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May 19, 2023

Intriguing report that Trump legal team believes Apprendi can require downgrading his NY criminal charges

A helpful colleague made sure I did not miss this new Daily Beast article headlined "Trump’s New Ploy to Knock the Manhattan DA’s Case Down to Misdemeanors."  Here is how the piece starts:

When the Manhattan District Attorney finally indicted former President Donald Trump in March, Alvin Bragg made the curious decision to not detail Trump’s crimes in the official indictment — something critics seized on almost immediately to say this was an overblown case.

While previous investigators had wrestled with how to charge Trump with felonies, Bragg overcame that hurdle by essentially charging Trump with 34 misdemeanor counts of faking business records — then leveling them up to felonies in a parallel legal document.  Under New York law, faking business records is only a felony if it’s done while committing another crime.  In this case, prosecutors say Trump hid his 2016 porn star hush money payment in order to break election laws, therefore the 34 counts of taking business records become felonies.

But according to a source familiar with the Trump legal team’s internal discussions, the former president’s lawyers are now exploring how to use that otherwise ingenious move as a weakness to severely power down the case.  And Trump’s lawyers believe their new tactic could force the DA to reconsider if this is a fight worth having.  Their legal strategy all comes down to a Supreme Court case where a white guy in New Jersey got drunk and shot at a Black family’s home in 1994 — and then managed to get hate crime charges overturned.

Trump’s lawyers are eyeing the 2000 SCOTUS decision Apprendi v. New Jersey, which stressed the importance of putting in an indictment all the aspects of a crime that could enhance penalties.

Here is more:

When Trump was arraigned in criminal court in April, his defense lawyer Joe Tacopina assured reporters this case would “never” make it to trial.  And the Trump team’s new potential tactic threatens to downgrade the severity of the case before it ever reaches a jury, which could force the DA to consider whether a case full of misdemeanors justifies an expensive prosecution.

The legal precedent Trump’s team is considering is also buttressed by a 1999 Supreme Court decision, Jones v United States, which decided that “any fact other than prior conviction that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proved beyond a reasonable doubt.”

If Trump’s team successfully uses that defense strategy, it would be an embarrassing defeat for Bragg, who could have just as easily put all the information about the case that was included in the “Statement of Facts” in the indictment and avoided this whole mess.

May 19, 2023 at 09:33 AM | Permalink


Alvin Bragg's maneuver here is, I agree, something of a fancy dance, but Jones is not going to bail Trump out because Jones is about sentencing (a judicial function), and does not by its terms limit charging, an executive branch function.

Posted by: Bill Otis | May 19, 2023 9:47:20 AM

"Their legal strategy all comes down to a Supreme Court case where a white guy in New Jersey got drunk and shot at a Black family’s home in 1994 — and then managed to get hate crime charges overturned."

Why do you quote this twaddle?

Posted by: federalist | May 19, 2023 11:06:16 AM

federalist: the Daily Beast appears to be the only outlet reporting this notable legal story, and I just quoted their coverage for context. You are, of course, welcome to provide you own accounting of Apprendi and/or Trump's possible legal defenses in the comments.

Posted by: Doug B | May 19, 2023 11:48:45 AM

It's just crap commentary.

Posted by: federalist | May 19, 2023 12:10:09 PM

I am not sure that the motion is anything more than a nothingburger. While Apprendi might make the current indictment defective, it would not require the reduction of the charges to a misdemeanor. It would merely require more specificity in the charging document.

The procedural mechanism for remedying an Apprendi defect in a charge is a matter of state law and I am not familiar enough with New York procedure to be certain, but, in my State, the remedy for omitting a needed element from a charge (and in Trump's case, it was not omitted but just not adequately alleged) would be to file an information in lieu of indictment specifying that detail. For example, in the case of a burglary, if the indictment said that the defendant intended to commit a criminal offense inside the residence, we would change the charge to read that the defendant intended to commit stealing. The court would not reduce the charge to trespassing.

It looks like the Manhattan DA has ideas of what offenses were being concealed by the fraud and just is trying to keep the options open until they reach trial. That's not an Apprendi violation, it's simply, at most, a defective charging document that can be remedied.

Posted by: tmm | May 19, 2023 12:27:11 PM

I agree with tmm. Superseding indictment fixes this. Now, I don't know how close we are to the running of the statute of limitations and if there is an argument there.

