-2

I don't ask this question to get into a political discussion, just enquiring as to the legal situation.

The second volume of the Mueller Report lists ten or so possible charges of Obstruction of Justice. For each, he lists 1) what the law would require to be proven, 2) how his evidence fits that law, 3) the likely ways the indicted would attempt to fight the charges and 4) why it wouldn't be likely to work.

As we probably are all aware, a memo within the Department of Justice's Office of Legal Counsel opines that a sitting president cannot be criminally charged while in office.

However Obstruction of Justice I believe has a five year statute of limitations. So, it would seem to allow prosecution in 2021 or 2022. Why would not the next Attorney General (to be clear, from the Biden administration) bring these charges after Trump left office, but before the statute of limitations came into effect? I don't recall any mention of Mueller's Vol. 2 charges all being too weak to bring.

Improve this question
0

2 Answers 2

Reset to default
0

18 USC 3282 states that

Except as otherwise expressly provided by law, no person shall be prosecuted, tried, or punished for any offense, not capital, unless the indictment is found or the information is instituted within five years next after such offense shall have been committed.

Here is a list of "otherwises", none of which accress this circumstance. Statutory tolling of the statute of limitations is provided for in 18 USC 3290, that "No statute of limitations shall extend to any person fleeing from justice" which does not apply.

Equitable tolling is not "the normal case" for federal criminal prosecutions, as discussed here. The typical circumstance for equitable tolling in a civil case involves defendants fleeing or crimes being concealed, in US v. Midgeley, tolling was at issue in a criminal case where it was noted that equitable tolling is possible in criminal cases due to "the complainant's benign mistake or an adversary's misconduct". There is discussion of the subtleties of that and related cases pertaining to "good faith" by parties, which the Midgeley court declined to rely on, noting that "Congress has the authority to make a "good faith" exception to § 3282, yet has declined to do so"; in the end, the court did not reach any novel conclusion about equitable tolling in criminal cases.

A distinguishing feature of exceptions to the statute of limitations is that indictments were filed in a timely manner. That time has clearly passed now. I think that is as far as we can go in legal analysis of a prosecutorial policy decision, given the possibility that the purported offense was committed close to the limit time (therefore, the AG's first official act would be to seek a grand jury indictment – a legal possibility, a political improbability).

Improve this answer
2
  • I guess my question wasn't clear: I didn't mean to ask whether he could be prosecuted today, but rather in 2021, in the window between leaving the White House and the limitations taking effect. I'll edit my question to be clearer but would invite your answer to that clarified question.
    – Swiss Frank
    Commented Jan 10 at 23:58
  • OK, I re-read and see you're saying that it could have potentially been prosecuted as (nearly) the incoming AG's first act, but if the potential crimes happened say six months into Trump's term, the new AG would have had until mid-2022 to prosecute. It sounds like that would have been sufficient time to work up a prosecution.
    – Swiss Frank
    Commented Jan 11 at 0:28
-2

Ostensibly this would require a new Attorney General to not believe the original memo stating that a sitting president cannot be tried while in office was correct.

I believe this is a widely held belief in interpretation of the Constitutional.

Improve this answer
1
  • 4
    The question seems to be about prosecuting the former president. Your answer seems to be about prosecuting the sitting president.
    – Lag
    Commented Jan 8 at 18:44

You must log in to answer this question.

Not the answer you're looking for? Browse other questions tagged .