Here’s an interesting dilemma: Two Department of Justice memos suggest that a sitting president cannot be charged with a crime while in office. Though these memos constitute policy and not law, let’s assume that if the president did commit a federal crime, these memos would be abided by the Department of Justice and, therefore, by Robert Mueller's team. Impeachment, then, would be the only means — short of the extraordinary procedures envisioned by the 25th Amendment — to remove a president from office during his term.

What if a president committed a federal crime, either before or during his first term?

But what if a president committed a federal crime, either before or during his first term? One problem prosecutors face is that the statute of limitations to bring charges against that sitting president — five years for many (but not all) federal crimes — could expire if that president is elected to a second term and serves the balance of the first term and all of the second term without committing any more offenses. (In the old days, that would not be too much to ask.)

So, if that president is re-elected, is there a way for prosecutors to avoid the statute of limitations problem in order to charge and convict that person once he becomes a former president, perhaps six years from now? As the 2020 presidential race heats up, and as the statute of limitation clock ticks, this is a question that’s likely to be asked more and more.

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In fact, I have heard several thoughtful people — including a serious and articulate member of Congress — suggest recently that one option would be to file an indictment against a sitting president “under seal” and let it remain under seal, presumably until one or both presidential terms expired. The indictment would then be unsealed, and the case could proceed. But is this a plausible theory? Perhaps not. Here’s why:

The Sixth Amendment to the Constitution holds that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial….” Congress has codified that right in federal law.

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In Doggett v. United States, the Supreme Court ruled that a delay of eight years and six months between a defendant’s indictment and his arrest violated his speedy trial act rights. The 1992 Doggett decision amplified a 1972 Supreme Court speedy trial act decision — Barker v. Wingo. Going forward, cases involving potential speedy trial violations have needed to prove that the delays in question were caused by the government, and also that the defendant in question was harmed by the delay.

Cases involving potential speedy trial violations have needed to prove that the delays in question were caused by the government, and also that the defendant in question was harmed by the delay.

Generally speaking, when the government asks that an indictment be sealed – and a federal judge grants permission — it is to locate a fugitive. In fact, Rule 6(e)(4) of the Federal Rules of Criminal Procedure permits an indictment to be sealed under limited circumstances, noting that the:

“… judge to whom an indictment is returned may direct that the indictment be kept secret until the defendant is in custody or has been released pending trial. The clerk must then seal the indictment, and no person may disclose the indictment's existence except as necessary to issue or execute a warrant or summons.”

Naturally, the government wants the indictment under seal so as not to tip off the bad guy. The government, then, must diligently search for the fugitive. Failure to do that, as in the Doggett case, can trigger speedy trial concerns and, in extreme cases, cause a court to overturn a conviction. Does that general rule apply in my hypothetical? Arguably, yes.

As the Supreme Court noted in Doggett:

“For six years, the Government's investigators made no serious effort to test their progressively more questionable assumption that Doggett was living abroad, and, had they done so, they could have found him within minutes. While the Government's lethargy may have reflected no more than Doggett's relative unimportance in the world of drug trafficking, it was still findable negligence, and the finding stands.”

A decision by the government to indict a sitting president under seal coupled with a failure to do anything about it could run into Sixth Amendment headwinds.

But how much delay is too much delay? The majority opinion in the closely divided (5-4) Doggett decision noted that many federal courts consider a one-year delay to be sufficient to trigger a speedy trial inquiry. Put simply, a delay of one year is not dispositive (the case won’t necessarily be thrown out) but it is concerning (and it might be thrown out).

So, a decision by the government to indict a sitting president under seal coupled with a failure to do anything about it — to initiate trial proceedings or to litigate the question of whether a sitting president can be charged with a crime — could run into Sixth Amendment headwinds. It is not clear that the government would lose under these circumstances, but it could.

By the way, you might be familiar with some of the Department of Justice lawyers involved in the Doggett case when it was argued in the Supreme Court. The solicitor general on the Doggett brief filed in the Supreme Court was a gentleman by the name of Ken Starr. And the high-ranking assistant attorney general who argued the case the first time in the Supreme Court in 1991 (before it was reargued in 1992) was a gentleman by the name of Bob Mueller.