Trump could be in more danger than you think

One of the things I often have to remind people about, including lawyers who should know better, is that each state has its own unique laws and procedures.  What is no big deal in most places may be a fiasco in another.

For Donald Trump, the upcoming New York "falsifying business records" charge he may be facing would be laughed out of court almost everywhere, as no money was stolen and no harm to anyone seems to have been done.  Unfortunately for him, he is stuck in the Empire State.  And as unfair as it sounds, I think Mr. Trump is in some real trouble.

The plan the Manhattan D.A. has is to convict him on a trivial offense, then hope a vindictive judge will throw the book at him.  This happens all the time to suspected mafiosi in New York courts, and it may be what's going on here.  

Start with the supposed two-year statute of limitations on misdemeanors underlying the prosecution.  It is expected that D.A. Bragg's office will overcharge Mr. Trump, with several felonies, in part just to get around the two-year limit.  But that may not even be necessary.  Unfortunately, as many people are now discovering, the statute of limitations tolls for the time a defendant resides out of New York State, as Mr. Trump has the last six years. So the statute of limitations most likely won't come into play.

Then, thanks to the persistence of organized crime in New York, there has evolved an astonishingly wide theory of misdemeanor "intent to defraud," developed in such organized crime cases as People v. Kase.  New York prosecutors, in their zeal to convict mobsters, have been able to put real teeth into the laws against business records crimes for years now, which carry substantial penalties.  Thanks to this, the Manhattan D.A. has a road map of how to now get Donald Trump. 

This is also where the Trump Organization convictions for fraud last year will come into play.  These can used by a judge to pile on to Trump himself at sentencing, making him out to be the equivalent of an organized crime boss, to justify a harsh penalty.

I don't think Trump would get the maximum — one year in county jail — but a sixty-day term on Riker's island is possible, depending upon the judge.  Even without a period of incarceration, the conditions of Trump's probation could be onerous.  Just requiring that he remain in New York for a year or two would effectively end his presidential campaign.

Make no mistake: Alvin Bragg has little real criminal trial experience, but his Manhattan district attorney's office is full of effective and ruthless attorneys.  They go up against the best paid criminal defense bar in the country every day.  They know all the tricks.  Add to that that the jury pool will be full of Trump-hating lefties.  Just getting a conviction on some pathetic false records misdemeanor would be a massive win for them and might well prove to be the undoing of Mr. Trump.   

Frank Friday is an attorney in Louisville, Ky.

Image: Ninian Reid via Flickr, CC BY 2.0 (cropped).

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