Tribunals & Limitations

Political and legal entities need procedures, and they need to comprehend their limits.

Choice of Law

The tribunal proposed here operates in spaces not covered by our Constitution, or rather operates in the spaces not reserved for the Federal government and not before now seen in spaces reserved for the several states or the people.

As such, this tribunal operates in a dangerous realm beyond Constitutional restraints, Federal statutes, or decisions of Federal courts, including the Supreme Court of the United States (SCOTUS).

Thus, to pick but one example, the immunities conferred on the President by SCOTUS may be disregarded by this tribunal.

This is, to say the least, quite dangerous territory.

Therefore, this writer proposes a rule of self-restraint:

Absent an explicit written choice to do otherwise, the Tribunal shall operate within the framework of the existing Constitutional system of rights, duties, privileges, and immunities of the Constitution and laws of the United States.

It is likely that the Tribunal would choose to limit or ignore many of SCOTUS's holdings or Federal laws, particularly those such as "standing" or Presidential immunity, that would otherwise be obstacles that could prevent adequate inquiry or imposition of remedial measures.

Statutes of Limitation

A statute of limitation is a time-based constraint that requires that certain legal procedures be initiated within a time window after some sort of triggering event.

For criminal acts, that triggering event is usually the crime itself.

For civil torts (things like injury cases, contract breaches, and the like), the clock starts either with the injuring event, the time of the contractual breach, or when the injured party discovered the accused wrongful act.)

Usually the statute of limitations clocks tick without pause.

However, in some instances those clocks may be "tolled", i.e. paused, and then resumed.

Moreover, we have seen that states have been allowed to modify their statutes of limitations in order to re-enable the prosecution of past crimes or civil wrongs. In other words, it is not considered a violation of Due Process or Equal Protection (or even of Cruel and Unusual punishments) for a legislature to alter limitations laws, even if that means resurrecting a prosecution that was previously blocked.

Why Do We Have Statutes of Limitation?

The basic idea of a statute of limitation is that as time passes, the need for a legal process diminishes while the evidence that could be used in that process degrades.

There is an old story about the phrase "beating of the bounds", the walking of the boundaries of a parcel of land. Long ago, many people were illiterate, surveying was a primitive art, and public record keeping did not exist.

So, as the story goes, the boundaries of land were recorded in the memories of people, in particular healthy young people with an expectation of a long lifetime. The young person selected would be taken around the property lines, and at each significant point, that person would be severely beaten, thus creating a memory likely to persist, with accuracy, for a long time.

Although the events surrounding a harm may be memorable, we know that memory does, in fact, fade. Thus, getting a matter into court before memories fade is important.

Today our memories are as much electronic (or paper-based) and recorded by third parties as they are biological imprints on our minds. And the electronic or paper recordings do not fade over time (although the context with which the words are to be interpreted does certainly change with time.)

So there is a strong argument to be made that for events in which human memory is not a primary source of evidence, the existence and use of statutes of limitation may not be as important or as useful as it once was.

Presumption of Ability To Act

Underlying statutes of limitations (and earlier concepts about timely procedures in what was once called "Equity") come from the sense that those who are injured ought not to "sit on their hands" and hold their claimed wrongs as a kind of ever-enduring Sword of Damocles over the accused.

But what if those who wish to vindicate a wrong are prevented from doing so because they, or those who act as proxies for them (such as departments of justice or regulatory agencies), are unwilling to initiate legal proceedings against their political or economic friends?

We have seen in the Trump/MAGA regimes that those bodies in our Federal government are refraining from taking steps to notice, investigate, or pursue those who have brought harm to our nation.

In other words, agencies under the Trump/MAGA administration run out the statute of limitations clocks so that those who committed wrongs can walk free.

Proposal

This writer proposes the following:

Any and all Federal statutes of limitation (whether expressed under that heading or not) must be tolled for the entire period during which a Federal agency, such as the Justice Department, is refusing to note, investigate, or prosecute any wrong committed by a party that has contributed to or has otherwise supported the Trump/MAGA regime.

The above is merely a rough formulation. A proper version would recognize that merely speaking out in support of the Trump/MAGA regime ought not to toll the statutes of limitations. But financial contributions above a certain level would not toll the statutes.

This would, of course, not trigger our present Trump/MAGA supplicating Department of Justice to leap up and begin prosecutions.

Rather, this proposal would allow subsequent administrations that are not glued to the Trump/MAGA religion to bring actions and not be barred by statutes of limitations.