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Notes -
Mundane Scheduling Details - Trump Edition
For a while now, I've been wondering about very boring dates on calendars. Last summer, I wondered:
No charges have appeared yet on the classified docs thing, and from this game plan, we're already sort of running late on the NY business records indictment. Most importantly, we have a calendar update! From Lawfare's account of the arraignment:
This definitely adds some real data to my estimates and gives something interesting to watch and consider. Even if they start next January as the gov't wants, the trial itself will take a little time. So, I think I was close with saying it would take about a year; this seems to indicate that it would be about ten months from indictment to verdict, minimum.
The Iowa caucuses are scheduled for January 22, 2024. NY may be thinking that if they push hard on the calendar, they can get a conviction in before this date, but with bringing the charges as late as they did, this may be a tough haul. At this point, I'm not confident I can predict either side's calendar strategy. For the rest of this, I'll mostly be assuming that Trump is not able to get the charges dismissed or removed to a federal venue via pre-trial motions; obviously, succeeding on either of those fronts would change everything. Does Trump want to push it further out, hoping that he can win a primary or two before the trial is supposed to start, adding pressure to not convict him on something ticky tack? At this point, if he is convicted, there's zero chance that he'll be able to fit a meaningful appeal in before the primaries, so probably a key question is his probability estimate of how likely it is that the NY court will convict him (whether or not he thinks it's bullshit or would be overturned on appeal); if he thinks it's above some threshold, he probably wants to delay and get a primary or two in first. If he thinks it's below some threshold, he could play a very risky strategy and hope for a huge "TRUMP EXONERATED" headline just before the primaries.
On the NY side, how much do they actually care about getting the official 'conviction' in before Iowa? Maybe they're perfectly happy with letting the trial date slip, so long as the case isn't dismissed; they can go into the primaries messaging, "Trump is an indicted criminal awaiting trial; you wouldn't want to vote for a criminal, would you?"
Either way, the potential schedule is in one sense unsurprising and in another sense suddenly sort of extremely real and threatening by how close it is to the electoral process. This may be how we're going to run this country, and I guess the writers of The Epic Tale of Trump and the US Political System have plenty of room for at least one more season that introduces another New Season Dominant Character and plenty of potential for extremely high drama individual episodes.
I take this as evidence that there is no calendar plan. Or at least not a coherent one. There’s not much benefit to a complicated gambit where key announcements drop in key dates, manipulating public opinion.
Alvin Bragg ran on Being Really Hostile To Trump. Sinking his campaign would be a bonus. He doesn’t have to optimize the timing, just “hold people accountable.” Any broader political maneuvers are going to take second place to the legal strategy of blitzing them. You can see a similar sentiment in Blanche’s comments. He’s been dropped in a bad situation and his job is to get the client out, not optimize his electoral chances.
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If they're going to prosecute Trump during primary season, his nomination is almost a foregone conclusion. People will crawl over broken glass to vote for him. He will run and be perceived as the only nominee who actually threatens TPTB. Every other Republican candidate will either have to stand with Trump and call the prosecution a sham, or piss off the Republican voters by saying Trump deserves to be prosecuted.
Anything can happen but if the primaries are about law and order, crime, politicizing justice, or draining the swamp, Trump wins by default. Maybe DOJ declares Trump a terrorist candidate and starts arresting his supporters. Maybe we go to war with Turkey and the voters want a military president. Anything can happen.
And if indicting a former president is a big deal, imagine if Trump is winning the primary but is forced out because Democrat judges and lawyers declare he's not allowed to run. Boy, if that happens, the chaos will make all this look small-fry.
Yeah, it’s hard to see anything other than a swift conviction hurting his primary chances. And even then he might spin it pretty well.
Not either of those examples.
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I think most Republican politicians have already called this a sham. DeSantis did (who is the only viable candidate). Hell Mitt Romney called it a sham.
It's a tough needle to thread. "My opponent, Donald Trump, is being persecuted by this sham indictment, but you shouldn't vote for him." Logically there's a case to be made but emotionally it doesn't really work. Very few politicians could make that work. Especially once Trump starts attacking them.
You shouldn’t vote for him because while he is correct in identifying problems he had four years to solve problems and did jack shit. I on the other hand have done…
Yeah, something like: My opponent Donald Trump is still being persecuted for sham crimes the democrats invented, the same kind of sham crimes that kept him from getting anything done during his presidency! Vote for me and I will put a stop to that nonsense and protect people like Trump etc.
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Are there state laws that exclude felons from running for President? There’s no such exclusion in the constitution, and I would think that states imposing extra qualifications would be unconstitutional.
