Thursday, December 13, 2018

Does the Statute of Limitations Affect the Issue of Whether a President Can be Indicted During His Presidency? (12/13/18; 12/17./18)

Tax crimes and other federal crimes, all statutory, have statutes of limitations.  Section 6531, here, is the statute of limitations for tax crimes.  Generally, where there might be some impediment to discovery or prosecution of a tax crime, arguments can be made that the statute of limitations should be tolled or suspended.  (That is also true of civil remedies as well.)  And, frequently, the statutes do provide for such tolling in some specifically identified cases.  For example, the general six year statute of limitations for tax crimes is 6 years (per § 6531), but the flush language provides:
The time during which the person committing any of the various offenses arising under the internal revenue laws is outside the United States or is a fugitive from justice within the meaning of section 3290 of Title 18 of the United States Code, shall not be taken as any part of the time limited by law for the commencement of such proceedings. (The preceding sentence shall also be deemed an amendment to section 3748(a) of the Internal Revenue Code of 1939, and shall apply in lieu of the sentence in section 3748(a) which relates to the time during which a person committing an offense is absent from the district wherein the same is committed, except that such amendment shall apply only if the period of limitations under section 3748 would, without the application of such amendment, expire more than 3 years after the date of enactment of this title, and except that such period shall not, with the application of this amendment, expire prior to the date which is 3 years after the date of enactment of this title.) Where a complaint is instituted before a commissioner of the United States within the period above limited, the time shall be extended until the date which is 9 months after the date of the making of the complaint before the commissioner of the United States. For the purpose of determining the periods of limitation on criminal prosecutions, the rules of section 6513 shall be applicable.
The issue of tolling is currently a topic in today's political environment where there are various claims bandied about that a sitting President cannot or should not be indicted.  I point readers to this article:  Jed Shugerman, The Single Fatal Flaw in the Legal Argument Against Indicting a Sitting President (Slate 10/11/18), here.  The by-line is:  Should a president be above the law because of the statute of limitations?

Let's use a tax crimes example.  Say that the Government (Mueller, the IRS, DOJ Tax etc.) has evidence that Trump committed tax crimes for the tax years 2012-2015 (2015 is the last year where a return was filed before he became President).  Assuming that he filed his tax years timely on extension for those years, the statute of limitations related to those filings would expire annually starting on October 15, 2019.  If President Trump cannot be indicted while President, the statute as the text of the law is worded would expire on those crimes starting on October 15, 2019.  Even if he is a one-term President, the statute would expire on some of those years before he leaves office (unless he leaves prematurely).  Moreover, if he is a two term President and does not leave prematurely, the statute of limitations on all of those years will expire.  Can that be?

Mr. Shugerman's article suggest that, although federal crimes are generally not tolled without an express statute for tolling (which there is not in this  case), there is a concept called "equitable tolling" that might apply.  I think that the potential of equitable tolling in this case is doubtful, particularly where it has never been established that the President could not be indicted while in office.

It seems to me that the proper course to set up even the possibility for equitable tolling would be to indict the President (perhaps under seal) and, if President Trump wants to fight whether he can be indicted, let the parties fight to final resolution (also perhaps under seal) whether the President can be indicted.  This would all occur during his presidency and the matter will be resolved.  If he can be indicted, there might be policy reasons to let the indictment remain under seal under he leaves office.  But, if he can't be indicted, the indictment would be dismissed and the issue of equitable tolling would be set up.

I also direct readers to another good timely article on this subject:  Marty Ledereman, Would Indicting Trump Be Constitutional (NYT 10/12/18), here.  I do want to quibble with Professor Lederman in the following quote:
Therefore, if there ever were an extraordinary case in which immediate charges were essential — in particular, if a president committed a heinous crime that demanded justice and he refused to waive what might otherwise be an effective statute-of-limitations defense — the attorney general should overrule the Office of Legal Counsel’s conclusion that the Constitution categorically prohibits an indictment during a president’s term. 
Lederman seems to suggest that the prosecutor proceed only in the case of a heinous crime.  I don't think most practitioners view tax crimes as heinous crimes and likely would not view elections crimes as heinous crimes.  In my mind, the President should not get a pass on prosecution for any crimes through the application of the statutes of limitations, so I would not add any qualifier.

I should add for completeness here that, at least in the case of tax crimes, it could be possible to refresh an otherwise expired statute of limitations.  How so?  The IRS could investigate taxes for years which are then barred by the criminal statute of limitations but are not barred by the civil statute of limitations (no civil statute of limitations for fraud).  The agents interview Trump.  Trump lies.  Assuming some materiality of the lie(s), Trump has committed a crime within the criminal statute of limitations (false statements) and for the years otherwise barred except for his lies to continue to evade tax.  Of course, there may not be the administrative or political will to pursue such an investigation.

Addendum 12/17/18 9:15am:

See also this opinion piece in the Washington Post written by Walter Dellinger was head of the Office of Legal Counsel from 1993 to 1996 and acting U.S. solicitor general from 1996 to 1997.  Should we be able to indict a sitting president? Consider Spiro Agnew (WAPO 12/16/18), here.
But the most significant impediment to holding a president accountable to justice is the statute of limitations. Generally, most federal crimes must be charged within five years or forever be barred. For crimes committed while the president is in office, there will be time enough at the end of the president’s term. But if a president engaged in financial crimes before taking office, or committed crimes to gain that office, the time for charging those crimes could well expire before his or her term concluded. 
That is one of the reasons a grand jury should be permitted to indict a sitting president, as long as all further proceedings are postponed while he or she is in office. Unless an indictment could issue against a sitting president, there would be a perverse incentive for an alleged White House felon to seek reelection simply to avoid indictment while waiting for the statute of limitations to expire on crimes he had committed. The history of the Justice Department’s conflicting positions on this question does not categorically foreclose issuing an indictment against a sitting president.

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