Posted by: defendergirl | May 19, 2023 1:02:51 PM

It's interesting to cite Apprendi, but I think Apprendi applies only to the sentence versus the conviction. This whole case is a load of crap anyway. It's hard to even say that the charged conduct is a crime--calling a settlement "legal expenses" doesn't make the business record "false."

Posted by: federalist | May 19, 2023 2:17:13 PM

Your readers may be interested in this:


Posted by: federalist | May 19, 2023 4:36:36 PM

federalist: it is both, in a way. Apprendi says that any fact that changes the statutory maximum must be pled and proved to the jury. Later cases apply that to mandatory minimums as well. So, they may be right that the related election law charge that elevates the business record charge to a felony from a misdemeanor must be plead and proved.

Posted by: defendergirl | May 19, 2023 4:39:20 PM

Or tax charge. The documents supporting the indictment seem to suggest multiple offenses that were furthered by the mischaracterization of the expense as a legitimate business expense to settle a claim against the company.

The question now is does the charging document have to be amended to expressly identify the underlying offense or can that be resolved by a bill of particulars.

Posted by: tmm | May 19, 2023 5:21:34 PM

Interesting case, federalist. Do you agree with the result? It appears Percy Taylor here "served over a year longer than he should have" and yet he is failing to secure any recovery in tort. That certainly troubles me.

Also, if I understand your feelings properly, you believe Mr. Taylor had a "right" to attack prison guards involved in his wrongful incarceration during his extra year of imprisonment and also had special 1st Amendment rights (that were surely deprived). Do I have that right?

Posted by: Doug B | May 19, 2023 5:21:40 PM

I don't think I said "attack"--but given the fact that the right to self-defense is constitutional, I don't see how people held past their incarceration date don't have it. The case law involving prisoners' truncated rights don't really obtain, as the incarceration is illegal. If a guard steps out of line with an ordinary prisoner, then the prisoner's truncated rights require him/her to submit, unless the guard's assault is egregious--e.g., sexual assault. However, given the illegal nature of the incarceration, I don't see how ordinary self-defense rights don't obtain against a prison guard assault, which do happen btw.

And where the 1A rights would come into play would be things like good time credits--I would argue that the state would have no right to take away good time if an illegally incarcerated prisoner (i.e., held past sentence) disrespected a guard.

You have yet to identify any caselaw regarding the rights of prisoners held past their release date.

Posted by: federalist | May 22, 2023 9:08:15 AM

still more federalist feelings -- though still unclear whether you feel Mr. Taylor had a "right" to attack any prison guards who ordered him to go back to his cell or who ordered him to go to a meal or to do anything else regularly ordered of prisoners during his final year in prison. Do prisoners sometimes get to attack guards or not, federalist? When? Can prisoners kill guards that they believe are holding them illegally (since guards have guns and other means of deadly force to enforce prison rules depriving liberty)? Even your explanations of your feelings here are unclear, and I continue to be unaware of any actual law in support of your feelings about the "rights" of prisoners to attack guards.

The problem, of course, is you continue to fail to confront the reality that there is often legal dispute or uncertainty about whether and when anyone is being held past their incarceration date. Here the Fifth Circuit panel concludes that it was not "objectively unreasonable" that LA Department Secretary James LeBlanc did not realize Mr. Taylor was being held illegally. And yet you think prison guards and wardens somehow had to figure our Mr. Taylor's true status and afford him all sorts of special "rights" that other prisoners do not have during his last year in prison? How will the other prisoners come to understand that special treatment? How will guards make sure Mr. Taylor gets his internet access and church access and other 1A rights respected during that year?

Your goofy assertion about "good time credits" shows how little logical thought you have given your feelings here. If Mr. Taylor is legally supposed to be OUT because he is being held past his release date, he should be let out ASAP without any need to worry about "things like good time credits" once he has completed his proper amount of time and his status has been figured out.

It is great that you have strong feelings, federalist, about some people being excessively incarcerated. Let's just try to channel those feelings into some thoughtful and administrable doctrines --- e.g., robust constitutional and statutory tort recoveries for excessive deprivations of liberty, fewer limits on habeas petitions in various settings, no broad immunities for government actors, etc.

