In April, we discussed the glaringly obvious facial insufficiency of the Manhattan District Attorney’s Indictment of former president Donald Trump. At that time, we noted that Trump was charged with 34 counts of Falsifying Business Records in the First Degree, a Class E felony under New York’s Penal Law Section 175.10.
Each count of the indictment states that Trump, “with intent to defraud and intent to commit another crime and aid and conceal the commission thereof, made and caused a false entry in the business records of an enterprise.” We noted that the failure to specify the “other crime” at issue renders the indictment facially insufficient since it does not “provide an accused with adequately detailed factual allegations of an evidentiary nature sufficient for a defendant to prepare a defense, and prevent him from being tried twice for the same offense.”
In and of itself, the failure to present sufficient factual allegations should be enough to allow the Court to dismiss the indictment. But there is another basis upon which the prosecution of Donald Trump could be rendered untenable.
A review of the indictment reveals that the criminal acts alleged occurred on a variety of dates between February 14, 2017 and December 5, 2017. Yet, Donald Trump was not arraigned on these charges until April 4, 2023 – more than six years after the events happened. Under New York Criminal Procedure Law Sec. 30.10(2)(b), “(a) prosecution for any other felony must be commenced within five years after the commission thereof.”
Trump himself asserted that the Statute of Limitations had passed in a tweet from March. Lawyer Tom Crist, writing for The Federalist agrees; “the D.A. had to bring…any felony charge in 2022 to survive a defense motion to dismiss. Bragg’s grand jury handed up charges in 2023 after the five-year limitations period expired…the time for Bragg to charge Trump for the crimes listed in the indictment expired months or years ago and can no longer be pursued.” Of course, as with almost any law, there are exceptions and extensions available to Bragg’s office.
One such argument for an extension of time can be made under CPL Sec. 30.10(4), which states that “in calculating the time limitation applicable to commencement of a criminal action, the following periods shall not be included: (a) Any period following the commission of the offense during which (i) the defendant was continuously outside this state or (ii) the whereabouts of the defendant were continuously unknown and continuously unascertainable by the exercise of reasonable diligence.”
According to CNN, “(s)ince Trump was sworn into office in January 2017, he has spent few days in New York, which means prosecutors could effectively add that time to the clock and investigate earlier conduct.” The Daily Beast agrees; Trump’s time in the White House and his post-presidential political exile at the Mar-a-Lago estate in Florida may be gifting prosecutors much-needed extra time…Adam Kaufmann, an attorney who ran the Manhattan DA’s investigative unit for three years (said) ‘it’s easy to prove he was not in the state of New York. There’s going to be records of where he was physically located every day for four years.’”
Attorney Crist does not think much of any effort to apply this exception to the former president: “CNN has been telling us since 2021, two years before Bragg’s indictment of the former president, that the time Trump spent in the White House would be tacked on to the New York statute of limitations to keep the prospect of criminal charges against Trump alive. Other networks have mimicked that conclusion. Each has focused on the contention that any period following the commission of the offense during which a defendant resided outside of New York will serve to extend the statutory time bar…Trump was front-page news for his entire presidency. He was not hiding from anyone. He did not evade Bragg. He loves and lives in the limelight…Trump routinely visited New York City over the last several years and maintains at least one home and business assets there. If Bragg could not figure out where Trump was from 2016 to 2022, he has bigger problems than this weak indictment.”
Reasonable minds would tend to agree with Crist’s analysis here. Trump was not making any effort to hide from the Manhattan DA’s office and its investigation from 2016 to 2023. He maintained a residence in New York City during his presidency, and only recently established a Florida residency. Even then, he was in and out of New York continuously during that time period.
