Wednesday, July 24, 2019

Clarification - sort of - regarding the statute of limitations running out for Trump

From an earlier post:
Quigley also noted that a second term for Trump, which would surpass the statute of limitations on his crimes, would essentially put the president above the law. Mueller said he wouldn't characterize it that way. But it's effect is right, and Quigley noted that this is why we have to pursue other avenues - i.e., impeachment.
When asked the question about the statute of limitations running out while Trump is in office on a second term, leaving him free from legal action, Mueller responded, "I don't know about that."  And then he added he isn't certain he can see that possibility.

In this All the President's Lawyers podcast, Renato Mariotti, a former federal prosecutor, talks about the issue thusly:
Mariotti: Tolling a statute of limitations is  essentially when a statute of limitations is paused for a particular period of time.   [...]    Sometimes there are exceptions that toll that.  For example, if  the wrongdoer has hidden certain aspects of their criminal activity, that can toll the statute for a period of time.   [...]  Mueller, rightfully, I think, answered at first, "I don't know."  I think that's the right answer, because the issue's never come up; it's never been considered by a court, and who the heck knows what a court would do with that?  [...]  But I think Mueller, in the end, also is reflecting the fact -- at a certain point at the end, he said it couldn't be, and that's probably because there's a notice issue to a defendant.  If I was representing Trump or someone in that situation, what I would be arguing is he could not possibly know that he could be prosecuted many years later and that this tolling would take place.

Barro:  [...] In this instance, we're talking about these are actions the president took in 2017 and 2018 that could have conceivably been obstruction of justice; it could also apply to actions the president took in 2016 related to those hush payments to Stormy Daniels and Karen McDougal.  So, if the president didn't leave office until 2025, and that was more than five years after the criminal act, you'd basically have to make an argument that the statute of limitations didn't apply because the presidency was protecting him from indictment. [...] But, I guess your contention is that you would have had to tell the president while he's still in office that it's your intention to indict him later in order to create that notice?

Mariotti:  Well, I just think that nothing like that is clearly established in law, and there's an issue as to whether or not notice is given to people that if you commit a crime, you have liability years later. [...] Neal Katyal, the former acting solicitor general, made the argument on my podcast months ago [...] but I think that, not only has no court ever gone this direction because they've never considered the issue, I think that there would be huge notice problems to someone. Typically, statute of limitations, exceptions and tolling of statute of limitations are either set forth clearly in a statute, or they're due to some action or misconduct on the part of the person themselves.  Here, being president is not itself misconduct.  I haven't looked at the issue carefully.  It would take a lot of legal research, but I think there would certainly be arguments that Trump could make that he did not have sufficient notice.
I think we have to get used to the idea that Trump may never face justice for his crimes.  Unless the Southern District of New York gets him for money laundering, and that would not surprise me.  It also would not surprise me if something very drastic happens and Trump never leaves office until he dies, at which point, Ivanka would be our president.  The question is, if that happens, will we rise up and rebel?

If Trump does leave office in the next two or six years and is replaced by a legitimate democratic president and Congress, there will be a horrendous amount of work to be done to make new laws that prohibit this nightmare's recurrence.  Norms will not cut it from here on out.  And with the Roberts Court, maybe laws won't either.  Our days of reckoning are upon us.  They were bound to arrive.

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