Statute of Limitations

Anyone who claims that nothing was revealed in the Mueller testimony was not paying attention.  Or had an agenda in their coverage.  Mueller was clearly a very reluctant witness, unwilling to cooperate in the proceeding (or perhaps, more correctly stated, ordered to be uncooperative).  He did, though, show glimmers of truth throughout the entire proceeding.  Like a law professor turning the Socratic method around on his students.  Waiting for them to ask the right questions in the right sequence, with the exact right wording.

The most revealing questions centered around what happens after Trump leaves office and the statue of limitations.

House Judiciary Chairman Jerry Nadler asked Mueller, “Under Department of Justice policy, the president could be prosecuted for obstruction of justice crimes after he leaves office - is this correct?”

Mueller answered, “True."

Representative Ken Buck, Republican from Colorado, had to confirm. “Could you charge the president with a crime after he left office?”

Mueller responded, “Yes.”

Reiterated, “You could charge the President of the United States with obstruction of justice after he left office?” 

Mueller agin, “Yes.”

Democratic Representative Mike Quigley of Illinois brought up the potential wrinkle.  “What if a president serves beyond the statute of limitations?…Would it not indicate, if the statute of limitations on crimes such as this are five years, that a president who serves a second term is therefore, under the policy, above the law?”

Mueller demurred.

The statute of limitations is a policy that we expect certain charges, certain cases within a particular period of time.  It is an enacted statute prescribing exactly how long of a period for the bringing of certain kinds of suits.  When the statute of limitations expires, the court no longer has jurisdiction over the case - the matter is dead.  

The intent is to make sure that disputes are resolved within reasonable lengths of time to ensure a fair trial.  To make sure witnesses are still available, to make sure evidence still exists, to give people finality, etc.  For this reason, lighter crimes or cases have shorter periods for limitation, more serious crimes and cases, like murder, have no statute of limitations.

The statute of limitations for federal obstruction of justice is five years from the incident where the cause of action arose.  So, as in the example, if the obstruction of justice is for the Mueller investigation, the last events described as potential obstruction are from 2018.  The statute of limitations would expire in 2023, the last year of President Trump’s potential second term.  Charges on these actions would not be available to be brought.  

This occurs because of an Office of Legal Counsel opinion (an internal Justice Department policy) saying that a sitting president cannot be indicted.  The policy dates back to the Nixon administration, when another president was under investigation for obstruction of justice, and is binding on all Justice Department employees, including the special prosecutor Mueller and his team. 

This opinion provided the entire framework for Mueller’s opinion.  Mueller framed his entire investigation around the notion that he could not bring any charges against Trump, even if he found ironclad evidence against him, because of this opinion.  Meaning, even if Mueller found evidence that proved 100% that Trump is guilty, he could not bring charges against him.

This explains why the report is a series of facts gathered with no conclusion.  Mueller is laying out the case for Congress and waiting for them to act.  Because under the OLC opinion, that leaves Congress as the only parties able to hold a sitting president accountable.  Through impeachment.  To impeach the president in the House and convict him in the Senate.

“Then OLC opinion says that the prosecutor cannot bring a charge against a sitting president, nonetheless he can continue the investigation to see if there are any other persons who are drawn into the conspiracy,” outlined Mueller.

Representative Ted Lieu, Democrat from California, asked, “The reason, again, that you did not indict Donald Trump is because of the OLC opinion stating that you cannot indict a sitting president, correct?”

Mueller answered, “That is correct.”

There is another way Trump can be held accountable - at the ballot box.  To make sure the statute of limitations does not expire.  And to let the prosecutors and courts do their work.  To make sure there is a full and fair testing of these claims.

We can only hope.