This is my understanding as well, but if the laws are challenged, how long would it take to go to SCOTUS? By the time it is deemed unconstitutional, well, the election season is over. "Oops"?
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Underlying this well-thought out post seems to be the assumption that if Democrats get Trump out of the way, that advantages them in the 2024 election. Is this the case? I know that there's a strong base of Trump supporters, even on the more intellectually inclined end of rightist twitter. I see a lot of people decrying DeSantis for being a traitor, snake in the reeds or whatever.
But DeSantis has demonstrated some ability to play the game, to impose costs on Disney and so on. He's 44, Trump is 76, turning 77 in June. If you're looking for revolutionary action or some kind of significant change, does anyone expect that from a 77 year old? Most importantly, DeSantis is still an unknown, he hasn't had an opportunity like Trump had in 2016 (total dominance of the executive and legislative branches) and squandered it. Why does anyone think that Trump will do more for his cause in a 2024-8 term than in 2016-2020? He bombed Syria half-heartedly, he failed to pull troops out of the Middle East, there was an ineffectual trade war with China (Biden seems to have put more pressure on than Trump did), tax cuts at home, literally zero pushback on culture issues, an ineffectual border wall...
In contrast, DeSantis is smart and seems pretty capable, energetic and motivated. Proper military service, medals, A+ rating from the NRA (in contrast to Trump's lacklustre gun control record), a '0' from the 'Human Rights Campaign for his voting record on LGBT-related issues', good results on COVID deaths and economic growth during COVID, enacted bills against cultural marxism and trans in women's sports, happily married with three children. What more could anyone ask for? I guess he's not as rich as Trump, so he'll be more beholden to donors? This ignores all the money Trump was taking from dubious figures like Adelson.
My interpretation of the rightist point of view is that if the Democrats want to get rid of Trump, good! There's a certain chilling effect for Republicans - but also a motivation effect. If DeSantis or whoever else doesn't act fast, they cannot assume that they'll be safe when they leave office. People in the past have critiqued me for seeing other people's points of view as though they were my own, reminding me that others have my own perspective. I still don't understand why people would support Trump over DeSantis, given the choice. I know the polling but I can't understand why this should be. Is it just that people don't like DeSantis because he's not as unscripted and direct as Trump?
That's extremely short-sighted though. Whatever benefit is gained by not having Trump on the ticket does not outweigh the establishment of the precedent that Liberal justice departments get to have a veto on Republican national candidate.
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How the hell is the statute of limitations not featured front-and-center in every analysis of the New York case? It seems to me that this is by far the most serious "calendar issue" on offer. The indictment itself, on its face, cannot possibly go to trial under any sane and impartial judge. Even if you accept the underdeveloped theory elevating prima facie misdemeanors to felonies, the statute of limitations on the relevant felonies is five years, for acts alleged to have occurred almost six years ago.
I have read claims--though importantly, still no actual legal documents!--that the prosecutor will argue that Trump was not personally residing in New York for most of that time, and that the statute of limitations tolls while he's President. But there is no statutory support or judicial precedent for this. Statutes of limitations typically toll when it is impossible to serve process on someone, usually because they have fled the jurisdiction and cannot reasonably be found (i.e. they're dodging service). To the contrary: precedent is that nothing in the law prevents service of process against a sitting president. The Justice Department does not prosecute sitting presidents, but can (and does) investigate them, and can charge them later for crimes committed while in office. So there is no legal support--beyond partisan abuse of process--for tolling the statute of limitations on a state crime just because the accused holds federal office.
This is the stuff of summary judgment (though again, only assuming the New York judiciary isn't also willing to simply cast off the rule of law so long as doing so seems to harm Trump in some way, which may be too much to assume)--meaning if the New York stuff actually goes to trial, justice will already be shown to be inoperative in Trump's case.
Now, the classified documents and the Georgia stuff are something else, and should be considered in light of the specific circumstances of each potential case. But I have a hard time imagining the judges of New York to be so unhinged as to just steamroll the statute of limitations in pursuit of Trump. Even if the trial court judge goes along with it, I would expect Trump's legal team to immediately appeal, potentially all the way to SCOTUS, just for a summary judgment. Since this is a pure question of law, there is no dispute on the relevant facts (dates offered), and even going to trial would constitute a preventable harm, I cannot see this case ever making it to trial. If it does, it will greatly strengthen my priors against the long-term viability of the United States continuing to exist as a single nation, because it will be strong evidence that the courts of New York have degenerated to "kangaroo" status.
Take a look at 30.10(g)(4). The question is whether Trump was “continuously” outside of NY.
You could look at a case like People v. Knobel, 94 N.Y.2D 226 which seemingly takes a very pro government lens of what “continuously” outside of NY means.
