June 16, 2021

The Statute of Limitations

Statutes of limitations provide cutoff dates for criminal prosecutions. Once the statute of limitations expires, the government may no longer bring charges against a criminal suspect. For most federal crimes, the statute of limitations is five years.

With respect to the President of the United States, however, the statute of limitations presents a problem because it is Justice Department policy that a sitting president cannot be indicted. While it is unclear whether this policy is constitutionally required, and while it has never been tested in court, indicting a sitting president would pose immense practical problems even if it were technically constitutional to do so. Consequently, even a one-term president is effectively immune from prosecution for many uncharged crimes if they were committed in the first four years of the five year period immediately preceding the president taking office. With very few exceptions, a two-term president could not be prosecuted for any activities that took place prior to assuming office.

Should the statute of limitations be suspended during a president’s term in office? If so, what is the best method of safeguarding both the interests of the president and the interests of the justice system?