Q&A – Statues of Limitations & The Basis of Trump’s Hush Money Case

Q&A – Statues of Limitations & The Basis of Trump’s Hush Money Case 

Each day I feature a listener question sent by one of these methods.       

Email: brianmudd@iheartmedia.com      

Social: @brianmuddradio     

iHeartRadio: Use the Talkback feature – the microphone button on our station’s page in the iHeart app.        

Today’s Entry: Because of the hush money in New York City have the Democrats opened up another Pandora’s box on statute, limitations, and throwing it out the door?  

Bottom Line: Not exactly, because there’s not a way for prosecutors from any party to ignore the statute of limitations that apply to a case they may be attempting to bring. Meaning that if charges haven’t been brought against a person or business within the window of time allocated to bring charges for an alleged offense, they can’t pursue them. That’s probably a confusing statement, given that I’ve mentioned the statues of limitations had expired on the charges in former President Donald Trump’s hush money case, and yet here we are. There's a trial with prosecutors alleging 34 felonies were committed in the 2016 non-disclosure agreement with Stormy Daniels. That makes today’s question a good one that’s worth explaining.  

The non-disclosure payment made by Donald Trump wasn’t illegal and isn’t being alleged to be illegal. NDA’s take place every day. What’s being alleged as illegal is Trump’s accounting of the payment to Stormy Daniels. What’s not in question is this, prior to the 2016 election Donald Trump prompted his personal attorney, Michael Cohen, to pay $130,000 to Stormy Daniels for an NDA regarding an alleged affair that Trump has denied. Early in 2017, when accounting for the payment, Trump disclosed the reimbursement to Cohen as a “legal expense”. New York prosecutors allege that the payment should have been disclosed differently and that the improper disclosure constituted a “falsification of business records”. In the state of New York, the statue of limitations for a “falsification of business records” offense, which is a misdemeanor, is two years – meaning that charges would have had to be brought against Trump no later than 2019 to comply with the statute of limitations on the alleged offense.  

Originally, New York City prosecutor Alvin Bragg declined to pursue the case, however after significant pressure from within his party’s ranks, he decided to pursue the case after all. In order to do so, he had to get creative. In New York, there is a standard five-year statue of limitations for felony charges. Additionally, due to disruptions during the pandemic, an extra year was added for cases potentially being pursued during that time. That gave Bragg an opportunity to attempt to revive the case providing that he could figure out how to turn what’s an alleged misdemeanor offense into a felony. Here’s how he did it.  

Under New York law a second-degree falsification of business records is a misdemeanor. Here’s how that’s defined

  • (1) made a false entry in (2) the business records of an enterprise, and did so not only (3) intentionally but also with (4) an intent to defraud. 

That is what Trump has been charged with by the prosecution. How is it then that he’s been able to pursue what’s a misdemeanor offense as a felony? Under New York law, the offense gets upgraded to a first-degree falsification of business records offense if the act was alleged to have been done to commit or conceal additional criminal behavior. What Bragg decided to do was to allege that Trump falsified business records for the purpose of avoiding a campaign finance disclosure. If true, it would be a potential violation of federal campaign finance laws. So that’s how Bragg upgraded a potential misdemeanor offense into a felony to be able to bring the case. That’s why I’ve referred to this case as potentially being the most over charged in American history. But that also establishes the false premise this case is based on.  

First and foremost, Alvin Bragg is a New York prosecutor. He lacks the authority to charge a federal crime. The jurisdiction of the alleged campaign finance violation is The Federal Election Commission. The FEC, which investigated the NDA as a potential campaign violation, closed their investigation without pursing charges against Trump or his campaign. Despite that extraordinary fact, Bragg made his own determination that the violation happened in order for him to upgrade his charges to pursue his case. This is the crux of why, even if Trump is found guilty of the charges brought against him, he stands on solid ground in pursuing an appeal. The case is based on a false premise.  

What’s highlighted in this instance are the inherent problems associated with using the justice system as a political weapon at the state or federal level. Even if in the end this case works out as I just outlined, with even a potential conviction in this case being overturned on appeal, with the acknowledgement that Bragg didn’t even have the lawful right to bring the case against Trump, the desired damage is done. Trump is kept in the court room and off of the campaign trail. If a conviction is achieved, the narrative is established that Donald Trump is a convicted felon, just prior to the presidential election. Based upon how long an appeals process might take, it could be the case the decision to overturn wouldn’t take place until after the presidential election.  

This is the set of calculations Alvin Bragg and Democrats generally are aware of and are willing to pursue given their desire to do whatever they can do to attempt to keep him from becoming President of the United States again. It’s incumbent upon us to be informed citizens and to help inform those around us as to what’s really going on. And, that if they can pull this off against a former president, just imagine what a corrupt government could do to you. Hopefully today's Q&A helps you in that regard. 

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