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.

22 thoughts on “Is The NY Prosecution of Trump Time Barred? (Update)

  1. Hunting Guy

    It’s political theater playing to the anti-Trump crowd. You know it, I know it, and anyone with an IQ above room temperature knows it.

      1. Edward Cuevas

        The post had nothing to do with sexual orientation. The reply, it seems, has more to do with personal frustration.

        1. SHG Post author

          Welcome to SJ, Edward. This is a law blog, though you wouldn’t know it from the comments at times. There are plenty of places to express personal frustration, sexual or otherwise, on the internet. This is not one of them. HG knows better. Now, you do too.

  2. Miles

    Knobel is a terrible opinion. reading the word “continuous” out of the statute and eviscerating the very point of tolling when the defendant was regularly available for arrest and prosecution and did nothing to hide or flee that caused the delay. Did the lege anticipate when enacting the statute that New Yorkers would never leave the state during the entirety of the period? Did they expect people to maintain proof of where they were every day for five years to prove they were present in the state? It’s pretty nuts.

    But when a court wants someone prosecuted, it makes such leaps of reason. Will it do the same for Trump?

    1. DaveL

      It does seem nuts that the law effectively provides no statute of limitations for non-residents. But looking to other states, it doesn’t seem that uncommon. Where the NY statute speaks to a defendant being “continuously out of state”, Michigan excludes any period where the defendant “did not usually and publicly reside within this state”, which accomplishes the same result as Knobel. Pennsylvania excludes periods when “the accused is continuously absent from this Commonwealth or has no reasonably ascertainable place of abode or work within this Commonwealth” (emphasis added). California tolls all time spent outside the state, but only up to a maximum of 3 years.

      1. SHG Post author

        There’s a sound rationale for distinguishing residents from non-residents. Consider that a deft from a foreign state comes into another state, commits a crime and then goes home. He occasionally visits the state where he committed the crime, but neither law enforcement nor prosecutors would know when he came and went, so it’s the opposite of a resident who is present and available most of the time, with only occasional trips out of state.

        What should not be forgotten is that this is to prevent stale prosecutions that prejudice the defendant, and not to facilitate the prosecution of stale crimes.

  3. Mike V.

    IANAL, but it would seem, if the payment was made in 2016 and Cohen repaid in 2017 that the statute has tolled based on a plain reading of the statute. I don’t see how any inditement survives a motion to dismiss due to the statute of limitations and other (seemingly to me) sound arguments like stretching a misdemeanor into a felony or state prosecution for what (election finance violations) are traditionally federal crimes.

  4. David

    If I understand the caselaw correctly, Trump’s switching residence from NY to FL could serve to burn him under Knobel, although that case doesn’t involve a change, but a non-resident. The First Dept decision is precedent in NY County, but Mazzarelli’s opinion is completely bonkers (because of course it is) ignoring that the point of Knobel’s inclusion of non-resident, which goes unmentioned in the statute, is for a reason or Judge Smith wouldn’t have held that it applied only to non-residents.

    Geez, what a mess this is going to be, but it appears applicable precedent create serious problems for Trump that the statute’s language does not.

  5. RBM

    Knobel is bad law. If the CoA doesn’t fix it Trump will appeal to the other Supreme Court on substantive due process grounds and win. A court can’t read a word out of a statute. “[C]courts are not at liberty to save a statute by, in effect, rewriting it in a manner that contravenes its plain wording as well as its unambiguously articulated legislative purpose.” Matter of Wood v. Irving, 85 N.Y.2d 238, 245 (1995) .

    The bigger issue is that the misguided attempt to prosecute Trump as a criminal and to portray the January 6th demonstration/riot as an insurrection is inflaming a significant portion of the 74 million people who voted for Trump. The potential blow back from weaponizing the justice system to deal with a political demagogue is a greater existential threat to American democracy than Trump was. Trump needs to be defeated politically. He will look like a martyr and a hero when Bragg’s indictment gets quashed. Unfortunately, the Democrats are addicted to using “Trump the bogeyman” to deflect substantive political discussion of the failings of Biden to deliver the expectations of the people who voted for him.
    I am disappointed in Alvin Bragg. I thought he had the courage to stand up against the forces urging him to concoct a politically motivated (“Trumped up?”) prosecution of Trump.

    1. SHG Post author

      Good or bad, Knobel is NY law as it now stands, and there’s no chance that SCOTUS will take this case. That said, it appears to be a petty case at worst, when there are far more serious prosecutions in the wings.

          1. RBM

            Knobel raises it to a due process issue. I bet four justices would agree to hear the case, if it comes to that.

            1. C. Dove

              As in . . . you have a right to due process under state or federal law to demand that the prosecution timely charge you with crimes? I’m having a hard time imagining many CDLs that would willingly argue their client should have been charged with a crime sooner, especially when the response will be something along the lines of: If you wanted to be charged with a crime, why not just come out and say so already?

  6. Scott Schramke

    The indictment is simply to get a perp walk on camera for the election cycle. The rest is noise.

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