James Joyner has a pretty good round-up at Outside the Beltway of legal analysis on the case that Manhattan District Attorney Alvin Bragg has filed against former President Donald Trump. The TL;DR version is that the case is tenuous, far-fetched. Here’s one point I haven’t seen made. Has the notion that the statute of limitations goes on vacation when somebody gets elected president been tested in New York courts? I expect that to be one of the cases made by Mr. Trump’s lawyers.
IANAL, but this seems to follow the established pattern where Trump’s zealous opponents, playing the part of Icarus, fly too close to the sun hoping desperately to get Trump for something, anything.
When you compile the many analytical versions of yesterday’s court event —- sidelining the snarky ones on the far left and the ultra glowing ones on the far right —- what’s left is that Bragg is torturing justice and filleting the Constitution in order to construct a political win against Trump.
That’s adjacent but not identical to my interpretation. I think that many progressives operate as though we have a civil code system rather than a common law one. Operating under that assumption, the law always applies. That isn’t the case under a common law system.
Of note, the writers who thought it was a good case seemed to be the only ones knowledgeable about the history of similar cases in NYC and were able to cite similar cases. The others cited were talking in general legal terms. Given the very low rate of other crime in NYC and that it is a finance center it doesnt seem a stretch that they might pursue more white collar crime.
But if it is found to be a bad case not sure why this is necessarily some progressive agenda. Seems more likely just some DA hoping to make a big name for himself.
Steve
I thought Andrew McCarthy’s analysis told me what I needed to know, i.e. where and what the weaknesses are.
https://www.nationalreview.com/2023/04/braggs-indictment-even-fails-as-an-indictment/
Based on that it sounds like Mr. Bragg should be concerned about a quo warranto.
Dave Schuler: Has the notion that the statute of limitations goes on vacation when somebody gets elected president been tested in New York courts?
The tolling of the statute of limitations is explicitly stated in New York law. “(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. However, in no event shall the period of limitation be extended by more than five years beyond the period otherwise applicable under subdivision two.” This provision was used successfully against Harvey Weinstein.
Also, the statute of limitations was tolled during the COVID pandemic. See Brash v. Richards.
It’s important to note that if the felony charges are knocked down to misdemeanors, then the statute of limitations would have long expired.
@Dave, I think McCarthy’s a bit over the top on some of what he wrote. But I think his main point in the center of the piece is that there are ground to dismiss the case because the indictment is insufficient. The indictment has to give the accused enough factual background to prepare a defense, which is usually an easy bar. But the Sixth Amendment of the U.S. Constitution further requires the indictment to be specific enough so the accused only has to answer to the charges of the grand jury, not the prosecutor’s interpretation, and sufficient to permit him to protect himself from double jeopardy. Because the charge is a crime arising from a crime, the Constitutional issues from omitting the underlying crime seem substantial.
PD Shaw: I thought Andrew McCarthy’s analysis told me what I needed to know, i.e. where and what the weaknesses are.
There are certainly weaknesses in the New York case, but McCarthy is wrong on a number of points.
• It certainly is an indictment, contrary to what McCarthy claims. The judge certainly believed it to be an indictment. Trump was indicted for fraud as part of a coverup. He’s not being charged for the coverup. Under New York law, the prosecutor is not required to disclose those details at this point in the process, but they will have to be disclosed later (assuming it makes it that far).
• That the repayment of the money occurred after the election doesn’t mean it didn’t concern the election. It was part of the same transaction that began before the election. Allegedly.
• McCarthy claims the “nondisclosure arrangements are the only relevant events in the case that occurred before the 2016 election.” The agreement on how the money was to be laundered was the relevant event. Allegedly.
• Bragg can’t charge a federal crime.
• As for McCarthy’s claim that it was just an FEC violation, the charge is falsification of records. If the secretary just checked the wrong box, that wouldn’t be a crime. But that is not what happened. Allegedly.
PD Shaw: The indictment has to give the accused enough factual background to prepare a defense, which is usually an easy bar.
Trump is charged with fraud. The motive was the coverup. Motive is not a requirement of the indictment. There will be ample opportunity for Trump to have the information to mount an effective defense.
Zachriel, nothing you wrote has anything to do with the requirements of the Sixth Amendment of the U.S. Constitution.
PD Shaw: nothing you wrote has anything to do with the requirements of the Sixth Amendment of the U.S. Constitution.
You might want to read our response again. The Sixth Amendment requires that the accused “be informed of the nature and cause of the accusation.” It doesn’t say when or how, but clearly by trial. Everything else has developed through rules and procedures enacted by legislatures and courts. See N.Y. Crim. Proc. Law § 200.50.
The statute Trump violated concerns falsifying business records. Allegedly. That’s it. The motive is not a necessary component of the initial indictment. The court may certainly order the prosecution to provide additional information. And the prosecution will also have to show probable cause to bind the case over to trial. There may be other grounds for attacking the indictment, including on the grounds of the statute of limitations.
A similar situation is obstruction of justice. You don’t have to indict on the underlying crime to indict on obstruction. Indeed, the obstruction may make prosecuting the underlying crime impossible.
Read McCarthy. Think you should read Lawfare for balance.
Steve