AVAILABILITY OF TOLLING IN A PRESIDENTIAL PROSECUTION.

• Author: Foley, Kevin

INTRODUCTION 1790 I. PRESIDENTIAL IMMUNITY 1796 A. Textual and Historical Considerations 1796 B. Prudential Considerations 1799 C. Immunity Assumption 1801 II. THE TOLLING QUESTION 1802 A. Criminal Statutes of Limitations 1803 1. Fairness, Accuracy, and Repose 1804 2. Efficiency and Predictability 1806 B. Equitable Tolling 1807 1. Use of Equitable Tolling in Criminal Cases 1808 2. Application of the Civil Equitable Tolling Framework to the Criminal Limitations Statute 1815 a. Is [section] 3282 Subject to Equitable Tolling? 1815 i. Presumption in Favor of Equitable Tolling 1816 ii. Textual and Structural Considerations 1817 iii. Underlying Purpose 1818 b. Would the President's Temporary Immunity Constitute An "Extraordinary Circumstance"? 1818 C. Tolling to Implement the Policies and Procedures of Other Federal Law 1821 1. American Pipe & Constr. Co. v. Utah 1821 2. Implementing the Policies and Procedures of Other Federal Law 1823 a. Article II 1823 b. The Rule of Law 1825 3. Consistency with Criminal Statutes of Limitations 1826 III. POTENTIAL SOLUTIONS 1828 A. Sealed Indictment 1828 1. When Can an Indictment Be Sealed? 1829 2. Does Sealing an Indictment Toll the Statute of Limitations? 1833 3. Is Filing a Sealed Indictment Consistent with the Reasons Supporting Presidential Immunity? 1837 B. Congressional Action 1839 CONCLUSION 1841 INTRODUCTION

There have been only a few instances in the history of the United States when the conduct of the President has drawn the legitimate attention of criminal prosecutors.

In 1973, President Richard Nixon came under scrutiny when several of his aides were convicted of crimes stemming from "a massive campaign of political spying and sabotage conducted on behalf of" the President's 1972 reelection effort. (1) A special prosecutor was appointed to investigate Nixon's involvement, before being fired by Nixon himself in the "Saturday Night Massacre." (2) Several months later, after the Supreme Court held that the President could not claim privilege over taped conversations between he and his aides, (3) the House Judiciary Committee passed the first of three articles of impeachment. Rather than face trial in the Senate, Nixon resigned, becoming the first and only U.S. President to resign the office. While Nixon's resignation relieved prosecutors of the need to test whether they were constitutionally permitted to indict the President while he remained in office, the special prosecutor's staff carefully considered the bounds of the President's immunity in the months leading up to Nixon's departure. (4) Watergate thus provided the initial battleground for constitutional law scholars to debate the President's amenability to indictment and criminal process.

In 1994, an Independent Counsel was appointed to investigate President Bill Clinton's involvement in a failed Arkansas real estate deal dubbed "Whitewater." (5) The investigation proceeded in several phases over the succeeding four years, largely under the leadership of Kenneth Starr, a former federal judge who served as Solicitor General during the George H.W. Bush Administration. (6) While the Clintons were never charged in connection with the Whitewater matter, Starr's investigation eventually expanded to encompass several other controversies, including the firing of White House travel office employees and, most notably, President Clinton's sexual relationship with former White House intern Monica Lewinsky. (7) Starr's report on the Lewinsky matter ultimately concluded that President Clinton committed perjury and obstruction of justice through various public statements he made regarding the alleged affair (8)--charges for which Clinton was eventually acquitted at an impeachment trial. (9) Although Starr ultimately chose not to pursue an indictment against Clinton, he commissioned a report on the indictability of the President, which concluded the Independent Counsel's office was legally permitted to indict Clinton. (10) At the same time, Clinton's Justice Department prepared its own memorandum opining on the issue and concluded the opposite, largely drawing from the work of a memorandum prepared by the Nixon Administration that found the same. (11) The Starr investigation generated a renewed battle among commentators over the question of presidential immunity (12). (13)