However, that case provided a particular reason why it concluded how it concluded — the SOL was in part worried about the ability to apprehend out of state persons. It would seem that the most public person in America is different compared to a criminal nobody. Thus, the logic of what constitutes “continuously” for Trump may be radically different compared to a regular Joe because a the facts are different.
But see People v. Weinstein, 170 N.Y.S.3d 33. There, Harvey is well know and only spent 264 days outside of NY during an almost 5 and a half year period. Yet the statute did not expire because those 264 days were excluded from the five year clock. No one but no one believes it was difficult to apprehend Weinstein.
The best case for Trump is probably People v. Seda, 690 N.Y.S. 2d 517. But hard to reconcile that with Weinstein.
I think the Weinstein logic is utterly absurd and seemingly is results based as opposed to legally based. But really negative precedent for Trump.
See my reply to @Gdanning below. Knobel seems to have the same problem as Cruciani; it's about nonresidents.
I am intrigued by the Weinstein case, thanks for pointing it out. The money shot there seems to be:
But this clearly puts Weinstein at odds with substantial precedent holding that residents and nonresidents are distinguishable under New York statute of limitations laws. I agree with you that the reasoning appears results-based and I'm a little surprised the New York Court of Appeals hasn't made greater efforts to clear this up. Is the law in New York developing toward the idea that statute of limitations laws should not be allowed to interfere with politically important prosecutions?
What precedents are those?
But again, it doesn't really matter, since Trump decamped for Florida in 2018.
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It sounds flippant but yes. It is hard to read the facts of the Weinstein case and not think “if this wasn’t a high profile case the result would be different.”
There is no reasonable interpretation of “continuously“ outside of NY wherein a NY resident was in the state for 85% of the time during a 5+ year period but was found to be continuously outside the state.
All the moreso with a highly known fellow.
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Yes, there is. Article 30.10(4) of the NY criminal procedure code says:
Moreover:
People v. Cruciani, 63 Misc. 3d 226, 228 (2019).
Hmm. That is interesting and also sounds wildly unconstitutional as a matter of Equal Protection. However, even that case does not seem to be very good precedent given Trump's status as a putative resident of New York for the relevant period. Cruciani goes on to say:
From Wikipedia:
Trump's presidency is much more like a student's sojourn to Oxford for years, than it is like an alien committing a crime in a jurisdiction and then fleeing. I appreciate you bringing this case to my attention, but my reading is that it still falls short of the precedent the prosecutor needs here.
EDIT: See @zeke5123's responses to me below and above. I agree that the Weinstein case appears to be persuasive against Trump (though certainly not binding precedent!), so I appreciate having it pointed out. I think it is interesting that the Weinstein case appears to have also been substantially driven by politics rather than by the rule of law.
I don't understand why that would be an EP violation, under current jurisprudence. Moreover, many states have similar provisions, and have had them for decades, so any ostensible constitutional infirmity would almost have certainly have been litigated long ago.
Maybe, but note that that is dictum. From a trial court. And described by that court as what one "might speculate." Perhaps other states' appellate courts have interpreted similar provisions in a manner that might shed light.
Note also that the law on its face does not distinguish between residents and nonresidents.
Edit: In People v. Weinstein, 207 AD 3d 33, 51-52 (NY: Appellate Div., 1st Dept. 2022) -- Note: Yes, that Weinstein -- the appellate court rejected that dictum, ruling, "While defendant does not dispute that he spent 264 days outside New York during the statutory period, he maintains that the toll does not apply to residents of New York and that it only applies to nonresidents. We disagree. The statute does not distinguish between residents and nonresidents, and had the legislature wanted to limit its reach to the latter it easily could have done so."
But, regardless, as you note, Trump left the state for sure no later than Sept of 2019. Hence, under the statute, the running of the statute of limitations was tolled as of that date, which was long before the 5-year statute ran.
Edit: The following cases have held that similar statutes do not violate either the EP Clause or Privileges and Immunities Clause or both
State v. Sher, 437 NW 2d 878 (Wis: Supreme Court 1989)
Commonwealth v. Lightman, 339 Pa. Super. 359, 489 A.2d 200 (1985)
Scherling v. Superior Court of Santa Clara County, 22 Cal. 3d 493 (1978).
State v. Cawley, 110 NM 705 (1990)
Commonwealth v. George, 430 Mass. 276 (1999)
People v. James, 326 Mich. App. 98 (2018)
State v. March, 395 SW 3d 738 (Tenn: Court of Criminal Appeals 2011)
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From my above post, Harvey Weinstein was a NY resident and his whereabouts were well known yet he was found to be continuously outside of NY.
