2018 was an eventful year for President Trump, his lawyers, and the Trump-legal podcast community. KCRW’s political podcast Left, Right & Center started a new show all about the president’s legal troubles called All The President’s Lawyers. In the final episode of 2018, co-hosts Josh Barro and Ken White answered listeners’ questions. You asked questions about indicting the president, executive privilege, and even that weird time Michael Cohen said Sean Hannity was his client. Here are the questions and answers from the episode (lightly edited for length and clarity).
Adam, in Massachusetts: Assuming for a moment that there is criminal liability and criminal charges that could be brought against President Trump but the Justice Department guidelines are followed and that they do not bring charges against the sitting president. Can the statute of limitations be held until he's out of office?
Josh Barro: My understanding for example is that in the Michael Cohen case (the one where Cohen pleaded guilty to making an illegal contribution to Donald Trump's presidential campaign and actually he says he did at the direction of Donald Trump) that the Southern District of New York they appear to be behaving as though they would like to also indict the president for this and that the statute limitations on that offense would run out in 2021. So, suppose Trump is reelected and he's going to serve in office until the beginning of 2025. Do prosecutors have any recourse? Is there a way for them to charge him if they believe they do have the goods on him if only they could actually bring the indictment?
Ken White: Well it's not something that we have a decision on. We’ve never before had a situation where someone wanted to indict the president and then argued out the statute limitations later. But if you look at the way that the statute of limitations is traditionally litigated in federal court, there are a few different approaches. One would be to indict him while he's in office and hold the indictment. That would require a change to or a violation of the current Department of Justice guideline that says you can't indict a sitting president. But you could indict him and then hold it until such time as he was susceptible to legal process. The other thing you could do is wait till he's out of office— indict him and then argue that the statute of limitations was not running while he was in office because under the law he was immune from an indictment. That could create the amusing situation where the former president was arguing, “No you could have indicted me,” and the prosecutors were arguing, “No, we couldn't have indicted you.” We don't know what the law is going to say about this. And that's a real problem for prosecutors. They don't really know how a court will come out on this issue some day.
JB: So, you could toll a statute of limitations. Tolling is the idea of sometimes basically you get to hit a button and stop the clock on the statute limitations. Classic case is if you're a fugitive from justice you can't just hide until the statute of limitations on your crime runs out because you have been a fugitive that's stopped the clock on your statute limitations. So, could you think of the president as a fugitive, in the sense that he's hiding within the presidency, a place where he can't be indicted?
KW: Yeah, a better analogy might be military service. A lot of states have exceptions to the statute limitations on civil actions, such as the statute can’t run while someone is serving in the military overseas because they're not susceptible to process. So, prosecutors could very easily make the argument that during the time that he was in office, the statute was not running because he could not be indicted according to the Justice Department itself. But again, we don't have a ruling on that. It is a somewhat risky approach to take because you run the risk of some court saying, “well, you know you should have indicted him and then held the indictment because he can be indicted he just can't be prosecuted” or something like that.
JB: How does this relate to the policy justification for statutes of limitations? I mean the idea basically is that you want to force the government to bring charges promptly so that witnesses are still around and still have fresh memories and so that people don't have to worry for years and years and years about whether they might be prosecuted for old acts. And so that drives the reason you’d impose a statute of limitations. Then, as we've discussed, you create a number of exceptions to the statute of limitations so that you don't get absurd results where basically someone is allowed to game the clock and avoid prosecution.
KW: Well, exactly. The statute of limitations is supposed to be about repose and safety– that sooner or later you no longer have to keep the receipts. Sooner or later you don't have to worry about your witnesses dying and everyone forgetting what happened. There are actually doctrine's beyond the statute of limitations that say you can be in constitutional violation of due process for the government to delay prosecuting you.
