It is not too difficult to find laws that seem counter-intuitive. For example, if I understand correctly, in both state and federal laws, the request for recusal of a judge from a case should first be handled by the judge himself. That is, the very same judge that is being requested to be recused, for example, for the reason of conflict of interest, should be the first person to decide on that request. But some such counter-intuitive laws are not too harmful, if any, in my opinion, since they can always be appealed, and the appellate court can always reverse the ruling of the lower court.

Some counter-intuitive laws, however, have everlasting consequences, and mostly harmful so, in my assessment. One category of such counter-intuitive laws is the Statutes of Limitation, laws that set time limits for filing a lawsuit or criminal prosecution after an event has occurred. Once the statute of limitation has passed, the legal claim is no longer valid. The following is from the website of the Department of Justice:

Section 3282 of Title 18, United States Code, is the statute of general application. It states that, “(e)xcept as otherwise expressly provided by law,” a prosecution for a non-capital offense shall be instituted within five years after the offense was committed.

For example, a bribery crime that took place in year 2018 can no longer be prosecuted, as if no crime had taken place. To me, this goes directly against the spirit of having a judicial system and federal and state prosecutors, whose goal seems to be identifying, indicting, convicting, and punishing criminals, to make the society a safer place for everyone, and to prevent other potentially criminally minded individuals from being encouraged to commit the same crimes. Because what it basically says is that, if you manage to hide your crime for five years, then, in addition to benefiting from the original crime (e.g., a bribe), you will be rewarded with a bonus of living worry-free from a potential prosecution for that crime for the rest of your life. So, back to the bribery example, does this really discourage individuals from committing bribery? Or does it simply encourage them to be more careful in hiding their tracks when committing bribery, so that the bribe cannot be easily discovered, at least for five years?

In fact, if you ask me, the law should have been the other way around: the longer the time between when a crime takes place and when it gets prosecuted, the harsher the punishment. Because that means that the criminal, in addition to committing the original crime, has taken additional criminal steps to hide that crime for such a long time. Now I am sure you are going to tell me, that does not sound right. What if a prosecutor intentionally delays prosecution of a crime of an individual, just to make the punishment harsher, e.g., as a form of racial discrimination or the like. You are right, and that’s certainly possible. But the solution is in the above statement itself. The justification that I provided for harsher punishment was that “the criminal, in addition to committing the original crime, has taken additional criminal steps to hide that crime for such a long time.” There are already statutes that criminalize actions that are intended to hide certain crimes. My proposal basically takes this just a little bit further, to also criminalize not voluntarily disclosing a crime. This addresses the concern about any intentional delay by a prosecutor, because the individual can always voluntarily disclose their crime without waiting for prosecution, to avoid extra punishment due to potential delays.

At this point, I can actually see the red lights flashing at the top of the reader’s head with their eyes almost popping out of their sockets, and can hear them yelling at the top of their lungs: “but what about the Fifth amendment? you cannot be punished for not voluntarily incriminating yourself!” Yes, you are right again. But if we think a bit more closely, my proposal does not fundamentally contradict the Fifth amendment, and can be fixed with some minor tweaks to make it fully compliant with the Fifth amendment. The fix is the following: at the start of the prosecution of a crime, the timer stops. That is, the part of the punishment that is due to hiding and/or not voluntarily disclosing a crime, is determined based on the time between when the crime takes place and when its prosecution starts or it is voluntarily disclosed, whichever happens first. Meaning, once the prosecution starts, it really doesn’t matter if you voluntarily cooperate with the prosecutors or not, even if your lack of cooperation results in additional delays in the trial process and/or conviction. And the prosecutors are still prohibited from requiring any individual to provide incriminating statements or testimony against themselves.

I know you may say it still does not seem to be consistent with the spirit of the Fifth amendment. And quite frankly, I don’t know the answer to that. My understanding of the reason for the Fifth amendment is that it is meant to prevent prosecutors from obtaining forced confessions or testimonies from innocent individuals by means of illegal measures such as torture and the like. But I may be wrong. And I would definitely like to learn that during this discussion. But if my understanding above is correct, then I really don’t see any logical problem with the above proposal. Although I understand it does sound rather extreme.

Now, to give just a little bit of a background, this entire post was motivated by a recent news (summarized in this interview) about a potentially illegal campaign contribution by the Egyptian government to a presidential candidate’s campaign in 2016. Of course, no one should accuse anybody of any crime without a conclusive investigation and evidence, and I am not doing that either. What is alarming here, though, is the way the investigation was abruptly ended by a political appointee, whose earlier help to at least tone down the results of the Muller investigation is no secret. Here too, his interference with the ongoing investigation and ending it before allowing investigators to subpoena bank records and conclude the investigation in a conclusive manner one way or another, helped prevent potential future investigations due to expiration of the statute of limitation. I certainly give full benefit of the doubt that there may be no crime there, but like any other concerned citizen, I would have liked for the prosecutors to be able to tell the public that they are now certain that all the indications that triggered the investigations by the CIA and the FBI and the DOJ where indeed false.