Attorney David Schoen

Attorney David Schoen

It has by now been widely reported that there was significant disagreement within the Manhattan District Attorney’s office about whether to bring an indictment against President Donald Trump. The prosecutors arguing against it raised a variety of prudential reasons to support their position. No former President had been indicted before and the very idea of using a convoluted theory of prosecution like that under consideration for this unprecedented step which would reverberate throughout the world clearly was ill-advised. The indictment under consideration would be based on a witness, Michael Cohen, who had admitted lying repeatedly and at will. His credibility has been so completely eviscerated that the chief of the District Attorney’s Economic Crimes Bureau is reported to have said unqualifiedly that she would never believe a thing Mr. Cohen says. District Attorney Bragg was heard in the office to say that he could never even imagine a world in which Donald Trump would be indicted with Michael Cohen as a witness. There were many other serious obstacles and sound reasons not to indict; but in the end, partisan politics held sway over the integrity of the process and long-standing prudential principles that usually rein in the prosecution function. Mr. Bragg got his indictment.

Once the indictment was returned, legal problems arising from the process by which Mr. Bragg went about getting his prized indictment became immediately apparent. There was the question of the statute of limitations which ordinarily would have barred any such indictment brought six years after the acts alleged. While New York has a statute that stops the statute of limitations clock from running during the time a defendant is “continuously” outside the State of New York, the cases construing that statute have made clear that the raison d’etre for this provision was to deal with the difficulty of ascertaining the whereabouts of a defendant who is out of state. That rationale certainly does not apply to the President of the United States whose every move is widely reported in the media on a daily basis. Then there is the untenable ethical transgression of District Attorney Bragg, who campaigned for office as a public prosecutor by repeatedly promising to convict Donald Trump, an American citizen who did not yet even face any criminal charges. Both of these issues ought to lead to the dismissal of the indictment and the disqualification of Mr. Bragg’s office from any further action against President Trump.

Further there was the apparent judge-shopping by the District Attorney to secure a judge for the case who he believes to be reliably pro-prosecution and anti all things Trump. Indeed, unless one believes in extraordinary coincidences, it certainly would not seem reasonable to conclude that the presiding judge, Juan Merchan, was randomly selected to serve as the judge in back-to-back prosecutions against the Trump Organization, former Trump top aide Stephen Bannon, and now this criminal case. On the face of it, this assignment appears to harken back to a judge shopping practice unique to this District Attorney’s office and decried in a 2002 report by esteemed members of the New York Bar, which allows the prosecution to hand-pick a friendly judge to oversee the grand jury process, while ensuring that the same judge presides over all future proceedings in the case. This is a practice the Manhattan District Attorney assured a federal judge that it had stopped decades ago, because it undermines the appearance of impartiality. This must lead to Judge Merchan’s full disclosure of the basis on which he was assigned to the case and if it was not by random selection, as New York law requires, he must be recused, with another judge randomly chosen.

Each of these concerns is constitutionally significant and raises a strong reason this indictment never should have been sought. But it is a consideration of the actual indictment itself that leaves one absolutely baffled as to how, after years of “investigation” by a huge team of experienced prosecutors, the Manhattan District Attorney’s office brought an indictment against a former President of the United States that is so fundamentally deficient on its face as a matter of law. The indictment against President Trump is so facially deficient under the United States Constitution, the New York Constitution, and New York’s Criminal Procedure Law that it is dead on arrival and cannot be cured by amendment or by a bill of particulars. In fact, it is so fundamentally deficient that Judge Merchan should have recognized the same immediately and should have refused to go forward with the arraignment, based on a lack of jurisdiction. The fatal flaws in the indictment are patently obvious and should strike every reasonable American as unfair, even if they were not unconstitutional.

The indictment against President Trump charges him with 34 felonies under Section 175.10 of New York’s Penal Law. To constitute a felony, this statute requires proof that the defendant (1) committed the misdemeanor under Section 175.05 of falsifying business record entries with the intent to defraud and (2) that he did so with the intent to commit or conceal another crime. In each of its 34 counts, the indictment against President Trump refers to the purported business record involved; but then it just alleges it was done to “commit another crime and aid and conceal the commission thereof.” The indictment never identifies what crime it is alleging that President Trump intended to commit or conceal in order to constitute a felony.

The fundamental unfairness of such an indictment should be obvious. No defendant or his lawyer can possibly defend against a charge without knowing what crime he is charged with committing. Here, for example, if the charge is that President Trump allegedly falsified business record entries in order to commit or conceal a crime related to campaign finance laws, the defense would be formulated one way. If, instead, the target charge were a violation of the tax laws, the defense would be completely different. If the target crime is alleged to be a second misdemeanor or a federal election law violation, it would give rise to certain unique legal arguments otherwise not applicable. It is a fundamental principle in our criminal law that the defendant must be given notice of exactly what crime he is alleged to have committed in order for the charge to be constitutionally viable. This principle also is required in order to secure a defendant’s right to be free from double jeopardy.

When District Attorney Bragg was asked at his initial press conference what crime President Trump is alleged to have intended to commit or conceal by allegedly falsifying business records, he said “… so let me say as an initial matter the indictment doesn’t specify because the law does not so require.” Mr. Bragg was absolutely wrong as a matter of federal and state constitutional law and under New York’s Criminal Procedure Law as he surely must know.

