Thanks to President Trump’s former lawyer Michael Cohen, we now have powerful documentary evidence — a check signed by Trump — that implicates the President in a crime, in which the two conspired to violate campaign finance laws. Cohen’s Feb. 27 public testimony also provided ample evidence of other possible crimes, including the President’s apparent knowledge of and consent to Cohen’s false testimony to Congress about Trump Organization dealings in Russia, Trump’s knowledge and approval of Roger Stone’s dealings regarding the Wikileaks handling of the Russian hack of the Democrats, and more. There may be additional pertinent facts coming out of the Mueller investigation or other inquiries by federal prosecutors — material not covered in the Cohen testimony.
But any criminal charge against President Trump would first have to overcome the effect of Justice (DOJ) opinions that say that the Constitution bars an indictment of an incumbent president. No court has ever ruled on whether this is correct. Yet the Department’s Office of Legal Counsel (OLC) opinions have been described by scholars as “shaky” and “political.” Indeed, recent discoveries make them even weaker.
The OLC rendered the first such opinion in 1973. On its face, it is dubious. It derived from the Department’s criminal investigation of Vice President Spiro Agnew — who, coincidentally, was accused of criminal conduct that occurred, in part, in the White House, just as Cohen alleged about Trump. I was a member of Agnew’s legal team, and we urged Attorney General Elliott Richardson to suspend the inquiry because, we argued, the language of the Constitution made the Vice President immune from criminal prosecution, unless the Vice President had first been impeached. In addition to the thin legislative history, we supplemented our claim by arguing that, because some scholars opined the President was immune, our Article II client must be immune as well.
Richardson sent the question to the OLC and asked for an objective opinion. What he got, instead, was a politically dishonest one. As was recently uncovered by producer Michael Yarvitz for The Rachel Maddow Show, according to J.T. Smith, who was Richardson’s Executive Assistant at the time of the inquiry, the OLC lawyer who wrote the opinion believed the matter was unclear. But instead of saying that in his report, he took the easy way out and asked what the Attorney General wanted him to say. In fact, he called Smith, who instructed the OLC official that Richardson wanted a report saying the Vice President was not immune. The OLC lawyer obeyed. But in order to get the answer the Attorney General wanted, the OLC lawyer wrote that while the President’s duties were too great for him to be indicted, the Vice President’s duties are “nowhere near as important” as the President’s; therefore, the President was immune, and the Vice President was not. The revelation of this extra-legal, thumb-on-the-scale political intervention makes the opinion virtually worthless.
Decades later, the question came up again. In 2000, while President Clinton was under attack for possible criminal indictment for perjury, his Department of Justice produced an update to the 1973 opinion. By then, the Supreme Court had rendered two opinions that cast grave doubt on the 1973 opinion. In Nixon v. U.S., the Court concluded the President was not immune from a grand jury subpoena (and was therefore required to turn over key tapes), leading ultimately to Nixon’s resignation. And in Clinton v. Jones, the Court held the President was not immune from a civil suit for damages respecting his conduct prior to his inauguration. Remarkably, the 2000 OLC opinion nevertheless concluded that those cases reinforced the 1973 opinion, and again opined that the President was immune.
It is notable that both OLC opinions rely on practical considerations, including that the President now carries a heavier burden than he did a century ago and therefore, the argument goes, is too busy to deal with an indictment. Inasmuch as neither opinion cites constitutional language clearly supporting its conclusion, one assumes a conservative Supreme Court Justice, like the ones we have now, applying the so-called textual approach to constitutional interpretation, would reject both OLC opinions.
But as long as the Department of Justice continues to abide by those opinions, despite their clearly visible defects, they may nevertheless save the day for President Trump. Even if the Special Counsel uncovered a factual basis for indictment, as long as President Trump’s Attorney General adheres to the flawed OLC opinions, there can be no indictment of the President, and thus no judicial review of the question. Absent indictment, the statute of limitations clock will continue to run, so that even a post-presidency indictment might never reach a determination of guilty or not guilty. With each tick of the clock, the President comes closer to an imperial presidency — a Chief Executive Officer beyond the reach of the law. This would be a result that would make Hamilton, Madison and company retch.
But there may be a solution. If, as we can assume he will, Trump would respond to an indictment handed down after his presidency by asserting that the time had run out on the statute of limitations, the prosecution might advance a so-far untested legal theory.
Common concepts of judicial equitable powers permit that the statute of limitations clock to be stopped because of “exceptional circumstances” that are not the fault of a diligent plaintiff or prosecutor but which could have nonetheless been cured by the party accused of wrongdoing. This is called “equitable tolling.”
While the doctrine has never been applied to statutes of limitations in criminal cases, it has been well accepted by the Supreme Court in civil cases. In criminal cases, the doctrine derives from U.S. courts’ inherent power to avoid conduct by the defendant that results in “frustration in determining the merits of the Government’s … claims” and risks a criminal defendant “gaining an improper advantage” in prosecution. Up to now, in such cases, the doctrine has been applied to fugitives — people who have intentionally put themselves beyond the geographic jurisdictional reach of the court.
If President Trump persists in having his Department of Justice adhere to the rules that bar his indictment — even one in which the government agrees to suspend proceedings during his incumbency — and at the same time the President refuses to waive the statute of limitations, then I suggest he has intentionally put himself beyond the jurisdictional reach of the court as effectively as if he had fled to Switzerland.
The newly discovered evidence about the OLC decision in 1973 demonstrates that the Department of Justice should not bar the indictment of this President and should permit a court to decide whether the President is immune. But if the DOJ adheres to its current flawed policy, the Court should rule that the statute of limitations clock is put on pause while the President is immune from prosecution.
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