Trump’s crimes committed in office have started reaching the statute of limitations, meaning that (barring an unlikely law change to suspend those limits) Trump will get away with those crimes, unless Garland’s DOJ indicts him first.
Except as otherwise expressly provided by law, no person shall be prosecuted, tried, or punished for any offense, not capital, unless the indictment is found or the information is instituted within five years next after such offense shall have been committed. — 18 USC 3282
Business Insider ran a story on this last week. Richard Painter, W’s ethics lawyer, expressed his frustration about the lack of urgency in prosecuting Trump’s early acts of obstruction of justice.
"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."
They also quoted a former public corruption prosecutor who now teaches law, arguing that any decision not to prosecute needs to be explained by DOJ.
"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."
The article wraps up with another law professor pointing out the “unprecedented” problem.
"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 … damned if you do, damned if you don't …
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…. We've never been in this situation before."
In deciding to prosecute Trump for his early crimes, Garland would have to break new ground: to prosecute a former president, who was not charged by his own DOJ, and who was twice acquitted by the Senate. Unless the DOJ starts filing indictments in the next couple weeks, Garland’s lack of action will be official confirmation that a corrupt President is above the law, as long as both his AG and 1/3 of Senators turn a blind eye. Whatever Garland’s reasoning may be, his declinations are unknown, no matter how consequential they are for the country.
And to be clear, any crimes Trump committed to get into office in 2016—ahem, Яussia, if you’re listening—passed beyond the statute of limitations during Garland’s first 9 months in office. Trump’s campaign managers were convicted and pardoned, but Trump successfully obstructed and avoided investigation. So last year, AG Garland finally let Trump get away with the clear federal crime of soliciting assistance from Russia to get elected. Having done that, I’m not sure why anyone would expect Garland to prosecute Trump for breaking the same law again with Ukraine. Why would Trump (or any other corrupt candidate) fear breaking election laws again, now that he’s shown that cheating to win is the ultimate loophole. And now Garland is creating an incentive for future presidents to break laws as soon as they get into office to gain protection from the statute of limitations.
On a completely unrelated matter, I wonder why some Americans are so frustrated that the rule of law is still not being enforced and are worried that time is running out to save our democracy?
Funnily enough, serious people who care about the rule of law and our country are deeply concerned. National Security expert Malcolm Nance recently said on MSNBC that Attorney General Merrick Garland’s DOJ has “reset themselves to a standard of normal that does not match the urgency of now.” Someone around here recently pointed out that not arresting arsonists quickly enough likely results in the whole town being burned down. Justice correspondent Elie Mystal recently laid out the stakes in The Nation.
“Maybe Garland is the proverbial tortoise whose slow but steady progress eventually wins the day. Or maybe he’s just another great white liberal hope who is about to be roadkill under the Republican rush to install permanent one-party rule.
So, for now, patience really may be the only option. The people who are disappointed with Garland’s prosecutorial choices thus far are right, but the people who say he needs more time to build a case are also right. Two things can be true at the same time, and there’s no objective reason to trust, or distrust, his process. Garland’s record on January 6 is simply: incomplete.
History tells us the failed coups that are not punished are only practice for the next time around. One way or another, Garland will go down as one of the most consequential attorneys general in the history of the republic. No other AG has had to deal with the fallout of a failed attempted coup. No other AG has had to deal with the fallout of an attempted coup that was supported by members of the previous government and sitting members of Congress. Garland will be the AG who finally held Donald Trump and his forces accountable for their plans to violently overthrow the government, or he’ll be the guy who let them get away with it. He’ll be one of our greatest AGs, or one of our last.”
Any DOJ policy that prohibits the indictment of a sitting president clearly establishes that the president is above the law, an unconstitutional invitation to tyranny that the founders would have rejected unanimously. Any other catch-22 practices at the DOJ that discourage indicting former presidents as too political further confirm that a president continues to remain above the law even after they leave office. Garland needs to reject those policies and practices explicitly and publicly to restore confidence. The fact that Team Trump continues to break the same laws repeatedly—soliciting foreign election assistance, obstructing justice and election interference—is incontrovertible proof that the DOJ is still failing on all aspects of their mission statement.
To enforce the law and defend the interests of the United States according to the law; to ensure public safety against threats foreign and domestic; to provide federal leadership in preventing and controlling crime; to seek just punishment for those guilty of unlawful behavior; and to ensure fair and impartial administration of justice for all Americans.
If the DOJ followed its mission statement, then they would arrest Trump now, before he further subverts our democracy and incites his followers to take power by force. Every law he breaks with impunity merely encourages him and his followers to break more. So far, the Garland DOJ hasn’t done any more than Barr’s to hold Trump accountable for any crime. Waiting silently for Congress to make a referral doesn’t make the DOJ less political. Nor does ignoring the politician who incited insurrection 384 days ago. It makes our country less safe.
If the DOJ tried harder to ensure impartial justice, then Trump would be arrested and charged in a matter of hours, which is what happens to regular Americans who break the law. The DOJ has mostly ignored the threat of white militias for decades, so they have some catching up to do. (Compared to the country, the FBI is significantly less diverse at ¾ non-hispanic white.) As someone here said recently, only prosecuting “easy” cases is essentially unequal justice, where the poor are thrown in jail immediately after committing a crime, while the rich and powerful are not even investigated as their crimes are “complicated” (an unwritten criterion) and require proof of unknowable “intent” (an impossible legal standard somehow more strictly applied in white collar crimes). Garland must take swift action to change perceptions of DOJ bias.
Academic arguments about the need to build meticulous cases are endless, but the delay in arresting Trump has reduced the visceral impact that the insurrection had on the public and on any future jury. The delay has given time for the GQP to switch from condemning his role in inciting insurrection to brushing old news under the rug. Delaying accountability allows militias to continue training for another action and allows Republicans to limit voting, replace honest election officials with unscrupulous lackeys and allows them to plot a permanent return to power. And every day of delay in indicting Trump absolves him of another crime forever as the statute of limitations passes.