JB: Occasionally you'll have a fugitive who gets caught who will argue that you didn't try hard enough to find me to extradite me. During all those years after you indicted me and now you know the witnesses are dead and everyone's forgotten and it's unfair to prosecute me. That's why there may be a real incentive for prosecutors to indict the president and even let it be known that he's been indicted so that really the ball's in his court he can say, “I think I can be prosecuted. Now, let's get on with it.” At the very least they can say he knew he was in legal jeopardy. He had every incentive to preserve documents to preserve witness testimony. And that weakens his argument later that he's prejudiced by the delay.
David White from Irvine: I want to know if the president can be prosecuted for actions that occurred while he was in office. The president has executive privilege. There are certain internal deliberations within the executive branch which he can assert are not discoverable by a court. Does this privilege survive the end of his presidency? Once he is no longer president, can he still say that certain communications, while he was president, are beyond the reach of a trial court?
KW: Well, that privilege belongs to the office of the presidency. And so that's why each president has traditionally sometimes asserted the privilege over documents belonging to a previous administration. So, the particular executive privilege resides with the office, not with the person in a scenario where he's out of office. I can imagine that the incumbent of the office might not assert the privilege on his behalf.
Emily in Dallas: Does presidential pardon power extend to corporations? Can a president who cannot pardon himself pardon a corporation which he was the sole proprietor of?
JB: Well, first of all, I actually want to talk about an assumption that the president can pardon himself. It is not established and I think we did an episode on this about a million years ago in 2018 time. It's never been tried and it has not been tested. The funny part of it is it's possible that it can't be tested, that it's a political question that a federal court would decline to answer and it's not clear how that would come out. There are scholars on both sides of this and I think probably the better argument is that the language of the pardon power implies that it's transitive, that it has to happen to somebody else and that you can't self-pardon. But that could go either way.
Suppose that the president cannot self-pardon, that it would be resolvable in that direction that the president lacks the power to pardon himself, can he pardon a corporation at all? And can he pardon the corporation he owns? One thing that has been discussed with regard to the Michael Cohen matter (and the illegal campaign contribution that Michael Cohen pleaded guilty to making) is the involvement of the Trump organization in a conspiracy to make that campaign contribution and whether you could have a criminal indictment of the Trump organization. So, can the president pardon a corporation and could he pardon his own corporation?
KW: Well sure. Let's break down the different questions embedded in that. He can't pardon the Trump corporation for state crimes. That much is clear. He can't pardon the corporation or anybody for civil cases for things that are not government penalties. There's a little ambiguity here on exactly what is pardonable and what's not. But the closer it is to a civil case, as opposed to a penalty imposed by the government, the less the president has the power to pardon. In terms of whether he can pardon a corporation: it's not clear. It says the president has the power to grant reprieves and pardons for offenses against the United States except in cases of impeachment. In the Constitution, it does not say the power to pardon persons (and even if it did, we would have to get into the Mitt Romney argument about what a person is). So it's one more thing that is simply not settled. I think that the appearance would be pretty catastrophic for the president if he were pardoning a corporation. But I think that there is a plausible argument that he can under the plain language because of the “corporations are people” thing.
JB: Obviously, there's a lot of controversy about the Citizens United ruling specifically and about what the bounds of the First Amendment are in terms of free speech. But the idea of corporate personhood is not actually controversial. I mean, it’s the reason lawyers will use the term “natural person” to refer to what a normal person would just call a person.
KW: Right. I think the difference here is that we have a fair amount of history about how pardons work as to natural people and not as to corporate people. So, we have a lot of information about what the founders were thinking about when they were talking about pardons of humans. And we have a number of those as examples. We just don't have that type of history or background for corporations and that makes it much more difficult.
Patrick from North Carolina: You guys talk all the time about how it's not legal for anyone to indict the sitting president. Can you go into the exact reasons why that is?
JB: First, let's clarify what we say all the time because we do not say that it's not legal for anyone to indict the sitting president. What do we say the rules are around this?