Posted by: Doug B | May 22, 2023 9:57:02 AM

I have trouble seeing a workable rule of a right to resist based on the fact of illegal incarceration.

First, what qualifies as illegal incarceration? For habeas relief, the issue is simple -- is the underlying judgment invalid for some reason or has it expired. But, in my job, I regularly see claims from inmates that assert a reason why their conviction should be set aside, and, in the majority of these cases, that reason is either based on a rewriting of the evidence in the case or a misunderstanding of the law. And, while there are some cases in which it is clear that the sentence has expired, in many cases, whether the sentence has expired involves contested issues of credits (either jail time or good time) and the sentencing structure.

Second, how is prison personnel supposed to know that inmate A is actually being held illegally while inmate B is still serving a sentence? In most prisons/jails, keeping track of the status of the inmates' release dates falls on some clerical person in the records department. The people who interact with inmates on the floor do not know that the records department has screwed up and kept inmate A past his release date. So the people interacting with the inmates treat inmate A and inmate B the same. The prison personnel believe that their use of force against inmate A is lawful.

Third, assuming that we are talking a legal defense (and phrasing the right to self-defense as constitutional requires a lot of manipulation of legal history no less that declaring the insanity defense constitutional given the different ways that the elements of a valid claim of self-defense has been defined over the years), that still raises the question of whether a defendant's belief that the use of force by prison personnel was unlawful in a particular case was reasonable. Given the above, I shudder at thinking of the evidence that would be presented and how a jury would be instructed on this issue.

I guess if your goal is to end all incarceration, recognizing a wrongfully-detained inmate's right to self-defense would be a great tool. Prison already have a hard time finding good candidates for their staff positions. Giving inmates a way to get away with assaulting prison personnel would make it much, much harder to staff the prisons.

Posted by: tmm | May 22, 2023 10:55:18 AM

"Your goofy assertion about 'good time credits' shows how little logical thought you have given your feelings here. If Mr. Taylor is legally supposed to be OUT because he is being held past his release date, he should be let out ASAP without any need to worry about "things like good time credits" once he has completed his proper amount of time and his status has been figured out."

Gotcha. You obviously failed to understand the timing element here--(a) incarceration becomes illegal on January 1, then (b) prisoner disrespects guard and loses good time January 2, which then extends his "legal time" past January 2. I knew you'd fall for my trap.

With respect to the constitutional right of self-defense, which is a right--why is there a Second Amendment, all the practical things in the world don't add up to taking away someone's right to self-defense. And are you really saying that a prisoner, illegally held in terms of being held past the date upon which he should have been released, who is being assaulted by a guard (something that does happen) has no self-defense rights against a guard illegally assaulting him, unless the assault is egregious?

I am a law and order guy. I just think that "law" includes the government following it.

You guys keep trying to change the hypo. And don't these problems show the absolute necessity of getting the release dates right?

Posted by: federalist | May 22, 2023 11:26:18 AM

federalist: It is not a "trap" because the hypo makes no sense as a "1A rights" issue. If the prisoner on Jan 2 decided to use throw around food at the mess because he is so angry about being held too long, does he lose his good time credit? How about if he demands to go to his church of choice and broke a bunch of prison rules trying to leave the facility to do so? How about if he talks back to the guard and then a physical fight ensues? What makes your hypo ridiculous -- and illogical -- is that you think there is a magical (and unexplained and undefined) 1A exception to losing good time credit only for certain prisoners after some point. Uh, okay if by "trap" you mean a dumb hypo. Again, feel free to explain your feelings, but all you do is continue to show how little logical thought you have given your feelings here, federalist.

And, of course, the "law" includes the government following it. That is not the debate -- the debate is what remedies apply when the government fails to follow the law. Notably, when the failure is extreme enough in the eyes of a jury, years or even decades in prison for the government official can be the "remedy" (see, eg, Derrick Chauvin or Kim Potter). But, as I said before, if your goal is to make sure the government follows its own (often very complicated) incarceration rules, the sound response would be thoughtful and administrable doctrines --- e.g., robust constitutional and statutory tort recoveries for excessive deprivations of liberty, fewer limits on habeas petitions in various settings, no broad immunities for government actors, etc.

