Robert Mueller declined to decide whether to charge President Donald Trump with obstructing the investigation into his 2016 campaign’s ties to Russia’s election interference. But the policy that prompted the special counsel’s non-decision could effectively keep Trump out of federal prosecutors’ crosshairs for good if he’s reelected.
Mueller, in his report, cited Justice Department policy against indicting sitting presidents while leaving open the possibility of prosecution later, saying the policy “also recognizes that a President does not have immunity after he leaves office.”
Yet the allegations—even if they could be proven beyond a reasonable doubt—would normally have to be charged within five years, so as not to run afoul of applicable statutes of limitations.
That may mean Trump will never be prosecuted by the feds—especially if he wins re-election, experts say. It may hinge on the highly technical but practically explosive question whether those limitations rules can be “tolled"—or paused—while Trump is in office.
“The only way to get a definitive answer would be to file charges and test the theory in court, but that seems unlikely,” said Barbara McQuade, former U.S. Attorney in Detroit who is now a University of Michigan Law School professor.
If a prosecutor were to charge Trump after he leaves office after serving out a second presidential term, the prosecutor “could argue that the statute should permit tolling during the time he was in office.”
But McQuade said it’s “not clear that that argument would prevail, because there was no legal prohibition from charging” Trump. Just the Justice policy.
The Tolling Long Shot
Constitutional scholar Josh Blackman says that if Trump is reelected, “he would run out the five-year statute of limitations.” The South Texas College of Law Houston professor said he does “not envy the prosecutor who tries to indict the former President based on a creative theory of statute-of-limitation tolling.”
The prospect of tolling here “is theoretically possible but a long shot,” said former federal prosecutor Joseph Moreno. “I wouldn’t count on it,” he said.
The 400-plus page Mueller report dedicates an entire volume to Trump’s efforts to obstruct the Russia investigation—including by pressuring then-FBI-head James Comey to drop his investigation into then-National Security Adviser Michael Flynn in early 2017; firing Comey that spring after he failed to do so; and pressuring various officials not to cooperate with—and even to end—Mueller’s investigation, including then-White House Counsel Don McGahn, who has emerged as a potential key witness against the president.
Trump’s former personal lawyer Michael Cohen also implicated the president in campaign finance crimes in Manhattan federal court.
While pointing out the instances that could be construed as obstruction, Mueller said he had to abide by the 2000 memo from DOJ’s Office of Legal Counsel that says the prosecution of a sitting president “would unconstitutionally undermine the capacity of the executive branch to perform its constitutionally assigned functions.”
Now a partner at Cadwalader in Washington, Moreno noted that one type of situation where tolling can apply is when a defendant absconds and therefore can’t be brought into court to face charges.
Moreno said it’s “conceivable” that a court in this hypothetical Trump scenario could say, “Look, a president shouldn’t be able to have it both ways. You can’t be immune from prosecution while you’re president, but then also enjoy the running of the statute of limitations.”
But Trump “hasn’t done anything wrong” in terms of delaying his apprehension, the former prosecutor observed, distinguishing this scenario from a defendant who skips town.
Odds are that Trump “would effectively run the clock out by benefiting from the OLC opinion and a friendly Department of Justice that’s not looking to revoke that opinion and change the policy, and by the running of the statute of limitations,” Moreno said.
“So I do think that ultimately Trump could avoid prosecution,” he said, “putting aside the difficulties of bringing an old case, putting aside the political implications of do you really want to charge a two-term president who’s going to be 80 years old.”