Run, Donald, Run!
How reelection may help the president avoid prison
Donald Trump has his eyes firmly set on winning a second term. But despite his ambition to remain in the White House there’s an underlying question of whether his motivation is to serve the country or to avoid serving time in prison.
Presidents generally view second terms as an opportunity to establish their legacy. Unfettered by subsequent reelection campaigns or the need to please their base, a second-term president can concentrate on policies that will define their presidency and cement their place in history. But Donald Trump is unlike other presidents.
Trump began his 2016 presidential campaign as the plaintiff or defendant in more than 4,000 lawsuits, according to USA Today. Since becoming president that number has grown considerably and includes multiple inquiries, investigations and lawsuits into his personal conduct and business and political dealings.
On the whole, legal jeopardy currently faced by the President poses little risk of criminal prosecution or jail. Lawsuits filed by Summer Zervos and E. Jean Carroll, for instance, accusing Mr. Trump of defamation of character stemming from alleged sexual misconduct, are civil lawsuits and would likely result in monetary damages rather than incarceration should he be found liable.
In much the same way, several ongoing state probes into the President’s business and campaign activities appear likely to result in civil fines rather than a criminal conviction should he be held legally responsible. Even the Trump family tax scheme detailed in the New York Times and currently investigated by the state of New York, likely would only result in civil penalties because the statute of limitations for criminal tax fraud has expired.
However there is one crime the President could be prosecuted for if he loses the election, but it has a statute of limitations that could expire if he wins. The crime is obstruction of justice.
Simply put, obstruction of justice is any effort to interfere in the administration of justice and includes withholding information, giving false/misleading testimony, or intimidating a witness or other official. Federal obstruction of justice is a felony punishable by substantial fines and sentences in federal prison ranging from a few years to decades.
In Special Counsel Robert Mueller’s report to the U.S. Justice Department he identified numerous obstructive actions taken by the President that were intended to influence the investigation of Russian influence in the 2016 election.
As Special Counsel, Mueller had authority to investigate the President for obstruction of justice but he lacked the authority to subsequently charge him with the crime.
That’s because the Justice Department has a long-standing policy that prevents federal prosecutors from charging a sitting president with a crime. Mueller cited this policy as part of his reasoning for not indicting the President, choosing instead to “preserve the evidence” of obstructive behavior because “a President does not have immunity after he leaves office.”
All told, Mueller identified 10 instances where Trump potentially committed obstruction of justice. Three of the instances were so compelling that more than 1,000 former federal prosecutors signed a letter stating that Trump would be indicted for his actions if he were not president. The 3 instances of obstruction were each tied to the President’s effort to remove Mueller as special counsel and end the investigation.
In summary they are:
· Trump’s efforts to pressure White House counsel Don McGahn to deny that the president had wanted Mueller removed.
· Trump’s effort to get his former campaign manager, Corey Lewandowski to deliver a message to then-attorney general Jeff Sessions that would effectively redirect Mueller’s investigation away from the president.
· Trump’s effort to have McGahn instruct Deputy Attorney General Rod Rosenstein to fire Mueller, telling McGahn, “you gotta do this.”
The 7 other instances of potential obstruction vary, ranging from the firing of James Comey to Trump’s efforts to get Jeff Sessions to retake control of the investigation. Each of the 7 is credible and reflects a behavior pattern consistent with Trump’s effort to control the investigation. However the supporting evidence isn’t considered as strong, making them less likely to be part of an indictment.
The federal statute of limitations for obstruction of justice is 5 years. If reelected, Donald Trump could not be prosecuted for obstruction committed in 2017 until he left office in January, 2025 — 2 years after the statute ran out.
There’s question whether a “hold” would apply to the statute of limitations that would effectively pause the clock during Trump’s time in office. But because no court has ruled on the issue it remains moot. The uncertainty, however, means winning reelection might be Trump’s best bet to not be charged with a felony.
If Trump is defeated in November he could resign before his opponent is sworn-in, allowing Vice President Pence, as his successor, to pardon him before any federal charges could be filed. But for Trump, resigning the presidency would amount to political capitulation for a president who tries to always project an image of unrelenting strength.
For his part Joe Biden has said he wouldn’t pardon Donald Trump if elected, and would leave the decision to prosecute the former president to his administration’s Justice Department.
But Biden has often spoken of the need to unite the country and so one has to wonder if in an effort to heal a divided nation, a President Biden might view pardoning his predecessor as “good for the nation” and an appropriate outreach to the defeated president’s supporters.
It bears noting that a president can issue pardons only for federal offenses, and not state crimes. Therefore should any state’s civil investigation into Mr. Trump become a criminal inquiry; or if a state initiates criminal charges into private citizen Donald Trump following the release of his tax returns or subpoenaed bank records, a presidential pardon by Trump’s successor would not affect that outcome.
No doubt Trump’s decades of experience as a litigant has prepared him for the risks and rewards of civil litigation. But none of his past lawsuits had consequences that equal the ones he could face if he’s defeated in November. That makes his reelection campaign about more than securing a legacy.