Trump May Cry ‘Witch Hunt,’ But Here’s What the Grand Jury Process Is Really Like

Former President Donald Trump is escorted to a courtroom, Tuesday, April 4, 2023, in New York. (AP Photo/Mary Altaffer)

By Michael McElroy

April 10, 2023

Charges against former President Donald Trump are purely political, his supporters say. But grand juries are required to base their charges on evidence, not rumors.

A grand jury’s indictment of former President Donald Trump last week prompted a heated defense from Trump himself and his supporters, including many of North Carolina’s Republican Congressional delegation. They accused the prosecutor, Manhattan district attorney Alvin Bragg, of engaging in nothing more than a political persecution of an innocent man.

“Exacting vengeance against a political opponent through the justice system is not only entirely outrageous, but it is also a blight on justice as we know it,” Rep. Virginia Foxx of NC said in a statement a few days before the indictment was issued. 

“What a total crock,” Rep. Bishop tweeted.

But a grand jury indicted Trump. And that process’s rigorous standards undercut the Trump world narrative that this is all politically motivated. 

The Basics

Just before the 2016 election, the indictment states, Trump “orchestrated a scheme” to make money payments to three people in an effort to keep the public from finding out about two affairs, one with a porn star, the other with a Playboy model. Trump then falsified business records in several instances to hide those payments, the grand jury said. (Trump denies both the affairs and the payments, and pleaded not guilty in court.)

OK, but what is a grand jury? 

A grand jury is a body of randomly selected members of a community who listen to a prosecutor’s detailed presentation and decide whether that evidence supports criminal charges. They are one of the first steps in a long court process, and are separate from the trial jury that ultimately decides guilt or innocence. While the indictment process does not typically include rebuttal from the defendant, the grand jurors must still make their decision based on a prosecutor’s presentation of specific evidence and witnesses. 

The Trump indictment simply means that the jurors examined that evidence and felt that either a crime had been committed or that there was enough probable cause that a crime had likely been committed.

In New York, a majority of the jurors have to agree for an indictment to be issued. There were 23 grand jurors in the Trump case, which means at least 12 had to give the go ahead. 

‘Concrete Evidence’

To start, any grand jury indictment must be based on facts, not on rumor or innuendo, Irving Joyner, a lawyer and professor at North Carolina Central University’s School of Law, told us last week. 

The grand jury must make its decision based on the “concrete evidence,” provided by the prosecutor, Joyner said. “It can’t be speculation.”

And prosecutors must present that direct evidence for each accusation, Joyner said. The grand jury charged Trump with 34 felony counts, which means they weighed evidence and/or witness testimony for each count. 

“They have to present evidence as to each charge that they’re asking the grand jury to consider,” Joyner said. “And they can do it in the form of live witnesses. They can do it in the form of forensic evidence. They can do it in the form of expert testimony about tests and other things that have been conducted.”

You can see hints of this process in the Trump indictment.

For each count of falsifying business records, the court filings list “an entry in the Detail General Ledger for the Donald J. Trump Revocable Trust.”

Each count cites the “voucher number” associated with the entry.

In This Case, Secrecy Is Good for the Defendant 

Grand juries deliberate under seal, meaning no one knows what they are seeing or saying. In both the lead-up to and the aftermath of the indictment, the secretive nature of the grand jury process gave rise to more accusations from some Republicans of politics over justice. But the secrecy is there to protect the defendant, Joyner said. 

The secrecy ensures ‘that the reputation of the person who is being investigated is not tainted unless there is a finding that probable cause exists,” Joyner said.

If the grand jury does not indict, the public will not hear any of the accusations.

“If evidence is presented about a person and there isn’t probable cause,” Joyner said, “then the only people that will know about it will be members of the grand jury.” 

He added: “And they are prohibited from going out to talk about what was presented.”

New York’s process is even more protective of the subjects of a grand jury investigation, Joyner said. 

In many states, the person at the heart of the proceedings is not given a chance to defend themselves until the trial. The subject of a grand jury investigation may not even be aware of it if or until an indictment is issued. But New York DOES give the potential defendant a chance to respond, Joyner said.

“New York has a procedure that allows a prosecutor to inform a person who is the target of a grand jury investigation and allow them to present evidence to the grand jury,” Joyner said.

“In most states, that’s not the case,” he said.

“New York is different.”

While some witnesses called before the New York grand jury said they spoke on Trump’s behalf, Trump himself declined to appear.


  • Michael McElroy

    Michael McElroy is Cardinal & Pine's political correspondent. He is an adjunct instructor at UNC-Chapel Hill's Hussman School of Journalism and Media, and a former editor at The New York Times.

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