Impeachment is currently the only option for holding a sitting president accountable for their crimes, but a group of Democratic lawmakers wants to make sure that presidents don’t become immune to criminal charges altogether, simply because they can’t be indicted while in office.
Reps. Jerry Nadler (D-NY), Ted Deutch (D-FL), and Eric Swalwell (D-CA) this week introduced the “No President Is Above The Law Act.” Its premise is simple: if a sitting president committed a crime — either before or while in office — the statute of limitations for prosecuting that crime will be paused until they’re no longer in office.
The Justice Department’s Office of Legal Counsel (OLC) has concluded that “a sitting President is constitutionally immune from indictment and criminal prosecution.” That’s because there are certain functions only a sitting president can perform, and a president in court or in jail would not be able to perform them. And only impeachment can actually remove a president from office.
Special counsel Robert Mueller’s report specifically relied on this guidance in its conclusion not to indict President Donald Trump, despite outlining at least 10 episodes involving Trump that may have constituted obstruction of justice. Mueller specifically deferred the handling of these concerns to Congress, writing, “The conclusion that Congress may apply obstruction laws to the President’s corrupt exercise of the powers of office accords with our constitutional system of checks and balances and the principle that no person is above the law.”
But as ThinkProgress has previously noted, the Founding Fathers did not anticipate politics becoming so partisan that a political party would use its power to protect a criminal president. Even if the House at some point takes up articles of impeachment against Trump for these crimes, the likelihood of two-thirds of the Republican-controlled Senate voting to convict him is minimal at best.
Given the unique political obstacles to convicting a president through impeachment, this leaves the question of whether there can ever be any other accountability for a president who commits crimes. The answer is that a president could still be indicted after they’re no longer in office. But that’s only if the statute of limitations — which is five years for most federal offenses — hasn’t run out on their crimes. Hypothetically, a two-term president would be completely immune to prosecution for federal crimes committed before they were in office or during much of their presidency.
That’s where the new legislation comes in. The reasoning behind the bill is that if a president can’t be indicted while they’re in office, then the statute of limitations should not apply while they’re in office either. That way, when their term is over, they can still be held accountable for crimes they committed through the standard judicial processes — no impeachment required.
In a statement accompanying the introduction of the bill, all three lawmakers expressed concern with the OLC’s opinion that a sitting president can’t be indicted, with Swalwell openly stating his disagreement. All agreed with what Mueller himself declared, which is that “no person is above the law” — not even the president.
Or as Nadler put it, “The presidency is not a get-out-of-jail-free card.”
Nadler chairs the House Judiciary Committee, on which both Deutch and Swalwell also sit. This week, the committee voted to hold Attorney General William Barr in contempt for refusing to comply with a subpoena turning over the unredacted Mueller report and its underlying evidence, and requesting Barr work with lawmakers to petition a judge for any grand jury material.
Trump has now asserted executive privilege over the full report, an attempt to block one branch of the government from conducting oversight of another. However safe he might be in the Senate, Trump appears determined to block the House from accessing any additional information that might further justify impeachment proceedings.