, he would face two unenviable alternatives: decline to indict, because it is unlikely that a jury containing Trump supporters would convict; or indict, so that a trial lays out for the public a record of Trump’s conduct, even if conviction is unlikely.
In either event, Trump and his supporters would claim that he has been “vindicated” again. Trump himself once quoted the political axiom that “when you strike at the king, you must kill him.” Since there is a real risk that an indictment of Trump would be just a glancing blow, Vance might well not want to leave a failed indictment of the former president as his legacy.