Following his defeat in last week’s presidential election, President Donald Trump faces the possibility of criminal investigations on multiple fronts. There has been plenty of speculation about the sorts of charges that a Biden Justice Department could pursue—the possibilities include a bribery charge based on Trump’s effort to have Ukraine initiate an investigation into Biden last year, or perhaps income tax fraud—but a critical determinant for any such exercise would be how quickly such a charge would need to be filed.
Legal analysts discussing Trump’s criminal exposure after leaving office often note that the statute of limitations for a federal criminal offense is usually five years. That means that if Trump committed some sort of crime that ended in 2016 when he won election, he would need to be indicted in 2021; if he committed a crime that ended in 2017, his first year in office, that case would need to be filed by 2022; and so on. This is a significant limitation on any investigation of Trump, since even under the best circumstances, it can take years for the government to fully investigate a complex criminal case. And of course, Trump has been in office for the past four years with no sign that anyone at the Justice Department—besides special counsel Robert Mueller and his team’s Russia probe, which turned up evidence that Trump committed obstruction of justice and resulted in a handful of successful prosecutions of Trump underlings—has closely scrutinized any of his many questionable dealings during and before his presidency. (There has been much speculation that Trump might engineer a self-pardon before leaving office, but the legality of such a maneuver would at best be highly debatable.)
As the U.S. Supreme Court has explained, these statutes of limitations serve important constitutional, legislative, and policy interests. Among other things, the passage of time poses the very real risk that exculpatory evidence favorable to a defendant will be lost. In white-collar cases, this means not just that memories may fade, but important written communications can be lost, and potentially crucial financial data can get deleted or overwritten in the course of business.
There is, however, an obscure and readily available statutory provision that could give the Biden Justice Department up to three additional years to investigate and prosecute Trump for criminal conduct, which would increase the available time to file criminal charges to as much as eight years after the relevant conduct.
The statute allows the government to obtain an order from a judge extending the statute of limitations for a prosecution—“tolling” it, in legal parlance—if “an official request has been made” to a foreign country for relevant evidence and “it reasonably appears, or reasonably appeared at the time the request was made, that such evidence is, or was, in such foreign country.” The maximum amount of time available under the statute is three years, but even in cases where the U.S. receives the requested evidence when there is still time to prosecute under the default five-year provision, the government gets an additional six months to file charges.
The congressional report issued when the law was passed explained that its “purpose” was “to extend statute[s] of limitation[s] … when evidence located in foreign countries must be obtained.” Congress was particularly concerned about delays resulting from “the use of offshore banks to launder the proceeds of criminal activities.”
These mutual legal assistance treaty requests are common investigative tools in criminal prosecutions, and it is not difficult to see how they could be used in an investigation of Trump. In a case based on the Ukraine incident, such a request could be issued to the Ukrainian government for internal documents—or, for that matter, to any other foreign government that the Justice Department might want to probe for similar conduct. In a case based on Trump’s taxes, the government could request information from foreign governments concerning their assessment of the value and operations of Trump’s foreign properties.
There are very few limitations on the government’s ability to use such requests to toll the statutes of limitations for the underlying offenses. The application is brought in an ex parte proceeding, and it does not even matter if, at the end of the day, the government does not use the evidence that it obtains in a subsequent criminal prosecution.
In a remarkable irony, Trump’s own Justice Department may have made it even easier to use this tool against him. Earlier this year, criminal defendants in two market manipulation cases in Chicago challenged the government’s use of a request for evidence to the United Kingdom in the course of the government’s investigation. Their argument was that the request had been pretextual—made solely for the purpose of extending the statute of limitations on the cases, and not because the government was actually interested in the overseas evidence.
In response, the government argued that the issue was irrelevant because it was not relying on the request to support the timeliness of the charges. The department also argued that it did not matter why the request was issued, because there is nothing wrong with even a “nakedly pretextual” application for foreign evidence. The courts essentially agreed with both arguments, at least as a matter of statutory interpretation. (They did not address potential ethical issues implicated by the conduct.)
I have a very unusual relationship to this issue and the Chicago proceedings. I wrote an internal memo objecting to the use of pretextual requests for foreign evidence by department prosecutors, and I worked on both of the cases while I was there. I also expressed my views on the matter to the courts, but I agreed with the government that the defendants’ motions should be denied because they had suffered no harm from the conduct at issue.
Regardless of my own views, the upshot of the decisions was clear: The department successfully argued that courts are powerless to evaluate the motives of prosecutors who use the statute.
It is unclear whether a Biden Justice Department would follow the aggressive posture on this issue that Trump’s own Justice Department has taken. But even a more circumspect approach to the tolling provision may significantly improve the Biden Justice Department’s ability to pursue Trump if it chooses—and, in turn, exacerbate the significant legal risks to the soon-to-be ex-president himself.