The murky law New York prosecutors could use to indict Donald Trump years from now
The Manhattan District Attorney’s investigation into former President Donald Trump appears doomed, but a little-known New York law is buying prosecutors time to build a better case against him and win over the hesitant new prosecutor to act or wait for it to be replaced.
Law enforcement in New York has five years from the date of an alleged crime to formally file charges for most crimes, but under New York Law § 30.10(4)(a)(i), that clock stops for up to five more years when a defendant is out of state. This 10-year grace period means that Trump’s time in the White House and his post-presidential political exile at Florida’s Mar-a-Lago estate could give prosecutors some much-needed extra time.
According to sources familiar with the investigation, prosecutors pored through thousands of Trump Organization spreadsheets and financial records and slowly built a case against Trump for allegedly inflating property values, lying about business forms, dodged taxes, fooled banks and ran his business like a crowd.
Those same sources say the Manhattan Assistant District Attorney team considered using the state clock stoppage measure in the Trump investigation.
New York law says that “any period … during which the defendant was continuously out of this state” does not count, up to an additional five years.
Adam Kaufmann, an attorney who led the Manhattan prosecutor’s investigative unit for three years, said he doesn’t recall ever relying on that clock in his prosecutors’ cases. But he recognizes it as a useful tool — one that should appear on any indictment against Trump to establish from the outset that any criminal charges are appropriate.
“You don’t often have white-collar cases that are so… old. It just doesn’t happen that often that you’re trying to get something from over five years ago,” Kaufmann said.
But, he added, “it’s easy to prove he wasn’t in New York State. There will be records of where he was physically every day for four years.
This sort of seldom-used time machine has suddenly taken on increased importance.
It has become clear that DA Alvin Bragg Jr. will not sign an indictment against the former president until he is satisfied he has a stronger criminal case. Bragg’s reluctance to press charges against Trump himself prompted the team’s two lead prosecutors, Carey Dunne and Mark Pomerantz, to resign in protest in February, citing Bragg’s reluctance in their resignation letters. And multiple sources told The Daily Beast that a lead prosecutor on the team, Solomon Shinerock, became less involved in the investigation.
Under mounting pressure, Bragg felt it was wise last week to issue a statement assuring that “the investigation is continuing” and pledging to “publicly announce the conclusion of our investigation – whether we complete our work without charges or proceed with an indictment”.
It’s unclear, however, if Trump’s lawyers are bracing for a clock-stopping measure, potentially from prosecutors hoping their desire to criminally indict the twice-impeached ex-president will survive. to Bragg’s tenure.
Five Trump advisers, including former and current lawyers, told The Daily Beast this week that they were unaware of this arcane New York law, with several questions including “How is it legal?”
For more than a year now, Trump himself has been privately telling those close to him that he expects his enemies to investigate or prosecute him ‘for the rest of my life’, according to three people who have heard him use that same phrase, especially as recently as earlier this year.
“He tells this joke that he pays for his lawyers’ boats because he’s the ‘most investigated’ person in the world,” one such person recalled.
New York isn’t the only state to practice this type of intermission, called a “toll.” Florida gives law enforcement an additional three years if an accused is “continuously out of state.” In Georgiathe statute of limitations in civil cases can be suspended indefinitely until someone returns.
And there is an established history of how it was used in New York. In 2019, a state court judge refuse to dismiss charges against a doctor, Ricardo Cruciani, accused of drugging and raping his New York patients in 2013. The judge noted that the doctor spent most of the following years in New Jersey and Pennsylvania.
Bragg’s prosecutors have limited time, however, no matter how you look at it.
After already indicting the Trump Organization and then-CFO Allen Weisselberg last summer, prosecutors convened a new grand jury in the fall for a new round of indictments. But that grand jury’s term expires at the end of this month.
Prosecutors could seek to extend that, or scrap it and start all over with another set of jurors. But then they would almost certainly be accused of jury shopping and messing with the justice system. Additionally, the prosecutor’s office should bring back its witnesses and hope they don’t change their story in a way that casts doubt on their testimony, several former prosecutors told The Daily Beast.
Former prosecutors also noted that using this smart deadline on the state’s statute of limitations gives investigators the ability to track down more witnesses, review additional documents, and apply more pressure to turn over cases. Trump Organization employees against their boss. And that, in turn, could help them convince their own boss to approve an indictment against Trump.
What’s still unclear is how far prosecutors can go.
If Manhattan prosecutors do end up hitting Trump with the long-awaited charge of falsifying business documents, this legal pause button allows them to go back over all the financial documents he signed in 2012. But if investigators pursue the rare charge criminal of corporate bribery they get another five years that allow them to dig even deeper — until 2007, according to a former prosecutor familiar with the law, who asked to remain anonymous because of their potential ties to the Trump case.
Then there is the question of when a crime actually happened.
Unlike violent crimes which may have occurred at a specific time and place, financial crimes are understood as ongoing transgressions that continue to occur, particularly if false documents are then used to obtain bank loans or tax breaks. For example, a former prosecutor has pointed out, investigators could argue that the tax break Trump got in 2016 by increasing the value of his wooded Seven Springs estate in upstate New York was based on documents he approved. years earlier.
As is already evident in the Manhattan District Attorney’s current case against Weisselberg and the Trump Organization, prosecutors are operating on the theory that these financial crimes have continued to occur for years. In this chargeinvestigators cited a criminal conspiracy that allegedly lasted from March 31, 2005 to June 30, 2021, the day before he was charged.
New York County prosecutors working on the Trump investigation are in a unique position, having begun their efforts following the Justice Department’s failure to do so.
Federal prosecutor Trump himself appointed to the Southern District of New York, which oversees criminal cases in Manhattan, has not charged the president who placed him there. He probably couldn’t even if he wanted to; the Department of Justice continues to adhere to a internal memo which prohibits pursuing a case against a sitting president.
The team of local prosecutors created by former district attorney Cy Vance Jr. continued the investigation of Trump even though they knew he was effectively beyond their reach while still in the White House. In fact, that’s one of the reasons Kaufmann teamed up with two other attorneys a few years ago to draft an amendment to New York law to freeze the statute of limitations if a person ( like Trump) remained protected by virtue of its official position. , he told the Daily Beast. The effort ultimately came to nothing, but New York’s time extension provision does essentially the same thing.
Yet even if prosecutors could technically prosecute Trump years from now, that possibility might be unlikely. If Bragg ultimately chooses not to indict Trump, four former prosecutors discussing the matter with The Daily Beast scoffed at the idea that a new prosecutor would bring charges.
“It’s hard to think a new prosecutor would dust something off and launch a whole investigation when it’s been going on for years, assuming a decision not to prosecute is Bragg’s final word on this,” said Kaufman.