By Sara Kropf
The Report on the Investigation into Russian Interference in the 2016 Presidential Election (a/k/a the Mueller Report), is a veritable treasure trove of obstruction-of-justice efforts by the President.
We’ve written before about obstruction of justice, here and here. Ultimately, the Mueller Report does not make an explicit finding that the President broke the law. It defers to the opinion of the Office of Legal Counsel (OLC) that a sitting president may not be indicted and therefore concludes that “fairness concerns counseled against potentially reaching that judgment when no charges can be brought.”
The story doesn’t end there.
Reading together two of the Mueller Report’s conclusions leaves the distinct impression that this matter could be far from over.
First, the report reminds us that the OLC recognized (a) that a criminal investigation of the President is permissible and (b) that a President does not have immunity from criminal prosecution after he leaves office. Therefore, said the report, the SCO “conducted a thorough factual investigation in order to preserve the evidence when memories were fresh and documentary materials were available.”
Second, the report makes clear that if it could clear the President, then it would do so explicitly. But it doesn’t. In fact, “[w]hile this report does not conclude that the President committed a crime, it also does not exonerate him.”
President Trump is not “exonerated”
The evidence against him has been preserved
Possible prosecution after President Trump leaves office
Doing the Math for the Statute of Limitations
Does the statute of limitations mean that the President cannot be charged with a crime? What if he wins another term in office? What if he is impeached?
If you need the basics on how statutes of limitations work, see our post here.
Let’s take a look at when some of the key events took place that could constitute obstruction of justice (citations to Volume II of the Mueller report are noted in parentheses).
- February 14, 2017: President Trump asks then-FBI Director Jim Comey to back off investigating his National Security Advisor Michael Flynn (page 3).
- March 4 or 5, 2017: President Trump urged Attorney General Jeff Sessions to “unrecuse” himself from the Russia investigation (page 3).
- May 9, 2017: President Trump fires Jim Comey (page 4).
- June 17, 2017: President Trump orders White House Counsel Donald McGahn to try to remove the Special Counsel by claiming that he had conflicts of interest. (page 4)
- June 19, 2017: President Trumps orders Corey Lewandowski to tell Sessions to issue a public statement that the election was “very unfair” to the President. (page 5)
- December 2017: President Trump again urges AG Sessions to “unrecuse” himself from the Russian investigation. (page 5)
- Early 2018: President Trump orders Donald McGahn to give false public statements about President Trump’s prior efforts to remove Sessions. (page 6)
- January 18, 2019: President Trump publicly accuses Michael Cohen’s family of having committed crimes. (page 152)
Let’s assume, then, that the obstructionist conduct started in February 2017 and ended in January 2019.
The statute of limitations for obstruction of justice is 5 years.
Using the earliest date of the conduct described in the Mueller Report, President Trump would need to be indicted by February 14, 2022.
Using the latest date of the conduct described in the Mueller Report (January 18, 2019), an indictment would need to be filed by January 18, 2024.
If President Trump loses the next election, then he’ll no longer be President on January 20, 2021 (at 12:01 pm).
If President Trump wins the election and serves his entire second term, then he’ll no longer be President on January 20, 2025 (at 12:01 pm). Unless he continues his obstruction of justice efforts—which seems unlikely now that the report has been issued—then he should be home free at this point (but see below).
Can Congress Change the Outcome?
Yes, in one of three ways. Each is unlikely.
First, Congress could impeach and then convict the President. Then, he’ll no longer be President and could then be indicted.
Second, it could lengthen the statute of limitations for obstruction. Statutes of limitations are creatures of legislation. They are not constitutional in nature, so Congress could make this change (with the President’s signature, of course).
Note that Congress may not extend the statute of limitations only for President Trump. That would violate the Ex Post Facto clause of the Constitution.
Third, Congress could pass a statute that tolls the statute of limitations for a sitting president while he’s in office. That seems politically fraught, but it is a possibility.
Back to DOJ?
Another possibility throws it back to the Department of Justice. It could indict the President under seal (thus tolling the statute of limitations) and ask the court to stay the case until he leaves office. This would solve the statute of limitations problem.
But it would invite a later legal challenge based on the OLC’s legal opinion that a sitting President may not be indicted.
The only clear path to indictment is for President Trump to lose the next election.
After all, the maximum penalty for obstruction is five years in prison.
The stakes are high.