Is The NY Prosecution of Trump Time Barred? (Update)

The acts upon which the putative indictment of former president Donald Trump were completed in 2017. It’s now 2023. Math challenges aside, that comes out to be about six years ago. So how is it possible that six-year-old alleged conduct can be prosecuted when the statute of limitations in New York for most felonies is five years, and two years for misdemeanors?

The Manhattan district attorney, Alvin L. Bragg, has signaled he is preparing to seek felony charges against Mr. Trump; Mr. Bragg is expected to accuse him of concealing a $130,000 hush-money payment that Michael D. Cohen, Mr. Trump’s lawyer and fixer, made to Ms. Daniels on the eve of the 2016 presidential election.

A conviction would be likely to hinge on prosecutors’ proving that Mr. Trump reimbursed Mr. Cohen and falsified business records when he did so, possibly to hide an election law violation.

This assumes that the charges can make it past a motion to dismiss based on statute of limitations, CPL § 30.10. which provides for certain tolling periods.

4. 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. However, in no event shall the period of limitation be extended by more than five years beyond the period otherwise applicable under subdivision two.

Of course, Trump wasn’t continuously outside the state of New York since 2016, and it’s not as if his whereabouts were unknown. Then again, as president, he was not subject to prosecution, so that could arguably serve to toll the statute of limitations for the four years of his presidency. Then again, the presumption that Trump couldn’t be prosecuted didn’t preclude his being indicted during that period and the indictment held in abeyance. Such indictments, referred to as NA indictments, have often been used to toll the statute of limitations in rape cases where the identity of the rapist is unknown, but the prosecution doesn’t want to let the case to time out.

Should an indictment be filed, it will face a slew of problems, from a novel and untested theory of prosecution that the falsified business records violated federal elections law to elevate the misdemeanor to a felony, to the argument that this is a politically motivated prosecution, as this case would never have been brought against any other defendant.

And it cannot be ignored that the state’s chief witness is Michael Cohen, a lawyer who was thrilled to do Trump’s bidding when it paid off for him, and was similarly thrilled to show up at either MSNBC studios or the grand jury room to forsake client confidentiality to enjoy what little benefit he could gain from being the Michael Avenatti of the moment. It doesn’t make Trump innocent of wrongdoing, but these are serious issues.

However, none of these questions will see the light of day if New York County District Attorney Alvin Bragg can’t get over the hump of the statute of limitations.

Bookkeeping fraud has a two-year statute of limitations as a misdemeanor and a five-year one as a felony, both of which would normally have expired for payments made to Mr. Cohen in 2017. But New York law extends those limits to cover periods when a defendant was continuously out of state, as Mr. Trump was while living in the White House or at his home in Florida. In addition, during the pandemic, New York’s statute of limitations was extended by more than a year.

At NRO, former SDNY AUSA Andy McCarthy raises a different approach.

Let’s reasonably hypothesize that these 2017 payments had bookkeeping implications in 2018, when the 2017 fiscal year was presumably accounted for. Assuming the statute of limitations was thus triggered in 2018, the five-year period would lapse sometime this year. That, at least in part, explains the frenetic investigative activity that has gone on the last few weeks: If the state doesn’t indict soon, the case would be time-barred.

If the last payment by Trump to Cohen was on December 5, 2017, McCarthy presumes it would be reflected in 2018 for bookkeeping purposes as a legal expense. Why he makes this assumption is unclear, and contrary to standard accounting practices which book payment when made, but even assuming it’s accurate, is the “crime” complete upon tender of the check or booking payment, or if you want to stretch that theory out even further, upon paying taxes that include the payment as a deductible legal fee rather than a non-deductible payment of hush money?

Should this happen as anticipated, there may be a great many issues raised that take this case far outside of the norm. But if Bragg can’t get past the statute of limitations, the result will be very unsatisfying to many even though it should have been an obvious stumbling block for the prosecution.

Update: As brother Bennett pointed out on the twitters, the Court of Appeals in People v. Knobel read the word “continuous” out of the statute and held that every day a non-resident was outside the state is tolled from the Statute of Limitations. This was applied by Justice Mark Dwyer in People v. Cruciani, holding that he was a nonresident and so days out of state didn’t count. Notably, Trump changed his residence from New York to Florida in September, 2019.

Adding to the mix, Justice Angela Mazzarelli held in the Harvey Weinstein case that the statute makes no distinction between residents and non-residents, despite Knobel expressly holding its applicability to non-residents.