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Chairman Nadler Statement for the Markup of H.R. 2678, the No President is Above the Law Act

Washington, July 23, 2020

Washington, D.C. –Today, House Judiciary Committee Chairman Jerrold Nadler (D-NY) delivered the following opening remarks, as prepared, during the markup of H.R. 2678, the No President is Above the Law Act

"The two bills we are considering today center around the same basic theme: presidential accountability.  When the nation’s founders wrote the Constitution, after having just fought a war against a tyrant, they stood fast to a key principle—that the Executive must not be a king and must, instead, be accountable to Congress, to the people, and ultimately, to the rule of law.

"H.R. 2678, the 'No President is Above the Law Act,' reaffirms that important principle.

"This legislation, which I introduced along with Representatives Swalwell and Deutch, would suspend the statute of limitations for any federal offense committed by a sitting president, whether it was committed before or during the president’s term of office.

"This bill is necessary in order to close a dangerous loophole in the law created by Department of Justice policy—most recently embodied in a legal opinion by the Office of Legal Counsel—which holds that a president may not be criminally prosecuted during his or her term in office.

"Under current law, throughout the entire period that a president is presumed by some to be immune from prosecution, the statute of limitations continues to run on any offenses they may have committed.

"Since most federal criminal offenses carry a five-year statute of limitations, a president who is not prosecuted while in office for a crime they may have committed could end up evading justice altogether if the statute of limitations runs out before their term is over, particularly if they are elected to a second term.

"Allowing complete immunity from criminal prosecution merely because of the office a person holds would make a mockery of the rule of law.

"Statutes of limitations are an important element of criminal law.  As a general matter, they provide a necessary balance between protecting defendants from delay and allowing prosecutors adequate time to investigate and charge cases.  They ensure that the possibility of a criminal prosecution does not hang over a defendant’s head forever and they encourage prosecutors to bring charges while evidence is fresh.

"But the law has also long recognized that certain limited exceptions to this general rule are necessary, such as when the commission of a crime has been concealed or a defendant has fled or is unavailable.  The case of a sitting president, whose prosecution is barred under Justice Department policy—no matter how strong the evidence may be—fits comfortably among such exceptions.

"I would note that even if the OLC opinion is reversed, there may be many practical difficulties in bringing an indictment against a president who is still in office.  It is necessary, therefore, to simply pause the statute of limitations so that the president—any president—can be held to account for his or her actions and to ensure that the presidency is not a get-out-of-jail free card.

"I want to thank Mr. Swalwell and Mr. Deutch for their work in helping to craft this legislation.  The 'No President Is Above the Law Act' would ensure that every person—no matter his or her title or office—is held accountable under our laws.

"I urge all Members to support this legislation, and I yield back the balance of my time."
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