AP Photo/Carolyn Kaster Law And Order How Trump Could Get Away With It Time is on the president’s side, despite strong evidence that he broke campaign law. But not if Congress and the special counsel decide to act.

Lawrence S. Robbins is a founding partner in the Washington, D.C., law firm Robbins Russell, and is a former federal prosecutor and assistant to the solicitor general.

This weekend, President Donald Trump raged against Michael Cohen, calling his former lawyer and accuser a “rat” for cooperating with federal prosecutors. Cohen has accused Trump of directing him to make secret hush-money payments to two women so that they wouldn’t tell their stories before the November 2016 election. The Department of Justice’s description of the role of Individual 1 – the president himself – leaves no doubt that career Justice Department prosecutors regard Trump as a full-blown co-conspirator. And most serious-minded criminal lawyers agree that, if these allegations are true, the president, but for his day job, would have been sitting in the dock with his long-time fixer.

By all accounts, however, neither the United States attorney in Manhattan nor Special Counsel Robert Mueller is likely to indict the president so long as he remains in office. Official Justice Department policy, as set out in a 2000 opinion of the Office of Legal Counsel (OLC), holds that a sitting president may not be indicted, even if any trial is postponed until the president has left office. OLC reasoned that the mere fact of an indictment – indeed, even if the indictment is issued under seal (so that the president is not even aware of its existence) – would so distract him from the performance of his constitutional duties that no criminal charges may be brought unless the president is first impeached and removed, resigns, or leaves office following his term of service. Mueller, as a DOJ special counsel, is expected to follow this DOJ guidance, as would the U.S. attorney.


But there’s the rub: The statute of limitations on the campaign finance felonies in question, as well as virtually any other felony with which President Trump might be charged, is five years, beginning with when the offenses were committed. Especially if Trump were reelected in 2020, he would still be a sitting president when those five years are up. Does that mean he might be able to run out the clock? Would he be legally free from prosecution if he serves two full terms in office?

Notably, the OLC opinion recognized this risk. The drafters believed, however, that either Congress could lengthen the statute of limitations or the courts could “toll” the statute – that is, freeze it in place until the president has left office – as a matter of their “equitable” discretion. But neither option is especially likely. For one thing, Congress cannot lengthen the statute of limitations if the statute has already run; the Supreme Court so held in 2003. And while Congress might be able to lengthen the statute before it has fully run, it almost surely could not constitutionally do so only for the case of United States v. Trump. Perhaps Congress could enact a statute that would formally immunize all presidents from prosecution during the period of their service, while tolling the statute of limitations for the period of service; but even if the House could be persuaded to pass such a statute, the chances of passage in the Senate, over a certain veto by the president, are at best uncertain.

The courts cannot be counted on, either. As OLC itself acknowledged, equitable tolling is only “rarely” invoked, and if done at all, is typically reserved for civil, not criminal, cases. And no one can say with any confidence that a court would agree to toll the statute if Trump, once he leaves office, asserts a statute of limitations defense.

The prospect that the president might therefore elude prosecution is a serious one. And that prospect cannot be reconciled with the basic principle – recognized in the OLC opinion – that no man is above the law.

What is to be done? In an ordinary case, a prosecutor might ask the target of a prosecution to sign what is called a “tolling agreement.” In such standard agreements, the target agrees not to invoke a statute-of-limitations defense based on the period of time from the date the agreement is executed until some later time when the agreement expires. The target has an incentive to execute such a contract because, in the ordinary case, her failure to do so may prompt the government to indict right away.

But President Trump would have no such incentive. Precisely because the government appears to be precluded, by DOJ policy, from indicting him while he continues to serve, the president will feel no pressure to extend the statute of limitations as long as he remains in office.

The government should nevertheless ask the president to toll the statute. If, as I expect, he refuses to do so, the special counsel and the U.S. attorney could decide to reconsider their deference to the OLC opinion, which rests on the premise that there must be some way to hold the presidential accountable for the commission of a crime.

Failing that – and in the face of the president’s acknowledgment that he reserves his right to leverage his very office as a permanent immunity from prosecution – Congress would surely have no choice but to hold him accountable in the way prescribed by the Constitution.