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Former prosecutor Mintz discusses Trump's claims he's the target of grand jury probe


Former President Donald Trump says he has just a few days to report to a grand jury. He says he's received a letter from special counsel Jack Smith that he is a target in the federal probe into the January 6 attack on the Capitol and efforts to overturn the 2020 election. Let's discuss this with former federal prosecutor Robert Mintz. Welcome back to the program.

ROBERT MINTZ: Good morning.

FADEL: Good morning. So why did the Justice Department send this letter to Trump? What would it mean?

MINTZ: Well, to give you some perspective, the U.S. Attorneys' Manual identifies three categories of persons in connection with a federal criminal investigation. If you're identified as a witness, it means you're not going to be charged in a case. It's sort of like you're standing on a street corner. There's a car accident, and the police want to know whether the light was yellow or red when the car entered the intersection. Then there's something called a subject category, and that means you may be indicted. It means prosecutors are looking at your conduct. They're not saying you did anything wrong, but they're also not saying that you may not have committed a crime.

But a target letter is something wholly different. That really is defined as when the grand jury or the prosecutor have substantial evidence linking you to criminal activity. And the prosecutor views you as a putative defendant, which essentially means the only thing standing between you and an indictment is a grand jury who has to vote in favor of the indictment. And when prosecutors present an indictment to a grand jury, they almost always return the indictment.

FADEL: So would a letter like this indicate which aspects of the investigation the Justice Department would be pursuing with regard to Trump? I mean, this mentioned both January 6 and the 2020 election. So does that mean he's a target for both?

MINTZ: Well, it's hard to say. I mean, we haven't seen the letter itself. It usually identifies some federal criminal charges that the government believes that the putative defendant may have violated. But the letter is sent really for a number of reasons. It's sent to prompt plea discussions in some cases. It gives the defense counsel one last shot to try to convince the government not to bring charges against their client. But it also allows the target of the investigation the opportunity to testify before the grand jury directly to try to convince them not to return an indictment against them. In this case, I do not think we would expect to see former President Trump take advantage of that opportunity and appear before the grand jury. He didn't do it in the Mar-a-Lago case, and defense counsel generally counsel against their clients testifying before the grand jury because anything they say in that grand jury testimony can later be used against them in a criminal trial.

FADEL: So Trump says this kind of target letter always means arrest and indictment, and it sounds like you generally agree with that - a letter like this.

MINTZ: Yeah, that's absolutely right. If you get a target letter, it's almost certain that you're going to be indicted at some point. The question is simply a matter of when.

FADEL: Now you said a letter like this has to be backed up by a lot of evidence. I mean, what does this say about what the Justice Department might have?

MINTZ: Well, it certainly means that the prosecutor believes - in this case, the special counsel, Jack Smith, believes that he has probable cause that a crime has been committed. And I think the fact that there is a target letter gives us some indication that it's obviously related to the January 6 events. But beyond that, we don't know what the charges will be. We also don't know whether others may also be charged in connection with the same alleged crime here, although it appears that nobody else has received a target letter. So we're just going to have to wait and see what (inaudible) are and who else, if anybody else, is charged along with former President Trump.

FADEL: Now, this isn't the only legal case that Trump is dealing with. The investigations by special counsel Jack Smith also produced the indictment on charges that Trump kept and then hid classified documents at his Florida estate. Trump's lawyers asked the judge yesterday to delay those proceedings. Do prosecutors at the Justice Department typically collaborate with one another or take any cues from the other investigations involving Trump?

MINTZ: Well, they should cooperate with one another, and they should try to coordinate this because, obviously, a defendant could only face one criminal charge at a time. And so it will be up to the Department of Justice to make a decision as to which of the federal cases they want to pursue first. With regard to some of the state charges, like the Manhattan district attorney's office and if state charges are brought in Georgia in connection with alleged interference with the election down there, that's something that is really left up to the opportunity for federal and state prosecutors to try to work together, although there are no set rules as to how that exactly is going to work. So that is really left up to the discretion of the various prosecutors and whether or not they can work together and decide which case is going to be tried first.

FADEL: In the few seconds we have left, special counsel Jack Smith was just appointed in November. From a prosecutor's standpoint, how quick does this inquiry feel?

MINTZ: Well, it's moving along fairly quickly. But then again, it really has to. This is a race against the political clock, with the upcoming primaries and the upcoming election. And so I think Jack Smith is moving as quickly as he can here. This is an area - with January 6 and with the documents case - where a lot of evidence was out there, and I think he had the opportunity to move very swiftly to bring these charges.

FADEL: Former federal prosecutor Robert Mintz. Robert, thanks for your time.

MINTZ: My pleasure. Transcript provided by NPR, Copyright NPR.

Leila Fadel
Leila Fadel is a host of Morning Edition, as well as NPR's morning news podcast Up First.