Courthouse with equal justice under law

There is perhaps no investigation more closely scrutinized than special counsel Robert Mueller’s inquiry into President Donald Trump and his inner circle. Many, probably including the President himself, anxiously await news of a possible presidential indictment.

Attorney IO assembled a panel of the nation’s leading criminal law professors to reveal the likely behind the scenes maneuvers in the investigation of the century.

Panelists noted that the president could be indicted under seal without his knowledge. Specifically, they argue the problems with delaying an indictment include having the statute of limitations expire during his term. Also, the benefit of a sealed indictment is that it would not distract the chief executive from performing his constitutional duties.

The panel consists of University of Michigan Law School’s Prof. Sonja Starr, University of Alabama School of Law’s Prof. Jenny Carroll, University of Wisconsin Law School’s Prof. Keith Findley, Ohio State University Moritz College of Law’s Prof. Joshua Dressler, University of Arizona James E. Rogers College of Law’s Prof. James Diamond, Loyola University Chicago’s Prof. Jona Goldschmidt, Georgia State University College of Law’s Prof. Russell Covey, and University of Missouri School of Law’s Prof. Frank Bowman.

The Department of Justice says prosecuting a sitting president can impermissibly distract him. However, indictments under seal remove this fear.

The Department of Justice has issued a memo discussing the constitutional concerns of indicting a sitting president. The memo notes, “A necessity to defend a criminal trial and to attend court in connection with it … would interfere with the President’s unique official duties, most of which cannot be performed by anyone else… To wound him by a criminal proceeding is to hamstring the operation of the whole governmental apparatus, both in foreign and domestic affairs.”

Prof. Diamond likewise noted, “Of course, the premise that no person is above the law is a sound one. Yet, a prosecution of a sitting president is a course of conduct no prosecutor or court ought to take lightly… Further, the specter of the president taking time off from his critically important duties to defend himself from possible loss of liberty is also problematic.”

In other words: indicting the president could distract him so much that he would be a less effective leader. However, we investigated the possibility of whether indicting the president under seal would remove this constitutional concern. A “seal” is an order by the court that the indictment must be kept confidential, including from the president and the public.

Prof. Carroll acknowledges that there could be a statute of limitations problem if the president is not indicted. In other words, Mr. Trump could argue that he is immune from prosecution while president and then immune after he leaves if the statute of limitations has run out. Prof. Carroll argues, “One possibility would be that the indictment issues and is sealed solving the sol [statute of limitations] problem and the matter does [not] proceed until after the President leaves office.”

Prof. Covey agrees, noting, “an indictment might be filed under seal and the matter stayed until the President were out of office.” A “stay” is an order by the court that proceedings are to be delayed until some future date.

The Constitution normally requires that court proceedings be open to the public. This helps to prevent courts from trampling on people’s rights outside of the public eye. However, courts often make exceptions to this general rule of transparency.

Mr. Trump, through his lawyer Rudolph Giuliani, has relied on this idea that indicting him would be too distracting. However, the old adage “what he doesn’t know can’t hurt him” rings true here. If Mr. Trump does not know he is under indictment due to a seal, the constitutional pitfalls associated with distracting a sitting president fall away.

We then turned to whether there is some separate reason, other than distraction, that would prevent the indictment of a sitting president. Prof. Bowman notes, “the framers were clear in their expectation that civil officers, including presidents, could be charged and punished by ordinary courts. So it would seem odd, at the very least, that DOJ’s policy of abstention should create de facto immunity. To the extent that DOJ’s opinion on the point rests on the constitutional position of the president, a grant of de facto immunity is at least as contrary to constitutional principles as immediate indictment, if not more so.”

Prof. Dressler notes, “as long as common sense is followed, and a President is not jailed after indictment, perhaps an indictment should be permitted.”

This seems to create a clear line in the sand. The Department of Justice would arguably act unconstitutionally if it publicly indicted a sitting president. The weight on such a defendant’s mind would reduce his ability to perform his function. However, there is no such concern if the defendant is unaware of his own prosecution. Additionally, there are competing constitutional problems with saying someone is above the law by virtue of his employment status as president. A secret indictment would effectively eliminate both concerns of distractedness and issues of unwarranted immunity for criminal behavior.

Mr. Mueller has every incentive to indict early.

