Former Assistant US Attorney Weighs in on Trump’s Defense Strategy Ahead of Arraignment

Former President Donald Trump waves as he arrives at Trump Tower in New York City, N.Y., on April 3, 2023. Ed Jones/AFP via Getty Images

Former President Donald Trump could deploy several legal tactics to fight off criminal charges against him, according to John Kaley, former assistant U.S. attorney in the Southern District of New York.

“They'll make a claim that prosecution is barred by the statute of limitations,” Kaley told The Epoch Times on April 3, adding that Trump’s defense team may also argue that the case should be dismissed because there is the problem of selective prosecution.

Under New York law, the statute of limitations is capped at five years, and it can be extended if the defendant has been out of state.

New York Supreme Court Justice Juan Merchan is expected to arraign Trump on April 4, to face charges brought by a grand jury empaneled by Manhattan District Attorney Alvin Bragg.

The exact charges in Trump’s indictment are currently under seal. However, the charges are believed to be centered on whether the former president made a $130,000 payment to adult film actress Stormy Daniels and documented the payment as false business records—a state offense to cover up or commit violations of federal campaign finance laws.

“I don’t know if they'll claim that he has any kind of immunity, because acts occurred during the period of time that he was president, not that that would necessarily preclude anyone from charging him for those acts.”

Trump’s defense team may also make motions based on attorney-client privileges, Kaley added.

“We make motions, not because we necessarily think we’re gonna prevail, but because it might force the district attorney to disclose some information,” Kaley explained.

Trump’s attorney Joseph Tacopina has previously announced his plans to file “a host of” motions to dismiss the case, including one based on selective prosecution and prosecutorial misconduct.

Tacopina has also laid out another defense strategy, which is questioning the credibility of former Trump attorney Michael Cohen. It is believed that the case against Trump relies heavily on Cohen’s testimony.

Under normal circumstances, the false business records charge would be a misdemeanor. To elevate it to a felony, the charge could be linked to a federal charge of covering up or committing campaign violations.

One possibility is to connect the business records charge to a conspiracy charge, Kaley added.

“I wouldn’t be surprised also, if there is an overarching conspiracy charge,” he said. “I can see them elevating a conspiracy charge to wrap it all up into a ball. And that also might facilitate the admission of evidence later on.”

He added: “And it also has something to do with, what statements of others are admissible in evidence, as statements of co-conspirators in furtherance of the conspiracy. So it all gets intertwined.”

Prosecutors could file additional charges against Trump by working in synergies with New York Attorney General Letitia James’s civil investigation into Trump, and the criminal investigation of the Trump Organization that led to then-Chief Financial Officer Allen Weisselberg’s guilty plea, according to Kaley.

“They’re considering tying any of that to Mr. Trump now,” Kaley said.

The Trump Corporation and the Trump Payroll Corp, both part of the Trump Organization, received a $1.6 million fine on multiple tax fraud-related felony convictions in January.

Weisselberg was sentenced to five months in jail in the same month for his involvement in a tax fraud scheme at the Trump Organization.

Kaley is now in private practice. His practice includes representing clients in white-collar criminal and complex commercial litigation matters.