Race against the clock
The clock on the investigation has been a significant concern throughout the probe, which launched in 2018. Carey Dunne, general counsel at the district attorney’s office, told a federal judge during their battle to obtain Trump’s tax returns that they had “continuing concerns about the potential loss of critical evidence and expiration of statutes of limitations.”
The district attorney’s office obtained millions of pages of Trump’s tax returns and related documents at the end of last month, and it will take time to dig through them.
Manhattan District Attorney Cyrus Vance is not expected to run for reelection, and people familiar with the matter say he is likely to decide on whether to charge a case or close the investigation by the end of the year.
The out-of-town provision is one of several legal maneuvers authorities could consider, as they look to build a case and make charging decisions that would allow them to look beyond the traditional five-year statute of limitations for many New York felonies.
“There are numerous procedural tools in the proverbial woodshed that prosecutors could wield when enforcing the law. Depending on the circumstances, merely because your conduct appears to be outside what is otherwise a strict five-year statute of limitations does not mean you’ll get a pass,” said Jeremy Saland, a former assistant district attorney in Manhattan.
The provision at issue says, “In calculating the time limitation applicable to commencement of a 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.”
The law caps the extension at five years.
During Trump’s four years in Washington, he spent very little time at his home in New York, choosing instead to take breaks in Florida at Mar-a-Lago or his golf course in Bedminster, New Jersey. After leaving office he relocated to Florida and this week made his first visit to his New York home and office.
If prosecutors invoke that section of the law, it means they could argue that the time Trump has been out of New York, would not count in the calculation of the statute of limitations.
For example, if prosecutors found evidence of wrongdoing in 2015, the typical statute would expire in 2020. But under this tolling provision, the clock could stop for the periods of time Trump was out of New York during the five-year period, effectively allowing them to consider earlier conduct.
How provision was used with Weinstein
The district attorney’s office invoked the out-of-state tolling extension in its criminal case against Weinstein. Prosecutors charged Weinstein with multiple crimes, including rape in the third degree for an alleged assault that occurred in March 2013.
Weinstein was charged in May 2018, two months after the five-year statute of limitations on that offense would have expired.
Weinstein challenged the charge, arguing it fell outside the statute of limitations and as a resident of New York state the extension wouldn’t apply to him.
Prosecutors used records from “United States Customs and Border Control” to show that Weinstein had been out of New York for 193 days during that five-year period– more than the 68 days needed to capture the earlier conduct.
The judge rejected Weinstein’s argument and allowed the charge to stand. Weinstein was convicted on charges of sexual assault and is serving a 23-year sentence.
“I’m not sure in this case that they would need to go to those lengths but it’s another mechanism they might be able to avail themselves of,” said Peter Katz, a former assistant district attorney in Manhattan. “They will try to use the laws to the fullest extent.”
Multiple legal experts tell CNN that prosecutors could extend the statute by pursuing conspiracy charges, which would allow them to charge older conduct that falls outside the statute of limitations if they can prove it was part of an ongoing conspiracy.
Another statute available is the state equivalent of a racketeering charge, which is known as enterprise corruption. Under that theory, prosecutors could include older conduct if they can prove a long pattern of illegal conduct committed as part of a criminal enterprise.
Saland, the former prosecutor, added, “Prosecutors would be doing themselves a disservice by making a case more difficult than it need be. Giving Trump a soapbox to challenge an exception to the statute of limitations would allow him to sow confusion.”
Instead, he says, if prosecutors simplify the case and focused on false filings, assuming they were made, “then the former President could very likely find himself the recipient of both a felony record and Scarlett Letter for defrauding the people of the State of New York.