We have recently learned a few more things about the charges brought by District Attorney Alvin Bragg against former President Donald Trump. One thing is for sure. The D.A.’s team checked some of their basic knowledge of the law at the door.
In New York, misdemeanors must be prosecuted within two years of the date of the offense. Felonies like those Bragg has alleged must be prosecuted within five years or be forever barred by the statute of limitations. These are not new, complex, or difficult-to-manage rules and deadlines. Team Bragg is aware.
The D.A. has charged Trump with felonies for a variety of reasons, one of which is to trigger the five- rather than two-year limitations period on bad bookkeeping crimes. Felonies often bring jail time, which is the left’s fever dream for Trump.
Statutes of limitations are firm dates. There is little leeway for a prosecutor to ask a judge to set aside the statute to allow a time-barred charge to still proceed to trial. Putative criminal defendants have a right to rely on the passage of time as a complete defense to potential charges. Prosecutors must work in a timely fashion and are perpetually on the clock. That does not change simply because their target is an important person.
Bragg is largely also stuck with the formal findings of other courts regarding when certain events occurred on which he premises his charges. Everyone but Bragg, including his predecessor as Manhattan D.A., federal prosecutors, and the Federal Election Commission, had years to charge Trump with crimes within various statutory limitations periods and decided not to do so. Federal prosecutors did, however, charge candidate Trump’s former lawyer, Michael Cohen, with crimes related to the same “hush money,” and he went to prison. That was a document-intensive process, and the official papers filed in that case do not help Bragg’s case against Trump.
According to Cohen’s filed-in-federal-court sentencing memorandum, the Trump Organization “falsely accounted for these (hush money) payments as ‘legal expenses’” sometime in 2017. Thus, the D.A. had to bring any misdemeanor charge related to that transaction in 2019 and 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.
Time Under Statute of Limitations
Bragg needs to cook up a convincing reason for his failure to timely indict Trump on state charges and balance it on top of his already shaky case. He should not succeed, and this is not a close call. How will the media try to help him? By painting with a broad brush or lying, of course.
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. I heard and saw this quoted several times last week. In some cases that conclusion is wrong. In others, depending on the source, it is intentionally misleading. Much of the media are taking their cues from the Jan. 6 Committee and its curated half-emails and spliced clips.
The theory is that because Trump lived in Washington, D.C., during his presidency and in 2019 switched his official state of residence to Florida, the felony limitations period in New York City is still open. The time Trump spent away from New York will simply be subtracted from the time that has elapsed since the Trump Organization allegedly misrepresented Cohen’s reimbursement. This is dreaming and relies on only part of the statute while ignoring the rest.
New York law, in fact, addresses this concept in its Rules of Criminal Procedure, which provide that if the defendant was “continuously outside” the state or “the whereabouts of the defendant were continuously unknown and continuously unascertainable by the exercise of reasonable diligence,” the time for the state to bring charges against a person may be extended.
Suppose the D.A. informed you that you were the target of a criminal investigation, and you promptly fled New York to a non-extradition country until the statute of limitation on your alleged crimes expired. Then you came home to Manhattan. In that case, provided you remained continuously outside of New York and purposely hid from the D.A.’s diligent pursuit, the law might extend the statute of limitations and provide the prosecutor more time to indict you.
Does it sound at all like this concept applies to President Trump?
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. He was not told until recently that Bragg had empaneled a grand jury regarding Stormy Daniels. 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. Based on Bragg’s own timeline in the indictment he prepared, the charges he has conferred against Trump are time-barred with no basis for leeway.
Bragg also alleges that the bookkeeping fraud influenced the 2016 election to try to make it a felony. But the indictment contends the fraudulent ledger entry occurred in 2017, post-election. A person cannot retroactively affect an election. D.A. Bragg has also suggested that even if the limitations period expired on the crimes he has charged, alleged lies about the related events might also extend the time for him to charge Trump. The indictment does not include legal support for that position, which continues to stretch sense and jurisprudence.
On one hand, Bragg has alleged a factually unprovable charge (a post-election, election interference) to try to reach a more favorable time limit for charges. On the other, he has charged crimes that are plainly time-barred based on the chronology he wrote and published. Either way, he loses badly. The push and pull are tearing apart Bragg’s indictment, leaving him nothing on which to proceed.
The presiding judge will decide whether each count in Bragg’s indictment is defective or may proceed past this early stage of the case and be considered by a jury. A concern for the defense and many Americans will be whether a Manhattan jury could ever fairly weigh the evidence or would simply convict Trump on all charges the court allows to advance to trial.
There will be a day when Bragg has to explain himself in court. Best guess is that he will sit in the second row while one of his deputies argues the case, as weak arguers tend to do in court.
Whoever argues for Bragg in court will have to ask the judge to make new law in New York to allow up-charging to felonies by linking them to a federal election crime the D.A. cannot prosecute, and the feds who have jurisdiction did not prosecute. Then prove Trump hid from them while president as they diligently searched for him to no avail.
Team Trump’s arguments are basic and direct. They will contend 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. They will argue that the D.A. lacks jurisdiction or legal support to up-charge a paperwork misdemeanor to a felony by conflating it with a federal election violation over which a state prosecutor lacks jurisdiction. Only the federal government could charge such a crime and did not.
The judge will decide whether the claims are legally defective and should be dismissed. It is unclear how much of this will be done under the watchful public eye. Pundits will guess at the meaning and strength of the motions.
It remains the expectation of many that this case will end with a dull thud and a dismissal. If it does not, a no-holds-barred battle is likely. Now that the Dems have broken the seal on arresting and charging a former president, they will probably do it a few more times in different cases as we move closer to an election season. They cannot accept the results of the 2016 election and cannot help but interfere with another.
Republicans who turn the other cheek will be primaried. Conservatives have had enough of them. Hopefully, real conservatives will see this for what it is — a dual system of justice controlled by the left — and give it back to them in double measure within the bounds of the law. No free-from-prosecution sacred cows on the other side of the aisle from this moment forward.
In fact, some on the left understand the concept of turnabout and know these charges are weak and likely to fail. Others are digging up calendars and counting the years since their last hush money payment made during their own campaign.
Either way, so-called liberals should be wary of what a Trump presidency would look and feel like for them. That particular man, wounded and embarrassed and objectively wronged, with no need to tone it down for the campaign, should be of critical concern for anyone with a “D” on their elected office nameplate.
Thomas Crist is a husband, father, lawyer, and political conservative who loves his country and despises all myopic hypocrisy regardless of its source.