Posted by: Doug B | May 22, 2023 11:43:59 AM

Try to keep up. Let's say that on Jan 1, he should have been released 30 days prior. On Jan 2, he mouths off to a guard which causes him to lose 60 days good time credit. January 3, they figure out that he should have been released December 2 of prior year, is he let out immediately, or does the state get to tack on 60 days from December 2, and can the state use the new February 2 date in litigation as the proper date and if so, can he assert 1A?

Posted by: federalist | May 22, 2023 12:19:10 PM


Law wasn't followed here--so where does this rape victim go?

Your framing of the "debate" fails---we all agree that illegal government activity can be resisted at some point--do we not? Women have the right to resist forcible rape by a guard, do they not? People have the right to resist excessive force, do they not? So where is the line drawn? The First Amendment, which applies to the states, doesn't have a coda that says that government actors can violate it, and you can do nothing to stop them, but you may get a civil suit.

Nowak got abused, and got nothing. And if you really want to see where self-defense ought to be ok, check out some of the guardianship abuses that go on with the imprimatur of state courts. Some truly horrible stories . . . . and they don't even get their money back.

Posted by: federalist | May 22, 2023 12:28:05 PM


To get everyone's blood boiling--but no right of self-defense there.

Posted by: federalist | May 22, 2023 12:36:58 PM

It is sometimes is amusing, though a bit tiresome, federalist, that when we are trying to understand the scope of your feelings on one topic, you then cite to articles about other issues you have feelings about. It is hard to "keep up" with your hypos because they keep changing, both in the "facts" you posit and in the law you claim feelings about (SD? 1st A, but just "speech"?). Now you are citing articles complaining about immigration failings and about guardianship abuses -- and the only connecting thread is that you have feelings about all this stuff.

I assume you mean to reference the Novak (not "Nowak"), and the problem there was broad application of qualified immunity. Ergo, I will say yet again that you ought to join me in advocating for thoughtful and administrable doctrinal reforms --- e.g., robust constitutional and statutory tort recoveries for excessive deprivations of liberty, fewer limits on habeas petitions in various settings, no broad immunities for government actors, etc.

Posted by: Doug B | May 22, 2023 1:32:48 PM

Re: Novak (Homer nods), QI should not have been granted. I agree with Thomas' view that time to think should massively reduce the opportunity for QI.

Habeas. The problem there is that the federal courts have abused habeas. Innocence should always be looked at.

Once again--looks to me like the text is on my side--I don't see anything in the Constitution that says that the government gets to tell people that they cannot defend themselves against a violation of rights. And do you really think that some old person, subject to a bogus ex parte court order has to submit to someone taking him away to have all his property taken and be doped up on Haldol, doesn't get to defend himself? That's why we have a Second Amendment.

But you didn't think that slaves have the right to use force to escape . . . .

Posted by: federalist | May 22, 2023 2:46:14 PM

Slaves absolutely have the MORAL right to use force to escape their bondage. Just like I think a factually innocent person has a MORAL right to escape incarceration. Do you think a factually innocent person has a legal (and constitutionally enforceable) right to escape incarceration? Are you saying that Mr. Taylor could have legally killed a guard to escape from his incarceration and/or that any prosecution/sanction of him for any crimes related to effort to escape during his excessive incarceration would be unconstitutional?

I am still trying to figure out the "rule of federalist" here --- I already know the rule of law as it has been applied --- and I remain eager for you to produce some accounting of what you think the wrongly incarcerated have a "right" to do that I could send to all the incarcerated who seek my help. I really do want to use your ideas to help people. Do you? I am sure hundreds of thousands of prisoners in thousands of prisons would be eager for your accounting of their rights (not sure the guards will be keen on "rule of federalist" but you do not seem to care about them).

Posted by: Doug B | May 22, 2023 3:28:00 PM

Hmmm. Did I say factual innocence? Nope--that's not a claim in and of itself. Conviction procured by fraud . . . . you be the one to tell the guy he cannot escape . . . . I don't think he gets to kill a guard who has nothing to do with it--and I don't think I've said anything to the contrary. if self-defense is a thing, then it's a thing---how do you cabin it? I think it clear though that someone unlawfully incarcerated can certainly forcibly resist otherwise illegal assaults by guards . . . . whereas ordinary prisoners probably just have to take it unless it rises to a level of egregiousness described earlier.

Posted by: federalist | May 22, 2023 5:19:07 PM

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