The criminal justice system and Trump: He should be treated like everyone else

The criminal justice system and Trump: He should be treated like everyone else
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With an impeachment trial likely later this month, a separate question remains: If President Donald J. Trump has committed federal crimes, is it possible that he will ever be punished?  

The answer is no unless Congress changes the law regarding the statute of limitations, which determines the time frame to bring a criminal or civil action. For federal crimes, the statute is five years from the date of the crime. 

As Trump’s alleged crimes took place in 2019 or earlier, the statute may have expired by the time the president leaves office, and he will be immune from prosecution. Congress can enact a law to suspend the running of the statute of limitations during a president’s term of office.

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As a law professor and expert in legal remedies, I find this potential immunity unfortunate and inconsistent with our constitutional traditions.  Congress must act now to avoid this unfair result.

The Republican-controlled Senate’s conviction of Trump on the impeachment charges of abuse of power and obstruction of Congress is highly unlikely.

Regarding Trump’s possible reelection in November, the president himself predicts that the impeachment process will boost his chance for another four-year term in 2020, with his campaign reporting that fundraising has been bolstered because of impeachment, raising fourth quarter campaign fundraising to $46 million.

With Trump’s possible re-election, by the time he leaves office in January 2025, any chance of prosecuting him for alleged crimes committed in 2019 or earlier will have evaporated. The five-year statute of limitations for federal crimes will have run out.

In the context of the Clinton presidency and the Whitewater investigation, in 1998, Brett M. Kavanaugh, now Associate Justice of the US Supreme Court, argued in a law review article that sitting presidents could not be indicted. He called for Congress to pass a statute making that prohibition explicit. But Kavanaugh also urged Congress to enact legislation tolling or halting the statute of limitations during the period of a presidency for any offenses committed by the president against the United States. It is time for Congress to take him up on his second recommendation.

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The Mueller Report did not exonerate the president from having engaged in obstruction of justice before and during his presidency. Trump may or may not have committed federal crimes. 

Several authorities, including legal academics and the Department of Justice, agree that a sitting president may not be indicted: impeachment is the only remedy against a sitting president.

The Mueller Report itself emphasizes that it would be unfair for a prosecutor to bring even a sealed indictment against a sitting president or to suggest in an official report that the president is guilty of criminal offenses.

Arguably, public officials, even or especially the president, must not be able to escape the consequences of their crimes — particularly those that go to the heart of our rule of law and the integrity of our election system.

In this case, Trump may be completely innocent of any offense, including obstruction of justice. But the criminal justice system must be permitted to function against him as it would against any other citizen. The maxim that no person is above the law should be more than a hollow promise.

Several federal statutes currently suspend the running of the criminal law of limitations in certain situations, such as a defendant’s flight from justice or the defendant’s commission of financial crimes during wartime.

As now, Justice Kavanaugh asserted over 20 years ago; Congress should pass a law expressly tolling or halting the running of the statute of limitations for federal crimes where indictment has been delayed because the defendant is a sitting president.

Though this proposed law might readily pass the Democratic-controlled House of Representatives, it concededly might fail in the Republican-controlled Senate. Even if it did pass the Senate, no doubt the president would veto it, and Congress could only overrule the veto through a two-thirds majority of each chamber.

In the face of a presidential veto, Congress should muster the courage to implement Justice Kavanaugh’s proposal and to halt the limitations period for federal offenses while the President is in office. A veto would highlight Trump’s resistance to being subject to the same laws as other public officials, and citizens could make their own decision as to what that means for his re-election.

In a fair and just democracy, no president must be allowed to manipulate the election process or shield those who have done so by obstructing justice. Through that kind of manipulation, a president could gain the advantage of incumbency and thus a smoother path to a second term that would put him beyond the reach of criminal prosecution. 

A law suspending the statute of limitations during a president’s term of office would encourage the president and those associated with him to adhere to the legal norms that undergird our democracy.

Margit (Maggie) Livingston is Vincent de Paul, professor of law at DePaul University and a Public Voices Fellow through The OpEd Project.