Following the Manhattan grand jury's indictment of former President Donald Trump, it’s worth looking at the mechanics of what’s going on in the legal system and how the process that applies to everyone is being applied to Trump.
We spoke to Elie Honig, a CNN legal analyst, former federal prosecutor and author of the new book, “Untouchable: How Powerful People Get Away With It,” for a refresher on how grand juries and indictments work. Part of our conversation, conducted by phone, is below:
Grand jury vs. trial jury
WOLF: What should we know about the difference between a grand jury and a trial jury?
HONIG: A grand jury decides to indict, meaning to charge a case. A trial jury determines guilt or non-guilt.
A grand jury is bigger, typically 23 members, and the prosecutor only needs the votes of a majority of a grand jury – as opposed to a trial jury, which has to be unanimous.
The standard of proof in a grand jury is lower than a trial jury. In a grand jury, you only have to show probable cause, meaning more likely than not. But of course in a trial setting, you need to show proof beyond a reasonable doubt.
The other thing to know is a grand jury is an almost entirely one-sided process.
Usually the only people allowed in the room at all are the grand jurors, the prosecutors, the witnesses and a court reporter.
In some instances, including New York, there’s a limited right of a potential defendant to present some evidence, but no defense lawyers are allowed in the room.
There’s no cross-examination of the prosecution’s evidence. There’s no presentation of defense evidence.
Close to every time a prosecutor seeks an indictment from a grand jury, he or she will get an indictment from the grand jury.
What is an indictment?
WOLF: How would you define “indictment”?
HONIG: It’s a document setting forth formal charges against the defendant.
Three Trump grand juries
WOLF: We have three grand juries that are top of mind – for election meddling in Georgia, at the federal level for declassified documents and then the Manhattan DA. How much variation is there in grand juries between city, county and federal?
HONIG: There are minor variations, but the basics remain the same.
Here’s an example of one of the minor variations in New York State, but not in the federal system, meaning for DOJ. The defendant does have some limited right to be notified and given a chance to testify or present defense evidence, which we saw play out with Trump and then him asking Robert Costello to testify.
That’s not the case federally. You do not have to give a defendant a chance to testify or present evidence. That’s one slight variation. But the basic fundamentals are the same.