//  7/23/19  //  Commentary

A major legal error lies at the core of the Department of Justice’s policy of not indicting a sitting president: statutes of limitations would allow presidents to run out the clock. The Office of Legal Counsel assumed courts would stop the clock, but the use of such a power, called “equitable tolling,” is unprecedented and unlikely in criminal cases, for some important reasons.  

If House Democrats focus on that mistake, there is a chance they might get Mueller to acknowledge an oversight and an unacknowledged problem at the heart of his report. The OLC's policy was Mueller's stated reason for not even making an accusation against Trump: it would be unfair to accuse someone of a crime if he or she was not going to have a day in court. There are many counterarguments to Mueller's decision, but if Mueller can see the greater unfairness of a president - who is able to run out the clock - being above the law and above accusation, there is some chance he would be willing to speak more clearly. Or at the very least, this one short five-minute line of questions shift the debate on this mistaken policy.

Robert Mueller’s interpretation of that policy was apparently the reason he declined to indict President Trump for obstruction, and also is the explicit reason the report is so unclear and so cryptic. In his belated press conference in May, Mueller warned he would be unhelpful in any congressional testimony, Mueller twice said the report “speaks for itself.” Ironically, the report tells us that it deliberately doesn’t speak for itself: “We determined not to apply an approach that could potentially result in a judgment that the President committed crimes.”

Mueller wrote that, because he could not indict a sitting president, he deliberately avoided making any criminal accusations against a sitting president. This stunning doubling down on presidential immunity led to the report’s fatal flaw: it was so cryptic and unclear, with no legal conclusions, that it enabled Attorney General William Barr to downplay the report’s findings and gave Trump enough space to lead the inaccurate chant, “No collusion, no obstruction.” And it obscured its incriminating findings for most readers, including the media and lawyers, even after Barr released the redacted report. It is not enough to get Mueller to do a dramatic reading of those same findings without any conclusions.

So here is a line of questioning for Mueller:

Question: Let’s say a future prosecutor reads the report, understands that you found ten crimes of obstruction of justice, or finds criminal campaign finance violations or criminal campaign coordination. What is the statute of limitations on those crimes?

Answer: Five years.

Question: Let’s say those acts and all related conspiracies ended around 2018. So the statute of limitations would run out by 2023, correct? Now let’s say President Trump is re-elected in 2020. Wouldn’t the statute of limitations on all of these crimes would have run out while Trump would be in office through January 2025?

Answer: The OLC memo says that courts could stop the clock by something called “equitable tolling” based not on any statutory reason, but a general fairness principle case-by-case. A judge could say that the policy of not indicting a sitting president “equitably tolls” the statute of limitations, allowing a later indictment when the president leaves office.

Question: “Equitable tolling” exists for civil litigation for damages or injunctions. But the OLC memo cited cases that discuss equitable tolling in criminal cases only in “dicta,” only a general discussion of the possibility in theory of equitable tolling in a criminal case. But did the OLC cite a single precedent of equitable tolling for any criminal statute of limitations? A single case when a judge actually stopped the clock to allow a late indictment?

Answer: No.

Question: OK, do you know of any precedent when a judge actually stopped the clock to allow a late indictment? Judges have allowed prosecutors to file sealed indictments in time, then unseal them after the statutes of limitations have run, and judges allow “superseding indictments,” to amend an earlier timely indictments. But has there ever been a case of equitable tolling when there was no attempt to indict on time at all?

The correct answer, though Mueller seems unaware: It appears that there are no such precedents in federal courts. I and others have not been able to find a single such precedent. [Note: this Lawfare piece also cites no actual precedent.]

Question: Why is it that judges have been so willing to give private plaintiffs extensions on general fairness grounds, but apparently never to prosecutors? 

The right answer: Many private plaintiffs have limited resources, limited information, or were victims of deception. But in criminal cases, prosecutors have sufficient resources, and there are higher stakes against those defendants: prison time. In cases of criminal fraud or suspects fleeing, Congress has extended the clock by statute, but “equitable” tolling depends on a judge finding some other circumstances. It is important to protect criminal defendants from too much discretion to give prosecutors extensions. The proper solution here would be for Congress to legislate an extension - statutory tolling - for presidents to allow indictments after they leave office. But Congress failed to adopt such proposals.

Question: Given that there is no apparent precedent for this kind of equitable tolling, and given the valid reasons for having a bright line against it, would you expect judges to create this new rule for prosecutors in 2025? Maybe there was a chance if your office tried to indict, and those indictments were litigated and rejected by judges who then recognized equitable tolling as a possibility. But if prosecutors in 2019 internally decided not even try to indict, why should judges in 2025 be sympathetic and restart the clock?

The correct answer: It is exceedingly unlikely that the federal courts in 2025 will invent a new kind of tolling to allow a late prosecution of a former President Trump.

Question: Your report implies that it was preserving witness accounts for future prosecutors. But doesn’t DOJ policy effectively make every two-term president immune from prosecution for most crimes they committed in getting elected the first time, and in covering up those crimes through obstruction through most of their first term?

Answer: Yes.

Question: Would you agree that the OLC memo and this policy relies on a legal error? And the effect of that error is that it can put two-term presidents above the law?

The fair answer: yes and yes.

Question: And not only did you cite this policy in declining to prosecute Trump, you took the additional step in deciding you could not even make accusations against a sitting president. In light of the OLC’s errors and oversights, would you like to revisit that decision? To avoid this fate of making two-term presidents immune from not only indictments but also any prosecutorial conclusions or accusations, could you take the opportunity to be clear today? 

Did President Trump obstruct justice? 

Let's not have unrealistic expectations of Mueller dropping bombshells. But if you're going to have these hearings, take this shot. And if Mr. Mueller answers these questions fairly and is willing to correct the mistake of being so cryptic, his answer would be yes. On Trump criminally obstructing justice, many times yes.

Or somewhat more likely, an answer less cryptic and closer to “yes.”

Or even more likely, he might say that the DOJ should reconsider this policy and Congress should extend the statute of limitations for presidents. And that might increase the chance that a future OLC or a future Congress might address correct some of these errors.

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