Trump invokes delay as a defense.

Febuary 1, 2023

          Finding a “through-line” in the news on Tuesday is challenging, but a reliable plotline runs through Donald Trump, Ron DeSantis, and John Roberts. Let’s see if I am up to the challenge of making sense of it all.

Trump responds to reports of a NY grand jury investigating Trump’s hush money payments.

          Most crimes are subject to a “statute of limitations,” which prescribes a period during which the prosecution must file charges. If the prosecution fails to bring charges in the specified period, the statute of limitations bars a later prosecution—regardless of the putative defendant’s guilt. Under federal law, most crimes are subject to a general five-year statute of limitations, while states typically have separate statutes of limitations for each offense.

          When Trump learned yesterday that the Manhattan District Attorney had convened a grand jury to investigate his hush money payments to Stormy Daniels, he invoked the statute of limitation as a defense. He posted the following on his vanity social media platform:

With respect to the ‘Stormy’ nonsense, it is VERY OLD & happened a long time ago, long past the very publicly known & accepted deadline of the Statute of Limitations.

          Trump’s invocation of the statute of limitations is not crazy. Respected commentators have made the same observation. See Philip Bump’s op-ed in WaPo, Manhattan prosecutors target Trump with an iffy bank shot. (“The statute of limitations on charg[es] for violating campaign finance law is five years, meaning we’re past the point at which Trump might face criminal sanction.”)

          The five-year federal statute of limitations is one reason many Americans are rightly concerned about the pace of the investigations of Trump’s wrongdoing. The statute has arguably expired on his obstruction of justice in the Mueller investigation and will expire in 2024 regarding his effort to bribe and extort Ukraine. If Merrick Garland lost the ability to prosecute Trump for campaign finance violations because he inadvertently allowed the statute of limitations to expire, that would be the equivalent of DOJ malpractice.

          So, is the NY DA’s prosecution of Trump doomed? Probably not. Statutes of limitations can be “suspended”—or “tolled”—for various reasons. In New York, statutes of limitations for financial crimes (five years) can be tolled during periods the defendant is “continuously absent” from the state. See Trump Moving to Mar-a-Lago May Have Given Prosecutors an Opening.

          If New York indicts Trump, he will seek to dismiss the indictment on the ground that the statute of limitations has expired. That issue will likely be resolved after a lengthy appeal, during which Trump will remain under indictment. New York has the better argument—and the political damage of an indictment will stick to Trump until the issue is resolved.

          But the question at the federal level is murkier. As noted, a five-year federal statute of limitations covers the campaign finance violation implicated in Trump’s payment and cover-up of the hush money payments to Stormy Daniels. But . . . per a dubious DOJ internal policy, Trump could not be indicted while he was sitting as the president. (The DOJ policy is wrong from a legal and policy standpoint. See, e.g., Martin London in Time, Trump Has Been Implicated in Crimes. This Law Shouldn’t Save Him.)

          Because the DOJ policy effectively put Trump beyond the law’s reach for four years, there is a strong argument that the federal statute of limitations should be tolled for an equal period. The Supreme Court has invoked an “equitable” doctrine to toll a statute of limitations in the taxpayer dispute context. See, e.g., Boechler, P.C. v. Commissioner of Internal Revenue (“A federal deadline is jurisdictional only if Congress clearly states that it is. If a limitations period instead is non-jurisdictional, then the limitations period is presumptively subject to equitable tolling.”)

          With apologies for the diversion into legal technicalities, here’s my point: The Manhattan grand jury represents a serious threat to Trump—statutes of limitations notwithstanding. So, an indictment of Trump in New York for campaign finance violations (or the state financial crimes analog) will take Trump out of the picture, right? Hardly. Read on!

Nearly 30% of Republican voters will follow Trump into a new third party.

          Recent polling highlights Trump’s weakness—and his strength. Although Republican voters prefer Ron DeSantis to Trump in a head-to-head race, nearly 30% of Republican voters will stick with Trump “no matter what”—including his departure from the GOP to a third party. See The Bulwark, Exclusive Bulwark Poll: Most Republicans Want to Move on from Trump.

          Despite the headline about Republican voters wanting to move on from Trump, here is a key finding noted in the article:

[A]ccording to our poll, that 28 percent of Republican primary voters already locked in for Trump say they’ll support him even if he ran as an independent in the general election.

          While Ron DeSantis (or other GOP contenders) can “win” a Republican primary among Republican voters, they can’t “win” in a general election if Trump leaves the GOP because it rejects him. As noted in Bulwark,

A big primary field of candidates who are scared of Trump and his base [will be] more likely to attack each other than Trump.

          That’s right: Republican pretenders to the throne can’t attack Trump because that will drive him and his die-hard supporters from the party, ensuring defeat in 2024. The only path to success for “Trump wannabes” is to seduce “Always Trump” voters by becoming Trumpier than Trump. (Amazingly, that sentence was accepted by my “grammar checking” software.) And the Number One Trump Wannabe is Ron DeSantis, who is busily becoming the worst version of Trump possible. Read on!

DeSantis is turning Florida into a “forced re-education camp” for political exiles.

