Will Trump be arrested? Why indictment in New York case comes up short
By: Jonathan Turley (USA TODAY)
S E E D E D C O N T E N T
The star witness is one of the most repellent figures in New York. It is only the latest reinvention of Michael Cohen - this time from legal heavy to redemptive sinner.
Jonathan Turley Opinion columnist View Comments
If former President Donald Trump is indicted, Manhattan District Attorney Alvin Bragg would be prosecuting a case that has been widely criticized as long on politics and short on the law.
The courts would have to address a controversial case in which a city prosecutor attempts to prove a federal crime long ago declined by the U.S. Department of Justice. They also would have to deal with a charge brought seven years after the alleged offense, despite a two-year statute of limitations for the underlying misdemeanors (or a five-year period for a felony).
And Bragg would have an even more unpalatable prospect in putting two key witnesses on the stand embodying a case that borders on the legally indecent: a former porn star and a disbarred lawyer.
Michael Cohen worked for Trump
The star witness is one of the most repellent figures in New York. It is only the latest reinvention of Michael Cohen - this time from legal heavy to redemptive sinner. Cohen spent much of his time when he worked for Trump threatening critics, journalists and even students.
In 2015, students writing for The Harvard Lampoon played a harmless prank on Trump by having him sit in the stolen "president's chair" from the Harvard Crimson for a photo. In response, Cohen used his signature bludgeoning style against the students. He was quoted by a student on the Lampoon staff as saying: "I'm gonna come up to Harvard. You're all gonna get expelled. If this photo gets out, you'll be outta that school faster than you know it. I can be up there tomorrow."
On another occasion, when a journalist pursued a story he did not like, Cohen told the reporter that he should "tread very f---ing lightly because what I'm going to do to you is going to be f---ing disgusting. Do you understand me?"
After he was arrested and Trump refused to pardon him, Cohen proved that when you scratch a lawyer, you can find a foe.
Cohen may be joined on the stand by Stormy Daniels, who agreed to a $130,000 payment to hush up an alleged affair with then businessman Trump. Bragg would have to show that Trump made the payment only with the election in mind, which would have made the money an undeclared campaign donation to himself. But there are a host of other reasons why a married celebrity would want to hush up a one-night stand with a porn star.
Case is similar to failed prosecution of John Edwards
In John Edwards' prosecution in 2012, the Justice Department used the same theory to charge the former Democratic presidential candidate after a disclosure that he not only had an affair with filmmaker Rielle Hunter but also sired a child with her. Edwards denied the affair, and it was later revealed that Fred Baron, Edwards' campaign finance chairman, gave money to Hunter. Andrew Young, an Edwards campaign aide, also obtained funds from heiress Rachel "Bunny" Mellon to pay to Hunter.
The Justice Department spent a king's ransom on the case to show that the third-party payments were a circumvention of campaign finance laws, because the payments were designed to bury an election scandal. Edwards was ultimately found not guilty on one count while the jury deadlocked on the other five.
The jury clearly believed there were ample reasons to hush up the affair beyond the election itself.
Despite legal flaws in the case, Bragg is counting on favorable judges and jurors in New York City. Win or lose, he would reap a huge political reward in being the first to charge Trump.
Ironically, Trump also could come out ahead politically. Of all the possible charges he could face, this is the one he would likely invite. Bragg would give Trump strong evidence that Democrats have politically weaponized the criminal justice system against him.
However, it's Cohen who might profit the most. He already has tried to cash in on the burgeoning market of liberals obsessed with Trump, even hawking a T-shirt with the image of a jailed Trump as a way to "celebrate the fall of the Mango Mussolini."
Cohen's cross examination will be the most target rich environment since the Battle of Thermopylae. Of course, prosecutors often put dubious figures on the stand, but Cohen is someone who has shredded legal ethics and the criminal code in pursuit of his own interests.
Cohen's primary talent has been an impressive moral and ethical flexibility. He gladly did the dirty work for Trump until it became more beneficial to turn against him.
One could say that Trump and Cohen deserve each other, but the legal system does not deserve what may soon unfold in a New York courtroom.
Jonathan Turley, a member of USA TODAY's Board of Contributors, is the Shapiro Professor of Public Interest Law at George Washington University. Follow him on Twitter @JonathanTurley
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Do laws matter when it comes to getting Trump?
Only blind sycophants can't see that this is purely a political move to advance a Democratic candidate for President.
Of course it's a purely political move. But there was one thing missing from the above.
New York has an exception built into the statute of limitations.
As Trump was living in Washington DC and later down in Florida, this would allow for an extension of the statute of limitations. Additionally I believe that New York added a year to the statute due to Covid.
The question now is did NY file for extradition? They knew where he was. It was never a secret with the way the left keeps tabs on their boogieman. It could be argued that a failure to do so could deny that extension.
Out of deference to "tradition" prosecutors across the country have slow-walked bringing charges against Trump. There was talk of him being prosecuted for this NY case ever since Cohen confessed to what it was all about , which was years ago.
Could be, but everyone knew where Trump has been for at least the last 10 years now. I am reading that second exception as they didn't know where he was but they did know.
Trump visited New York four times during his last two years in office, so the first exception wouldn't apply.
