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.

Country Before Party

"Look, at some point, Democrats have to decide whether they love this country more than they hate this president.  And they have to decide that they want to put the safety and the security and the diplomacy of our country ahead of their own political games. And we're very hopeful that they will."

White House Press Secretary Sarah Huckabee Sanders 4/23/18

The Press Secretary made that statement on an episode of Fox & Friends in regard to Democratic opposition to the nomination of now Secretary of State Mike Pompeo to the post in April last year.  And I've been seeing it make the rounds on social media to refer to all kinds of actions by the Democrats.  The latest being the opposition to the declaration of a national emergency for the border wall.

The shoe is on the other foot now, it seems.

Now it is time for Republicans to decide whether they are more loyal to their country or to Donald J. Trump.  With the overreach in power in the declaration of a national emergency.  With continuing revelations regarding his corruption.

Or given the events of this past week, perhaps the better focus is on just one Republican in particular - Senator Lindsey Graham.

Following a unanimous vote in the House, Senator Graham blocked a resolution in the Senate which would make the full Mueller report available to the public.   He used a bit of whataboutism in his justification, objecting when Senate Minority Leader Charles Schumer refused to include an amendment that would appoint a special prosecutor to investigate candidate Hilary Clinton.  "Was there two systems of justice in 2016?  One for the Democratic candidate and one for the Republican candidate?" Graham asked.

Generally, no, but we do scrutinize the winners of an election, or actual elected officials much more closely than we do the losing candidate.

Senate Minority Leader Schumer could not understand the opposition.  "There is no good reason, no good reason that the special counsel's report should not be made public.  The American people are overwhelmingly for the report being made public.  They have a right to see it.  No one should stand in the way of that."  And later "I have absolutely no idea why a member of this body would object to this basic level of transparency whatever their concern or other issues."

Perhaps the transparency is the concern.  Could Senator Graham be concerned that he might be implicated in the Mueller report?  Is the President using his relationship with Senator Graham, one of his more staunch defenders now, to keep this document out of the public eye?  Would the release of the report make any difference with Trump supporters no matter what it revealed (probably not)?

It's past time for politicians of all stripes to start putting country above party.  To end the endless reelection cycle.  To reinstate campaign finance reforms to end the endless fundraising cycle.  To put our representatives back to work for us instead of spending 50% of their time raising more money.

To take Washington's warning of factions and parties to heart.

The alternate domination of one faction over another, sharpened by the spirit of revenge, natural to party dissension, which in different ages and countries has perpetrated the most horrid enormities, is itself a frightful despotism.

Washington's Farewell Address

It's time to expect better of our government.

Re-Movement.Org

It Begins

And so it begins.

Michael Cohen, President Trump's personal attorney and fixer plead guilty to several different counts including breaking campaign finance laws, multiple counts of tax evasion, and a single count of bank fraud.  In doing so, he implicated the president regarding the campaign finance violations.  Cohen told the judge that the payments to two women to keep them from speaking publicly of their affairs with the president during the 2016 election were made "in coordination with and at the direction of a candidate for federal office."  He further stated that this conduct was "for the principal purpose of influencing the election."

This is huge.  While Mr. Cohen is the latest in a string of people connected to the Trump campaign that have been convicted or plead guilty, he is the first to directly implicate the president.  Even Trump campaign manager Paul Manafort's conviction, which came hours after Mr. Cohen's plea, did not directly concern the president himself.  Manafort's conviction on several counts of financial fraud focused on Manafort's own personal financial actions.

Cohen makes it clear that the campaign finance violations were directed by the president.  This allegation was made under oath, under penalty of perjruy.  And it would seem he has the tapes to back up these allegations.

Perhaps the oddest thing to me to come from these cases, is Trump himself downplaying campaign finance violations.

Michael Cohen plead guilty to two counts of campaign finance violations that are not a crime. President Obama had a big campaign finance violation and it was easily settled!

— Donald J. Trump (@realDonaldTrump) August 22, 2018

Trump is essentially trying to argue campaign finance violations are not a crime.  And while campaign finance violations can be both a criminal and civil violation, a knowing and deliberate violation of campaign finance laws is most definitely a crime.  It fulfills the "intent" requirement of a crime.  Further, a federal judge is not going to allow someone to plead guilty of something that is not a crime.

The violations that Trump mention for the Obama campaign did involve a big dollar amount, but from all evidence reflected a fairly low-level, benign paperwork error.  A mistake that was corrected by a civil fine. The fine was the among the largest ever levied against a presidential campaign according to the Federal Election Commission, but it was a reflection of the dollar amount involved in the campaign, not of intent.

Cohen's plea acknowledges knowing and deliberate campaign finance violations. An attempt to commit fraud.  That will always be a crime.  And if the president did indeed direct Cohen's actions, then he is involved in the crime as well.  Admittedly, this is not a huge crime in the scheme of federal crimes, but it is still fraud to sway the election and more than enough for "high crimes and misdemeanors."

So now we have the first sitting president since Richard Nixon accused of a crime.  Will Cohen be Trump's John Dean?

This is only the beginning.

Now, I don't say it often, but I do agree with President Trump on one thing.

If anyone is looking for a good lawyer, I would strongly suggest that you don’t retain the services of Michael Cohen!

— Donald J. Trump (@realDonaldTrump) August 22, 2018

Cohen's attorney tried to portray Michael Cohen as a patriot who put country over his previous client, President Trump.  I have a large problem with that sentiment.  It would seem Cohen is the very type of lawyer that gives my profession a bad name.  Someone who goes along with the crime until it starts to implicate them personally.  If Mr. Cohen had convictions, those should have been raised before engaging in the violations.  Thankfully, he will likely soon be disbarred.   The New York State Bar would not let him continue to practice after his guilty plea.  And that will not be easily reversed.

He may start the process to bring down a president, but he's not the type of lawyer I want representing us.