KW: We say that the current Department of Justice guidelines assert that the indictment or criminal prosecution of a sitting president is not permitted because that is what the DOJ memos say and they've concluded that since 1973. If a court were presented with it, it's not even entirely clear that the court would decide that. What they might say is that it is a political question, not susceptible to resolution by a court, that the decision to indict the president by the Justice Department is something that the political branches have to deal with somehow. But if you're talking about what is the rationale behind it, the rationale has been that the president's executive power and the capacity of the executive branch to operate would be undermined if the president could be indicted for crimes while in office. And that's very much what the Justice Department memo has said.
Now, interestingly the memo talks very candidly about the arguments on both sides. But what the argument is is that the Constitution has a specific provision to remove the president of the United States from office. That's impeachment and that the impeachment process implies that it is the correct way to remove the executive and the ability of any state, any locality or any federal prosecutor to indict the president would allow constant interference in the president's business.
JB: Isn't there also an issue of reserving powers to the Congress? The Constitution creates a procedure for holding the president accountable for offenses, which is the impeachment procedure. That's a power that is given to Congress, rather than to the executive branch, and so it's about basically preserving Congress's prerogative to bring charges against the president if they wish?
KW: Exactly. And that's a riff on the concept that impeachment is in the Constitution for a reason and it's meant to be (even though it doesn't say it explicitly) the sole remedy for a president being guilty of crimes: to impeach and then convict in the Senate and then presumably do whatever they want afterward.
JB: Basically, these are all the arguments for why it might be improper to indict a sitting president and the arguments that the Department of Justice has relied on for saying that it would not indict a sitting president. But we don't have actual court rulings on this. And the more likely way that we would see this tested would be if a state government or a local government were to bring a criminal indictment against the president. Because those entities are not bound by that guidance from the Department of Justice that they would be bound by rulings from courts and in the face of the inevitable challenge contending that those entities also are not allowed to indict a sitting president.
KW: Absolutely. If a court in a New York state indicted President Trump then you'd be directly presented with a problem. It's not clear how they would attempt to resist that. It's very rare for federal courts to interfere with state court proceedings and there are a large number of doctrines and statutes designed to prevent that.
Adam from Los Angeles: I remember thousand years ago when –in court– Michael Cohen said he was also Sean Hannity's lawyer. Whatever happened with that?
JB: Yeah so, what happened with that? Are we ever going to find out what legal matters Michael Cohen was handling for Sean Hannity?
KW: Quite possibly not because they may have been purely innocuous. I don't think a smart person goes to Michael Cohen for representation in important things. And Sean Hannity is not dumb. So it's possible that the reasons he sought Cohen's advice are not particularly important or inflammatory and aren’t against the law. If that's the case we're not likely ever to find out.
JB: I think it's important to remember that we found out about Cohen's business with the president because of very specific facts about the situation. Ordinarily, your communications with your lawyer are privileged, even if what your attorney is doing for you is not actual legal work and therefore is not subject to the attorney-client privilege– the government would still need some reason for exposing it. They can't just go into any other professional records and tell everyone what business the professional was doing with you unless they had a good reason. In this case, the good reason was that they believed that Cohen was working with the president to commit a crime, which they ended up indicting Cohen for. Assuming that Cohen wasn't really doing legal work for Hannity, if there's nothing to criminally investigate then there's no reason to tell the public what they were doing even though we might find it interesting.
KW: The only reason this came out was after the search of Cohen's office and you may remember back in April and May there was an ongoing process by which the special counsel's office and the Southern District of New York were negotiating before a judge as to what they could review and what they couldn't of those seized documents. The judge was asking well how many of these documents are going to involve dealing with clients by Mr. Cohen. Because he's told us that most of his stuff was not attorney-client work and it was in that discussion of Cohen trying to convince the judge there were attorney-client documents there that he was forced to reveal that he had another client and that was Hannity but it never went further than that possibly because there were no privileged documents regarding Hannity that were of any relevance to anything.
Greg from Durham North Carolina. Everyone jokes about RICO even in your tweets, but my question is, how did RICO become the butt of so many jokes. How did this normal statute become something that everyone jokes about all the time whether or not it is or isn't RICO.
