New York Prosecutors are Screaming at the Sky

Did leftists learn nothing from the adventures of Wile E. Coyote forever trying to catch the Roadrunner but always failing?  New York prosecutors under District Attorney Cyrus Vance, Jr. have convened a grand jury to investigate The Trump Organization (“TTO”) owned by former President Trump and his family (replacing the one already convened in 2018).

There is nothing to stop an indictment of Trump, other than remembering what happened to the Duke Lacrosse player prosecutor.  But the deep state’s attempt to arrest and indict Trump will fail. 

It is starting to look as if the endless adrenaline high is the real point.  If the New York prosecutors’ investigation is measured in news headlines, then they have already accomplished what they hoped.

Getting leftists stirred up with breathless anticipation that President Trump is about to be hauled away in handcuffs isn’t about the truth.  It’s about whipping up their campaign volunteers into a frenzy and demoralizing Trump voters.

Prosecutors seem eager to convince people that their investigation is a real threat.

The leaks tell us that possible crimes – by the businesses, not Trump individually -- range from tax fraud by undervaluing real estate for tax purposes, bank fraud (in loans), and insurance fraud by overvaluing the same real estate on loan applications and for insurance coverage.  The amount lost is apparently $0.00.  The banks, insurance companies, and tax authorities have only lost time and money responding to District Attorney Vance.

Valuation of commercial real estate is an art, not a science.  To say that TTO’s valuation is “wrong” or “false” is like nailing jello to a wall.  Does one use the original construction cost?  The cost to rebuild it today?  The income potential?  Recent sales of similar properties, which for this type of real estate are not easily comparable?  An owner’s opinion of value is too uncertain to be “wrong.”  That’s why no lender pays any attention to it.

For real estate taxes, New York City has a tax assessor.  They don’t ask you how much your office building is worth.  They tell you.  If you don’t agree, you can file a protest.  Good luck. 

What about the deduction for mortgage interest?  That also has nothing to do with the actual value of the real estate.  The lender issues a Form 1099 to show how much interest a borrower actually paid to the mortgage lender. 

Trump’s tax returns have been continuously audited.  An audit means, by definition, looking at the underlying financial records to see if they match the tax returns.  The documents that New York prosecutors just obtained have been in the possession of the IRS and New York tax agencies for years, if not decades.  The 2018 grand jury asked to see the same documents that tax agencies already hold in confidence.  The audits found nothing wrong after examining all the records.

The same with bank fraud.  No mortgage lender issues a loan without hiring their own independent real estate appraiser.  The lender, not the borrower, hires the appraiser.  The appraiser answers to the lender in all questions.  No lender cares what you think your property is worth.

There might be some Stormy Daniels in the investigation (money laundering by hiding the transaction), even though the Federal Election Commission dropped that case.  Trump Derangement Syndrome sufferers have always argued the wrong legal test:  Getting a hair transplant, teeth whitening, new suits, cosmetic surgery, or a new car could have been motivated explicitly to improve a candidate’s chances in an election campaign.  But those are personal expenditures.  Trump’s settlement with Daniels was a personal expense, even if it benefitted his campaign.

The statute of limitations for relevant crimes under New York law ranges from three to six years under New York State law depending on what kind of crime is alleged.

First, prosecutors hope to “toll” (pause) the limitations periods under Criminal Procedure Article 30, Section 10, Paragraph 4.  New York’s statute of limitations is extended for any period when “the defendant was continuously outside this state.”   In every rational State, this means when a defendant was actually evading prosecution as a fugitive from justice, not when they just went to Disney World for the weekend.  New York courts mangle the “continuously” requirement. 

However, Trump’s business never left New York State.  It is a New York legal entity with its operations and headquarters at all times in New York.  That’s why New York’s local prosecutors are involved.  So, the statute of limitations has never stopped running. 

Second, unlike the Harvey Weinstein case, Donald Trump remained a citizen of New York State up through October 2019.  That’s when Trump declared Florida as his primary residence. Until that point, Trump declared his intent to return to living at Trump Tower after leaving office.  Indeed, Trump critics complained about the cost of Secret Service protection at Trump Tower, inadvertently conceding that Trump still lived there.

The case of People v. Cruciani turned on whether a doctor had remained a citizen of New York.  The case noted that the result could be different for a defendant merely away from home.

The law in every state requires that someone on a temporary “sojourn” -- like a soldier stationed overseas or a student going away to college – retains citizenship until they choose to relocate.  Trump was legally present in New York State up through October 2019.

Furthermore, Trump still has a “domicile” or “abode” at Trump Tower up to this very moment.  Legally Trump never left New York State.  He just chose one of his residences as primary.

Third, prosecutors leak that they might use a conspiracy charge.  That’s complicated.  But New York’s statute of limitations regarding criminal conspiracies expire three years after the last “overt act” by a particular participant.  It does not matter if the conspiracy continues.  What matters is when a specific individual last took some action in furtherance of the conspiracy.

The same is true for New York’s state-law version of racketeering laws.  It does not matter for these purposes how long the alleged racketeering enterprise was active.  What counts is when did a particular individual last do something to advance the racketeering enterprise.  The statute of limitations on that is five years. 

Cyrus Vance’s office could end up screaming at the sky alongside other frustrated #NeverTrumpers.

Image: Manhattan District Attorney's Office

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