I am very sorry to report that the statute of limitations [SoL] has run against Donald Trump’s acts of obstruction of justice when he asked FBI Director James Comey to leave Michael Flynn alone. More on that in a moment.
First, I want to call to all readers’ attention the Lawfareblog at https://www.lawfareblog.com. For readers interested in, and able to tolerate reading lawyers’ opinions, this site has some of the most serious, law-focused discussion you will find anywhere regarding many of the key issues facing the country. As in the analysis of Trump’s obstruction conduct in the earliest known case, sometimes the lawyers’ analysis does not have a happy outcome. But it is always thought provoking, written by serious and accomplished people. Lawfareblog.com is a vast resource that I hope you will visit and support.
Now, back to the bad news. The article that addresses the Statute of Limitations issue regarding Comey and Flynn is at https://bit.ly/3LJqn9q. The SoL expired on February 14 with no action by the Department of Justice to hold Trump accountable for the first of at least 10 instances of obstruction of justice identified by Mueller. The Special Counsel took no action because he believed he was bound by the DOJ position that it could not indict a sitting president. Mueller also had a very narrow understanding of the job he has been given, as detailed in the compelling and important book, Where Law Ends, by Andrew Weissmann, one of Mueller’s chief deputies. I reviewed the book at https://bit.ly/3LENvWF
It is a remarkable work, and everyone should read it.
Mueller’s failure to act left it to the Garland DOJ to pick up the case after Trump left the White House. He didn’t. The running out of the SoL means that, regarding the Comey-Flynn episode, we are SOL. As more time passes, the SoL will foreclose, one by one, any possible accountability for the other nine cases Mueller identified and several that, in my opinion, he inexplicably missed. See, for example, my extensive discussion of the Mueller Report on the obstruction of justice issues:
The Lawfare blog includes a heat map that graphically illustrates the threat posed by the calendar for 14 possible charges of obstruction (4 more than Mueller identified and more in line with my analysis). In thinking about the obstruction issues, it is important to understand that there are three crucial elements to conviction on any charge:
Connection Between the Act and an Active Investigation
By the end of July 2022, DOJ will lose the ability to charge Trump with the two instances in which even Mueller thought were the stronger cases for proving obstruction.
Meanwhile, as Lawfare notes with concern, DOJ remains mute.
At this stage, it is not clear whether a single Department of Justice attorney has reviewed the Mueller report since Trump left office. And it’s not clear either whether anyone will before the statutes of limitations run down. In the absence of a statement from Garland, the public knows virtually nothing about the status of the Justice Department’s investigation into these potential acts of obstruction by Trump. We can only speculate as to what may be happening.
The balance of the Lawfare article consists of an analysis of five scenarios regarding DOJ’s posture. Lawfare admits this is all speculation – it must be since AG Garland is not talking. Many of the five scenarios are decidedly offensive but that doesn’t mean they aren’t correct explanations of what is happening – and, not happening.
Lawfare then makes a compelling case for the Attorney General to explain to the country what is going on regarding Trump’s obstruction of justice. Silence is the least acceptable path forward. Lawfare is right about this, I believe. Read it, I urge you, and judge for yourself.