Time is running out for Biden's Justice Department to prosecute Trump for 10 possible crimes detailed in the Mueller report
- The five-year deadline is closing in to charge Donald Trump with crimes detailed by Robert Mueller.
- Trump benefited in office from a DOJ policy against prosecuting a sitting president.
A year ago Thursday, Donald Trump boarded Air Force One for the final time in his presidency and retreated to Mar-a-Lago, refusing to stand witness for the swearing-in of Joe Biden.
It was a momentous day for Trump, marking the culmination of an electoral defeat he had pushed desperately to overturn. Now a full year out of office — and five years removed from his own swearing-in — Trump is closing in on anniversaries that carry more legal than political significance.
The five-year statute of limitations to prosecute any alleged federal crimes he committed while in office, after all, is ticking away.
Trump's tumultuous first year as president featured a string of episodes that came under scrutiny in the Russia investigation, an inquiry in which Special Counsel Robert Mueller examined whether Trump obstructed justice.
In his more than 400-page final report, Mueller's special counsel team documented 10 episodes of possible obstruction of justice by Trump. Among them were Trump's efforts in early 2017 to pressure then-FBI Director James Comey to close an investigation into Michael Flynn, who at the time was national security advisor. Trump later fired Comey, setting in motion the events that led to Mueller's appointment as the special counsel in charge of the investigation into Russian interference in the 2016 election.
The special counsel's office examined not just that episode but also Trump's effort to have Mueller himself removed. Mueller declined to make a decision about whether Trump broke the law, in part because of the Justice Department's longstanding policy that sitting presidents cannot be charged with a federal crime. But, at a closely-watching congressional hearing, Mueller acknowledged that Trump could theoretically be charged with obstruction of justice after leaving office.
Charging an ex-president with a federal crime would be an unprecedented first in American history. Still, in the eyes of Trump's critics, the Mueller report provided a playbook for prosecuting him.
But the Justice Department has been silent as the five-year deadline nears.
"What's a matter of urgency that I'm very upset about is the statute of limitations is five years for obstruction of justice, and it's going to expire in a few months," said Richard Painter, a professor at the University of Minnesota Law School who previously served as the chief White House ethics lawyer in the George W. Bush administration. "That Mueller report is a roadmap to an indictment of Donald Trump for obstruction of justice … Literally, a couple hours of work, and you probably have an indictment."
A broader conspiracy?
Trump's unconventional presidency raised a number of novel legal issues and inspired legislation that specifically addressed the statute of limitations. Rep. Jerrold Nadler, the top Democrat on the House Judiciary Committee, introduced the No President Is Above the Law Act in 2020 to toll — or effectively pause — the statute of limitations for federal offenses committed by sitting presidents.
Late last year, the House passed the Protecting Our Democracy Act, which includes a similar provision, along with others meant to prevent future abuses of the pardon power. The bill faces an uncertain future in the US Senate.
With the Justice Department taking no visible steps to pick up on Mueller's work, the expiration of the five-year statute of limitations will mark a largely symbolic moment in the reckoning with Trump's conduct, legal experts told Insider. Once the five-year deadline passes for the various episodes of possible obstruction, the option of "charging that as a standalone offense goes away," said Randall Eliason, a former public corruption prosecutor who now teaches law at George Washington University.
Eliason said the Justice Department could still fold conduct outside of that five-year window into a prosecution alleging a broader conspiracy to obstruct justice. If the Justice Department has weighed obstruction charges against Trump and decided not to bring them, Eliason said the public deserves an explanation.
"Given the fact that it involved a former president, given all the information that's out there in the Mueller report and elsewhere, if DOJ has considered the obstruction charges and decided not to pursue them, I think it would be good for them to issue some kind of statement to that effect explaining why, so the public knows this didn't just get ignored," he said.
Bigger risks in New York and Georgia
For now, Trump's most pressing legal trouble is coming from state and local authorities. New York Attorney Letitia James accused Trump's family business this week of repeatedly inflating the value of its assets, alleging that the company engaged in a pattern of "fraudulent or misleading" practices to boost its bottom line.
In Atlanta, the local district attorney asked a judge Thursday to convene a grand jury to help investigate Trump's efforts to overturn the 2020 election results in Georgia.
Within Trump's orbit, the New York investigation is seen as presenting the direst threat. A spokesperson for Trump did not immediately respond to a request for comment.
"I've always thought he is most vulnerable in New York state and New York City. And the thing that's most concerning is the woman who's running the investigation ran for office on the campaign pledge that she would get Trump," said Alan Dershowitz, a former Harvard Law School professor who defended Trump during his first Senate impeachment trial in early 2020. "So she has essentially delegitimated any kind of objective inquiry."
Dershowitz told Insider that he does not expect any federal charges stemming from the conduct Mueller examined.
"The Mueller report was too equivocal for there to be criminal charges to be based on it," he said.
Merrick Garland's dilemma
The Justice Department has not publicly shown an appetite for prosecuting Trump.
In speeches, Attorney General Merrick Garland has emphasized the need to restore the independence of a Justice Department that had been politicized under the Trump administration, and even those clamoring for a prosecution of the former president concede that such a case would cleave an already divided country.
A Justice Department spokesperson did not immediately respond to a request for comment.
"On the one hand, we don't want anyone to be above the law. So if he is guilty of a crime, he should pay the same criminal accountability that any other defendant would have to encounter. On the other hand, it's not great to have one political administration of one political party prosecuting the actions of its predecessor of a different political party. That is nightmarish as well," said Ciara Torres-Spelliscy, a professor at the Stetson University College of Law.
"So there are many damned if you do, damned if you don't aspects to holding Trump accountable through the federal criminal system."
Still, Garland recently appeared to address the criticism that the Justice Department was ignoring Trump and his inner circle — and instead focusing on relatively low-level offenders — in the investigation of the January 6, 2021, attack on the Capitol. On the eve of the first anniversary of the Capitol siege, Garland said the Justice Department was "committed to holding all January 6 perpetrators, at any level, accountable under law — whether they were present that day or were otherwise criminally responsible for the assault on our democracy."
More recently, the defense lawyer for an accused Capitol rioter said the FBI had focused its questioning of his client on establishing an "organized conspiracy" involving Trump and his inner circle, suggesting that the Justice Department is exploring the former president's role in the violence of January 6.
With Trump, "DOJ is a black box from the outside as far as what prosecutors are or are not pursuing," Torres-Spelliscy told Insider.
"What's really peculiar about this situation is that, while President Trump was president, he got the benefit of a DOJ policy that they will not indict a sitting president. We are in somewhat unprecedented legal territory, because the closest we've come to this is the Nixon presidency," she added.
"We've never been in this situation before."