Director of National Intelligence Tulsi Gabbard claimed over the weekend that there is enough evidence to prosecute Obama administration officials over their false 2016 election narrative tying President Donald Trump to Russia, but it may be too late for the Justice Department to pursue the case.

While Trump and his administration have released new documents and evidence, which they say show potentially criminal efforts by the Obama administration to fabricate a narrative of collusion between Russia and the 2016 Trump campaign, the statute of limitations on avenues for prosecution will likely severely limit the DOJ’s ability to build a case.

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Gabbard on Friday released declassified intelligence documents from late 2016 and early 2017 purporting to show a “treasonous conspiracy by officials at the highest levels of the Obama White House to subvert the will of the American people and try to usurp [Trump] from fulfilling his mandate.” She also said she would hand over the documents to the Justice Department, which she did on Monday, one day after she claimed that Obama administration officials should be indicted for alleged crimes.

“There must be indictments for those responsible, no matter how powerful they are and were at that time, no matter who was involved in creating this treasonous conspiracy against the American people, they all must be held accountable,” Gabbard said on Fox News.

Federal law limits the statute of limitations for most crimes to five years from the date the alleged crime was committed. Thus, alleged crimes committed in 2016 and 2017 would likely fall outside of prosecutors’ reach. Criminal charges with longer or no statutes of limitation, such as murder and certain acts of terrorism, are unlikely to apply to the false Trump-Russia narrative.

One way to extend the statute of limitations for the alleged crimes would be to prosecute a continued conspiracy among the officials that stretched beyond the start of Trump’s first term, because the latest criminal action in a conspiracy becomes the point at which the statute of limitations applies.

Neama Rahmani, a former federal prosecutor, told the Washington Examiner that the alleged activities would likely fall out of the statute of limitations even with the conspiracy alleged by Gabbard and other Trump officials.

“When you’re dealing with a conspiracy, the five years runs from the last overt act in furtherance of the conspiracy. We’re talking about conduct from 2016-17. It was the subject of a government probe, which really went nowhere in terms of serious charges, much less convictions,” Rahmani said, citing the investigation by former Special Counsel John Durham.

The Durham report, released in 2023, found that the Justice Department and FBI had no proper basis to open an investigation into alleged collusion between the Trump campaign and Russia. Durham charged three people in his investigation, obtaining one guilty plea, while the other two were acquitted.

Rahmani was skeptical that a judge would allow the extension of the statute of limitations on what he called a “questionable basis” because the evidence Gabbard released last week deals with events that transpired in 2016 and 2017.

“I don’t think a judge would consider tolling the statute of limitations,” Rahmani said. “Those types of tolling, whether it’s active concealment, continued conspiracy, [or] fugitive, those are construed pretty narrowly, because there must be finality when it comes to statute of limitations.”

Many of the same issues that would hamper a DOJ prosecution based on the evidence released by Gabbard last week also complicate the FBI’s potential prosecutions of former FBI Director James Comey and former CIA Director John Brennan based on additional evidence released earlier this month by the CIA. One of the main problems in both cases is how long it has been since the alleged crimes.

After the CIA release, Trump’s allies pointed to Brennan’s 2023 testimony to Congress, in which he said the CIA opposed the inclusion of the Steele dossier in an intelligence community assessment put together by multiple agencies in December 2016. The declassified documents and emails, released by CIA Director John Ratcliffe earlier this month, showed Brennan had, in fact, pushed for the inclusion of the Steele dossier in the ICA at the time.

Brennan’s testimony to the House Intelligence Committee was not under oath, but charges could be pursued under 18 U.S. Code Section 1001 for making false statements. While Brennan’s 2023 testimony falls within the five-year statute of limitations, tying it to other allegations via a wider conspiracy charge would be unlikely to succeed.

Other obstacles to pursuing charges against the Obama administration for its effort to create the Trump-Russia narrative could arise from recent Supreme Court precedent. The 2024 Supreme Court ruling in Trump v. United States found that presidents enjoy sweeping immunity for official acts, but not for actions taken outside their official duties. The landmark decision would complicate the DOJ’s ability to go after Obama and top officials in his administration, especially after most of the criminal cases against Trump in recent years fizzled due to thorny immunity questions.

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Rahmani cited the political nature of the investigation into Obama administration officials, along with concerns about immunity, as other issues the Justice Department would face going forward with charges, even if the Trump DOJ could find a way to build a case within the statute of limitations.

“It’s long gone,” Rahmani said. “This is something that Trump needed to do during his first administration with the DOJ.”