Could Joe Biden get off on a technicality? Former federal prosecutor Nick Ackerman thinks so, to the extent Biden finds himself on a hook at all over his mishandling of classified documents.

Ackerman told News Nation’s Adrienne Bankert that the Department of Justice can’t prosecute crimes from 2017 in 2023 — at least not those without exceptions to the federal law’s broad five-year statute of limitations (via Mediaite):

After hearing Ackerman’s comparisons, Bankert asked him what legal consequences Biden may face for having these documents since he was vice president to Barack Obama.

“Well, the long period of time really kind of is outside the statute of limitations for any kind of criminal charge,” Ackerman answered. “The normal criminal statute of limitations here is five years. So unless something else happened in between, there really is no crime to charge.”

Before we get to the technical argument, let’s correct the record a bit first. In the video (unavailable at this writing for embed), Ackerman also argues that “the only reason we know about this” is because “Biden disclosed it to the public,” as a means of arguing against a mens rea for criminal acts. Only that’s not actually accurate; Biden didn’t disclose it to the public. His team did inform the National Archives at the time, but kept it from the public until CBS News broke the story weeks later — after the midterms. And since then, Biden’s team has issued a few modified limited hangouts that ended up blowing up in their faces, especially when it turned out that Biden kept some of those documents at his home in Wilmington.

That negates another argument of Ackerman’s — that the situation differs entirely from Donald Trump’s. Trump personally took the documents, Ackerman argues, which we know because Trump kept them in his personal safe. If that’s true — and it almost certainly is — what can we deduce from the discovery of classified material in the garage of Biden’s residence, as well as an unidentified “adjacent space”?

However, the clearest difference between the two cases is the timeline. Does that let Biden off the hook for charges based on the Espionage Act? The statute 18 USC 3282 provides for a basic five-year limit on prosecutions for all non-capital offenses, unless “otherwise expressly provided by law.” Since the files in question almost certainly were removed no later than January 20, 2017, five years passed almost a year ago. Case closed, right?

Er … maybe not. In the first place, one would have to imagine that the Department of Justice knows 18 USC 3282 pretty well. US Attorney John Lausch would hardly have recommended a special counsel for a crime that couldn’t be prosecuted. Merrick Garland would have been equally reluctant to approve that recommendation. If this statute of limitation applied, Lausch and Garland would have closed the matter immediately.

And in any event, it appears that the US code actually did “expressly provide by law” a longer statute of limitations for Espionage Act violations. According to the DoJ’s Criminal Resource Manual, 18 US 3291 provides a ten-year limit that supersedes the basic five-year limit, and that’s specific to 18 USC 792-794, the very statutes in play:

Section 3291 of Title 18 provides that prosecutions for violations of nationality, citizenship, and passport laws, or a conspiracy to violate such laws, shall be commenced within ten years after the commission of the offense. Section 19 of the Internal Security Act of 1950, 64 Stat. 1005, provides a ten-year limitations period for prosecutions under the espionage statutes, 18 U.S.C. Secs. 792 to 794.

So the clock is actually ten years, not five, according to the DoJ — which explains why Lausch and Garland moved it to a special counsel rather than closing the case.

But even allowing the five-year limitation, one has to ask when that limitations clock starts. Is it when the crime is committed, or when it is discovered? Attorney John Mudd argues that it begins at commission, “unless actively concealed.” Other interpretations are that the limit on prosecution of crimes begin when the crimes are first made known to law enforcement, a reasonable interpretation given that such statutes restrain people from unfair prosecutions that would conflict with the constitutional right to a speedy trial.

But even if Mudd is correct, it still leaves the question of which crimes were committed — and when? The unauthorized removal of the documents may have taken place six years ago, but that is not the only point at which crimes may have been committed. As Jonathan Turley noted, the fact that those files got split up among multiple locations implies usage at some points, which is a separate crime if involving the unauthorized access to classified material. Grossly negligent storage and exposure — such as in someone’s garage — constitutes another violation of 18 US 793. The timing matters on those redistributions of the unauthorized material, as well as implying intentional purpose behind the retention.

If any of that activity took place in 2018 or later, then the basic statute of limitation wouldn’t be much help to Biden (and obviously, the DoJ’s citation of 18 USC 3291 negates it anyway). That’s the clear implication from the appointment of special counsel for an investigation. Whether an investigation actually proves such crimes and their timing remains to be seen.

However, in the long run, this is an academic exercise. The question here isn’t whether Biden will get prosecuted. It’s whether Trump will get charged after Biden clearly also violated the same statutes, whether or not those violations are prosecutable. And the answer is almost certainly that the special counsels will do what special counsels always do — spin wheels, perhaps charge some tangential process crimes on bystanders, and end up shrugging off scandals.

Update: I was remiss in not hat-tipping Twitter follower Liberty’s Beacon, who originally pointed me to the DoJ manual on statutes of limitation. Thanks!

Federal prosecutors lie on a regular basis believing only they know & control the law.
The statute in question is part of the Espionage Act [18 USC 793]
So see paragraph 11.https://t.co/8QwOuPGXHb

— Liberty's Beacon (@LibertysBeacon1) January 17, 2023

The latest episode of The Ed Morrissey Show podcast is now up! Today’s show features:

• Will Joe Biden face prosecution for mishandling classified material? Thus far, all the White House has done is spin, and as Andrew Malcolm notes, the media is helping him do it.
• We talk about the hypocrisies of Biden and the coverage, and how the Hillary Clinton precedents play into it.
• We also discuss Biden’s backfiring strategy on the Strategic Petroleum Reserve, and why the Prince of Twitter is way better than the Prince of Sussex these days.

The Ed Morrissey Show is now a fully downloadable and streamable show at  Spotify, Apple Podcasts, the TEMS Podcast YouTube channel, and on Rumble and our own in-house portal at the #TEMS page!