A leftover from last week that I missed at the time. Question for legal eagles: Is Rudy Giuliani right that any such law would be unconstitutional?
Concerned Trump might be able to outlast the threat of criminal charges under current law, Rep. Jerry Nadler (D-N.Y.), who in January will take over as chairman of the House Judiciary Committee, said he’s looking at passing legislation that would extend the statute of limitations to encompass crimes committed during Trump’s presidency.
“If he can’t be impeached for improper conduct, if there are crimes, he should be made to be prosecuted,” Nadler said last week on MSNBC…
“Extend statute of limitations would violate the spirit if not the letter of the constitutional protection against ex post facto legislation,” the former New York mayor said [in a text]. “Did any of these anti-Trumpers read the constitution or care about [it?]”
The Ex Post Facto Clause prevents the state from criminalizing behavior retroactively. As a matter of law and basic fairness, if you do X and X becomes a crime a year later, you can’t be charged for having done X beforehand. Anti-Trumpers would counter that that’s not what Nadler’s talking about here. The campaign-finance laws under which Trump might be charged were already on the books when he and Michael Cohen huddled about quietly paying off Stormy Daniels. Trump was on notice that it’d be illegal to make that payment and not report it to the FEC.
All Nadler hopes to do is to close the loophole presented by the current statute of limitations. If it’s true that sitting presidents can’t be indicted and it’s also true that the statute of limitations for the crime in question (five years) is already running, then Trump presumably can avoid prosecution entirely simply by getting reelected. So long as he’s in office through the end of 2021, the statute of limitations will expire with the DOJ never having had an opportunity to charge him. Nadler’s solution is simple: “Toll” (i.e. pause) the statute while the president is in office. Amend the law so that the statutes of limitation for crimes a president is accused of don’t begin to run until he’s left the job.
Pro-Trumpers will follow Rudy, though, and argue that extending the statute of limitations now would amount to an ex post facto law. And there’s a semi-recent Supreme Court precedent on the books they can cite to support their case: Stogner v. California, from 2003. In that case, California had passed a law allowing old cases of child molestation to be tried in certain circumstances even if the statute of limitations had already run. In other words, the state was “reviving” previously time-barred prosecutions. The Court held, 5-4, that that was unconstitutional. The point of the Ex Post Facto Clause, said the majority, is to prevent the state from imposing punishments in cases where the defendant has already been freed by law from criminal liability. “Reviving” prosecutions violates that principle. Worth noting: It was the Court’s four liberals plus Sandra Day O’Connor who made the majority. The conservatives — Rehnquist, Scalia, Thomas, and, er, Anthony Kennedy — all dissented. They would have let the prosecutions go forward.
The question, then: Although it’s unconstitutional to “revive” an otherwise time-barred prosecution, is it unconstitutional to extend the time for a prosecution that isn’t yet barred by the statute of limitations? Trump can lawfully be charged at any point until late 2021, remember, assuming he’s out of office. He’s not free from criminal liability by law yet. On the other hand, if the point of the Ex Post Facto Clause is to ensure that the defendant has some opportunity to grasp the legal consequences of his actions *before* he undertakes to commit a crime, extending the statute of limitations after the crime’s been committed means that he didn’t have a full opportunity to grasp it. He was given bad information. He was supposed to be free from criminal liability by law at a certain point and now the state’s gone and changed the rules in mid-stream. Constitutional or not?
The secret answer: It … doesn’t matter because Nadler’s bill will never become law. The Republican Senate will kill it on sight. The point of floating this is simply to turn the screws on McConnell’s caucus, understanding the political predicament they may soon find themselves in. Probably 95 percent of the public would agree with Nadler in the abstract when he says “no one should be above the law.” Senate Republicans will counter that with fancy shmancy talking points about ex post facto laws and Supreme Court precedents, yadda yadda, but they’ll all pale by comparison to Nadler’s straightforward point. No one should be above the law. Republicans can either “prove” that they agree with him by passing his bill to extend Trump’s criminal liability until he’s out of office or they can stand for effectively granting the president monarchical powers by letting his office shield him from prosecution until the DOJ is powerless to charge him. That’s a good electoral pitch for Dems, whether it’s fair or constitutional.
Anyway. The long and short of it is that the 2020 campaign may be consumed to a disproportionate degree with the question of whether the president should be returned to the highest office in the world so that he can continue to enjoy absolute immunity from American criminal law. Even by the standards of Trump-era politics, that’s bananas.