Is
there any Statute of Limitations
on
indicting a past elected Official?
I couldn’t the exact information
I was looking for. I did find this article that may raise more questions than
answers. As this article dwells on Republicans, I feel strongly that it also
must include Democrats. This seems to be an accurate “definition” of where we
are at right now.
If you got this far, please send me your thoughts at: hutch.dubosque@live.com .
This will guarantee your
anonymity.
Opinion: Would
we really prosecute an ex-president?
Opinion by Jennifer
Rubin, Columnist
June 12, 2019 at 12:49 p.m. EDT
In an interview with NPR, Sen. Kamala D. Harris (D-Calif.) opined that if
the facts warrant it, President Trump should be indicted for crimes outlined in
Robert S. Mueller III’s report:
"There has to be
accountability," Harris added. "I mean look, people might, you know,
question why I became a prosecutor. Well, I'll tell you one of the reasons — I
believe there should be accountability. Everyone should be held accountable,
and the president is not above the law."
The former San
Francisco district attorney and California attorney general said she wasn't
dissuaded by the prospect of a former American president facing trial and a potential
prison sentence. "The facts and the evidence will take the process where
it leads," she said.
“I do believe that we
should believe Bob Mueller when he tells us essentially that the only reason an
indictment was not returned is because of a memo in the Department of Justice
that suggests you cannot indict a sitting president. But I’ve seen prosecution
of cases on much less evidence.”
On one hand, Harris
is right: If we won’t impeach or indict a president in office, the only real
reaffirmation of the primacy of the rule of law would come in a criminal trial
after he leaves office. And yet, the same considerations that motivated
President Gerald Ford to pardon Richard M. Nixon should give us pause. Do we
open ourselves to rounds of tit-for-tat prosecution of political enemies? Do we
create even more polarization and political ill will, perhaps crippling the
next president? And then there are the practical considerations, such as
finding an impartial jury.
There are two
responses, neither of which is satisfactory.
First, Trump could,
in the event he is defeated in 2020, leave before the next president is sworn
in, allowing Vice President Pence to assume the presidency and pardon him. That
would be a catastrophe for Pence, but the country got past the Nixon pardon
(although the GOP paid a price in the 1974 and 1976 elections). The problem
here is that it would most certainly smack of a quid pro quo, opening up Pence
to charges of bribery (“I’ll leave office if you pardon me”) if he acceded to
Trump’s game plan.
Second, we simply
leave prosecution to the discretion of the next attorney general as to what if
any charges are brought (only clear, unequivocal instances of obstruction
should be considered), what sentence should be handed out and what plea deal
might be arranged. We trust juries to do their job. And we recognize that
obtaining a conviction does not necessarily mean actual jail time for Trump.
(Moreover, there are other off-ramps that might open up depending on the
findings of the Southern District of New York prosecutors. If, for example, he
committed tax or other financial crimes before he was president, we should have
no qualms about proceeding with these cases.)
The better solution
to the issue of criminal accountability is to revoke the Office of Legal
Counsel memo that opines a president cannot be indicted in office. The OLC
arguments have continued to be a matter of strong debate among constitutional
scholars as to whether impeachment can be the only way to address a sitting
president’s crimes. Impeachment, of course, is not intended as punishment but
rather as a defense of our constitutional order. Moreover, the notion that the
president would be paralyzed by criminal proceedings has been undercut to a
large degree with the Paula Jones ruling that a president can be sued while in
office.
Most important, a key
reason for the “don’t indict even if you don’t try the president in office”
argument is that such action would cast a cloud over the president. But isn’t
the reverse the case — a president credibly accused of criminal conduct should
have the chance to clear his name and get on with his presidency? Trying a
president — which requires proof beyond a reasonable doubt — allows either
exoneration or conviction without putting a new president in the position of
prosecuting his predecessor.
Professor Jed
Shugerman recommends, among other reforms, that we “strengthen
the special counsel through a statute, not just a DOJ regulation, and fixing
the flaws in the old independent counsel statute.” He also advises:
The OLC should revise
the memo to say that a president can be indicted, recognizing that there is no
precedent for courts equitably tolling the statutes of limitations for crimes
(no precedent for general “fairness” arguments for stopping the clock on
criminal statutes of limitations). But the memo should acknowledge legitimate
constitutional and practical problems with putting a sitting president on
trial.
What I’d like to hear
Harris and other candidates propose is a plan for avoiding such
messes in the future. First, we need executive orders and/or legislation
barring the White House staff from weighing in on specific prosecutorial
decisions. Even in the case of the president, the contact(s) with regard to
those decisions should be documented and subject to congressional review. The
temptation to obstruct investigations should be curtailed. Second, the OLC memo
should be withdrawn and a new analysis undertaken that accounts for recent
experience, including the Paula Jones litigation and the Mueller report. A
thoughtful process should be set up to provide for indictment in cases of
criminal conduct (as opposed to conduct that might be impeachable but not
illegal). Third, the Justice Department should set exacting requirements for
prosecution of former presidents in cases in which trial is not undertaken
before the president leaves office.
Constitutional
scholar Laurence Tribe agrees that another look at the OLC memo is needed. “The
2000 OLC memo, which basically echoed the 1973 OLC memo and its reasoning,
should certainly be revisited by whatever presidential administration succeeds
the one now in power. To begin with, the OLC memo was analytically flawed from
the start and rested on a theory fundamentally incompatible with the core
constitutional premise that nobody, and certainly no president, is above the
law.” He continues:
My own view is that,
when a sitting president is found to have engaged in what appear to be serious
crimes that would lead to any other citizen’s indictment and prosecution — as
over 1,000 former federal prosecutors said the Mueller report showed to be the
case with respect to Trump — including when those crimes are ones that an
ordinary citizen couldn’t commit (like dangling presidential pardons in front
of potential witnesses against him) because they relate to the president’s
conduct of office and might be impeachable offenses as well as statutory
criminal violations — that president should be subject not only to indictment
under seal but to a publicly visible indictment and to a public prosecution,
preferably by a court-appointed special prosecutor with substantial
independence from the executive branch.
If nothing else,
“criminally inclined presidents like the one now in office would necessarily
think twice before doing what any halfway decent lawyer would advise them
constitute federal felonies that could lead either to their prosecution and
imprisonment.”
The real solution, of
course, is to avoid these quagmires in the first place: Pick presidents wisely
and to insist the House and Senate do their constitutional duty. We would not
be in this position if the Senate could be expected to fairly render a verdict
on impeachment/removal. That Senate Majority Leader Mitch McConnell (R-Ky.) has
already predetermined the outcome — declaring case closed — has landed us in a
legal, political and ethical quagmire. We need to rid the political system of
intellectually and ethically corrupted Republicans, enforcing the lesson that
the public expects lawmakers to put country and Constitution above
partisanship.
If you got this far, please send me your
thoughts at: hutch.dubosque@live.com .
This will guarantee your anonymity.
