On Friday, three Democratic members of the House Judiciary Committee introduced the “No President Is Above the Law Act.” The name is appealing, and the idea is, too; because the Justice Department has concluded that a sitting president can’t be indicted, the bill extends the statute of limitations for indicting a president so that it doesn’t run out while he or she is in office. The logic and motivation for the bill are compelling, but if the bill became law, it could introduce dynamics into our politics that might well prove damaging to our democracy—indeed, you only need look at the headlines these days to see how an authoritarian-minded president might take advantage of such a law to punish a politically threatening predecessor. There may, however, be a way to achieve through amendment the noble objectives of the No President Is Above the Law Act while mitigating the palpable risk.
First, a bit of background: The bill is a response to the Justice Department’s long-standing view that, while in office, a president can’t face criminal charges. To prevent a president from committing crimes before or while serving in office and then running out the clock, the bill would suspend the statute of limitations—the period of time in which criminal charges can be brought—while a president remains in office. Some legal analysts have argued that the Justice Department’s view might automatically initiate something called equitable tolling that would delay the statute of limitations from kicking in until the president is out of office, but most also acknowledge that a court could well reject that view.
The No President Is Above the Law Act is immediately appealing to those of us deeply concerned not only about Donald Trump’s behavior while running for and serving as president but also about the dangerous possibility that such behavior might be a harbinger of presidential malfeasance in the future. First, the bill would prevent Trump from escaping federal criminal prosecution for behavior that, according to more than 800 former prosecutors, would have merited prosecution but for the Justice Department’s view that a sitting president can’t be criminally charged. Indeed, a footnote in Robert Mueller’s final report suggests that he believed Trump could be charged once out of office. Second, the bill would seem to disincentivize Trump—or a future Trump-like figure—from resisting resignation, impeachment, or even a loss at the ballot box simply to keep “running out” the statute of limitations for federal crimes. Third, the bill appears, in a sense, fundamentally logical and just; if charges can’t be brought while a president is serving in the Oval Office, why should he or she escape justice?
But, despite its clear appeal, the bill also has the potential to aggravate our current crises of democracy. Consider a president who ran for office on the promise to prosecute the current president, regardless of whether the current president is running for reelection, finishing a second term, or has even committed a crime in the first place. Imagine how inflammatory it would be to pledge criminal prosecution of a political opponent as part of a presidential platform.
Regrettably, this is no longer mere fodder for imagination—we’ve repeatedly seen precisely this dangerous behavior from Trump. At a presidential debate, Trump looked at Hillary Clinton and told her “you’d be in jail” if it were up to him. This was after Michael Flynn led anti-Hillary Trump supporters in a chant of “Lock her up!” at the Republican National Convention. And, as president, Trump just last month said that he’d urged Attorney General William Barr to investigate the prior administration for what Trump called “an attempted coup” while he was running for office. On Monday, we learned that Barr appears to have taken the president up on his command, assigning the United States attorney in Connecticut to investigate Trump’s past investigators. Trump has also—startlingly—expressed the view that it would be appropriate for him to talk to his attorney general about investigating Trump’s current leading potential Democratic opponent in the 2020 election.
This is deeply unhealthy behavior for a democracy, and a bill extending the statute of limitations that isn’t more carefully crafted has the potential to make things worse. As I’ve explained elsewhere, democracies face dark days when the line between the language of politics and the language of law enforcement fades, and the consequence for losing an election—or even simply finishing one’s time in office—becomes criminal punishment. That’s a key indicator of the slide toward authoritarianism.
There might be a solution to this problem, though. Imagine, for instance, that the No President Is Above the Law Act required the Justice Department to appoint a special counsel of the same political party as the ex-president being investigated if the department were to make use of the suspended statute of limitations to consider criminal charges against an ex-president. This could somewhat insulate the law enforcement process from raw politics, and provide something of a check on a presidential candidate or new president proposing the prosecution of an ex-president (though, ultimately, the special counsel would still report to the new president’s attorney general). There is, of course, the possibility for this approach to backfire too, by suggesting to the American people that law enforcement is fundamentally political, when traditionally it’s been just the opposite. Still, given the impunity with which our current president is acting, it’s worth imagining creative ways to keep in check this president and future ones. This is a time for figuring out how to deal with novel threats to our democracy—within the bounds of our constitutional structure—and, for now, the question we should ask about the No President Is Above the Law Act is not “yes or no” but, instead, “how can we make it work?”
The bill introduced last week takes aim at a serious concern, and it deserves serious consideration. At the same time, as I’ve urged elsewhere, it’s essential to ensure that our attempts to address the vulnerabilities in our democracy that Donald Trump has revealed don’t unintentionally weaken our constitutional structure. As Congress and the rest of us consider the No President Is Above the Law Act, let’s make sure we’re thinking not only about allowing justice to be served but also about halting the descent of our politics into threats of criminal prosecution.
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