Bragg will be be swimming upstream on this before he even gets a crack at his case.
We now have the Donald Trump indictment, and we also have a Statement of Facts laying out the prosecution’s theory underlying the bare-bones allegations in the indictment. For all of the huffing and puffing about how we ought to wait to see the indictment before judging it, it turns out that there is nothing here beyond what was reported in the press in advance. This is exactly what we expected; if anything, it is worse. To call this thin gruel is an insult to thin gruel.
In a nutshell, Manhattan district attorney Alvin Bragg’s theory is as follows. First, Donald Trump had his lawyer, Michael Cohen, pay off porn star Stormy Daniels to keep quiet about her alleged affair with Trump in advance of the 2016 election. Second, it was agreed all along that Trump would reimburse Cohen for the payments, which he did by writing a series of checks between February 2017 and December 2017. Third, Trump wrote on the checks that these were for legal fees pursuant to a retainer agreement, and the Trump Organization and its various business entities recorded them in their books as such. Bragg alleges that these business records were false. He has charged Trump with 34 instances of falsely recording these payments, each of them charged as a separate felony.
Insofar as those basic allegations are concerned, Bragg appears to have Trump dead to rights, and this would be enough to end the political career of a more normal figure. But turning those facts into a criminal indictment requires an additional set of leaps of law and logic, because paying hush money to your mistress isn’t a crime, and Trump did it with money that was rightfully his to use. Nothing he did cost anybody else any money, or did anybody else any harm that can be redressed by the law.
On a TV lawyer show like Law & Order, the DA would tell somebody who came into his office with this to go back and find evidence of a better theory. It’s that flimsy and overzealous.
The best you can possibly say about this case is that there are a large number of legal questions that might, if you take a highly aggressive and partisan reading of the law, support the indictment if the prosecution wins every single one of them. If the prosecutors are wrong in any of the numerous ways in which they are gambling on a broad expansion of the law, they lose the whole case. Let’s walk through the problems here – the legal pitfalls as well as the egregious overreaching – one at a time. For the first installment, I will discuss whether it’s too late to bring these charges.
Problem One: The Statute of Limitations
Before we get to the actual charges, there’s a serious legal hurdle: the statute of limitations. New York Penal Law § 175.05 makes it a misdemeanor to make false business records. Trump was charged under New York Penal Law § 175.10, the felony version of the statute, which applies when the defendant falsifies a record in order to commit or conceal another crime. The statute of limitations is two years for the misdemeanor, and five for the felony.
The last payment, and last false record, charged in the indictment, came in December 2017, more than five years ago. A charge under the misdemeanor statute would obviously be time-barred, which is a major reason why Bragg has pursued a felony charge. But that is also outside the five-year window, so some creative lawyering would be required to even get this case a hearing.
Andy McCarthy previously suggested that perhaps Bragg would argue that “these 2017 payments had bookkeeping implications in 2018, when the 2017 fiscal year was presumably accounted for.” But if that were true, we likely would see a count in the indictment for an entry in 2018. We also would more likely see all the entries grouped into a single count in order to argue that they were all a single course of conduct. We instead have 34 separate counts, all of them involving conduct completed in 2017.
A second theory that occurs to me – and I confess that I haven’t dug into the law on this one – is that Bragg might argue that the statute of limitations is tolled (in other words, the five-year clock is paused) while Trump was concealing what he had done. Many civil and criminal statutes of limitations provide for different types of tolling due to concealment, but how they do this varies.
I wonder about this because the Statement of Facts spends a lot of ink talking about how Trump, beginning on April 9, 2018, pressured Cohen not to cooperate in the federal investigation of the Daniels payments. The date jumps out because it is just barely less than five years ago. The pressure on Cohen has no other legal relevance to the charges, except maybe as some sort of collateral evidence of Trump’s consciousness of guilt (although it is entirely consistent with Trump’s m.o. in just about any situation). In a 44-paragraph Statement of Facts, it seems as if six paragraphs would not be spent on this topic unless it was laying the groundwork to argue that this was relevant to why the court should toll the limitations period.
Just Security, a Resistance website that has basically acted as an advance public legal team for Bragg, has offered two different theories. One is that limitations periods are tolled when the defendant is continuously out of state. Those rules exist to deal with fugitives or others who can’t be found to arrest them. Trump changed his legal residence to Florida in 2019, but he hardly stopped coming to Trump Tower, and in any event, Bragg had no trouble charging him now. Moreover, those rules were hardly made to deal with people who were out of state serving the federal government. Trump wasn’t living in New York or Florida at the time, he was living in the White House.
The other theory is that maybe the statute of limitations would be extended under an Andrew Cuomo executive order resulting from the courts being closed for a while during Covid. No, really.
I don’t dismiss the possibility that Bragg has an argument under New York law that might get around the fact that the statute of limitations is five years, and everything he is charging happened more than five years ago. But he’ll be swimming upstream on this before he even gets a crack at his case.
Also, here as in other areas of this prosecution, the fact that the Trump legal team still has to guess at the prosecution’s theory reflects the abusive hardball being played. Prosecutors don’t have to reveal all of their evidence ahead of trial, but basic notions of fair play require you to inform a criminal defendant of the basis for the charges against him, such that he can present a defense. Bragg refuses to do that.
In Part Two, I will address how Bragg is scrounging for a basis to claim that Trump was covering up another crime.