I think a judge will be taking a long and hard look at the statute of limitations in this case if it ever comes to trial.
Seems like prosecutors have had more than ample time and willing witnesses to have built their case in a more timely manner.
I do suppose a prosecutor running on "Getting Trump" would necessarily make it political, but I suspect not everyone sees it that way.
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Was that from when Cohen made his plea bargain with the SDNY US Prosecutors and attempted to throw Trump under the bus for this only to have the US Prosecutors decline to prosecute?
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Yes, they recognized a loser of a case when they saw it.
Too bad for Bragg he lacks that vision and will effectively end his career with this comedy of errors.
The first piece is the second degree crime, the second piece is the first degree piece. So going by the second degree charge above, I guess that you would have to charge Trump with #4 as he probably doesn't keep the books himself but has that done by others. But to prove that don't you need to accept that Cohen is telling the truth there? Seems a reach to believe a felon convicted of lying.
And then for the first degree crime, what was the second crime? How do you explain it? This is why I'm waiting for any indictment to be handed down as all speculation has been around campaign finance laws due to the 2020 elections and yet both the US Attorney's office as well as the FEC had all that information and they declined prosecution.
5 years is the statute of limitations in NY for most felonies---if Bragg even brings that charge.
I would really hate to think that all of Bragg's vendetta boils down to a freaking misdemeanor case!
I think he has to bring it as a felony as the statute of limitations for misdemeanors is only two years. So Bragg has to be using the first decree crime above, I just can't figure out how he's getting to that point other than by accepting as honest a convicted felon (who among the charges pled guilty to lying to a bank) and a porn star who also stated a couple of times that any affair did not happen between her and Trump.
This case just seems to thin... I think this is going to backfire badly and make it harder for any other charges down the road.
There is nothing unusual about the NYC prosecutor bringing cases like this. The idea that Trump is being picked or persecuted is baseless.
I agree.
And it isn't like they haven't had YEARS to prepare a better case.
Looks like this is one of the problems with politically-motivated prosecutions.
You are right about the misdemeanor, though--wouldn't look good spending all that money on a freaking misdemeanor case that would result in nothing more than a light slap on the wrist at most, especially after declaring Trump Public Enemy #1!!
I just don't see this whole thing going anywhere, and if it doesn't it, it will certainly give pause to others pursuing Trump.
Which does nothing to explain what is going on or the question I asked. Rather than throw out some useless platitude why don't you try to explain what you think the second crime is.
Oh bullshit. This case is entirely partisan political prosecution.
One would have to be blind, deaf, and totally clueless to not recognize that.
Unfortunately, those types abound, as we all can see for ourselves.
We will take you seriously when you start posting facts, quotes and links and not just right wing media talking points.
Lol. How many other misdemeanors has he sat on for six years? What other misdemeanors have they spent 6 years and this many resources on?
Wasn't the payment to Daniels made in 2016? And reports turned in to FEC in 2017?
I may not be a math major but I do believe that was longer than 5 years ago in any math book!
Statute of limitations appears to be 5 years in NY.
See post 1.1 where it's explained how NY is able to stretch the statute of limitations out on this.
I read that post. Since NY knew where Trump was, I don't believe section II applies. Which means the time has passed, even with the extension for Covid. Does that extension for Covid cover all crimes?
I am sure there may be more than one interpretation of that statute.
Correct, section II doesn't apply. But his state of residence was Washington DC and then Florida so they may be using the first part to extend the statute by up to another five years. And from what I read the covid extension was across the board. That's about the only interpretation that makes sense to me on how they are able to extend the statute out this long. I don't know if a judge will agree with it, but it's the only way this makes sense to me.
Another question should be how many felonies has Bragg downgraded to misdemeanors during his time as DA?
It does make one wonder if the DA is willing to downgrade so many felony cases while violent crime has increased 30%. As Bragg issued a Day One memo after taking office on Jan 1 that he would only seek prison time in the most severe cases, why is so much effort and money being expended on this case that is seriously lacking in the violent crime category.
I can see your point.
I am thinking that it doesn't specify that the person has to reside IN NY.
(a) Any period following the commission of the offense during which (i) the defendant was continuously outside this state
Maybe visits count as being inside the state. Seems weird to me that if they intended it to only apply to residency, they wouldn't have specified it.
Just to be devil's advocate here, how about people who commit financial crimes in New York but reside in NJ? As long as they never move to NY, the 5 year would apply to them, too? They could be indicted a decade later?
True, that's why I said a judge will need to agree to it. At this point we don't even know if Bragg will actually indict Trump.
It does seem the DA will have to do some legal maneuvering to bring Trump to 'justice'.
But we all know why he is doing it. He has political aspirations beyond DA and this is his big gamble.
Win a significant victory against Trump and he assures his political future for at least the next step up. If he washes out on Trump, he will claim political partisanship got Trump off but his future in politics higher than he is now is gone.
I think he made a bad bet.
I guess common street thugs who commit multiple crimes are not nearly as dangerous as Trump living in Florida.
Good point!
This could just turn out like all the other times they got Trump.
Must make him a true hero to many on the left.
People have been talking about Trump getting indicted for YEARS now.
Prosecutors have had YEARS to make cases.
No one has yet.