Analysts: Unprecedented indictment could veer into unusual territory

Expected to surrender to authorities on Tuesday, former President Donald Trump will be arraigned, fingerprinted, given a so-called "rap sheet" and asked to provide a plea.

There may or may not be handcuffs, but there will be Secret Service agents and throngs of photographers and reporters angling for a glimpse. A campaign speech on the courthouse steps isn't out of the question for the defendant as he seeks to retake the White House.

It may sound like a scene from New York's mainstay "Law & Order" TV franchise. But the reality is that next week is shaping up to include some typical as well as some unusual features of the criminal indictment process, according to legal analysts.

The office of Manhattan District Attorney Alvin Bragg announced Thursday that a grand jury had voted to indict Trump. He has denied any wrongdoing and vowed to fight the charges.

The indictment is under seal, and the charges aren't yet public. The grand jury's vote follows an investigation into hush money paid during his 2016 presidential campaign to silence allegations of extramarital affairs.

Legal scholars said an indictment isn't difficult to secure, and should not be interpreted as a sign of whether Trump will be found guilty.

A majority of 23 grand jurors is needed for an indictment. In a court of law, a jury's verdict must be unanimous, and jurors can acquit the defendant if they find reasonable doubt.

“It’s quite easy for the government to obtain an indictment,” said Vincent Bonventre, an Albany Law School professor of criminal law who studies the state judicial system. “It says that the government is using its resources to accuse you of having committed a felony. "

Bonventre continued, "There is not a defense case that is presented at the grand jury. It’s completely one-sided."

Steve Zeidman, professor and director of the Criminal Defense Clinic at CUNY Law School, said, "One can assume that no matter how much special treatment he is afforded, Mr. Trump will, and surely should have to, go through some of these steps that anyone charged with a crime must endure."

Alice Fortier, a defense attorney and managing director of the firm Neighborhood Defender Service of Harlem, agreed the process will follow a predictable protocol, in some ways.

“He will be photographed, he will be fingerprinted. The fingerprints are entered into the system, which means that they are sent to Albany,” Fortier said. There, a rap sheet — an official record of arrest — with a New York identification number and an arrest number will be generated.

Fortier said she knows of no requirement that Trump be handcuffed, and said she’d be surprised if he is.

Trump then will go to a courtroom and stand before a judge for an arraignment, Fortier said.

A court officer will read the indictment number and name of the case, and Trump’s attorney will likely waive the reading of all of the charges in the indictment, but preserve his rights, she said.

Trump likely will not immediately face any jail time or requirement for bail because most likely none of the charges against him will be bail-eligible, she said. He then can leave the courtroom and speak to the press outside.

David Schoen, the Atlanta, Georgia, lawyer who defended Trump at his second impeachment hearing, said Trump "certainly is not going anywhere — for processing or otherwise — without Secret Service present."

James Sample, a Hofstra University law professor and constitutional law scholar, said the Manhattan District Attorney's Office frequently tries cases of falsifying business records.

The unusual part of this case is the status of the defendant, he said.

"We as a public don’t hear about those cases. We didn’t read about them in the papers, we didn’t see them on TV because they didn't have a defendant of this prominence," Sample told Newsday. 

This case could extend for many months, especially if government documents are requested through a process known as trial discovery.

Trump is not likely to be imprisoned before trial, so he can continue his campaign travels without much interruption, legal scholars said.

“With the court calendar and any kinds of objections and preliminary objections, he’s certainly free to keep running for president," said Richard Briffault, a Columbia Law School professor.

"The fact that he's been indicted doesn't impact his ability to run," Briffault said. “He doesn't have to be in court all the time."

Eugene V. Debs, the Socialist Party candidate for president in 1920, remained imprisoned while he campaigned.  

Debs, who had been convicted of the U.S. Espionage Act after protesting World War I, received 1 million votes. The Republican ticket of William Harding and Calvin Coolidge won.

“It’s unprecedented that a former president or someone running for a major party nomination has been charged with a serious crime," Briffault said. "On the other hand, it does not interfere with his legal ability to run and it's not clear its going to interfere in practice with his ability to run.”