Opinion: I ran for Manhattan DA against Alvin Bragg. Here's what I think of the Trump indictment.

Unless he threatens the judge’s life, he won’t spend a single night in jail or prison.

Eliza Orlins

Eliza Orlins Mikiodo

On Tuesday, former President Donald Trump was arraigned on a 34-count felony indictment in Manhattan. As a career public defender who has represented thousands of people at their arraignments in the very same court and who ran against Alvin Bragg for Manhattan District Attorney in 2021, I have a lot to say.

Not your typical defendant

Comparing this case to the cases of my clients, who are often among the poorest and most vulnerable New Yorkers, might seem like comparing apples and oranges, but as we saw earlier this week, Trump is still “the defendant” in the case of the People of the State of New York v. Donald J. Trump.

One major difference between Donald Trump’s experience and that of other people charged in this court is the amount of time the former president was given to surrender. While there were unprecedented security and logistical arrangements involved in this arrest of a former president, the vast majority of my clients are brought to court straight from the scene of their arrests. Those who do receive advance warning that there is a warrant out for their arrests are usually only given a day or two to turn themselves in before the police show up at their homes. Typically, this happens early in the morning, which means many are still in their pajamas when they are arrested. 

Most of my clients have very little – if any – time to sort out a myriad of daunting challenges, like making arrangements for children, elderly parents, and pets. They also need to figure out how to cover the costs of bills and rent and they have to communicate with employers about missing work. For most people who are prosecuted by the Manhattan DA’s office, these challenges are compounded over time, as many are forced to appear in court almost monthly – sometimes for years – for hearings or trials in their cases. Unlike Trump, my clients have not been released and told to just come back eight months later.

Although this makes Donald Trump’s case – in which he won’t have to appear in person again until December 4 (and maybe not even then!) – unusual for this court, it’s worth remembering the impact that any appearances he makes in this or any of his potential cases could have on other people going through legal proceedings.

Even when an effort is made, as happened on Tuesday, to try to limit the number of hearings and arraignments that are delayed for security reasons while Trump is in court, other cases will always be impacted when he appears in court in person–which could mean anything from people having to spend more time at Rikers to delays in custody proceedings.

No gag order

In the days leading up to Tuesday’s arraignment, many legal commentators predicted Judge Merchan might issue an order barring Donald Trump from discussing the case for the rest of his 2024 campaign. But while it is true that gag orders in high-profile cases in federal court are common, in state court they are rare. So I was not surprised that Judge Merchan declined to impose one on Trump, at least for now.

Judge Merchan’s warning to Trump to avoid making any statements that could incite violence or “civil unrest” does leave the door open for prosecutors to enter a motion asking for a gag order in the future – something that seems likely given Trump’s recent comments and social media posts.  

As a criminal defense attorney, I always advise my clients to avoid speaking publicly about their cases or posting about them on social media. Trump’s attorneys obviously represent a client whose public statements present unique challenges. But the prosecutors may face similar challenges with more than one potential witness. During Trump’s arraignment, the former president’s defense attorneys zeroed in on Michael Cohen’s public statements. Other potential witnesses in the case –  most notably Stormy Daniels – have also spent the past few years speaking to reporters on the record, producing podcasts, and tweeting about the case, amounting to a massive volume of material that Trump’s attorneys can now mine for statements that could be used in court. 

In what might be a first for a criminal court case, Cohen and Daniels have both even auctioned off NFTs related to the case – with Cohen promoting an NFT of the $130,000 hush money check at the center of this prosecution and Daniels selling an image of herself holding the gold dress that she said she wore on the night of her alleged sexual encounter with Donald Trump. All of this could prove uniquely challenging for the prosecutors, especially given Judge Merchan’s warning to them that their witnesses will also need to control their public statements

What I would’ve done

When Alvin Bragg and I were running for DA, all of the candidates in our primary were asked the question of what we would do with regard to prosecuting Donald Trump on a regular basis. None of us, though, could really say definitively at that point what we would do, because we hadn’t seen the facts and the evidence that the Manhattan DA’s office was privy to. Any incoming DA – myself included – would have needed to take stock of the ongoing investigations and make decisions based on the evidence. 

By all accounts, it seems that there were multiple avenues that the DA could have pursued to bring a criminal prosecution. The fact that the office chose this one, which involves certain facts that were already widely known, coupled with the time they took putting this case together, suggests to me that they have gone through a careful and deliberative process and are confident that they can prove these charges beyond a reasonable doubt in court.

What’s next

I believe it’s highly unlikely that Trump will ever spend a night in prison. The crimes he’s charged with “E non-violent felonies,” the lowest level felony one can be charged with. Donald Trump also has no previous criminal record – and (for now, at least) he has not been charged with any other crimes. People might be wondering about what impact the current efforts to roll back bail reform might have here, but the reality is that this situation wouldn’t have been any different. Even without bail reform, Trump wouldn’t have been incarcerated pre-trial in this case.

Even if prison time were on the table, the logistics of a former president being incarcerated  wouldn’t be as simple as just sending Secret Service agents with him to prison, as some have suggested. In addition to the many barriers that a facility like Rikers Island would present for Secret Service agents trying to protect Trump, render medical aid, or evacuate the former president in an emergency, there are many situations that can arise in prison that could pose a danger to any incarcerated person’s life that can’t be resolved quickly or without a judge’s sign-off. 

It would not be unprecedented for the Secret Service to disregard the opinions of local authorities when making an emergency decision. After John F. Kennedy was killed in Dallas, for example, the Secret Service agents rushing Lyndon Johnson and Jackie Kennedy to the airport took President Kennedy’s body with them over the objections of local officials (including one judge) who had tried to insist that they follow the process required under local law of having a county medical examiner conduct an autopsy after a murder.

Stay tuned.