All signs are that, assuming Manhattan district attorney Alvin Bragg has conclusively decided to move forward with a criminal prosecution of Donald Trump in connection with the Stormy Daniels caper, an indictment is imminent. Prosecutors have taken the steps one would expect them to take at the conclusion of grand-jury proceedings. The case is also old, although whether it is so stale that it should be deemed time-barred is apt to be a hotly disputed question.
Naturally, there is no dispute as far as Trump is concerned. A few weeks back, he asserted in a post on his Truth Social platform that the “’Stormy’ nonsense . . . is VERY OLD & happened a long time ago, long past the very publicly known & accepted deadline of the Statute of Limitations.”
He could be right, but he’s probably not — at least not right enough to stave off a criminal trial. That shouldn’t surprise us, of course: Since they do this stuff for a living, prosecutors are always conscious of the ticking clock and wouldn’t pour effort into a case that was clearly time-barred.
As usual with Trump, the story is more complicated than it appears at first blush.
The fling alleged by Daniels (whose real name is Stephanie Clifford) and denied by Trump (not very convincingly) is said to have occurred in 2006 — perhaps into 2007, but basically 17 years ago. The hush money arrangement executed for Trump by Michael Cohen (they’ve both acknowledged it after previously denying it) happened just before Election Day in 2016 — i.e., over six years ago.
But take note: While the tryst and the non-disclosure agreement (NDA) comprise is the interesting action in this saga, they do not comprise the crime. Marital infidelity is a moral wrong but not a criminal one. And while hush-money is a pejorative term, and the details of this one are sleazy, NDAs per se are perfectly legal and common in civil-law settlements of claims.
The crime under investigation is falsifying business records. As I’ve previously explained, that is generally a misdemeanor under New York law, but it can be a fairly minor felony — Class E, punishable by up to four years’ imprisonment — if prosecutors can prove that the records were falsified in order “to conceal another crime.”
In New York, the statute of limitations for misdemeanors is two years. For felonies, it is generally five years. (I have heard some suggestions that it could be six or more years, but these assume, erroneously I believe, that the statute of limitations for civil fraud could be applied to a criminal case.)
How does the difference between the misdemeanor and felony statutes of limitations apply to this case?
The undisputed facts are that Cohen paid Daniels and executed the NDL in which pseudonyms were used to conceal the identities of the parties. Cohen was then reimbursed by Trump. To further obscure the $130,000 reimbursement, it was combined with $50,000 that Cohen had laid out for polling services. This combined $180,000 was then doubled to $360,000 — i.e., “grossed up” so that Cohen would not take an income-tax hit for what was made to appear as ongoing legal services. He was further given a “bonus” of $60,000, for a total of $420,000.
On the books of the Trump organization, these ostensible legal fees (payable to “Michael D. Cohen Esq.”) were not paid or accounted for in a single-entry transaction. Instead, it was agreed in early 2107 that Cohen would be paid in monthly installments of $35,000 through the remainder of 2017.
The first payment was not made until February 14, 2017, but it was for $70,000, accounting for two months. It was made payable by the then-president’s revocable trust account and executed by two authorized signatories for the trust, Trump’s son Don Jr. and Allen Weisselberg. Both were (and are) Trump Organization executives, the latter being its top financial officer, whom Bragg has been trying to squeeze into implicating Trump. Weisselberg has been detained in Rikers Island for months, following his conviction on minor tax charges, even though he testified for the DA in the prosecution of the Trump organization on those charges. Don Jr. and Weisselberg also signed the second check, drawn on the trust account, for $35,000.
At a certain point, it was determined (it’s not clear by whom) that Trump himself would sign the checks for Cohen — perhaps, the New York Times has speculated, to remove his son from the equation. The then-president did this using a personal account of his The Times, naturally, has a long report on the payments, displaying several of the checks with Trump’s bigger-than-life signature, along with details of what public business he was doing as president the days he signed them. (Don’t hold your breath waiting for the Gray Lady to produce a similar report of what government work Joe Biden was performing while his expanding group of family members and hangers-on transferred the millions they were raking from shady foreign sources tied to corrupt and anti-American regimes, as they cashed in on the then-vice president’s and, later, presidential candidate’s political influence.)
The final payment by Trump to Cohen occurred on December 5, 2017. But that does not necessarily mean the statute of limitations began running that day. Instead, we need to know when the last detail was booked in the Trump business records . . . and then what other records those records generated — for example, did the Trump Organization somehow misstate or miscalculate its tax obligations by representing as legal fees payments to Cohen that were not actually legal expenses?
Let’s reasonably hypothesize that these 2017 payments had bookkeeping implications in 2018, when the 2017 fiscal year was presumably accounted for. Assuming the statute of limitations was thus triggered in 2018, the five-year period would lapse sometime this year. That, at least in part, explains the frenetic investigative activity that has gone on the last few weeks: If the state doesn’t indict soon, the case would be time-barred.
Or . . . it could be time-barred already. Again, the five-year period only applies if Bragg can establish felony falsification of records. The felony calls for proving that Trump was concealing another crime. As I argued in the above-linked column, that is a dubious proposition to say the least. Even if the state can prove that Trump knew these payments to Cohen were, in part, to reimburse him for laying out the Stormy hush money (and there is evidence of that, though much of it relies on Cohen, a not very credible source), the likelihood is that the records were falsified to prevent embarrassment, not to camouflage another trivial bookkeeping or tax infraction. After all, the desire to avoid personal and political damage was the reason the NDA was done in the first place.
If Bragg cannot prove the felony, we are left with misdemeanor falsification of records and the two-year statute of limitations would apply. We don’t know all the accounting facts, but we can probably assume that that has run by now – indeed, it likely lapsed in 2020 or 2021. If it’s just a misdemeanor, Trump is probably right that the case is time-barred.
In any event, an indictment appears imminent. In New York state, important witnesses generally appear before the grand jury (in contrast to the federal system, where prosecutors often convey the witnesses’ information through in the hearsay testimony of a case agent, though the grand jury retains the power to subpoena the first-hand witnesses). The state’s practice also calls for inviting (but not subpoenaing) the target to testify, giving him an opportunity to persuade the grand jury not to indict. There is obvious risk in that, so most targets do not testify.
That invitation usually comes at the end of the grand-jury work, when the full case has been presented. On Monday, Trump’s lawyers’ advised Bragg’s prosecutors that he was declining the invitation to testify this week. Meantime, Cohen did testify on Monday and Wednesday. Stormy Daniels was also interviewed by prosecutors again this week — reportedly indicating that she is ready and willing to testify at trial. The prosecutors may not have a case worth bringing, but they have their ducks in a row to bring it.
It appears that the grand jury investigating l’affaire Stormy has been meeting on Mondays and Wednesdays. Typically, grand juries vote indictments on their regularly scheduled meeting days, although the grand jurors could be brought in a different day for that purpose. On the indictment watch, I would keep my eye on the early part of next week.
But to repeat, this is a really dumb case and Bragg, who has already dropped it once only to be mau-maued into resuscitating it, has not crossed the Rubicon yet.