America First Legal Details Alleged Constitutional Violation in Trump Prosecution
WASHINGTON, D.C. – America First Legal (AFL) released an educational document today detailing what it describes as an error in Alvin Bragg’s Manhattan District Attorney’s Office prosecution of President Donald J. Trump in New York. This document, which discusses the alleged unconstitutional ex post facto prosecution of President Trump, is the latest in a series published by AFL highlighting perceived errors in Bragg’s case.
Article 1, Section 10 of the United States Constitution prohibits states from passing ex post facto laws—laws that impose criminal liability retroactively. The Supreme Court’s decision in Stogner v. California clarifies that authorizations of criminal prosecutions otherwise barred due to the passage of time are per se unconstitutional. According to AFL, this protection should include safeguards against prosecution based on an extension of the statute of limitations through a unilateral executive order.
President Trump was indicted on March 30, 2023—more than six years after the earliest charge in the indictment dated February 14, 2017, and exceeding the five-year statute of limitations. Judge Merchan determined that New York Governor Andrew Cuomo extended the time limit to file charges in all criminal cases when courts were disrupted by the COVID-19 pandemic in 2020, thereby extending the prosecution deadline by one year and 47 days in this case.
Governor Cuomo extended the statute of limitations under a COVID-era executive order rather than through legislative action. AFL argues that had this order been passed by the legislature instead of through executive order, it would be a permissible tolling of the statute of limitations.
Additionally, AFL contends that Governor Cuomo’s order was a form of enforcement discretion; however, asserting that the state could use enforcement discretion to delay future enforcement without legislative pronouncement equates to an ex post facto violation as applied to Bragg's indictment.
AFL asserts that Alvin Bragg’s indictment includes crimes dating back more than five years, some beyond their statutes of limitations. They claim such an ex post facto prosecution is unconstitutional and represents another error in Bragg’s case against Trump—including implications from the Supreme Court’s recent decision relating to Presidential immunity in Trump v. United States.