If Mr. Mueller does have evidence that Mr. Trump committed a crime, he has every incentive to indict at the earliest reasonable opportunity.  Mr. Mueller is technically a member of the executive branch, which Mr. Trump heads. Mr. Trump has repeatedly asserted both his dislike of Mr. Mueller and that he has the power to fire Mr. Mueller. Without an act of Congress protecting Mr. Mueller, Mr. Trump is likely correct that Mr. Mueller can be fired.

However, federal judges are employed by the judicial branch of government and not the executive. They also have lifetime appointments and cannot be fired other than through impeachment. That means that unlike Mr. Mueller, judges cannot be fired or otherwise interfered with by the head of the executive branch.

An early indictment by Mr. Mueller does not relinquish any power or ability to investigate. It merely empowers a different branch (the judiciary) with jurisdiction over the defendant. If the indictment is sealed, Mr. Mueller could proceed with the investigation as if there were no indictment at all. In the event he wishes to add new charges, he can simply seek a “superseding indictment.” This is basically a second indictment that takes the place of the first once new information is found and prosecutors wish to change the scope of the prosecution.

The important consideration for Mr. Mueller is that even if he should be fired after a sealed indictment issues, this action would ensure Mr. Trump would still be a criminal defendant held accountable by the judicial branch. Someone would simply replace Mr. Mueller. However, if Mr. Mueller is fired without indicting the president, it is much more likely that the president would never face indictment.

Declining to file for a sealed indictment increases the chances that Mr. Trump could install someone more favorable to him to helm or end the investigation instead of Mr. Mueller. Such a successor may not be inclined to indict Mr. Trump at all, regardless of the merits. A delay also increases the chances that Mr. Trump could run out the clock on any statutes of limitations.

If Mr. Mueller does not indict in a timely fashion, Mr. Trump could claim the statute of limitations has passed and he is forever immune.

There is substantial concern that if Mr. Trump has committed crimes, he could first say that he is unable to be prosecuted while president only to say he can no longer be prosecuted because the applicable statutes of limitations have expired after his term ends.

Prof. Findley argued that one “solution would be to indict the president within the limitations period, but then stay the prosecution while the president is in office. The statute of limitations requires only that the prosecution be initiated within the limitations period, by filing of the indictment of information. Once filed, the statute of limitations is satisfied, even if the prosecution is held in abeyance pending the president’s term in office.”

Likewise, Prof. Goldschmidt notes, “If an indictment were filed, that of course tolls [stops the clock on] the statute [of limitations], and the government could ask the court to stay the case until he leaves office. There would appear to be good reasons for doing so.”

One professor noted a much more difficult alternative. Prof. Starr says, “Congress can extend an SoL [statute of limitations] at any time while the limitations period is still running. (Of course this would implicate other defendants, which would be hard to justify, unless the nature of the extension was simply to create a tolling period when indictments were delayed by reason of official immunity or something like that.)”

Similarly, Prof. Dressler argues, “case law provides that it does not violate the Ex Post Facto Clause if Congress chooses to lengthen the statute of limitations for an offense, and apply it to people who are charged with that offense, as long as the original statute of limitations has not expired as to that individual. So, for example, if it is determined by Mueller that the President is guilty of obstruction of justice, but no indictment occurs, Congress could legislatively expand the statute of limitations for that offense, and apply it to Trump.”

These two options set up a presumably easy choice if Mr. Mueller indeed plans on prosecuting Mr. Trump at all. Either he can relatively easily indict Mr. Trump under seal, or he can hope that a Republican-led Congress votes to extend any relevant statutes of limitations. Of course, such a bill would then be sent to Mr. Trump for signature or veto. Congress can override such a veto only with two-thirds of both chambers of Congress in favor. There is also the option of delaying and hoping to file an indictment at the last minute. However, this could leave some criminal conduct outside the scope of prosecution.

Prof. Starr notes, “The default SoL [statute of limitations] for federal cases is five years. Most of the special SoLs are longer, although contempt (1 year) and tax (3 years) crimes have shorter SoLs, which could be relevant. But for most federal offenses, unless the offense was from before Jan 2016, the President will have to be reelected to run out this clock. So you could say that there is a democratic check against this strategy. (Nixon was reelected in a landslide as the Watergate scandal was beginning to unfold, so, not saying democratic checks always work!)”

Mr. Trump is only the second major party nominee in 40 years not to release a tax return. There has been widespread concern in the media that his refusal to release such reports could be due to a desire to conceal unsavory details contained in them. As Prof. Starr notes, Mr. Trump would have to be indicted within the term of his presidency if that indictment were to include allegations of tax malfeasance.

