The Manhattan District Attorney’s Office appears increasingly close to obtaining an indictment of former President Donald Trump over an alleged 2016 payment made to porn star Stormy Daniels. Trump was reportedly invited to testify before a grand jury, usually a sign that an indictment is coming, and over the weekend, Trump wrote on social media platform Truth Social that he expects to be arrested and called for protests.
New York’s police spent the early part of this week preparing for a raucous showdown. But it may have been premature. The grand jury might hear from a witness who called into question DA Alvin Bragg’s main witness, Trump’s former lawyer Michael Cohen.
More importantly, potential criminal charges could be subject to dismissal due to New York’s laws regarding statute of limitations for criminal offenses.
New York’s Criminal Procedure Law establishes that the statute of limitations is two years for misdemeanors and five years for felonies, barring exceptions for certain heinous crimes like rape or murder. While it is not public knowledge exactly which charges Trump faces, it is expected that all charges are either non-violent felonies or misdemeanors, meaning that unless DA Bragg’s office is able to indict Trump for a crime that took place in March of 2018 or later, Trump’s alleged crimes are barred from prosecution under the statute of limitations.
Assuming that Trump is only under investigation for the alleged payment to Stormy Daniels, which took place in October of 2016, it seems all but certain that Trump can’t be prosecuted, even if he committed the crime, due to untimeliness of the legal action.
Now, New York law does identify a couple of ways to stop the statute of limitations clock. If the defendant was continuously outside New York state or if the defendant’s whereabouts were “continuously unknown and continuously unascertainable by the exercise of reasonable diligence,” then the clock is tolled. While Trump’s whereabouts were pretty much continuously known since the alleged payment to Stormy Daniels was made, as president, Trump was primarily living in Washington D.C. and spent considerable time in Florida as well.
Bragg and his office will no doubt argue that Trump was outside New York’s prosecutorial jurisdiction for years following his alleged crime, and therefore the clock should have been stopped.
But a lot hinges on the word “continuous.” Plainly read, the word seems to mean that the defendant would have to spend each and every day over a period of time outside of New York. And it’s tough to see how this applies to Trump; after all, even while serving as president, Trump spent time at his New York home and until autumn of 2019 maintained his residence as New York.
Trump would easily counter argue that he never was continuously outside of New York and that the clock kept running throughout his time as presidency, making whatever crimes he is alleged to have committed time-barred from prosecution under New York law. But in 1999, New York’s highest court, The New York Court of Appeals, clarified that the reason behind the exception to the statute of limitations it the difficulty to apprehend a criminal offender who is outside of the state. On this interpretation, the word “continuous” doesn’t mean a single uninterrupted period of time but a tally of all the days put together.
By this logic, even though the alleged crime took place more than five years ago, Trump could still be prosecuted, as the limitations clock would have stopped multiple times whenever he left New York.
What this all boils down to is this: Whether or not Trump can be prosecuted could come down to a simple calculation of days that he was legally subject to apprehension for his offenses. Trumps defense team will point towards his continued residency in New York State during his presidency, and that he still spent considerable periods of time in New York even once declaring himself a resident a Florida. The prosecution will counter that Trump has ceased to live in New York once he assumed office as president, and since leaving office has lived as a resident in Florida. The prosecution might further argue that Trump’s entire four-year presidential term should be subtracted from the clock. Justice Alito even noted in his Trump v. Vance dissent that this might be a valid interpretation of New York law.
The best case scenario for the prosecution is that the clock has been stopped ever since Trump assumed office on January 20, 2017. But, Trump may have a solid argument that the statute of limitations has indeed expired. Trump will note that even as president, he was still a New York resident from approximately October 2016 until October 2019, meaning at least three years of the clock has already run off. Next, in accordance with the rules set forth by The Court of Appeals, he will have to show that since maintaining residency in Florida he has still spent two plus years actually physically present in New York State. If he can successfully do that, then Trump might be able to argue that legally he is barred from being prosecuted for the Stormy Daniels payment, regardless of whether he committed an illegal act or not.
A more immediate problem for the government could come if it is unable to obtain a felony indictment. If DA Bragg can only move forward on misdemeanor charges, which afford only two years of time under the statute, it seems all but certain that the statute of limitations clock has run out.
Aharon Schrieber is a former Assistant District Attorney in New York City, where he prosecuted Domestic Violence and Special Victims cases. He can be reached @baronaharon on Twitter.
The views expressed in this article are the writer’s own.
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