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Joseph Tully’s Legal Crystal Ball on the Trump Indictment

Posted by Joseph Tully | Apr 04, 2023 | 0 Comments

Crystal Ball Trump Indictment

Now that Donald Trump has been arraigned in Manhattan on felony charges of falsifying business records, what are possible chess moves he has in store?

I am an experienced criminal defense attorney. Here is how I see Trump's case play out. 

1) The longer, the better

There is an old legal adage, “Delay inures to the benefit of the accused.” Dragging things out will serve Trump well. The charges have galvanized the right, and reinvigorated people whose support for Trump was waning. If Trump goes on to leverage these charges to win the nomination and then win the presidency, he can simply pardon himself and the case goes away.

To “age” the case, Trump's defense can utilize pretrial motion work. Towards that end. Here are the most likely legal motions that will be pursued one after the other to slow things down.

2) Motion to Change Venue

Trump's defense will file a motion to move the trial to a county in New York state that has less one-sided voting demographics. In the last Presidential election, New York (Manhattan) county voted overwhelmingly Democratic, 86.4% to 12.2%.

These motions are hard to win. You have to present lots of verifiable statistical proof. A judge can simply ignore this proof.

3) Statute of Limitations

Trump's defense will file a motion to dismiss all charges based upon too long a delay. The prosecution will say that the statute tolled (did not continue to run) because Trump was not in NY state. The defense will counter that they did indict Trump while he was out of NY, while he was in Florida so that the prosecution's claim that the statute was tolled is bogus.

4) Brady Motion

Trump's defense will file a motion to dismiss all charges based upon a failure to share exculpatory information with the grand jury such as the information from Mr. Cohen's attorney, Mr. Costello.

5) Selective Prosecution

Trump's defense will file a motion to dismiss all charges based upon selective prosecution. A selective prosecution claim is not a defense on the merits to the criminal charge itself, but an independent assertion that the prosecutor has brought the charge for reasons forbidden by the Constitution.

From Wikipedia on Selective  Prosecution: The defense is rarely successful; some authorities claim, for example, that there are no reported cases in at least the past century in which a court dismissed a criminal prosecution because the defendant had been targeted based on race.[2] In United States v. Armstrong (1996), the Supreme Court ruled the Attorney General and United States Attorneys "retain 'broad discretion' to enforce the Nation's criminal laws"[3] and that "in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties."[4] Therefore, the defendant must present "clear evidence to the contrary",[4] which demonstrates "the federal prosecutorial policy 'had a discriminatory effect and that it was motivated by a discriminatory purpose.'"

6) Motion to Recuse Judge for Bias

The last-ditch motion that Trump's defense could file would be a motion to recuse the judge for bias. These motions are also hard to win.

At the end of the day...

None of these motions will win on the state court level. If they have any chance, it will be at the appellate court level, and above (US Supreme Court). This will all take years to play out, again playing into the advantage of Trump. Just a few years delay could allow for a self-pardon.

About the Author

Joseph Tully

Founding Partner, Criminal Law Specialist Our founding attorney, Joseph Tully, is sought out for his expert legal advice throughout California. With over 20 years of experience as a criminal lawyer, in 1000+ felony and other cases, Tully served as felony trial counsel as a public defender before...


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