My argument that prosecutors must be able to indict a sitting president.
Hint: The OLC's argument against indictment was relying on something that does not seem to exist. That creates a problem that, I suggest, unravels the entire OLC argument against.
slate.com/news-and-polit…
Hint: The OLC's argument against indictment was relying on something that does not seem to exist. That creates a problem that, I suggest, unravels the entire OLC argument against.
slate.com/news-and-polit…
2/ Big thanks for ideas and/or edits: @RDEliason @alegalnerd @Mimirocah1 @AshaRangappa_ @EricColumbus @McDeereUSA @walterdellinger @crespo @neal_katyal @danielsgoldman @jentaub @tribelaw @BrettschneiderC @JeremyStahl @Dahlialithwick
3/ My law Latin didn't make it into the final:
If a president can be indicted for felonies with short statutes of limitations, then the "burden" argument has been weakened, and a fortiori a president can be prosecuted for more serious felonies with longer statutes of limitations.
If a president can be indicted for felonies with short statutes of limitations, then the "burden" argument has been weakened, and a fortiori a president can be prosecuted for more serious felonies with longer statutes of limitations.
4/ The OLC opinion relied on “a court’s possible authority to recognize an equitable tolling” to allow for a postpresidential criminal case to go forward notwithstanding the statute of limitations.
But I can find no evidence that equitable tolling for criminal statutes exists.
But I can find no evidence that equitable tolling for criminal statutes exists.
5/ OLC couldn’t cite a single case where a court granted equitable tolling to prosecutors. It cited 3 appeals court cases: 2 criminal cases that discussed only in speculative dicta & 1 civil case. Even the dicta give no sign of tolling for anything like presidential immunity.
6/ Even if there is some precedent for equitable tolling of prosecution hidden somewhere, I explain in this piece why _inaction_ by prosecutors still would not be sufficient for them later to invoke tolling.
So:
If there's no equitable tolling, indictments should be rolling.
So:
If there's no equitable tolling, indictments should be rolling.
2.5/ I meant to tag @AndrewMCrespo, not @Crespo, for this excellent analysis: lawfareblog.com/mueller-bound-…
cc: @rgoodlaw @alexgwhiting @steve_vladeck
cc: @rgoodlaw @alexgwhiting @steve_vladeck
7/ @marty_lederman offers a thoughtful big-picture perspective that we should shift our focus away from this legal question. I address it here.
My bottom line: It's important to make sure to hold a president accountable for campaign finance felonies:
My bottom line: It's important to make sure to hold a president accountable for campaign finance felonies:
8/ The case for indicting for campaign felonies just got a bit stronger.
“AMI admitted that it made $150K payment in concert with a candidate’s presidential campaign, to ensure she did not publicize damaging allegations before the 2016 election.” abcnews.go.com/Politics/tablo…
“AMI admitted that it made $150K payment in concert with a candidate’s presidential campaign, to ensure she did not publicize damaging allegations before the 2016 election.” abcnews.go.com/Politics/tablo…
