The Banality of Grand Juries

I’ve always been taken with the phrase “banality of evil,” and I’ve found it useful in a variety of contexts. But mostly I’ve associated it with my own experience serving on two grand juries. That’s two more than anybody I know.

The banality of grand juries derives, not so much from evil as from one of its cousins, stupidity, an apt descriptor for the cavalcade of crimes a grand juror routinely encounters.

Case after case, crime after crime, day after day, ten or so cases a day. For a month. Almost all the cases are mind-numbingly banal — stupid people doing stupid things quite stupidly.

I served in Manhattan, probably in the same courthouse where Trump’s newly appointed grand jury will sit. Different grand juries serve different purposes, and Trump’s will be quite different from either of mine. But the basics are the same. So is the banality.

A grand jury is neither grand nor a jury. It’s more like a committee, but with a certain official power. There are sixteen of us on the panel, and we’ve taken on a serious, if not exactly grand, responsibility: we vote on whether to indict a person alleged to have committed a crime. With our approval, the City of New York can allocate taxpayer money to the prosecution and possible trial of said person. 

We work, famously, in secret. Nobody is privy to our deliberations. There are no notes or communications with the outside, only the dry record of an indictment officially handed down. A simple majority of us is enough to indict. But we are almost always unanimous.

That’s because our panel is led by the nose by whichever Assistant District Attorney (ADA) is prosecuting the case at hand. Our life is one long assembly line of ADAs presenting banal cases with banal precision, reading aloud each count being charged.

They also read the specific statutes that apply to those counts. Each statute must be read in its entirety, no matter how many times we’ve heard it before. Insurance contracts are more exciting.

The ADAs who rule our world are there to bring indictments, period. If their cases weren’t open-and-shut, they wouldn’t be there. The cliché that a grand jury would indict a ham sandwich is largely true, but woe to the ADA who fails to make an airtight case against that sandwich. That would be the very essence of incompetence.

Because in a grand jury the defense gets no say. We’re all about the prosecution. Neither the defendant nor the defendant’s lawyer will ever enter our room. As a defendant, you absolutely have the right to appear before us, but only after waiving all immunity. This would be utter lunacy, since in effect you’d be giving yourself permission to provide evidence against yourself. No competent defense lawyer would allow this. In the hundred-or-so cases I heard, it happened only once, and it was pathetic.

Defense lawyers will, of course, get their say once the indictment is handed down. They will get to make motions. They will get to see and impugn the evidence against their client. They will get to negotiate plea deals, cooperation agreements, and grants of immunity. In rare instances, they will go to trial. But all that comes later. In our little world, the defense doesn't exist.

As for the ADAs, they are uniformly buttoned-up and professional. But while they’re all capable prosecutors, they’re mostly journeymen, still coming up through the ranks.

The Trump grand jury, on the other hand, will be treated to the best prosecutors taxpayer money can buy. Big-time badass lawyers, every last one. Each will have deep experience in white collar crime — from financial fraud to money laundering to racketeering. And you can bet they’ll be thinking about conspiracy charges as well — the kind that draw twenty years.

Which doesn’t mean this grand jury will be any less banal than mine. It’s just that in this case, it will be about the banality of numbers. Lots of them.

Prosecutions for financial crimes are almost always based on numbers, and unlike Trump, numbers don’t lie. It’s the accountants, not the cops, who usually nail the racketeers, most famously Al Capone on tax evasion. Top-notch forensic accountants have been working for months, maybe years, poring over all sorts of Trump-related numbers, and they know the kinds of crimes those numbers usually reveal.

The challenge for the prosecutors will be to get all those numbers to tell a story so simple, even a juror can understand it. In that sense, the grand jury will serve as a sort of dry run for a possible trial down the road.

The story they tell will be distilled from millions of pages of tax returns, bank records, real estate contracts, insurance valuations, loan applications, and all manner of excruciatingly dull paperwork.

It will not be riveting. But it will be devastating.

This particular grand jury has been convened for six months (though it could be much more, or much less). Over that time, they might hear one long case or dozens of short ones. They might hear one witness or a hundred. There’s no way of knowing.

We can be sure they’ll hear witnesses, not just against Trump, but also against Alan Weisselberg — unless he flips first, in which case he’ll pop up as a witness. In my dreams, they’ll also be hearing allegations against Trump’s entire family, as well as an assortment of ancillary figures in their orbit.

But with so much at stake, and so much legal firepower being brought to it, there is no way this panel won’t indict. Especially since it’s New York City, which reeked of Trump long before the rest of the country. It’s a foregone conclusion that these prosecutors will have rock solid cases on every count of every crime for every perpetrator. No grand jury has ever resisted that.

Of course, a grand jury is just the first step in the process. An important step, yes, but ultimately far less significant than subsequent ones. Once there’s an indictment, each case becomes a matter of who pleas out, who cooperates, and who flips on whom.

It also becomes a matter of how skilled — and how motivated — the opposing attorneys are. And whether they’ve been paid in advance. And whether the check has cleared. This is Trump, after all.

But by then, the grand jury will have done its official but banal job. It will have looked at the evidence, discussed it for at least ten minutes, and unanimously decided that you, Mr. Trump, are in deep, deep shit.