Additionally, a FiveThirtyEight analysis of all current polling indicates that a slim margin of 52.9% of people disapprove of Mr. Trump. With reports of his favor rising on the heels of a de-escalation in North Korea, he could win a surprising re-election. It may be no more surprising than his first win. This means he would run out the clock on most if not all crimes if he is not indicted while serving as president.

If he is not re-elected, Mr. Trump’s term will end on January 20, 2021. This leaves only one short year of malfeasance subject to indictment post-term. A comprehensive timeline of related events by Politico starts back in 2013. If Mr. Mueller wishes to indict based on conduct that transpired earlier in the campaign, he may need to do so rapidly.

Further, Mr. Mueller may have far less time in his position than Mr. Trump does in his term. All of these considerations likely motivate a swift indictment or indicate that one has already been filed even if it is kept secret from the broader public. This preserves the ability to enforce the law without unduly burdening the chief executive with thoughts of his risk of penalties.

Mr. Mueller says Mr. Trump is a “subject” of the Russia investigation rather than the “target.” However, police are often permitted to deceive criminal suspects especially in the case of public officials and Mr. Mueller chose his words carefully.

On April 3, 2018 the Washington Post reported that Mr. Mueller has informed Mr. Trump’s attorneys that Mr. Trump is a “subject” of a criminal investigation but not a “target at this point.” The article further notes that “Prosecutors view someone as a subject when that person has engaged in conduct that is under investigation but there is not sufficient evidence to bring charges.”

This means one of two things. It either means that as of this conversation reported on April 3, Mr. Mueller did not believe there was enough evidence to indict. That is, after all, what he reportedly said. However, even taken at face value this does not preclude Mr. Trump becoming a target after “this point.”

In fact, it might make sense to indicate to Mr. Trump that he is not the target at the latest point in time where that likely remains accurate. If evidence is hoped for shortly after that date which could move him from “subject” to “target,” it makes sense to truthfully comfort Mr. Trump just before such evidence is actually obtained.  This would reduce the likelihood that Mr. Trump would fire Mr. Mueller, while remaining truthful.

On the other hand, prosecutors routinely lie to criminal suspects to avoid obstruction of their investigations and to elicit incriminating information. Prosecutor Marc Weber Tobias notes in a Forbes article from 2014 that courts generally permit prosecutors to lie to criminal suspects. He says, “Many investigations, by necessity, involve the use of deception in order to identify and catch suspects. They can result in producing incriminating evidence… Pretexts are common tools that are used to catch criminals involving just about any imaginable offense. They are especially useful in narcotics investigations and bribery of public officials.”

In other words, public officials may have unusual power to thwart investigations. So, it can make these suspects especially worthy targets of deception. That way, the suspect public official will not use this power to impede a lawful investigation. This deception seems especially warranted when the suspect has the power to fire the investigator.

The road forward is paved with reasonable secrecy.

Whether you admire or loathe him, Mr. Trump wields enormous power as the president. Few people would be able to rise up to the mental level required to disregard a looming prosecution in favor of the greater good inherent in being a public servant. Mr. Trump is likely no exception.

While his detractors clamor for news of a possible indictment of Mr. Trump, his awareness of it could plunge the country into disaster if it consumes his focus. Since it is unlikely he could be actually sent to jail during his term, such a distraction would be too much of a price to pay for people’s awareness that any issues are being handled. At least, that is the Department of Justice’s interpretation.

However, that does not mean the public or even Mr. Mueller need to be overly deferential if indeed Mr. Trump has committed crimes. As a chorus of criminal law professors note today, delaying an indictment could mean losing the ability to prosecute certain actions altogether.

Of course, it may be that Mr. Mueller believes Mr. Trump has committed no crimes at all. If that is the case, Mr. Trump can be grateful. If it is not, then Mr. Mueller has every incentive to indict as soon as he is able. The downsides of Mr. Trump’s potential distractedness appear to be easily cured by keeping the charges under seal. It may be that upon his exit from office, Mr. Trump is immediately greeted by a historical prosecution that is revealed to have been initiated years earlier. Whatever happens, we can likely expect one side to be shocked and the other to be satiated.


Alexander Stern earned his Doctor of Law degree from UC Berkeley School of Law. He is an attorney and the founder of the Attorney IO family of companies.