Statute of Limitations and Bragg’s Trump Indictment

As Dan, Jim, our editors, and others (myself included) have pointed out, Manhattan District Attorney Alvin Bragg’s indictment of Donald Trump raises significant, perhaps insuperable, statute-of-limitations concerns. Assuming for argument’s sake that the indictment states a crime, let alone 34 crimes (which I don’t believe it does), the last criminal act charged occurred over five years ago, on December 5, 2017 — the final-installment payment from Trump to Michael Cohen, to reimburse him for the $130,000 hush-money payment to porn star Stormy Daniels.

If this were a federal case, the prosecutor would be out of luck. The standard statute-of-limitations period in criminal cases is five years. (There are exceptions, but they are irrelevant to this case.) Though Bragg’s prosecution is obviously a state case, the federal statute may be significant. The DA appears to be using New York law as a pretext to enforce federal campaign-finance law. (Although he is playing hide-the-ball with the crime he says Trump was trying to conceal by falsifying business records, he has at least intimated that that crime is a federal campaign-finance offense.)

If the case is not quickly dismissed because of the indictment’s facial inadequacy (as it should be), there is sure to be a significant dismissal motion based on whether Bragg has any jurisdiction to enforce federal law, and, if he does, whether that authority includes countermanding the federal authorities (the Justice Department and the Federal Election Commission) which have primary jurisdiction and which elected not to proceed against Trump. I am in the camp that believes Bragg has no jurisdiction whatsoever (I believe when the New York statute he is invoking speaks of concealing “another crime,” it means a New York crime, not a federal crime). But if we assume arguendo that Bragg has some enforcement authority, surely he would have to comply with the restrictions that would be imposed on federal prosecutors — a point forcefully argued by John Yoo and Robert Delahunty. It has to count against him that the statute of limitations would bar the Justice Department from prosecuting Trump on the facts Bragg has pled.

Now, let’s put the federal statute of limitations aside. As has been observed many times, the New York crime of falsifying business records is codified as a misdemeanor and a felony. The state-law statute of limitations is two years for the former and five years for the latter. On first blush, it would appear that Bragg’s case is time-barred either way. In fact, before we finally saw the actual indictment yesterday, I gave Bragg the benefit of the doubt that he would figure out a way to plead the indictment that nudged the alleged crimes charged into early to mid 2018 — most likely, by saying that false entries in 2017 generated tax-related documents the following year. But Bragg didn’t even do that. Again, Count 34, which is last in time, occurred on December 5, 2017.

So why isn’t the case already time-barred? Well, Bragg’s defenders claim he is relying on provisions of New York law holding that the statute of limitations is tolled (i.e., suspended) if a defendant leaves the state. In addition, during Covid, then-governor Andrew Cuomo took executive action to toll the statute of limitations in all New York cases for 227 days (from March 20 through November 3, 2020), an action that the state courts appear to have approved.

Let’s take these one at a time.

Leaving New York

Under the maximalist argument, the statute-of-limitations period for the falsification of business-records crimes was tolled from January 20, 2017, when Trump moved into the White House, two years after which he formally changed his state of principal residence from New York to Florida. While I do not pretend to be an expert in the permutations of New York state’s various statutes of limitations, I seriously doubt such a tolling argument could withstand scrutiny — not under New York law, and not under U.S. constitutional law.

As I understand it, the New York tolling provisions are intended to prevent fugitives from defeating their prosecution by fleeing. Trump did not flee. To the contrary, even when he became president, he maintained a residence and a continuous business presence in Manhattan. That continued even after he changed his principal residence to Florida. As president and former president, Trump spent plenty of time in New York — he was not continuously out of the state for years, and he maintained significant business ties and property holdings. Moreover, soon after the state’s investigation of the Stormy Daniels caper began in 2018, which was part of a broader investigation into Trump’s finances going back decades, Trump’s lawyers were in frequent contact with Bragg’s office. In fact, Trump and the DA’s office were in such intensive litigation that the case went up to the U.S. Supreme Court not once but twice.

And, perhaps the most obvious point: Bragg indicted Trump last week even though Trump was living in Florida; and Trump responded by voluntarily surrendering within days, in cooperation with Bragg’s office. Consequently, how could Bragg say with a straight face that Trump’s living openly and notoriously in Washington and Florida from early 2017 until the present day caused even the slightest interference with his ability to proceed with the case in a timely manner?

The statute of limitations is not the last word on this. Such statutes build on the U.S. Constitution’s Sixth Amendment guarantee of a speedy trial, which is fundamental to criminal due process. Even if the prosecutor has a plausible argument that tolling provisions bring ostensibly stale conduct into the live limitations period, an accused may still make a constitutional claim that the prosecutor’s delay is inexcusable. To succeed, an accused would have to show that the prosecution’s foot-dragging has prejudiced his defense — e.g., by making testimony and documents that might be exculpatory more difficult, if not impossible, to obtain.

Generally speaking, the constitutional argument will fail if the indictment is filed within the normal statute-of-limitations period and there is no evidence that the prosecutor has undermined, or at least tried to undermine, the presentation of a defense. But the claim could have legs on these facts, where (a) there seems to be no good reason for Bragg to have delayed, and (b) Bragg is (apparently) trying to enforce federal criminal law that the Justice Department would be barred by the federal statute of limitations from enforcing.

Covid

Bragg’s better argument here, at least on felony falsification of records, is the Covid toll ordered by Cuomo. By my calculation, that toll was 227 days. Let’s say Bragg gets the benefit of that extension; and for simplicity’s sake, let’s take the last count of the indictment, which pleads the latest date of allegedly criminal activity, December 5, 2017, as the day the statute of limitations started to run. Five years would take us to December 5, 2022. If we add 227 days, my math extends that to July 20, 2023. If I’m right, then a felony indictment would be timely.

Two caveats here. First, I know of no evidence that the pandemic caused any actual delay to Bragg’s investigation, but I am assuming he does not have to show it made a difference to get the benefit of the Covid toll. Second, only the felony-falsification charge could be timely in this scenario. That is critical because it does not appear that Bragg can prove the felony.

If he can’t, and all we’re left with is misdemeanor falsification of records, the two-year statute of limitations would have lapsed on or about December 5, 2019 — the subsequent Covid toll would have no effect.

This post has been slightly edited since originally posted. ACM