1/ Thread: Why a sitting president can be indicted:
When the OLC opined in 2000 that a president cannot be indicted, one reason was that a statute of limitations could be "equitably tolled" (i.e., stop the clock).
I just can't find any precedents for criminal equitable tolling...
When the OLC opined in 2000 that a president cannot be indicted, one reason was that a statute of limitations could be "equitably tolled" (i.e., stop the clock).
I just can't find any precedents for criminal equitable tolling...
2/ @RDEliason, criminal law expert, observed this morning that he was unfamiliar with equitable tolling for criminal statutes of limitations. So I looked back at the OLC memo and the cases it cited. I can't find examples of criminal equitable tolling.
That's a problem.
That's a problem.
3/ If it is unclear whether courts ever equitably toll criminal statute of limitations in regular circumstances, why should we think that court would toll for a set of assumptions and non-indictments of a president? For non-actions by prosecutors?
4/ Let's take campaign finance violations: 5 year statute of limitations. A 2-term president would run out that clock. A 1-term president could run out that clock if he violated the rules before the primaries.
What if presidential immunity doesn't toll?
Prosecutors must indict.
What if presidential immunity doesn't toll?
Prosecutors must indict.
5/ Further problems with the "presidential immunity tolls" assumption:
Equitable tolling in civil cases usually turns on something the defendant did to hide or delay. But if a prosecutor declines to indict, then president has done nothing actively to lose his S of L claim.
Equitable tolling in civil cases usually turns on something the defendant did to hide or delay. But if a prosecutor declines to indict, then president has done nothing actively to lose his S of L claim.
6/ It would be odd for a court to grant equitable tolling in favor of prosecutors for their choice to do nothing.
Courts could say to future prosecutors, "You made all the assumptions and did nothing. We never said anything about immunity. Why should pres lose? You lose."
Courts could say to future prosecutors, "You made all the assumptions and did nothing. We never said anything about immunity. Why should pres lose? You lose."
7/ If prosecutors don't indict, how do we know the reason is b/c of pres immunity rather than prosecutorial discretion or lack of evidence?
Perhaps prosecutors could issue a report: "But for pres immunity, we would have sought indictment."
But if so, then why not just indict?
Perhaps prosecutors could issue a report: "But for pres immunity, we would have sought indictment."
But if so, then why not just indict?
8/ And there's still no reason to assume such a prosecutor's report with such an assumption/explanation would be sufficent for a court to take the extraordinary and seemingly unprecedented step to equitably toll.
The only sure way to deal with tolling:
Indict a sitting president.
The only sure way to deal with tolling:
Indict a sitting president.
9/ And once we acknowledge that a prosecutor must be able to indict a sitting president to avoid the absurdity of a statute of limitiations running out the clock, then the other assumptions against other situations for indictment are a lot weaker.
10/ OLC note: If the 2000 OLC memo is just asserting something with such utterly weak legal support (the existence of equitable tolling in criminal cases...?)
then it does not inspire much confidence in the strength or seriousness of its legal conclusions. Does it?
then it does not inspire much confidence in the strength or seriousness of its legal conclusions. Does it?
11/ @alegalnerd, outstanding #TwitterLaw mind, has been doing similar research and coming to a similar conclusion:
