Donald Trump is facing 34 counts but what about Alvin Bragg's felony?

It’s official. Donald Trump is facing 34 counts of falsification of business records. 

Let’s leave aside the flaws in the case, as currently reported: the issue of selective prosecution; the escalation to a felony by use of a federal statute over which Manhattan District Attorney Alvin Bragg has no jurisdiction; the question of how a 2016 event comes within the statute of limitations on the purported charges. 

Let’s instead ask how did a news outlet get the "34 charges" information ahead of Tuesday’s release of the indictment? The leaked information was proven correct when the indictment was unsealed on Tuesday.

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So what’s the problem here? Don’t news outlets get a lot of leaked information in advance? Well, the problem is that grand jury indictments are – by law – secret. That information is not supposed to be public.  

As per New York Criminal Procedure Law § 190.25: 

4. (a) Grand jury proceedings are secret, and no grand juror, or other person… may, except in the lawful discharge of his duties or upon written order of the court, disclose the nature or substance of any grand jury testimony, evidence, or any decision, result or other matter attending a grand jury proceeding.

This is black-letter law, and it is given serious deference every day in the New York criminal courts. 

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So, in light of that -- and in light of the equities involved in this "historic" case – where is the leak investigation into this unlawful grand jury disclosure?

Understand: the news outlet doesn’t have the culpability here – they’re just doing their jobs. They have the First Amendment on their side. The culpability here resides with the leaker.

And in light of the timing – as both sides of the aisle were calling into serious question the validity of Bragg’s case – it seems likely that someone in Bragg’s apparatus was the "source" CNN’s John Miller referred to on-air earlier this week. A source looking to change the narrative by leaking 34 stacked counts of the same charge.

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This is far from an academic question. Aside from the potential misconduct here, a near-certainty, in this case, is that the former president's attorneys will make a motion for a change of venue. In light of the fact that secret grand jury testimony may have been leaked by someone in the venue in question, that motion should be given serious consideration. 

But Trump’s lawyers should not only file for a change of venue, as the former president has suggested, but they should also refer Bragg’s office to the New York State Bar Disciplinary Committee for potentially violating this basic tenet of criminal procedure law if in fact, an attorney is the leaker. 

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They should also refer the matter to the New York State attorney general because there is a potential criminal charge here.  Under New York criminal law, the charge is Unlawful Grand Jury Disclosure:

§ 215.70 Unlawful grand jury disclosure

A person is guilty of unlawful grand jury disclosure when, being a grand juror, a public prosecutor, a grand  jury  stenographer, a grand jury interpreter, a police officer or a peace officer guarding a witness in a  grand  jury  proceeding, or a clerk, attendant, warden or other public servant having official duties in or about a grand jury  room or proceeding, or a public officer or public employee, he intentionally discloses to another  the nature or substance of any grand jury testimony, or any decision, result or other matter attending a grand jury proceeding which is required by law to be kept  secret, except in the proper discharge of his official duties or upon written order of the court.

Unlawful grand jury disclosure is a class E felony.

That’s right. A real felony. 

In fact, Trump or one of his lawyers could simply walk into an NYPD precinct and lodge a complaint, thereby initiating an investigation.

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Because we now know that the leaked report is accurate. And that means this felony statute clearly applies here. Someone is leaking, likely to validate a questionable indictment by listing the stacked charges against the former president and to potentially taint the jury pool. 

Does nobody in our legal system care, just because Trump is the target?

The last time this charge received significant public attention was in the notorious Tawana Brawley case, in the late 1980’s.  In that instance, the New York State attorney general launched an investigation after just such a grand jury leak. 

Do the rights of a former U.S. president not merit similar protection?

A further likely "tell" here is that CNN was used. We’ve seen this conduct before. Without entering into the merits of the case against former Trump campaign aide Roger Stone, the fact that CNN was in-place in 2019 with camera crews for a SWAT-level arrest at the home of a 67-year-old man… (something, by the way, that CNN states was based on "a hunch").

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In light of the fact that it is Bragg’s office that may well be implicated, a special prosecutor or the NY attorney general should publicly initiate an investigation into this genuine felony.  

Failure to do that only further calls into question the true motivation and propriety of this entire affair.

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