Seems to me this was beyond stupid in the Weinstein case (ie they knew where he was; it wasn’t that his travels outside of NY impacted the People in anyway). Same for Trump.
Yet the law seemingly is the law even if it strikes at the core of the purpose of the SOL.
It does seemingly treat similarly situated people differently based on where they live so would be interested in knowing the caselaw here. Indeed, Trump (or Weinstein) seem easier to find compared to some NY criminals who never leave the state. But because they left the state they are treated worse?
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My understanding is that there is New York precedent for this. The practice is probably unconstitutional as an equal protection violation, but that would end up at SCOTUS.
What would be the rationale for that law being an equal protection violation?
Besides, note that many states have similar provisions, and have had them for decades, so any claims that they are unconstitutional would certainly have been litigated long ago.
Because it affords New York residents the protection of a statute of limitations that aren't afforded to residents of other states.
But it is not enough to show different treatment. A law, like this one, which discriminates based on something other than a suspect or quasi-suspect classification, is perfectly fine under the Equal Protection Clause unless it is either 1) aimed at an illegitimate objective; or 2) not rationally related to a legitimate objective. That is an " extremely deferential" standard. Int'l Refugee Assistance Project v. Trump, 961 F.3d 635, 653 (4th Cir. 2020), and "those attacking the rationality of the legislative classification have the burden 'to negative every conceivable basis which might support it.'" F.C.C. v. Beach Communications, Inc., 508 U.S. 307, 314-15 (1993).
I have not conducted an exhaustive review, but the following courts have rejected arguments that such laws violate violate either the EP Clause or the Privileges and Immunities Clause, or both:
State v. Sher, 437 NW 2d 878 (Wis: Supreme Court 1989)
Commonwealth v. Lightman, 339 Pa. Super. 359, 489 A.2d 200 (1985)
Scherling v. Superior Court of Santa Clara County, 22 Cal. 3d 493 (1978).
State v. Cawley, 110 NM 705 (1990)
Commonwealth v. George, 430 Mass. 276 (1999)
People v. James, 326 Mich. App. 98 (2018)
State v. March, 395 SW 3d 738 (Tenn: Court of Criminal Appeals 2011)
Also, it should be evaluated under strict scrutiny because it goes to a fundamental right (due process), which is the other reason for strict scrutiny besides suspect classification.
All the cases I cited disagree with you.
Last time I saw a citation from you, the wording made clear it was dicta and I suspected the very next word was "But". You were entirely unapologetic when I called you on it and suggested I look it up myself. I did, and not only was it dicta and not only was the next word literally "But", but it was in a footnote besides. So I'm not inclined to go digging through your citations to see what you're leaving out. And in any case, they're all from state courts and this is a Federal question. It is no great surprise that state courts find their own statutes that disadvantage out-of-state residents are perfectly fine.
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Not a single Federal court in your list.
So, you know of a federal case that refutes these?
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What precedent?
Cuomo's executive order 202.8 and subsequent orders purporting to pause the statute of limitations from March to November of 2020 (in response to COVID) is the only thing that seems like it might be relevant, here, and even assuming those orders actually expanded the statute of limitations would only squeeze about half of the actions in the indictment into the timeframe. I don't think 202.8 etc. properly apply--see Baker v. 40 Wall St. Holdings Corp., 74 Misc. 3d 381 (Sup. Ct., Kings Co. 2022):
But even 202.8 etc. do apply as those other decisions held, this is going to take a ruling from New York's Court of Appeals at minimum, and it still won't apply to everything in the indictment.
Have you got anything stronger than that?
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I don't know anything about the primary rules - is there anything that stops Trump from running a proxy candidate that can simply throw all their delegates/support behind him at the 2024 convention?
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I think the issue is going to be the jury.
There’s obviously a big problem seating a jury on a case of the former president in the first place. You can’t accept anyone who voted in 2020 — they would have had to pay attention to Trump enough to form an opinion on him (whether for or against) in order to vote. That’s 55% of the city of New York before we even start. Add in the people who work for Trump in varying capacities, are working for suppliers to Trump properties, or live in a Trump building, and we’re down to 25% of the population of New York. This is before dealing with the hardship problems (there’s no way you can have the defendant actively campaigning and not sequester the jury), the length of the likely trial (and Trump might well want to go for delay of game here). It’s a small pool of candidates.
You’ll also have a small chance of a mistrial. A juror got removed from the OJ case for writing a book about being on the OJ jury. This trial is bigger. There are also lots of people very motivated to tamper with the jury. Add in the potential for things seen on the drive to the court biasing the jury (a protest? A bank of boarded up buildings in anticipation of a guilty verdict? A courtroom outburst?). The probability is low, but I think it’s a bit higher just because of the profile and motivation here.
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