What's going on with the (maybe) Trump indictment?

posted by Byron York at Washington Examiner

It looks like there has been another delay, possibly a long one, in the local New York prosecutor's drive to indict former President Donald Trump. After great expectations 11 days ago — Trump's statement on Saturday, March 18, that he expected to be arrested the following Tuesday — the grand jury convened by Manhattan District Attorney Alvin Bragg has heard additional witnesses in the Trump matter and has also moved on to other, unrelated cases without taking action on Trump. Now, there are reports the grand jury will not consider Trump for the rest of this week — and possibly most of next month.

It is not clear what has caused the hang-up. Grand jury proceedings are sort of secret — actually, they are supposed to be very secret, but many people closely or tangentially involved in this one have talked to the press. In any event, despite the leaks, we do not know everything that has taken place in the grand jury room.

One thing we know for sure is that there has been a lot of commentary to the effect that a New York indictment of Trump, should it come, would likely be very weak. (For the reasons, see here.) This opinion has come not just from Republicans and conservatives. Look at this article, just this morning, from the Daily Beast: "Manhattan DA Insiders Worry that Trump Hush Money Case Is Weak Sauce; Donald Trump looks like he could be indicted any day now. Insiders who have worked on this particular case worry it may not be enough to convict him." A district attorney not able to convict Trump before a Manhattan jury? That would be weak indeed.

The short version: Even people who would love, love, love to see Trump indicted are worried about the local New York case. They would rather see Trump indicted in the Georgia election investigation, the Justice Department classified documents investigation, or the Justice Department Jan. 6 investigation, all of which they believe are stronger cases than the New York case.

It is not known whether those anxieties played a part in the latest delay at the grand jury. Politico reported that the delay is not set in stone — Bragg can reconvene the grand jury early if he likes. And then: "There is no official deadline for bringing an indictment against Trump, although there were indications in recent weeks that the grand jury's activity was nearing a vote, particularly when prosecutors offered Trump the chance to testify before the panel. That is typically one of the final steps of a criminal investigation. Trump declined the invitation."

But is there really "no official deadline" for an indictment? What about the statute of limitations? One of the complicating factors of the New York investigation has been that the crime Trump would be accused of, falsifying business records in the Stormy Daniels hush money matter, is a misdemeanor with a two-year statute of limitations. That is long past. Bragg apparently intended to get around that problem by alleging that Trump falsified business records in order to cover up another crime, which would be a felony. That other crime, the speculation goes, would be an alleged campaign finance violation, which would have a five-year statute of limitations.

In the Daniels matter, Trump fixer Michael Cohen paid off Daniels with $130,000 of his own money. Trump then reimbursed Cohen. The last payment to Cohen occurred on December 5, 2017 — more than five years ago. So even if Bragg could establish a felony, the time to indict seems to have come and gone. But that is not the case, according to a number of legal experts. "That does not necessarily mean the statute of limitations began running [Dec. 5, 2017]," wrote former federal prosecutor Andrew McCarthy. "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?"

If those bookkeeping matters extended into 2018, McCarthy noted, then the five-year statute of limitations would extend into 2023. But how far into 2023? Well, we're already nearing tax time, which could mean the expiration date is approaching soon. "That, at least in part, explains the frenetic investigative activity that has gone on the last few weeks," McCarthy wrote. "If the state doesn't indict soon, the case would be time-barred."

Bragg presumably knows when the last moment he can bring an indictment is. But if he is stretching things to try to get an indictment in under the wire, and it appears that he is, he will surely face a challenge from Trump that the whole thing should be thrown out because the statute of limitations has expired.

So, in this case, delay could mean more than delay. It could mean whether the case can go forward or whether it stops in its tracks.