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Tolling Federal Criminal Statutes of Limitation - A Timely Discussion About Timeliness

For Immediate Release: August 22, 2018

Contact: Craig M. Sandberg, 833.726.3237, craig@sandberglaw.com

Chicago, IL – The week preceding today has been a whirlwind of news coverage about crimes committed (both old and new). For instance, last Tuesday, a report issued by a Pennsylvania grand jury documented how bishops and other leaders of the Roman Catholic Church in Pennsylvania covered up the sexual abuse of 1000 children by more than 300 priests over a period of 70 years. The report concedes that it is unlikely to lead to new criminal charges or civil lawsuits under the current law because the applicable "statute of limitations" has expired.

On the heels of the Pennsylvania report came Michael Cohen's guilty plea to 8 counts in the federal district court in Manhattan. During his guilty plea, Cohen, who is President Trump’s former lawyer, made the striking admission that he issued those payments "in coordination with and at the direction of a candidate for federal office", meaning that Trump (if he is the aforementioned "candidate") himself ordered the payments. According to Michael Cohen's plea documents, Counts 7 and 8 of the charging document (an "Information") the government charged Cohen with violation of the Federal Election Campaign Act of 1971 (52 U.S.C. § 30101, et seq.) (the "Election Act"), which regulates the influence of money on politics. Count 7 relates to Cohen willfully causing an unlawful corporate contribution by a media company (which is understood from news reports to be American Media Inc. ("A.M.I.")) in June - October 2016, in violation of 52 U.S.C. §§ 30118(a) and 30109(d)(1)(A), and 18 U.S.C. § 2(b). Count 8 relates to Cohen willfully making an excessive campaign contribution to a woman (which is understood from news reports to be Stephanie Clifford a/k/a Stormy Daniels) before the 2016 election (Oct. 27, 2016) in order to influence the 2016 presidential election, in violation of 52 U.S.C. §§ 30116(a)(1)(A), 30116(a)(7), and 30109(d)(1)(A), and 18 U.S.C. § 2(b).

The felonies of which Cohen, in statements that were self-incriminating (and, thus, considered particularly trustworthy), accused his former client (then-candidate Donald J. Trump), involved criminal conduct whose principal purpose, as understood by all of those involved, was to suppress the disclosure of Trump's extramarital affairs and was intended to influence the 2016 elections. Recent reports, also, indicate that in November 2015 A.M.I. entered into a contract with Dino Sajudin, a former Trump World Tower doorman, alleging that Trump fathered a child (a daughter) with a former employee (an ex-housekeeper) in the late nineteen-eighties. This has been considered the "third instance of Trump associates paying to suppress embarrassing stories about the candidate during the 2016 Presidential race."

So, the questions I began receiving were predicated upon the notion that, according to U.S. Department of Justice internal policy, a sitting president could not be indicated for a crime. According to an October 2000 memorandum from the Office of Legal Counsel ("OLC") to the U.S. Attorney General (A Sitting President's Amenabilty to Indictment and Criminal Prosecution), the OLC concluded that "a sitting President is constitu­tionally immune from indictment and criminal prosecution" because "the indictment and criminal prosecution of a sitting President would unduly interfere with the ability of the executive branch to perform its constitutionally assigned duties, and would thus violate the constitutional separation of powers." (Memorandum at p260) Notably, the OLC recognizes that the President's immunity from such criminal process is merely a "temporary immunity" that exists only while the President remains in office. (Memorandum at p238)

Section 3282 of Title 18, United States Code, is the statute of general application. It states that, "(e)xcept as otherwise expressly provided by law," a prosecution for a non-capital offense shall be instituted within five years after the offense was committed. There are very few exceptions for tolling the running of statutes of limitations. Some notable exceptions include periods of fugitivity (18 U.S.C. § 3290) and during the pendency of an official request to a foreign court or authority to obtain evidence located in a foreign country (18 U.S.C. § 3292)). The OLC Memorandum implies that the Constitution considers being a "sitting President", essentially, a disability that suspends or "tolls" any applicable federal criminal statute of limitations.

"Federal courts have suggested that, in proper circumstances, criminal as well as civil statutes of limitation are subject to equitable tolling. See, e.g, United States v. Midgtey, 142 F.3d 174, 178-79 (3d Cir 1998) (“Although the doctrine of equitable tolling is most typically applied to limitation penods on civil actions, there is no reason to distinguish between the nghts protected by criminal and civil statutes of limitations.” ) (internal quotation omitted); c.f. United States v. Levine, 658 F.2d 113, 119-21 (3d Cir 1981) (noting that cnminal statutes of limitations have a primary purpose of providing fairness to the accused, but are “ perhaps not inviolable” and are subject to tolling, suspension, and waiver)." (Memorandum at p256 n.31)

Now let's apply these concepts. If the U.S. Attorney for the Southern District of New York (the office that secured Cohen's guilty plea) believes that President Trump committed a conspiracy-related crime associated with the October 27, 2016 payment to Stormy Daniels, the statute of limitations would run on October 27, 2021 (5 years from payment). Given that President Trump's current four-year term of office concludes January 20, 2021, a criminal prosecution could commence thereafter and within the next nine months after the "disability" of a "sitting President" is no longer implicated. However, if during the course of one of the federal government's investigations there is a determination that President Trump committed a federal crime between January 20, 2012 (5 years before taking the oath of office) and January 20, 2021 (when his initial term expires), an argument could be made that he could not be indicted and subject to criminal prosecution by the federal government during that period of time because of that presidential disability.

On January 20, 2021 (if someone else is sworn in as President), Donald Trump could be indicted for any and all federal crimes taking place in the nine years preceding that date and could include crimes that took place both as a private citizen and as President.

“No man in this country is so high that he is above the law. No officer of the law may set that law at defiance with impunity. All the officers of the government, from the highest to the lowest, are creatures of the law and are bound to obey it. It is the only supreme power in our system of government, and every man who by accepting office participates in its functions is only the more strongly bound to submit to that supremacy, and to observe the limitations which it imposes upon the exercise of the authority which it gives.” United States v. Lee, 106 U.S. 196, 220 (1882); see also Nixon v. Fitzgerald, 457 U.S. 731 (1982).

So, why does the statute of limitations for indictment and criminal prosecution matter. Many disagree with the Supreme Court's pronouncement in the Nixon case that "[a] rule of absolute immunity for the President will not leave the Nation without sufficient protection against misconduct on the part of the Chief Executive. There remains the constitutional remedy of impeachment." Nixon, 457 U.S. at 756. The current concern, when people discuss this issue of impeachment, is that Congress seems impotent to abide by the terms of the Constitution.

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