JB: We talk about RICO because people are always accusing people of RICO when they haven't committed RICO, when there would be no way to try them for RICO. Is Rico a badly written law? What's the point of having a law that only really exists as a punchline?
KW: I deserve this. So it's not necessarily a badly written law– it's a very convoluted law. It's a complicated tool best used for complicated situations. The reason I mock it a lot and the reason that it frustrates me is that it’s so overused and people use it like an exclamation point. They use the reference to RICO to signify that they think something is a very serious situation and that's not what it means. It's a tendency that when U.S. non-lawyers (and some lawyers) learn a phrase, they associate it with exciting events and then they continue to use it even in situations where it doesn't apply. That's what's happening here. RICO is a statute designed for organized crime. You can twist it to try to apply it to anything, which will absolutely enrage a federal judge that you're in front of. But 98 percent of the time, it simply doesn't apply. And the problem is people want to convey in a quick, punchy way that this is a big serious situation here, these people did bad things. And so people use RICO for that.
Larry in Los Angeles: In the event that Donald Trump is indicted at some point and there is a trial, do you think it is possible to have an impartial jury? And if so, how do you think they will go about that?
JB: Obviously, we’re a little bit ahead of ourselves here. This is an issue that came up with Paul Manafort when his legal team tried to make the case that you couldn't get an impartial jury in such a liberal jurisdiction as Alexandria, Virginia. What's going to happen if someday there has to be a jury impaneled to try former President Donald Trump?
KW: In that eventuality, I think is unlikely. For all sorts of reasons, Trump is certainly going to have one of the strongest arguments ever for the concept that everyone's heard about his case. But it's not enough that everyone's heard about your case. There is a doctrine that basically says you can't get yourself out of criminal prosecution by being unusually notorious. You can't be so famously outrageous and terrible that you can't be tried. So, he's going to have to show more that particular locations are not suitable for him or that he can't get a fair trial there or he's going to have to show that the process for finding jurors has to be unusually elaborate to try to sort out people who have not prejudged him (or at least say they have not prejudged him). There's no way to just say I'm such a famously terrible person. I am immune to trial because I'm entitled not to be prejudged by anybody.
JB: This reminds me of when the Martin Shkreli criminal trial was going through jury selection and the judge was having such difficulty finding people who had not already formed a strong, negative opinion about Martin Shkreli. There was a funny anecdote in The New York Times piece about it: at the end, they found a potential juror who had not even heard of Martin Shkreli and a smile came across the judge's face. She was so pleased that they'd finally gotten one. So, would they be looking for people who don’t have strong opinions about politics or about the president? Obviously, they can't look for people who haven't heard of the president.
KW: Sure. Ultimately you're not entitled to someone who doesn't have an opinion. You're entitled to someone who can put that opinion aside and judge and make decisions based on the evidence. And when you have a civil or criminal trial, if the record shows that jurors do have opinions– that's not a reason to overturn the result unless it's clear that they couldn't put those decisions aside. Any lawyer who's gone through picking a jury knows that judges will hear potential jurors say they think things and will say “well, can you put that aside? Can you just rule on the evidence and then accept them in a situation like this?”
What's likely going to happen is that you're going to get a lot of apolitical people and there are plenty of them in America. People who focus on happier things and you're going to get people who are good at pretending to be apolitical and you're going to get people who can convincingly say that they have opinions but they understand the role of a juror is not to rule based on those opinions. And those are all legitimate ways to go around it. The fight is really going to be about the methodology they use to weed those people out. Where would such a trial be conducted? It depends on where you charge. Naturally, you would have a trial where you are charged and then it comes down to whether the president's going to say that for some reason about that particular forum he can't get a fair trial. There really is no place Trump can move to where there hasn't been saturation coverage of him. There may be places that are more friendly to him because of the political leanings of that location. But that's not what he's entitled to. He's entitled to people who haven't prejudged the case, not people who like him politically.