Why the national emergency? A second term may be Trump’s only shield from an indictment

President Trump’s declaration of a national emergency to build his foolish border wall has been roundly assailed as irrational, illegal and extremely dangerous. As a matter of the Constitution’s Appropriations Clause (which puts funding decisions in Congress’s hands), as well as the overall separation of powers, he is indeed playing with fire.

The criticisms are well-founded — and they come from both sides of the political aisle. That Republicans have joined Democrats to denounce this reckless maneuver is remarkable given their two years of shrugging off serial body-blows to the rule of law and norms of civility, decorum and truth from this president. 

{mosads}From the standpoint of Trump’s own hide, however, the national emergency declaration is not altogether irrational. Perhaps it reflects a steely-eyed realization that soothing his base in a bid for reelection might be the only thing standing between him, an indictment — and possibly jailtime.

The reason is that there is, in general, a five-year statute of limitations for federal crimes. It’s not hard to do the math. If Trump fails to win a second term, he will become a private citizen the day he leaves office. Federal offenses committed within the five preceding years could still be charged. This period of time would include the months leading up to the 2016 election during which Russians, Wikileaks and people connected to the Trump campaign took steps to collaborate around election-related data that would damage Hillary Clinton and help Trump.

Imagine Trump boarding the Air Force 2 helicopter, waving at cameras in his last White House cameo, only to disembark to a cadre of federal agents waiting to arrest him for crimes falling within the statute of limitations.

Take, for starters, the Southern District of New York’s public indictment alleging Trump participated with Michael Cohen in a criminal violation of the federal campaign finance laws. An indictment naming Trump as a defendant in that scheme could be sitting in a file right now, ready to spring into action once Trump is no longer president — and no longer shielded from federal criminal charges by virtue of that office.

Based only on the thin slice of publicly available facts, it’s possible the Department of Justice has amassed sufficient evidence to charge Trump with additional crimes relating to:

• Russia’s interference in the 2016 election, including conspiracy to defraud the United States
• obstruction of justice regarding special counsel Robert Mueller’s investigation
• campaign finance-related crimes stemming from the Trump inaugural committee
• witness tampering in connection with congressional investigations
• financial crimes relating to Trump’s personal taxes or the Trump Organization, including possible tax fraud, bank fraud or money laundering

Staunch MAGA followers might assume, at a minimum, that were it not for the internal DOJ guidance frowning upon the prospect of indicting a sitting president, prosecutors would charge Trump with “trumped-up” crimes if they could. 

Yet, if Trump gets a second term, he will continue as president and the current DOJ policy against indicting the president would immunize him from prosecution. By the time those eight years are up, the five-year limitations period will have expired, and Trump would be off-the-hook for federal crimes, if any. (State laws could have different limitations periods).

But he might lose in 2020.

Even if the Mueller probe is long over by then — either naturally or via a dreaded firing of the special prosecutor himself — career prosecutors within the DOJ could act on his report by dusting off the evidence giving rise to it.

The cool irony of such an outcome is this: It would mean a political resolution of the current crises in the presidency, rather than a judicial one. Those who argue that impeachment is the only remedy for criminal abuses by a sitting president could hardly object to a voter-induced determination that a president should not remain in office for another four years. Nor could it reasonably be argued that the legal mantle of the presidency would follow the man into private life.

{mossecondads}To date, it seems clear that Republicans in Congress will not support step one of impeachment proceedings no matter how bad Trump’s behavior gets. And Democrats know that if they go down that road without the votes in the Senate to impeach, it could backfire at the ballot booth.

Thus, the national emergency declaration is a death-throes attempt to hang onto Trump’s core base, which voted for him on the premise that he’d build a wall (at Mexico’s expense, of course, but that hardly matters anymore).

November 2020 may indeed be the most important presidential election in the history of the United States.

Kim Wehle is a former assistant U.S. attorney and associate independent counsel in the Whitewater investigation. Wehle is a professor at the University of Baltimore School of Law. Her upcoming book, “How to Read the Constitution—and Why,” will be published in June. Follow her on Twitter @kim_wehle.