This issue became relevant again in June 2017, when Special Counsel Robert Mueller (14) began investigating current President Donald Trump for obstruction of justice related to his campaign's contacts with Russian diplomats (15)--an investigation that ultimately concluded without recommending criminal action against the President. (16) Nevertheless, as several of Trump's current and former associates pled guilty, suffered convictions, or were indicted as a result of the Mueller probe, (17) the debate over presidential immunity once again came to the forefront. (18) This argument is even more important now because, unlike in the cases of Nixon and Clinton, Congress is not fully controlled by the President's opponents, rendering the possibility of conviction at an impeachment trial highly unlikely. (19) Thus, to the extent prosecutors were convinced of President Trump's criminality, indictment may have been the only outlet for them to seek justice against him.

The three controversies discussed above have produced voluminous scholarship on the question of whether a sitting president is amenable to indictment and criminal process, some of which I discuss in Part I. In several of these works, commentators on both sides of the issue have identified a critical statute of limitations problem that arises when it is assumed that a sitting president is unindictable.

Suppose that a President commits a federal bribery offense in January 20x1, the first year of his presidency. This offense is quickly exposed by the media, and a special counsel is appointed to investigate. By January 20x4, investigators have all they need to charge the President with bribery, but we assume, as many have argued, that any criminal process against the President is unavailable while he or she remains in office. Much to their dismay, investigators soon come to realize that Congress, wherein both houses are overwhelmingly controlled by the President's party, refuses to impeach the President for this offense, or any other for that matter. Meanwhile, voters in the President's party remain fiercely loyal to him despite the charge and, as a majority of the electorate, are happy to reelect him to another term beginning in 20x5. (20) One year later, in January 20x6, prosecutors are dismayed when the 5-year statute of limitations period for the bribery offense expires, without the President ever being brought to justice. Certainly this cannot be the result the Framers would have wanted--even though they may not have anticipated that extreme party polarization could render the impeachment process ineffective (21)--for it has been a principle since the founding that not even the President is "above the law." (22)

Foreseeing the intractability of this result, commentators arguing in favor of presidential immunity have theorized that, in such a case, some form of "tolling" could be invoked by a court to delay expiration of the applicable statute of limitations. For example, in his impeachment handbook, constitutional law scholar Charles Black stated that "an incumbent president cannot be put on trial in the ordinary courts for ordinary crime... [a] simple and obvious solution would be... to delay indictment until after his term [with the statute of limitations] 'tolled'... until the president's term is over." (23) Likewise, Professor Akhil Amar, in one of several pieces he has authored arguing in favor of presidential immunity, theorized that "[t]he statute of limitations can be stayed" to preserve the ability to prosecute the President after he or she leaves office. (24) Former Assistant Attorney General Randolph Moss, in the aforementioned 2000 OLC Memo, suggested that the doctrine of equitable tolling could be invoked to delay expiration of the statute of limitations in such a case. (25) Following the logic proposed by these scholars, in our example above, the President could be indicted for bribery the minute he or she leaves office. However, no work proposing this solution has performed an analysis of current precedent on tolling rules to support the conclusion that this remedy would be available to prosecutors facing such a dilemma. Here, I seek to fill this gap in the scholarship by analyzing whether history and precedent would permit the use of some form of tolling to delay expiration of the statute of limitations for a crime committed by a President who is immune from criminal process. I approach this question by asking whether a tolling rule could be adopted to satisfy this problem grounded in either (1) general equitable considerations or (2) the policies and procedures of other federal law.

In Part I, I discuss the legal bases furthered in support of presidential immunity and the practical reasons for assuming this doctrine applies to the current President. In Part II, I address the tolling question posed above by analyzing whether a court may be permitted to toll the applicable statute of limitations in a case against the President by relying on either general equitable considerations or its power to implement the policies of other federal law. Finally, in Part III, I provide two alternative solutions to solving the statute of limitations problem to the extent judicial tolling is unavailable.

1. PRESIDENTIAL IMMUNITY

   While presidential immunity is far from a settled issue, (26) many reputable constitutional law scholars contend that it exists. As discussed above, the supposed existence of presidential immunity is what produces the important legal question that this Comment addresses; to the extent it exists, the President may be able to escape prosecution for a crime if he or she...