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naraburns  nihil supernum  2yr ago (text post)   35776 thread views

Culture War Roundup for the week of April 3, 2023

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Mundane Scheduling Details - Trump Edition

For a while now, I've been wondering about very boring dates on calendars. Last summer, I wondered:

The most important thing is the timing of the charges and potential conviction. You probably want to prevent Trump from becoming the official nominee. If he's already the official nominee, it's going to be a harder political sell to strip one of the major parties of their candidate at the last minute. Think back to Comey and the investigation into Clinton emails. On June 6, 2016, the AP and NBC declared that Clinton had won enough delegates/superdelegates to ensure the nomination. On July 5, Comey publicly addressed the investigation, attempting to declare it closed. At the time, I wrote that it seemed more like a 50/50 that they could get a conviction than an 80/20 either way, and that it seemed completely reasonable for the refs to swallow the whistle on a 50/50 call in the third period of a playoff game. Enough had been settled that it would be incredibly destructive to the political process if they brought charges at that point; either the case would be hanging over the whole process, just waiting to get adjudicated until after the election... or they'd have to rush through a trial, and the resulting clusterf would be immense.

The first primaries are January 2024. You need enough time for blue states to go through an expedited process that evaluates the conviction and declares that their understanding is that it prevents Trump from being on their primary ballots... as well as enough time to physically print/distribute the new ballots and such. So, the ideal time for a conviction is maybe late fall, early winter 2023.

Now, the Trump campaign would have to go to the district courts in all these states in an attempt to get it changed back. The states will vehemently reject any ruling from a district in another state (or a circuit they are not part of), and they will lean on how some provision in their state law is different than that of the other state, so they are not a suitable target of an injunction, even if a district judge tries to implement a nationwide one. Blue districts/circuits will slow-play the cases as much as possible, so the Trump campaign will have to target the reddest district/circuit in a blue state that is brave enough to try to strip him off the ballot. Game theoretically, if every blue state in sufficiently red circuits refrain from stripping him off the ballot, that probably won't tip the primary in his direction, but it prevents a case from getting pushed through quickly. All they need to do is gum up the works for long enough that some number of primaries happen before SCOTUS steps in. And SCOTUS could be put in a terrible spot - maybe only days/weeks out from some primaries, are they really going to tell states, "You have to change all your ballot material again to put this guy back on"?

If a few states go through without Trump on the ballot, you have the best shot at establishment Republicans rallying around an alternate candidate, everyone declaring post-hoc, "Candidate X was obviously going to win anyway; Trump is a loser; none of that stuff really mattered," and trying to ignore it all as hard as possible. While Trump's base will continue to be up in arms, they would really lack any power to do anything about it.

So, what implications does this have for the timing of everything else that leads up to this? Well, ballpark a typical case that goes to trial as taking a year. If you bring charges only six months out, Trump can probably delay things long enough that a conviction happens too late to make changes to the primary; if you bring charges a year and a half out, Trump will 100% demand the speediest trial that ever did happen. Obviously, you can't predict the future perfectly, but shooting for a year out is probably the best EV move (would love to hear some actual lawyers' takes on this). That means you want to file charges in late fall, early winter 2022.

...in turn, that means that if you're taking a shot on what may or may not be a fishing expedition, hoping that you can bring charges at the optimal chance to keep Trump off of the ballot, you'd want that shot to be... summer 2022. You have a few months to thoroughly analyze everything you were able to acquire and game things out in more detail, with much more information.

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:

As the government intends to seek a trial date of Jan. 5, 2024 and there is intense public interest in “moving this case along as expeditiously as possible,” she says the government wants to produce these materials quickly to allow ample time for trial preparation before January.

Judge Merchan turns to Blanche [Trump's lawyer], who starts by emphasizing again that this has been a long investigation and the defense has not seen any discovery so far. Trump certainly wants this whole matter behind him, Blanche says, “But to sit here and say January of 2024 is good with us when we have not seen a piece of paper yet, is I think patently unfair for us given everything that I think we know about the case from the media and from witnesses talking.” The January 2024 date is “a little bit aggressive.” The spring of 2024 might be “a more realistic plan at this point.” But Blanche admits that he’s “speculating a bit because we have not seen anything yet.”

The court agrees that it’s difficult to anticipate being ready in January having not received any discovery yet. “The message I would like to deliver is we would like to move ahead as expeditiously as possible, without undue delay. Of course, you are entitled to the discovery. You are entitled to review the discovery and make determinations there.”

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.

From Lawfare's account of the arraignment

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.

But there is no statutory support or judicial precedent for this.

Yes, there is. Article 30.10(4) of the NY criminal procedure code says:

In calculating the time limitation applicable to commencement of criminal action, the following periods shall not be included: (a) Any period following the commission of the offense during which (i) the defendant was continuously outside this state or (ii) the whereabouts of the defendant were continuously unknown and continuously unascertainable by the exercise of reasonable diligence.  However, in no event shall the period of limitation be extended by more than five years beyond the period otherwise applicable under subdivision two.

Moreover:

Of course, 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. And such absences and returns may occur repeatedly over a period of years. The issue that naturally arises in limitations cases concerns which among intermittent periods of absence are those in which a defendant is considered to have been "continuously" outside the state.

The Court of Appeals addressed that issue in People v Knobel (94 NY2d 226 [1999]). The Court agreed with the People that "all periods of a day or more that a nonresident defendant is out-of-State should be totaled and toll the Statute of Limitations." (People v Knobel, 94 NY2d at 230; see also People v Chase, 299 AD2d 597, 598-599 [3d Dept 2002]; People v Ferrari, 155 Misc 2d 749, 754 [Ulster County Ct 1992].) That is true for every day that the defendant is absent for the "full" day. Thus, if defendant in this case was a nonresident and was absent from New York for more than 93 complete days between November 13, 2012, and February 14, 2018, the two challenged counts survive defendant's attack—even if at various other times in that period defendant was in New York.

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:

Knobel establishes the tolling rule for nonresidents. This state's appellate courts have not yet had cause to define the tolling rule for residents. One might speculate. 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. For example, a state resident's departure for a brief vacation in South America might be thought irrelevant to the People's ability to arrest him. Even a student's sojourn to Notre Dame or Oxford for years, perhaps interrupted for occasional returns, might not be enough to make the student a "nonresident" and thus toll a limitations period. It may be that CPL 30.10 (4) (a) (i), dealing with continuous absences, will be thought to have no applicability to residents. The courts could conclude that absences from New York of residents of the state should instead be assessed solely under CPL 30.10 (4) (a) (ii). That provision tolls the running of a limitations statute only when "the whereabouts of the defendant were continuously unknown and continuously unascertainable by the exercise of reasonable diligence."

From Wikipedia:

The three-story penthouse at Trump Tower was Trump's primary residence from November 1983 until September 2019, when he designated Mar-a-Lago as his primary residence.

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.

sounds wildly unconstitutional as a matter of Equal Protection

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.

Trump's presidency is much more like a student's sojourn to Oxford for years,

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)

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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