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Is arrest of Trump barred by statute of limitations?

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Here they go again, as Ronald Reagan scolded Democrats. Donald Trump announced late last week that he will be arrested on Tuesday according to leaks from the New York City District Attorney’s office of Alvin Bragg. It is possible that in private discussions with Trump’s lawyers, Bragg conveyed this.

Supposedly based on leaks from the prosecutor’s office, Trump will be charged with a misdemeanor violation of Section 175.05 of New York’s General Business Law for falsifying business records in the second degree. That’s George Washington University Law School’s professor Jonathan Turley’s take.

But if Michael Cohen presented an invoice for legal services, and the accounts payable clerk paid the invoice and recorded it on the books, that is not falsifying a business record. It is the truth. Attorney Cohen did in fact present an invoice claiming $180,035 for legal fees and expenses, and the Trump Organization did in fact pay it. No business record has been falsified within the meaning of Section 175.05.

Yes, the allegation is that Cohen characterized $180,035 as being legal fees and expenses when maybe he shouldn’t have called it that. (I disagree. I think the payments settling a legal dispute reasonably fit.)

Furthermore, while it is true that Trump is a strong leader, it is equally true that the Trump Organization is a big company, with 4,000 employees, controlling about 500 business entities. While we can imagine that Trump would want to personally approve this transaction, there are only 24 hours in a day. How many things does the reader simply not get done?

Should CEO Trump have questioned the invoice’s characterization – assuming he ever saw the invoice? That would be reasonable. CEO Trump may have verbally approved the transaction, but the criminal charge is for how the invoice was recorded on the books.

Third, the statute of limitations for a “petty misdemeanor” in New York is one year. As a nonviolent records crime, this allegation would be a “petty misdemeanor.” Other misdemeanors expire in two years. Therefore, the statute of limitations has expired.

Fourth, a sexual affair is alleged to have happened in 2006 between Donald Trump and Stormy Daniels (her stage name). There was a 2011 public discussion by Daniels, including a payment to Daniels of $15,000 as she told her story for publication to In Touch Weekly.

Then, in 2016, Stormy Daniels was shopping around her story for purchase. This was not “hush money” as claimed. Daniels offered her story for sale. The National Enquirer decided not to purchase the rights to Stormy Daniel’s story, but allegedly Donald Trump’s attorney Michael Cohen did buy those rights.

Daniels was then represented by attorney Michael Davidson. Daniels’ subsequent conduct through attorney Davidson could be construed as blackmail, but that is consistently overlooked. One could comfortably argue that by that point this became a confidential settlement of a legal dispute. That is, these really were legal services performed by Michael Cohen.

And here’s a thought: Did attorney Michael Davidson record his side of this same transaction as legal services to Daniels (even if possibly he waived the fee)?

On Oct. 17, 2016, Cohen created Essential Consultants, LLC, which then paid Daniels $130,000 for the rights to her story. Again, those rights had independently and already been on the market to any potential buyers, just as Daniels had done earlier in 2011 for $15,000. Daniels sold the rights under the pseudonym “Peggy Peterson” in an agreement dated Oct. 28, 2016.

Cohen then billed the Trump Organization – the company, not Trump as an individual – for legal fees and expenses totaling $180,035 in January 2017. The Trump Organization paid Cohen – also responsible for other legal work – a total of $420,000.

It appears that Michael Cohen will testify that his bill for legal services included reimbursement of the $130,000 he had paid to Stormy Daniels. Daniels then gave an interview for a Jan. 12, 2018, news article in the Wall Street Journal. Common Cause filed a complaint with the Federal Election Commission on Jan. 22, 2018.

Fifth, the New York DA’s office has leaked like a screen door on a submarine that they think they can get around the statute of limitations. But they cannot.

Leaks are that Bragg hopes to indict Trump under Section 175.10, which becomes a Class E felony “when his intent to defraud includes an intent to commit another crime or to aid or conceal the commission thereof.” This would make a five-year statute of limitations apply – which has also expired.

Sixth, the mistake is the idea that the payment is a campaign expenditure, so that there would be a violation of federal campaign laws. That is false.

52 U.S.C. 30101(8)(A)(i) and 11 C.F.R. 100.51-100.56 define a contribution as any payment “made by any person for the purpose of influencing any election for Federal office.” However, other parts of federal election law are very explicit. Nothing can be a campaign expenditure unless it would not exist if the person were not a candidate for federal office.

Common, mistaken popular ideas confuse this: If a candidate gets a hair transplant, buys new suits, or joins a gym, looking more attractive could certainly benefit him in the election. But the FEC prohibits the use of campaign funds for such “personal” benefits. The spill over into the election doesn’t count. Trump paying for Daniel’s silence is a personal matter that started in 2006. It would be a crime for Trump to use campaign funds for this and wrong for his campaign to report it on its campaign finance reports. I helped the attorneys of record in an actual (unfair) lawsuit by the FEC about alleged personal use by a candidate.

Because there is no second crime, DA Bragg cannot convert a Section 175.05 misdemeanor into a Section 175.10 felony. The statute of limitations is only one year.

Seventh, New York’s statute CPL 30.10(4)(a)(i) provides that the statute of limitations stops running (is “tolled”) while a violator or a crime is “continuously absent” from New York. That does not say not absent but “continuously absent.”

Trump temporarily living at the White House, while also maintaining a penthouse suite at Trump Towers in New York, which he repeatedly visited, is not being “continuously absent” from New York.

Judge Mark Dwyer wrote in People v. Cruciani, 92 N.Y.S.3d 611 (N.Y. Sup. Ct. 2019), 63 Misc. 3d 226, that “an individual can be absent from the state for weeks or months; return to New York for a time; and then leave for additional weeks or months.” Dwyer wrote: “The general intent of the relevant limitations laws as to individuals who are outside the state is to account for absences that make it difficult to bring a New York criminal to justice. Those rules might well be different for residents who depart from New York for periods that do not, for practical purposes, prevent the authorities from locating them… It may be that CPL 30.10 (4) (a) (i) will be thought to have no applicability to residents.”

Eighth, Trump maintained a prominent residence in New York. He was legally “present” in New York even while temporarily “sojourning” at the White House. He later declared Florida as his “primary” – but not only – residence for voting and taxation purposes. But Trump was still accessible in New York at his penthouse suite residence. The DA’s attempt at “tolling” the statute of limitations ought to fail.

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