Should a president be able to “run out the clock” on prosecution for a federal crime they committed, by remaining in the White House for long enough?
Can a sitting president be indicted and officially charged with a crime while in office? A Justice Department advisory policy first promulgated by a Republican administration in 1973, and later reaffirmed by a Democratic administration in 2000, says no.
This policy is not officially enshrined in law, but both political parties generally acknowledge and abide by it, since it’s been the White House’s official position across both parties for 46 years and counting.
A president can, however, be charged with a crime and potentially even sent to jail after they leave office. The most likely possibility of this was Richard Nixon in the 1970s, although he was pardoned by his successor Gerald Ford before such a post-presidential trial could occur.
Most federal crimes have a five year statute of limitations, meaning there is a five year window for possible arrest and prosecution after a crime was committed. However, if a president remains in office for eight years, they can run out that entire five year clock and avoid punishment.
Indeed, even a four-year president could potentially run out that five year clock, if an arrest doesn’t happen to occur within the mere year after they leave the presidency.
What the legislation does
The No President is Above the Law Act would start the five year statute of limitations after a president leaves office, rather than from the time a crime was committed.
The legislation would apply retroactively, for any crime where the five year statute of limitations hasn’t already expired. In other words, if it were to become law tomorrow, it would apply to presidential crimes committed as early as late 2014. This is clearly meant to allow easier post-presidential prosecution of Donald Trump if any of his actions are determined to be criminal, as many Democrats allege they are.
The House version was introduced on May 10 as bill number H.R. 2678, by Rep. Jerrold Nadler (D-NY10). The Senate version was introduced a month later on June 10 as bill number S. 1756, by Sen. Richard Blumenthal (D-CT).
What supporters say
Supporters argue the status quo potentially allows a lawbreaking president to avoid the legal consequences of their crime.
“No person can be permitted to evade accountability for their actions just because they happen to be President,” Rep. Nadler said in a press release.
“I have concerns with the Justice Department interpretation that a sitting president cannot be indicted,” Rep. Nadler continued. “But if that is the policy, a president who commits a crime before or during their term in office, could exploit this loophole and avoid prosecution just because the statute of limitations has run out. This is unacceptable. The presidency is not a get-out-of-jail-free card.”
What opponents say
Opponents counter that the legislation, while well-intentioned, could have disastrous consequences not just for the current moment regarding President Trump, but for the American system forever. “But despite its clear appeal, the bill also has the potential to aggravate our current crises of democracy,” Joshua A. Geltzer wrote for Slate.
“Consider a president who ran for office on the promise to prosecute the current president, regardless of whether the current president is running for reelection, finishing a second term, or has even committed a crime in the first place. Imagine how inflammatory it would be to pledge criminal prosecution of a political opponent as part of a presidential platform,” Geltzer said. “Regrettably, this is no longer mere fodder for imagination — we’ve repeatedly seen precisely this dangerous behavior from Trump.”
“This is deeply unhealthy behavior for a democracy, and a bill extending the statute of limitations that isn’t more carefully crafted has the potential to make things worse,” Geltzer continued. “As I’ve explained elsewhere, democracies face dark days when the line between the language of politics and the language of law enforcement fades, and the consequence for losing an election — or even simply finishing one’s time in office — becomes criminal punishment. That’s a key indicator of the slide toward authoritarianism.”
Odds of passage
The House version has attracted 17 cosponsors, all Democrats. It awaits a potential vote in the House Judiciary Committee, which is chaired by lead sponsor Rep. Nadler.
It’s a pretty good bet that he’ll make sure his own bill gets a vote, where it’s likely to pass the Democratic-controlled committee — and probably the Democratic-controlled House too, if it receives a vote there.
The Senate version has not yet attracted any cosponsors, despite the policy change ostensibly being one many Democrats would support.