What to expect today at Trump's arraignment

Former President Donald Trump is expected to surrender to criminal charges this afternoon following last week's indictment. After he goes through the routine steps of felony arrest processing, he will be arraigned in criminal court and most likely released on his own recognizance pending trial. GBH legal analyst and Northeastern law professor Daniel Medwed joined Morning Edition hosts Paris Alston and Jeremy Siegel to walk through what to expect from the process. This transcript has been lightly edited.

Jeremy Siegel: This is a huge day. We've been hearing some live reports on the ground in New York from NPR all morning. A former U.S. president will be arrested and arraigned on criminal charges. You used to practice criminal law in New York yourself. So given your knowledge, what can we expect from today?

Daniel Medwed: I used to practice. Now, I guess I preach, right?

Paris Alston: You've done, and now you teach.

Medwed: Exactly. Here's what I envision, I think the day will unfold in this way. So absent some really unforeseen developments, Trump will go through the routine, regular process of the arrest. Maybe he'll get his fingerprints taken, though they might already be on file. He'll definitely get his mug shot taken and then he'll be escorted from the D.A.'s office, which is at 1 Hogan Pl., behind the courthouse, to the main criminal court building at 100 Centre St. They're really close. I think they're like 100 yards apart. And there might even be a back door he can get in. So I don't know how much time he'll be outside before he goes inside 100 Centre St. Now, once he's in 100 Centre St., which is a really decrepit building, he will be arraigned, as you mentioned at the top.

And the arraignment is the moment in the criminal process when a defendant is formally notified about the precise charges against them and given an opportunity to enter an initial plea. In this instance, invariably, Trump is going to plead not guilty. Then a judge will decide whether to release him, it's called being released on your own recognizance, or whether he'll be detained on bail pending trial. It's going to be fairly straightforward with a few little twists and turns, some exceptions from the norm.

Alston: We are talking about a former president here, Daniel. And so inevitably that comes with a lot of privileges. What are some other things we might see today that would be different from your everyday person facing criminal charges?

Medwed: I have a couple of thoughts on that. So first, here's one thing that's quite different: It's not unprecedented to surrender at the D.A.'s office, at the district attorney's office, but it's quite unusual. People typically surrender at the police station. It's also standard practice for a felony arrest for the arrestee to get handcuffed. I suspect they won't handcuff Trump as a matter of deference to his former position. If they do handcuff him, my guess is that they would put his hands in front of his body, which is a courtesy that's often extended to white collar defendants as opposed to people charged with violent crimes. A second difference is that it's pretty obvious the security is going to be bonkers. Usually, state court officers control all the security at 1 Centre St. Here, they're going to be supplemented, of course, by U.S. secret Service agents, probably the NYPD. It'll feel and look like a circus atmosphere.

Siegel: You mentioned that at today's arraignment, the judge will decide whether Trump is released on his own recognizance or detained in jail, presumably on bail, until trial. It's hard to imagine a former president being held in jail. But I mean, what do you think is going to happen?

Medwed: I'm pretty comfortable in the prediction, as you suggest, Jeremy, that he's going to be released on his own recognizance, in part because New York law makes it very difficult — in fact, seemingly bans — prosecutors from asking for pretrial detention when the only charges against a defendant are of a nonviolent nature. And unless there's a real curveball here and there's something on that indictment that is a violent offense, which seems quite unlikely, I just think it's almost a lock that he's going to be released on his own recognizance and will be at Trump Tower tonight.

Alston: So, Daniel, this bring us a little closer to home. So say this was happening here in Massachusetts. How might things be similar or different to what's happening in New York today?

Medwed: There are some general overlapping characteristics of our process. But of course, this is Massachusetts. We have a few idiosyncrasies. So first, consider the bail decision-making calculation: In the commonwealth, a judge must formally consider the severity of the charges, the defendant's risk of flight, the defendant's criminal history and the defendant's current work and living situation in deciding whether to release them or hold them on bail. But there's also something else here in Massachusetts, a 2017 SJC case called Brangan v. Commonwealth, which said that judges must explicitly account for a defendant's unique financial situation in calculating bail. In other words, judges in Massachusetts can't set a bail figure that's beyond the financial reach of a particular defendant. It's a really noble and progressive decision that a few other states have, but it's somewhat peculiar to Massachusetts.

A second difference here in Massachusetts is that we're one of only a handful of states, I think only seven, that has banned the use of private or commercial bail bonds people. We don't have a private bail bond system here in Massachusetts. The way you post bond is the defendant will post cash or a check or a credit card, or you'll use what's called a personal surety, you'll have a friend or a family member do the same. I like to think of bail as a form of insurance. If you're released on bail and you don't show up at trial, you forfeit your money. If you do show up, you get it back.

Siegel: It's interesting hearing about those aspects of the bail system in Massachusetts, especially after hearing about some of it with New York with former President Trump's trial today. You cited some of the factors that are considered in choosing whether to detain someone on bail. Is public safety a factor here in Massachusetts? When can someone be detained without bail, without any chance of being released before trial?

Medwed: Well, in Massachusetts the issue of public safety is handled through a separate process. It's called a dangerousness proceeding. And here's how it works: A prosecutor will indicate that she wants to hold the defendant without bail, hold them indefinitely before trial. And the process, on the one hand, has some attributes that favor the defense: It's an open hearing, a public hearing, and the government bears the burden of proving by clear and convincing evidence that the defendant poses a risk of danger to the community. So it's a pretty high bar. On the other hand, the prosecution isn't required to put on live witnesses at that hearing. They can meet the standard simply through hearsay evidence, through police reports that are sent to the judge. So dangerousness hearings are somewhat peculiar to Massachusetts, and it's separate from the bail system.