In a tweet, Lawrence Tribe tipped me off to this pretty startling possibility.
The law is N.Y. Crim. Proc. § 30.10(2)(a).
The relevant section:
Universal Citation: NY Crim Pro L § 30.10 (2014)
30.10 Timeliness of prosecutions; periods of limitation.
1. A criminal action must be commenced within the period of limitation prescribed in the ensuing subdivisions of this section.
2. Except as otherwise provided in subdivision three:
(a) A prosecution for a class A felony, or rape in the first degree as defined in section 130.35 of the penal law, or a crime defined or formerly defined in section 130.50 of the penal law, or aggravated sexual abuse in the first degree as defined in section 130.70 of the penal law, or course of sexual conduct against a child in the first degree as defined in section 130.75 of the penal law may be commenced at any time…[My bolding]
Which led me to rape as defined in section 130.35 of the penal law:
S 130.35 Rape in the first degree. A person is guilty of rape in the first degree when he or she engages in sexual intercourse with another person: 1. By forcible compulsion; or 2. Who is incapable of consent by reason of being physically helpless; or 3. Who is less than eleven years old; or 4. Who is less than thirteen years old and the actor is eighteen years old or more. Rape in the first degree is a class B felony. [My bolding again]
So we now come down to the question: can a sitting president be criminally indicted for rape — which is a state, not federal crime? That is, no Department of Justice Legal Counsel can control this.
The alleged rape took place in Bergdorf Goodman, a department store on Fifth Avenue and 59th Street — Manhattan. Whether there would be a prosecution of Trump for rape would be determined by the Manhattan District Attorney’s office.