New York proposes "lock him up" law for Trump

The endless fishing expeditions into anything related to President Trump’s business interests in New York State launched by Attorney General Letitia James don’t seem to be generating enough negative headlines for the Empire State’s Democratic legislators. With only weeks to go before the election, members of both the state senate and the Assembly have introduced legislation intended to ensure that the President can be arrested and prosecuted after leaving office if any finding of criminal wrongdoing is uncovered. The blatantly partisan nature of this stunt is obvious, of course, but that’s not going to stop the Democrats from attempting to ram it through and generate a few more headlines. And all of this is being done despite the fact that not one of these investigations has, to date, revealed a single thing that would merit any charges being brought. (NY Post)

New York lawmakers have proposed the “No Citizen is Above the Law” legislation that would make it harder for President Trump or any other future president to avoid state prosecution if accused of criminal wrongdoing.

A sitting president is immune from arrest or prosecution while in office, according to a pair of Justice Department memos — one from 1973 and another from 2000 — which interpret the US Constitution. The US Supreme Court has never made a determination on the issue…

The bill introduced by Sen. Michael Gianaris (D-Queens) and Assemblyman Nick Perry (D-Brooklyn) will “toll” the statute of limitations in order to bring a case — meaning freezing or stopping the clock on the limitations period until the president leaves office.

The hype here is made more obvious by the over-the-top name assigned to the bill. “No Citizen is Above the Law.” It just sounds so stirring and patriotic, doesn’t it?

The theory under discussion here is the accepted legal doctrine holding that a sitting president can’t be prosecuted for any crime while in office outside of formal impeachment proceedings. The alleged concern being addressed is that even if prosecutors find the President to be in violation of the law, the statute of limitations for the alleged crimes might run out before he leaves office, rendering him immune from prosecution. This law would essentially freeze the statute of limitations while a president was in office, with the clock restarting once his or her replacement is sworn in.

Even leaving aside the obvious, showboating nature of this bill, there are other problems with it. For starters, it’s not a sure thing that this bill would make it through a vote. It’s true that the Democrats hold significant majorities in both chambers, but a lot of those seats are held Democrats in the more rural, conservative regions of the state. They all have elections coming up and many are currently running advertisements proudly declaring their “independent” nature and their record of “working across the aisle” with their Republican colleagues. Signing on for such an obvious broadside against Donald Trump could cost some of them their seats, so I won’t be shocked if a number of them get cold feet over this.

Those same members (and other Democrats as well) will likely have another concern in the back of their minds. If this sort of law can be applied to Donald Trump, it could equally well be used against the next Democratic president if the political winds begin blowing the other way in years to come. That fact may give a few more of them pause.

Even if they manage to get this bill signed into law, it would clearly be challenged in court. This legislation carries the definite smell of a writ of attainder, making it unconstitutional. The law is supposed to be applied equally to all people. If the statute of limitations applies to any specific crime, it’s applicable to all people. Singling out one person or group of persons (e.g. presidents) to have the law applied to them differently doesn’t sound like it would stand up under close scrutiny.

And finally, let’s just say that the bill passes, and any legal challenges to it wind up failing. Those challenges will take years to play out. By the time the appeals process is finished, the statute of limitations will likely have run out for Trump anyway. And it couldn’t conceivably be applied retroactively. The more you consider this bit of fluff and nonsense coming out of the New York legislature, the more pointless and misguided it appears.