Don’t believe the hype about the statute of limitations

The statute of limitations for Trump’s obstruction crimes is not going to expire any time soon

Recently, some legal commentators have been ginning up their audiences by claiming the five-year statute of limitations for indicting Trump for the obstruction crimes identified in the Mueller report will run out in a few days. And now social media is flooded with people lamenting that, if DOJ doesn’t act before next week, DOJ will be forever barred from bringing obstruction charges against Trump for those crimes.

This is false.

Not only is the statute of limitations not going to expire next week – it won’t expire until early 2024 – bringing charges based on these early acts of obstruction would be a gross prosecutorial misstep.

Here are the facts and the law:

The federal statute of limitations for crimes that are “continuing violations” – i.e., carried out through a series of acts over a period of time – isn’t triggered upon commission of the first act, but only begins to run upon the completion of the last act in furtherance of the crime.

Conspiracy is specifically defined in federal statute as a “continuing violations” crime. Other crimes, such as obstruction (when not part of a conspiracy) are also continuing crimes if they are committed as a series of acts in furtherance of the crime. As such, the first act of the obstruction doesn’t start the statute of limitations running.

Trump clearly engaged in a conspiracy to obstruct the Russia investigation through a series of acts that began in 2017 and continued until the investigation ended in early 2019.  And even if it could be argued that he wasn’t part of a conspiracy but was a sole actor, his obstructive behavior still constitutes a continuing crime that can only be viewed as criminal when taken together. Therefore, the statute of limitation only began to run upon completion of the last act of his ongoing obstruction, which occurred in 2019 when the Mueller investigation ended.

This means the five-year statute of limitations on obstruction will expire in 2024, not next week.

And even if the statute had started to run upon completion of those early acts (which it didn’t), prosecutors could still use those actions as “predicate acts” to prove conspiracy to obstruct in a RICO case based on later actions.

While prosecutors could conceivably indict Trump now for his initial act of obstruction in February 2017 – asking Comey to stop investigating Flynn – doing so would be beyond foolish and counterproductive. This and other individual actions taken by Trump were not, standing alone, criminal since they were fully within Trump’s presidential power. Had he asked Comey to stop the investigation, Comey refused, and Trump did nothing more to obstruct the investigation thereafter, it would be impossible to prove that that one single act constituted criminal obstruction of justice. Only when tied in with other subsequent acts can it be established that those actions were part of a concerted effort, involving several actions and co-conspirators, to obstruct the Russia investigation.

No competent prosecutor in this situation would jump the gun at this point by charging the early acts as crimes. It’s not necessary to do so in order to avoid the statute of limitations that isn’t close to expiring, and such a case would surely get thrown out of court. And if it did somehow make it to trial, it would result in a quick and sure acquittal.

Not only is an immediate charge unnecessary to avoid the statute of limitations, but indicting Trump at this point on one or two counts of obstruction could severely undermine and probably destroy the ability to charge him with more serious offenses.

For example, if Trump were indicted and acquitted of obstruction charges for the limited early acts, prosecutors would be barred from later using those acts as predicate acts proving a more serious charge of obstruction within a pattern in, for example, a RICO charge. Early indictment would knock several important legs out from under the obstruction stool.

In addition, if DOJ indicts Trump based on that one act of obstructing the Russia investigation and he were acquitted (or even convicted), double jeopardy would prevent him from being prosecuted for the later acts related to his obstruction of the Russia probe. That’s because obstruction of the Russia investigation is the crime to be prosecuted. Acts such as asking Comey to shut down the investigation, and then firing him when he refused, are not crimes standing alone – it’s not a crime for a president to try to stop an investigation or to fire an FBI director. These acts are criminal only because they furthered the larger crime of obstruction.

Moreover and very important, if prosecutors were to charge Trump with a crime now before the investigation is over, Trump would be entitled by law to have access to all exculpatory evidence related to that charge. Because those early acts of obstruction are inexorably linked to Trump’s other, more serious criminal activity, prosecutors would be forced to turn over to Trump sensitive and critical evidence related to the larger investigation. The last thing the prosecutors need is for Trump to get his eyes and hands on this information while the investigation is still underway.

The bottom line is that, contrary to the incorrect information being spread by some legal commentators, many of whom surely know better, there is no danger of the statute of limitations on Trump’s obstruction of the Russia investigation expiring any time soon. Charging him at this point with obstruction based primarily on his actions in February 2017 out of a misplaced concern about the statute of limitations would be an unforced error.