Over the weekend, David French had a piece in the New York Times arguing that the potential prosecution of Trump in Manhattan is unwise. I didn’t know about it until I listened to the Advisory Opinions podcast yesterday because I don’t make a habit of reading the New York Times. (Sorry, David!) I learned some interesting information from the piece and the podcast, though, about the statute of limitations argument that was part of what had Sarah Isgur losing sleep. Namely, there is almost certainly no statute of limitations problem, because of a weird quirk of New York statute of limitations law:
New York law states that the limitation period, whether two or five years, does not include “any period following the commission of the offense” when “the defendant was continuously outside this state.” A 1999 New York Court of Appeals case held that the law meant that “all periods of a day or more that a nonresident defendant is out of state should be totaled and toll the statute of limitations.” Under that reading, that statute of limitations clock stopped ticking when Trump was away.
Trump was “away” a while, since he was president for four years. This means that, for the felony, there is almost certainly no statute of limitations issue.
That leaves two primary objections: a) the difficulties of proving that a payment to hush up an affair is a campaign finance violation, and b) the oft-stated claim by French and Isgur that the feds declined to prosecute the conduct that elevates the crime to a felony. We’ll start with the latter issue. French says:
Even though I believe Cohen committed a campaign finance violation (and even though the Department of Justice mounted an unsuccessful prosecution of the 2004 Democratic vice-presidential nominee John Edwards on a similar legal theory), I’m still skeptical of Bragg’s Manhattan case. Ryan Goodman and Andrew Weissmann recently argued in these pages that “it would be anathema to the rule of law not to prosecute the principal for the crime when a lower-level conspirator”— meaning Cohen — “has been prosecuted.” Yet that’s exactly the choice the Department of Justice made. Neither the Trump nor the Biden Justice Department brought federal charges against Trump. In addition, Cyrus Vance Jr., a previous Manhattan district attorney, investigated the same case and did not bring charges.
Add these factors, and Bragg’s case against Trump starts to look, well, unique. We’re talking about the first-ever indictment of a former president brought by a state district attorney — one that his predecessor didn’t choose to seek and that relies on federal criminal claims that the Department of Justice declined to prosecute.
As I argued in a long Substack piece, I disagree with French and Isgur that the potential New York felony charge “relies on federal criminal claims that the Department of Justice declined to prosecute.” In my piece, I argued that the relevant “federal criminal claims” could be the campaign finance charge against Michael Cohen, which the feds did prosecute and as to which they obtained a conviction. All the state prosecutor need show is that Trump falsified records to conceal Cohen’s crime. Consult my piece for the full argument.
Also, in my piece I argued that you can’t attribute too much significance to the feds having declined to prosecute Trump for this behavior. They weren’t allowed to prosecute Trump while he was president under longstanding DOJ policy. Once Biden took office, reporting suggests they thought the incident trivial in light of the events of January 6. It’s how Trump escapes liability for thing a; the next day he commits thing b, which is worse. (He escapes liability for thing b by committing thing c, which is still worse. Etc. We’ve been through the alphabet of depravity multiple times over now.)
Isgur tells me (see comments here) that my post might be in the show notes for the next episode of Advisory Opinions, which is a hint that they might be discussing my arguments today. If so, how exciting! If that does come to pass, you guys will be among the first to hear about it.
That leaves the second potential objection: showing a hush money payment to the other half of an adulterous pair is a campaign expense. I don’t think this part is all that hard, the dreaded John Edwards case notwithstanding, because of the timing element. And in his recent piece, French agrees, citing an older piece of his in which he argued that the facts of this case are much stronger than in the John Edwards case. The timing of the payments–close to the election despite a years-old affair–are striking. And as I have written before, the treatment of the similar Karen McDougal affair by the National Enquirer appears to have been motivated by campaign purposes, at least in part. As I explained in 2018, a Wall Street Journal story reported on all this at the time:
As a presidential candidate in August 2015, Donald Trump huddled with a longtime friend, media executive David Pecker, in his cluttered 26th floor Trump Tower office and made a request.
What can you do to help my campaign? he asked, according to people familiar with the meeting.
Mr. Pecker, chief executive of American Media Inc., offered to use his National Enquirer tabloid to buy the silence of women if they tried to publicize alleged sexual encounters with Mr. Trump.
I find it very interesting that David Pecker was apparently a witness at the grand jury Monday.
Keep in mind that the payments don’t have to have been exclusively for campaign purposes. The intent need only include a motive to influence the election. Even John Edwards’s jury was instructed:
If you find beyond a reasonable doubt that one of [the donor’s] purposes was to influence an election, then that would be sufficient.
(My italics.) As French argued in 2018:
Here is the fundamental reality, Republicans — there is already far more evidence of legal culpability against Trump than ever existed against Edwards, and a federal judge permitted the Edwards case to go to trial. It is true that, if Trump does eventually face indictment, a different judge may have a different view of the law, but if Trump is counting on a favorable legal ruling, he’s playing a dangerous game indeed.
I agree. And now that we know that the statute of limitations issue is of no moment, and given my arguments that it is essentially irrelevant that the feds declined to prosecute Cohen . . . I don’t think this charge would be as much of a stretch as the rest of the crowd all agrees it is.
I guess we’ll see.
UPDATE: Sounds like they did discuss my Substack analysis on the podcast, briefly:
We paid tribute to this analysis on the pod today, but we didn't have time to discuss it in detail. Stay tuned!
— David French (@DavidAFrench) March 29, 2023
I hope they hit on the point that it could be Cohen’s crime that Trump was trying to cover up.