Trump Indictment Could Already Be Voted — and Just Not Filed: Experts

  • It’s possible the Trump ‘hush-money’ grand jury has already voted to indict, ex-prosecutors say.
  • Prosecutors have the power to slow-walk the signing and filing of any indictment, they say.
  • Controlling the timing would allow city officials to prepare for unrest before Trump learns his fate.

The Manhattan grand jury that has been weighing potential “hush-money” charges against Donald Trump since mid-January could have voted Monday — we just wouldn’t know it yet, former prosecutors told Insider.

NBC reported Tuesday that the grand jury is not meeting for the rest of this week. But that could be because the panel is done with its work, ex-prosecutors said.

If they’ve already voted to indict, the district attorney’s office does not need to file the indictment immediately. Instead they could slow-walk the post-vote process for days, forestalling the moment when Trump is officially indicted, as is in their discretion and power to do, the experts said.

A defendant is only officially indicted when the jury foreperson signs an actual hard-copy indictment and that document is then filed, under seal, with the court clerk’s office.

Prosecutors often forestall these two crucial steps — signing and filing — former prosecutors told Insider.

In Trump’s case, that would delay when prosecutors tell his legal team he’s been indicted, if it comes to that.

And — assuming that Trump would then tell the world — a post-vote delay would give law enforcement the time needed to prepare for any unrest, again if it comes to that, ex-prosecutors said. 

“If they’ve voted and haven’t filed yet, we the public will never know that information,” said attorney Diana Florence, for 30 years a white-collar crime prosecutor with the Manhattan district attorney’s office.

“Given the unusual nature of this case — you’re potentially indicting a former president — the logistics are unprecedented,” Florence said. “So they’re going to want as much time as possible.”

The grand jury last met on Monday afternoon, hearing testimony from former Trump ally and National Enquirer publisher David Pecker. 

If Pecker was indeed the prosecution’s final, mop-up witness, as seems possible, then the grand jurors would still have had more than an hour to get instructions on the law, deliberate, and vote before going home Monday night.

Deliberations and voting often take as little as five minutes, ex-prosecutors say, because an indictment vote does not need to be unanimous and the standard of proof, a mere preponderance of the evidence, is so low.

“I think the longest deliberation I’ve ever had was an hour, and it was probably one of these monster cases,” Florence said. “Lots of defendants, lots of evidence, wiretaps — those cases are going to take a while. But this is going to be a relatively short vote.”

Once there’s a vote to indict, the prosecutor can thank the grand jurors for their work and send them all home, but tell the foreperson to return, alone, to sign the indictment on any day that suits their timing, Florence said.

Indictments are always filed with the clerk immediately after they are signed by the foreperson, she said.

“You don’t get it signed and then hold it back in your office,” she said. “I’ve never seen anyone have the indictment signed and not file it immediately.”

Only then, after that visit to the clerk’s office, would Trump officially be indicted.

Trump is expected to be charged with multiple counts of falsifying business records, his lawyers have said. That’s a low-level state felony that would allege he phonied up documents to hide a $130,000 hush-money payment made to adult-film actress Stormy Daniels just days before the 2016 election.

Federal prosecutors have called the payment an illegal campaign contribution, meant to keep voters from hearing Daniels’ bombshell claim that she’d had a sexual encounter with Trump in 2006. Trump has denied wrongdoing and any sexual encounter with Daniels.

Prosecutors would likely wait until right after an indictment is filed to let Trump’s legal team know they need to bring him in.

“The probable course, after it’s been filed, is to call the defense lawyer up and say we want your guy to surrender” on a particular date, predicted attorney John Moscow, another former white-collar crime prosecutor at the Manhattan district attorney’s office.

“That’s an option that he has,” Trump’s lawyer would be told of surrendering.

“If he doesn’t choose to exercise that option, he doesn’t have to,” Moscow said, continuing to describe a hypothetical conversation between Trump’s prosecutors and his lawyer. “He will, however, ultimately be arrested. Your call.” 

Days before this phone call is made, the district attorney will have already warned local law enforcement that big news is about to break and to be ready for a potential reaction.

Law enforcement agencies have already been conferring on how to handle the crowds that may gather upon learning of an indictment and, days later, of an in-person arraignment.

And already, the office of District Attorney Alvin Bragg has had to deal with hoax bomb threats and an anthrax scare.

Trump himself has stridently denied any wrongdoing in connection with the hush-money payment and has urged his supporters to protest any indictment. He has warned of “death and destruction” should an indictment come.

Trump has also vilified Bragg online as an “animal” and a “racist.”

A recent post to Trump’s Truth Social account showed a photo of the former president wielding a baseball bat, juxtaposed with a photo of Bragg’s head. The post was soon deleted and Trump attorney Joe Tacopina has said the image was posted by a staffer, not by Trump himself.

As for Trump’s potential surrender date — when he would hypothetically turn himself in, get his prints run and mugshot taken, and then plead not guilty in a lower Manhattan courtroom — it would likely be only a few days after Trump learns, through his lawyers, that he’s been indicted (if, indeed, it comes to that).

“I wouldn’t give him any time,” Moscow said.

“Give him time to rally people from all over the country to come for a riot? I think that’s a bad idea,” he added. “You don’t want him to be able to assemble a mob.”