What’s up in Manhattan?

On Monday, we learned that Manhattan District Attorney Alvin Bragg is moving ahead with a grand jury investigation into Donald Trump’s involvement in hush money payments to stripper Stormy Daniels, with whom he allegedly had an affair, ahead of the 2016 election. New reporting suggests Bragg’s office is putting witnesses in front of the grand jury to determine whether indictments are warranted.

Bragg is reportedly using a special grand jury, which sits for six months. That’s far longer than the usual 30 days the regular grand juries he uses to indict routine cases are in session for. This suggests he needs time to complete his investigation before he makes charging decisions. If he was ready now, he could go straight to his regular grand jury and indict.

For those weary of lengthy investigations into Trump that seem to go nowhere, this one is worth paying attention to. The fact that Bragg’s office has resurrected this matter instead of letting it continue to lie in mothballs implies that they’re serious about it. The New York Times called it “a dramatic escalation in an inquiry that once appeared to have reached a dead end.”

Some folks have asked how there can be any need for further investigation when Michael Cohen, Trump’s former lawyer, was prosecuted federally and spent time in prison on charges related in part to the same Stormy Daniels matter. Cohen was charged in an information that infamously referred to “Individual-1,” an all-but-named co-defendant, who was determined to be Donald Trump.

Here’s the issue: Cohen has said publicly that he is a witness in the Manhattan DA’s case, but using his testimony comes with complications. Cohen pleaded guilty to charges including making false statements. If Trump were indicted and the case went to trial, Cohen would be subjected to vigorous cross-examination, especially about his veracity. The government bears the burden of proving guilt beyond a reasonable doubt. So if Cohen is the sole witness to Trump’s knowledge and role in the scheme, and one or more jurors develop doubt about his truthfulness or his memory, the government’s case is over. That’s too much risk in a case, especially when you’re considering an indictment of a former president. The DA will want to have as much evidence as possible to corroborate Cohen. That’s likely a big part of what’s happening in front of the grand jury, where witnesses testimony can be locked in under oath. They wouldn’t be there, just to waste time, if they didn’t think they could get it.

We still don’t know the specific charges the Manhattan DA is contemplating. But in addition to developing the facts, the DA will have to select statutory violations of New York state law that fit them. Those decisions are important, and they determine, among other things, the length of potential sentences that could be imposed if there were to be a conviction.

One of the lingering mysteries in this situation is why the feds never followed up Cohen’s case with a prosecution of Trump. Even if Trump couldn’t be prosecuted while he was in office because of DOJ policy, he could have been charged after he left the White House. And at that point, any roadblocks to prosecution thrown up by Trump’s Attorney General, Bill Barr, would no longer have been an issue.

There is no apparent answer to that question yet, but since the hush money payments occurred in 2016, as a practical matter, the five-year federal statute of limitations has most likely run. A statute of limitations is a law that sets the maximum time the government has to charge a defendant in a criminal case after the date the offense took place. With the payments to Daniels taking place more than six years ago, DOJ would be barred from proceeding now (although without getting too far into the weeds, if there’s a conspiracy, the government has five years from the last act in the conspiracy, including cover-ups, to prosecute. So there’s a minute chance charges could still be in play here, but unlikely).

However, in New York, the government has more time. At the outset of the pandemic, then-Governor Cuomo tolled statutes of limitations by executive order, which has the effect of giving the DA additional time to bring charges against Trump in this matter. Trump would undoubtedly challenge the validity of the Governor’s actions in court—the kind of messy delay tactic Trump is always fond of in litigation. But here, the DA has strong arguments that the statute of limitations has been validly extended under New York law. There is helpful precedent from 9/11, when statutes of limitations were tolled and a defendant in a criminal case was unsuccessful in an effort to challenge the extension of time. Although that case isn’t entirely dispositive, it’s an indication that the Manhattan DA can use this, or perhaps another provision that tolls statutes of limitation when defendants move their residence to another state, to proceed against Trump now. Statutes of limitation are always in prosecutors’ thoughts, and somewhere in Manhattan, there’s a prosecutor who is minding the calendar.

It’s still astonishing that so many Americans were taken in by a man whose possible crimes are so numerous that when we learn the Manhattan DA has a new grand jury investigation, we have to stop and figure out which of them is involved. In April, Trump faces a civil trial over allegations he defamed former Elle magazine columnist E. Jean Carroll when he denied raping her. This fall, Trump faces a trial over financial fraud charges brought by New York’s Attorney General. Trump is under criminal investigation in Georgia, and a special counsel is considering federal charges related to both his refusal to return classified material to the federal government and his role in the Big Lie/January 6. He is facing 2024 primary challenges from Ron DeSantis and Nikki Haley, and that list is certain to grow. Trump is increasingly going to be fighting for his company’s survival and his political future with his back against the wall. The last time he was in a similarly precarious position was on January 6, when, having exhausted all possible lawsuits and even an attempted effort to subvert DOJ, Trump was out of options for holding onto power after losing the election. We all know how that went.

I hear a lot of people who say, often apologetically, that they just can’t take it anymore. That they have to unplug from the news for the sake of their sanity. I understand that. Truly, I do. But bad things happen when good people look away. We are still in too fragile of a position to be able to afford that luxury. It is often said that every generation has to secure democracy for itself. Our fight is not over yet.

We’re in this together,

Joyce

p.s. If you’re interested in reading up on Michael Cohen’s case, you can find the government’s charges against him here. There’s a shorter explanation of the charges in DOJ’s press release.