by Joseph DeMaio, ©2023
(Apr. 5, 2023) — Now that Manhattan Banana Republic District Attorney Alvin (“No Neck”) Bragg has made good on his campaign pledge to arrest President Trump as a private citizen (for the time being), the full, 3-D impaired malevolence of his psyche emerges. By leveraging various misdemeanor acts of “falsifying business records” into 34 felony counts under New York law, he has with a blundering indictment succeeded only in violating a blindfolded Lady Justice, then casting her to the side of the road like a used trollop after having “had his way with her.” Strong words? Perhaps, but actually understated and sanitized for P&E readers.
To begin with, as noted here, Bragg’s abuse of power and politicization – not to mention misunderstanding – of the criminal code of New York in order to “get” President Trump after he left office in 2021 – a campaign promise he made to the imbeciles who voted the Soros-funded prosecutor into office…, recalling, of course, that 90% of registered voters in Manhattan are Democrats – brings to mind the adolescent Q & A. Q: Why does a dog lick itself? A: Because it can. It is what Soros-backed Democrat prosecutors do. To quote Brandon: “Not joking…, not hyperbole.”
And as for the judge overseeing the spectacle – Judge Juan Manuel Merchan – it would appear that he has some major conflict of interest issues facing him. But fear not, faithful P&E readers: apparently the Banana Republic of Manhattan does not recognize the Rules of Judicial Ethics promulgated by the State Bar of New York, because if reality were otherwise, Judge Merchan – after boning up (or for the first time scanning) the New York Canons of Judicial Ethics – should have recused himself long ago.
Specifically, by continuing to preside over Bragg’s idiotic but dangerous pogrom targeting President Trump, Merchan has ignored:
Canon 1: “A judge shall uphold the integrity and independence of the judiciary.” (Emphasis added) Commenting on that Canon, the New York State Bar observes: “[V]iolation of this Code [of Judicial Ethics] diminishes public confidence in the judiciary and thereby does injury to the system of government under law.” (Emphasis added)
Canon 2: A Judge should avoid impropriety and the appearance of impropriety in all of the Judge’s activities.” (Emphasis added). Commenting on that Canon, the New York State Bar notes: “A judge shall not allow family, social, political or other relationships to influence the judge’s judicial conduct or judgment… [and] [t]he test for appearance of impropriety is whether the conduct would create in reasonable minds a perception that the judge’s ability to carry out judicial responsibilities with integrity, impartiality and competence is impaired.” (Emphasis added)
Canon 3: “A Judge shall perform the duties of judicial office impartially and diligently.” The New York State Bar’s comment on that canon specifies: “Disqualification. (1) A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality … might reasonably be questioned, including but not limited to instances where … the judge has a personal bias or prejudice concerning a party.” (Emphasis added)
Against the backdrop of the facts captured in the Townhall.com article linked in the preceding paragraph, it should be far beyond dispute that Judge Merchan’s political donations to leftist organizations and, in particular, the Goof at 1600 – coupled with family affiliations with anti-Trump and anti-Republican interests in general – should have resulted in self-disqualification a long time ago. But, hey, in the Banana Republic of Manhattan…, different rules apply. Trump must be arrested, tried and found guilty…, no matter what. Did you not get the memo? Soros and Machiavelli rule. Again, it is what Democrats do, including, seemingly, Democrat judges as well. Move along…, nothing in the way of judicial ethics breaches to see here.
But I digress.
As for Mr. Bragg, in his mindless political pursuit of President Trump – while simultaneously ignoring rapists, robbers and murderers in the Big Apple – Bragg seems to have drawn on the dark and malevolent protocols, if not the outright practices, of the Third Reich Nazi Volksgerichtshof tribunal, discussed here. Aided by a bunch of grand jurors who never met a ham sandwich with the surname “Trump” they did not want to chew up and spit out, the 45th President of the United States emphatically pleaded “not guilty” today to the 34-count “void for vagueness” indictment.
The label “void for vagueness” is pressed on the indictment because, in each of the 34 cookie-cutter counts, it is alleged that President Trump acted “with intent to defraud.” The 34 counts had to make that assertion because that is what the New York law under which the counts are made (N.Y. Penal Code § 175.10) requires it. And yet, each count of the indictment refers to a murky, unidentified and ephemeral “another crime.”
At Bragg’s post-arraignment hearing press conference, when asked to clarify, he contended that “the indictment does not specify the other crimes because [New York] law does not so require….” Perhaps so, foolishly… but on the other hand, the Due Process Clause of the Fifth Amendment does. And like it or not, the Banana Republic of Manhattan is still within the jurisdiction of the U.S. Constitution. And this guy “graduated” from Hah-vahd?
But wait…, there is a bigger threshold problem. This “fly in the ointment” – perhaps better described as a “gorilla in the corner” – of course, is that both Alvin “No Neck” Bragg and, as yet, apparently Judge Merchan, seem to have ignored the provisions of N.Y. Penal Code § 30.10.
