Professor Jed Shugerman was used as a reference for a Vox article that asked legal experts to weigh in on if a sitting president can legally be prosecuted.
Jed Shugerman, law professor, Fordham University
The OLC policy that a president cannot be indicted relies on something that simply does not exist in our legal system: the equitable tolling of criminal statutes of limitations. In civil cases like contracts and torts for money damages, that means a judge can give a plaintiff extra time to bring a case for general fairness concerns (like the defendants’ fraud).
But those considerations are different in criminal cases. Judges have never given prosecutors more time for vague “fairness” concerns, unless there is a specific law that allows it, like for fugitives. The OLC cited only to speculative discussions, and no actual precedents, because there don’t seem to be any… in all of American history. This is a remarkable oversight, and it would leave presidents above the law in many cases.
There is no sign a US court has ever or would ever toll a criminal statute of limitations for such a discretionary choice not to indict. This was a glaring error by the OLC in 2000, when Clinton was facing his own potential indictment.
Frankly, Mueller’s hands would have been tied by Barr, because even if Mueller wanted to indict Trump, he probably knew that Barr would overrule him, and it was not worth the fight.