Just one year ago, the New York appellate court that sits in review over the judge presiding over the Trump prosecution wrote the following: “The essential purpose of a criminal indictment is to provide a defendant ‘with fair notice of the accusations against him, so that he will be able to prepare a defense.’ This notice requirement is rooted in the New York State Constitution (N.Y. Const. art. I sec. 6) and in statute (CPL 200.50; 200.30). (New York Criminal Procedure Law) 200.50 requires that an indictment contain, among other things, a statement in each count that accuses the defendant of a ‘designated offense’ and a ‘plain and concise factual statement in each count which … asserts facts supporting every element of the offense charged.’” “Thus, an indictment is jurisdictionally defective ‘if it fails to allege a defendant committed acts constituting every material element of the crime charged.’” The New York Constitution and the 5th, 6th, and 14th Amendments to the United States Constitution absolutely require that a criminal defendant be given sufficient notice of the specific crime charged against him in order to be able to defend against the charges brought and New York’s own Criminal Procedure Law spells out exactly what must be specified in the indictment. By any measure, this indictment was jurisdictionally defective and this is immediately apparent from its failure to give any meaningful notice.

The requirement that an indictment specify the charges against the defendant also is required under the Constitution’s guarantee that a defendant be free from double jeopardy. Years ago, another New York appellate court emphasized this principle, writing that the statutory requirements under New York law that an indictment specify the crime charged serve to secure several fundamental constitutionally guaranteed rights, including the right to be free from double jeopardy. The Court wrote that the second of the “fundamental notions” served by requiring specificity “… entails a defendant’s right to be brought to trial by means of an indictment containing allegations with sufficient precision ‘to enable the defendant, once convicted, to raise the constitutional bar of double jeopardy against subsequent prosecutions for the same offense.’” Given the partisan political determination to keep President Trump under siege while he seeks another term in office, it is not difficult to imagine that without specifying the target crime in the indictment, after he is found not guilty, new charges of the same nature would be brought by this same District Attorney, simply alleging a new target crime and claiming that was not part of the charges on which President Trump was acquitted.

The legislative history of New York’s Criminal Procedure Law on this point further demonstrates that the indictment against President Trump is jurisdictionally deficient. Years ago New York law permitted what was referred to as a “short-form” indictment – a bare bones charging document which merely recited the language of the statute charging the crime at issue. But its Criminal Procedure Law abolished the short-form indictment in favor of a long-form indictment and later modified the long-form indictment requirement to demand the greater specificity for a long- form indictment now provided for under CPL Section 200.50 and complete lacking in this indictment.

At times, when an indictment in New York suffers from some infirmity, it can be cured by an amendment to the indictment. However, here an amendment to cure the jurisdictional deficiencies from which this indictment suffers – the failure to charge a specific offense and the legal insufficiency of the factual allegations – is expressly prohibited under CPL Section 200.70.

There is simply no way as a matter of law for District Attorney Bragg to cure the fatal flaws in this indictment. It was dead on arrival. President Trump was indicted by a grand jury. Notwithstanding the adage, originally coined in New York, that a prosecutor can get a grand jury to indict a ham sandwich, once a grand jury is convened, it is the grand jury that must vote on and decide the crimes charged. There is no indication whatsoever in this indictment as to what crime or crimes the grand jury concluded the business entries were allegedly falsified to commit or conceal, let alone whether it even considered any specific target crime. New York’s Criminal Procedure Law Section 190.25 expressly requires that at least 12 members of the grand jury agree as to any charge brought and this was required for each of the 34 counts. There is no question that this requirement was violated as well, since there is no target crime even mentioned in the indictment. The District Attorney cannot now determine what crimes he would like the target crimes to be.

The indictment in this case is constitutionally and statutorily deficient on its face and the deficiencies cannot be cured by the District Attorney or any party other than a new grand jury empaneled to hear all of the evidence and charged to act in compliance with the law. The patent deficiencies in this indictment should have been obvious to Judge Merchan at the time of the arraignment and should have led him to conclude sua sponte that it was insufficient even to give him jurisdiction over the case. He should have dismissed it outright as jurisdictionally deficient and he should not have required any plea at all to be entered to it. It will now have to be dismissed under CPL Section 210.25 and other sections of the CPL and under our state and federal Constitutions.

It is difficult to understand how, especially in such a high profile matter, front and center on the world stage, an indictment like this could have been brought by this once venerable office or, for that matter, why any responsible prosecutor would want to bring an indictment against a citizen which does not even begin to meet the fundamental constitutional and statutory safeguards  guaranteed to us all. It not only makes a mockery of the District Attorney’s office and its partisan political agenda; it tragically undermines the confidence any of us can have in our criminal justice system. That is unforgiveable.

About the author: David I. Schoen Esq., a solo practitioner, focuses primarily on the litigation of complex civil and criminal cases before trial and appellate courts. David accepts only a few cases each year so that he can give full personal attention to every aspect of the case from evaluation and intake through its resolution.
Mr. Schoen has offices in New York and Alabama, but takes on cases from all around the country and overseas, associating the most qualified lawyers to serve as local counsel or to provide a particular area of substantive expertise as part of the litigation team when necessary. As soon as David agrees to take a case, he immediately begins to investigate the facts, obtain and study all relevant documents and immerse himself in the substantive area or areas of law at issue.