That provision states, in relevant part: “1. A criminal action must be commenced within the period of limitation prescribed in the ensuing subdivisions of this section.” (Emphasis added) The class “E” felony prescribed under N.Y. Penal Code § 175.10 forming the basis for Bragg’s pogrom is not listed among the ones as to which specific separate longer (or shorter) limitations periods apply or as to which the limited exceptions of N.Y. Penal Code § 30.10(3) would apply.
This, in turn, should trigger N.Y. Penal Code § 30.10 (2)(B), which mandates: “A prosecution for any other felony must be commenced within five years after the commission thereof” (Emphasis added). The “class E” felony identified under N.Y. Penal Code § 175.10, the exclusive core of the indictment, would thus appear to fit precisely within the 5-year limitation “commencement” restriction of N.Y. Penal Code § 30.10 (2)(B).
Even a cursory examination of the indictment shows that Count One relates to a document dated Feb. 14, 2017 and Count Thirty-two relates to one dated Dec. 5, 2017. Accordingly, under N.Y. Penal Code § 30.10(2)(B), the last date that a prosecution could have been “brought” on the most “recent” document was: Dec. 6, 2022.
Ummm…, using 4th grade math for the benefit of Mr. Bragg, March 30, 2023 – the date he indicted President Trump, thereby formally “commencing” the prosecution against him – was… 114 days late.
Your humble servant awaits an explanation from Mr. Bragg…, or his apparatchiks in the District Attorney’s office…, or the talking-heads of the mainstream media…, or anyone else… why the indictment should not be immediately quashed as being filed in violation of N.Y. Penal Code § 30.10(2)(B). If your servant is mistaken, it would not be the first time…, and he welcomes the opportunity to correct himself. He dislikes being accused of spreading disinformation.
In conclusion (for now), the nation is careening toward a dangerous abyss. Soros-backed prosecutors; lunatic academics; violent radicals; and a sycophantic mainstream media have put the Republic on a course which, if things do not self-correct, could lead to consequences which will not end well. While a “hot” Civil War 2.0 does not seem imminent, neither is it a distant figment of fevered MAGA imaginations.
Americans would do well to recall – and heed – the admonition of Thomas Jefferson in 1787: “The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants. It is it’s natural manure.”
What about CPL Section 30.10(4)(a)(i)?
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
Trump became a Florida resident in September 2019.
From the writer:
“What about CPL Section 30.10(4)(a)(i)?” and “Trump became a Florida resident in September 2019.”
The fact that President Trump may have become a “Florida resident in September 2019” has little, if anything, to do with whether he was “continuously outside” New York between 2017 and 2022 or whether a tolling of the statute of limitations would apply.
Mr. Bragg has failed to show that President Trump was “continuously outside” New York between Sept. 2019 and Dec. 5, 2022, the last day that the indictment could have been timely commenced under N.Y. Penal Code § 30.10(2)(b). “Residency” outside of New York is not synonymous with “continuously outside New York.” In fact, as a successful businessman with a permanent and commonly-known presence “inside” Manhattan – Trump International Hotel and Tower – it is more likely than not that he spent considerable time there as well as in Florida between those dates, and including periods after he left the presidency in January 2021.
Moreover, although holding that on the facts of the case, a tolling was properly applied, the New York Court of Appeals held in People v. Knobel, 94 N.Y.2d 226 (1999) that “[t]he focus of the tolling provision of CPL 30.10[(4)(a)(i)] is ‘the difficulty of apprehending a defendant who is outside the State.’” (Emphasis added) Having focused on “getting Trump” for many years, including even before being elected Manhattan District Attorney, Mr. Bragg would have had zero difficulty “apprehending” President Trump when he was actually in New York at Trump Tower between Dec. 5, 2017 – the most recent of the purported “criminal acts,” and Dec. 6, 2022 – when N.Y. Penal Code 30.10(2)(b) barred his March 30, 2023 formal “commencement” of the indictment.
The fact that a time-challenged Bragg took over five years to “get his act together” and secure his thin “ham sandwich” indictment is not President Trump’s fault or concern. Thus, properly understood under the Knobel decision, the tolling option as to Mr. Bragg’s ill-fated and 114-day-late indictment under N.Y. CPL § 30.10(4)(a)(i) is inapplicable and unavailable.
Stated otherwise, Bragg’s 114-day tardy indictment is plainly not “close enough for government work.” In fact, it isn’t even “government work” at all but instead is prosecutorial abuse and overreach.
Also from People v. Knobel
“For an absence from the State to be “continuous” within the meaning of CPL 30.10(4)(a)(i), the People argue, it need not be a single uninterrupted period of time. We agree. The focus of the tolling provision of CPL 30.10 is “the difficulty of apprehending a defendant who is outside the State” (People v. Seda, 93 N.Y.2d 307, 312). Thus, all periods of a day or more that a nonresident defendant is out-of-State should be totaled and toll the Statute of Limitations.”
Like Knobel, Trump was a resident of New York when the crime was alleged to have been committed, became a nonresident during the period in which the SoL was in effect and became a nonresident of New York from 2019 to present.
“Bragg took over five years to “get his act together””
Alvin Bragg became the DA in January of 2022.
The court will decide if the statute of limitations was tolled during Trump’s time in the White House and at Mar-a-Lago. But it won’t be a slam dunk for either side.