          Florida Governor Ron DeSantis has set his anti-education sites on Florida’s state colleges. Through a series of political and legal maneuvers, he has ceded control over Florida’s state colleges to ultra-conservative culture warriors like Christopher Rufo. In short order, DeSantis has announced that he will rid Florida state colleges and universities of curricula not “rooted in Western tradition” or that “compels belief in critical race theory or related concepts such as intersectionality.”

          Amid the torrent of reporting on Ron DeSantis’s attack on critical race theory and intersectionality, the quiet part is often left unsaid. So let me say it: DeSantis’s educational agenda is code for racism and white supremacy. (Other parts of his agenda seek to erase the dignity and humanity of LGBTQ people.) DeSantis’s invocation of “Western tradition” is meant to suppress knowledge regarding the people (and contributions) of Asia, Africa, South America, Oceania, and the Indigenous Peoples of the Americas. See Talking Points Memo, DeSantis Makes 2024 Ambitions Clear As He Pours Gasoline On His ‘Woke’ Education Fire.

          Given DeSantis’s generalized ignorance, his call to focus on “Western tradition” is a slippery slope that will inevitably lead to the discussion of unpleasant truths about America. For example, the enslavement of Black people was a “tradition” in North America for 246 years—and the abolition of that evil practice is relatively recent (155 years ago). So, a college course that honestly addresses the Western “traditions” of North America should include an examination that the role of slavery played in the economic, social, and political development of America.

          But DeSantis isn’t stopping at converting Florida’s colleges and universities into re-education camps in the worst traditions of the USSR. He is seeking to up-end centuries of “Western tradition” embodied in the Constitution and the English common law: the requirement of a unanimous jury to impose capital punishment. DeSantis has floated the idea that a less-than-unanimous jury verdict can impose a sentence of death—an unconstitutional proposal designed to inflict the death penalty on more Black and Latino Americans. See Vox, Ron DeSantis wants to make it much easier for the state to kill people.

          DeSantis is willing to do all this because he wants to capture Trump’s loyal base—which is the only hope that DeSantis has of becoming a credible candidate. As Trump becomes mired in criminal prosecutions, DeSantis will become emboldened and radicalized beyond his already extremist views. Doing so ignores the lessons of the 2022 midterms: persuadable Americans are done with Trump and his MAGA extremism. Like all military generals, Ron DeSantis is fighting the last war (the presidential election of 2020) and has failed to heed the tectonic shift that occurred in the midterms.

Another scandal for the Supreme Court?

          Chief Justice John Roberts’ wife is a former lawyer turned legal recruiter for global law firms. Many legal recruiters earn 30% of the annual compensation of the lawyers they place at large law firms. When many top partners at law firms routinely earn $3 million per year, a single job placement can result in a million-dollar fee for the legal recruiter.

          So, when John Roberts’ wife places a top partner at a global law firm that appears before the Supreme Court, John Roberts may be looking down from the bench at a lawyer from a firm that recently contributed hundreds of thousands of dollars to his household budget. Does that seem fair and impartial to you?

          A former colleague of Jane Roberts has filed an ethics complaint with the House, Senate, and DOJ over the financial ties between the Chief Justice’s wife and the law firms appearing before her husband. See Politico, ‘They come to me’: Jane Roberts’ legal recruiting work involved officials whose agencies had cases before the Supreme Court.

          Not to worry! When the Supreme Court learned of concerns about John Roberts’ wife’s financial ties to law firms appearing before the Court, a spokesperson for the Court said that the justices are “attentive to ethical constraints.” Phew! That clears up the whole mess, right?

          Wrong. It is time for a radical overhaul of the Supreme Court’s “honor system” of faux “attentiveness” to blatant conflicts of interest. The Court has shown no willingness to heal itself, so Congress should do it for the Court. Senator Chris Murphy proposed a bill requiring Supreme Court justices to abide by the same ethical standards that bind all other federal judges. Justice Roberts should exercise leadership by calling on Congress to pass Senator Murphy’s proposed reforms. Or, he should recuse himself from cases where a law firm paid his wife hundreds of thousands of dollars.

Concluding Thoughts.

          Many readers emailed and posted Comments that disagreed with the notion that I “blamed police training” for the death of Trye Nichols. That wasn’t my intent, so let me try again to explain the point I was making. Jonathan V. Last’s article cited data establishing a strong correlation between more training and a decrease in civilian deaths at the hands of police. What lesson should we draw from that correlation? The obvious conclusion is that more training is one way to reduce civilian deaths in the aggregate. That lesson doesn’t “blame” lack of training for Trye Nichol’s death; instead, it focuses on how future deaths can be avoided.

          As many readers noted, it is incontestably true that you can’t “train” someone to understand that “stomping a civilian to death” is wrong. But you can teach police officers how to intervene when a civilian is being stomped to death by their supervisor or co-worker. Some readers suggested that money for police training and equipment should be re-directed to social services for underserved communities. To me, that is a false dichotomy. We are the world’s largest economy by most measures and can afford to do both—ensure adequate police training and provide a social safety net for underserved communities.

          The issues raised by Tyre Nichol’s death are complex and far-reaching. We cannot allow the complexity of the situation or competing budgetary demands to freeze all forward momentum. If we can accomplish three things but not five, let’s accomplish the three we can achieve today and continue the struggle for further progress. That is the nature of all progress, and we should not be discouraged that we cannot impose a complete and perfect solution today.

          Talk to you tomorrow!