Friday’s filings by federal prosecutors painted President Donald Trump as aiding in and conspiring to commit a federal crime.
In August, Michael Cohen, the president’s former personal lawyer, claimed Trump directed him to pay off adult-film star Stormy Daniels to silence stories of an extramarital affair. The hush money — which constituted a campaign finance violation — directly implicated the president in a slew of illegal activity.
The new court documents out of the Southern District of New York took things a step further, all but naming Trump as an unindicted co-conspirator who participated in deceiving American voters to impact the 2016 presidential election.
Legal experts alleged that the sentencing memo outlined several serious felonies, including tax fraud and public disclosure crimes, and that the president could be held criminally liable for them all.
The question of consequences raises two tricky issues: Can a sitting president be indicted, and will winning a second presidential term in 2020 protect Trump?
Can a sitting president be indicted?
Former solicitor general Walter Dellinger said: Yes, when the facts demand it. Although conventional wisdom holds that a president cannot be indicted while in office, "the White House should not be a sanctuary from justice.”
The harsh reality is that any supposed “immunity” a president has from indictment while in office expires when his time is over. For Trump, that could be on January 20, 2021, if the statute of limitations — the deadline by which prosecutors must bring criminal charges — has not yet expired.
“People recite the mantra, ‘No one is above the law’ yet fail to acknowledge the tension between the principle and the idea that a president could be immune from indictment until he’s out of office,” said Laurence Tribe, professor of constitutional law at Harvard.
Nothing in the Constitution precludes the investigation and indictment of a sitting president from moving forward. There must be an appropriate way to strike a balance, Tribe said, between waiting to indict and running out of time to bring a criminal case.
If the concern is that a criminal trial would be too inundating, Tribe suggested indicting a president but delaying any criminal proceedings until the end of that president’s term, an option other legal experts, Dellinger included, have agreed with.
Dellinger said, “If you can’t issue an indictment to stop the statute of limitations, it perversely gives the president incentive to run for a second term to allow him to avoid prosecution.”
Trump attorney Rudolph W. Giuliani has suggested a sitting president can’t be indicted, relying on Justice Department guidelines and a Supreme Court’s ruling that a president is subject to normal legal processes unless they incompatibly interfere with exercising his executive duties.
Dellinger, who argued the case on behalf of the government, called the long-standing Department of Justice policy against indicting sitting presidents “a myth.”
“The notion that a sitting president can’t be indicted cannot be a categorical rule,” Dellinger said. “Suppose a president went nuclear and without justification pardoned all his or her co-conspirators in serious crimes. I have no doubt that the Justice Department would revisit its policy and approve an indictment of the only person left standing — the president himself. The policy has changed before, and it can change again.”
Does winning a second term assist Trump in avoiding criminal liability?
It’s very possible that it does, according to Duke University Law School professor Lisa Griffin.
For most of the relevant federal offenses, the statute of limitations is five years, measured from the date of the crime.
Trump’s payments to secret his improprieties may have been made in 2016. If he loses reelection and leaves office in January 2020, the statute of limitations will still be running. Like all private citizens, he will be exposed to potential prosecution.
But if he wins a second term and serves through 2024, the statute of limitations will have expired for many offenses.
“The interesting catch is that several federal crimes can be part of an ongoing scheme or conspiracy. Prosecutors can stretch the statute of limitations where the president took steps to obstruct the investigation or its underlying conduct,” Griffin, a former federal prosecutor, said.
If Trump attempted to hide the hush funds, prosecutors could argue the scheme to defraud should begin with the most recent act to persuade someone to lie or conceal the truth.
Attorney Renato Mariotti, a former federal prosecutor and CNN legal analyst, agreed.
“I would not discount the fact that prosecutors may have ways to extend the statute of limitations,” he said.
For now, Mariotti said, Trump is in “great legal peril.” New York criminalizes activity connected to the allegations of tax fraud and campaign finance violations. Local prosecutors are investigating the Trump Organization and New York Gov. Andrew M. Cuomo, who is not bound by Department of Justice policies, will decide whether to bring state charges.
It appears the federal government has also amassed substantial evidence against Trump and that charges are somewhere within sight, he said.
Former solicitor general Neal Katyal has even suggested prosecutors “talk about a deal where he resigns to avoid jail time.”