But the former president is not dealing with reasonable minds. Further, as described by CNN, there is precedent for the use of the extension period of CPL Sec. 30.10(4); “The (Manhattan) district attorney’s office invoked the out-of-state tolling extension in its criminal case against (Hollywood Producer Harvey) Weinstein. Prosecutors charged Weinstein with multiple crimes, including rape in the third degree for an alleged assault that occurred in March 2013. Weinstein was charged in May 2018, two months after the five-year statute of limitations on that offense would have expired. Weinstein challenged the charge, arguing it fell outside the statute of limitations and as a resident of New York state the extension wouldn’t apply to him. Prosecutors used records from “United States Customs and Border Control” to show that Weinstein had been out of New York for 193 days during that five-year period– more than the 68 days needed to capture the earlier conduct. The judge rejected Weinstein’s argument and allowed the charge to stand. Weinstein was convicted on charges of sexual assault and is serving a 23-year sentence.”
Thus, it is entirely possible that the time Donald Trump spent in the White House, serving his country as the President of the United States, could be used against him in New York State Supreme Court.
There is also another issue that could allow for the extension of the time period for at least some of the charges brought against the former president.
On March 20, 2020, then-New York Governor Andrew Cuomo issued Executive Order No. 202.8, which read in part, “any specific time limit for the commencement, filing, or service of any legal action, notice, motion, or other process or proceeding, as prescribed by the procedural laws of the state, including but not limited to the criminal procedure law, the family court act, the civil practice law and rules, the court of claims act, the surrogate’s court procedure act, and the uniform court acts, or by any other statute, local law, ordinance, order, rule, or regulation, or part thereof, is hereby tolled from the date of this executive order until April 19, 2020…” This “toll” of the “time limit for the commencement…of any legal action” was continually extended until November 3, 2020, a total of approximately 8 months, or 228 days.
What does this mean? In 2021, New York State’s Appellate Division, Second Department, in the case of Brash v. Richards, considered the question of “whether a series of executive orders issued by Governor Andrew Cuomo, as a result of the COVID-19 pandemic, constitute a toll…of filing deadlines applicable to litigation in the New York courts.” The Court concluded “that the subject executive orders constitute a toll of such filing deadlines.”
The Court explained that “(a) toll suspends the running of the applicable period of limitation for a finite time period, and ‘[t]he period of the toll is excluded from the calculation of the [relevant time period].'” (Citation omitted.) As described by attorney Krystina Maola, “(s)hould the remaining appellate courts follow the holding in Brash and decide the Executive Orders were meant as a toll of filing deadlines, this would extend filing deadlines for a period of 228 days…Therefore, any statute of limitations that was set to expire on November 3, 2020 (the last day the Executive Orders provided for tolling) will now expire on June 19, 2021.” (Citation omitted.)
To understand the effect this tolling of the statute of limitations has on the Trump indictment will require a bit of math. On average, the five years between 2017 and 2023 would add up to approximately 1,825 days. Meanwhile, the time between December 5, 2017 (the last date of criminal conduct alleged against Trump) and the former president’s arraignment on April 4, 2023 is 1,946 days. This would mean that Trump’s arraignment occurred 121 days past the five year expiration of the stature of limitations .
However, if we subtract the 228 days of the toll period (between March 20 and November 3, 2020) from those 1,946 days, we get 1,718 days. That’s 108 days short of the five year expiration date.
These 108 days do not save all of the prosecutor’s charges. The first 22 counts of the indictment, which allege acts which occurred between February 14, 2017 and August 1, 2017 are more than five years old, even given the Governor’s tolling order. Only Counts 23 through 34, which allege illegal acts which occurred between September 11, 2017 and December 5, 2017 would not be time barred under this analysis.
This means that some, but not all of the charges brought by the Manhattan DA’s Office could be dismissed under this theory.
In any event, as we discussed in April, the New York County Supreme Court justice hearing this matter is Juan Merchan, who has previously contributed to anti-Trump political organizations. The likelihood of a dismissal of any charges on any basis by Judge Merchan is low. Instead, as stated by Vox, “we may need to wait a very long time before the courts determine once and for all whether Trump may be convicted under the felony statutes he is accused of violating — indeed, if the (United States) Supreme Court gets involved in this case, we may not get an answer until wellafter the 2024 election. And, of course, even if Bragg does convince the courts that Trump was properly charged with a felony, he will still need to prove that case to a jury beyond a reasonable doubt.”
In other words – stay tuned. This show is only just getting started.
Judge Wilson served on the bench in NYC
Illustration: Pixabay