Yes, it's possible to indict a sitting U.S. president. Here's why. (WashPost)

[kentuck]

https://www.washingtonpost.com/news/democracy-post/wp/2018/08/29/yes-its-possible-to-indict-a-sitting-u-s-president-heres-why/

<snip>
The disagreement about this question goes back to 1787, during the framing of the Constitution. James Wilson, a Pennsylvania delegate to the Constitutional Convention, believed that the president lacked immunity because the Constitution’s text did not grant it explicitly. Alexander Hamilton, however, believed that the president’s protection from criminal prosecution was implied by the structure of the Constitution; he wrote that impeachment, never prosecution, was the exclusive way to remove a sitting president.

With no explicit constitutional provision supporting presidential immunity — and no clear consensus from the framers — we need to turn to case law for answers. In the landmark 1974 case U.S. v. Nixon, the Supreme Court required President Richard Nixon to turn over those parts of his secret Oval Office tape recordings that were relevant to the Watergate criminal investigation. Nixon argued that his executive privilege allowed him to refuse. But the Supreme Court disagreed. In a unanimous decision, it determined that “the fundamental demands of due process of law in the fair administration of justice” are more important than shielding the presidency. Although this ruling did not deal with a criminal indictment of Nixon, it did establish an important principle: The president is not above the law.

<snip>
Deputy Attorney General Rod J. Rosenstein, the supervising attorney in the special counsel’s investigation, could yet decide to allow Mueller to seek an indictment of Trump — and he would have a sound precedent for doing so in the Nixon and Jones cases. A flawed Clinton-era legal memo should not be used to prevent an indictment in this or other investigations. The urgency of the current moment might require bold action by the Justice Department to defend the rule of law.

The oath of office requires the president to “protect and defend” the Constitution and the country’s laws — not to use them to hide from criminal responsibility. Israel learned the hard way about the harsh consequences of granting immunity to its president. The presidential office does not make its occupant too dignified to be subject to criminal indictment. The real indignity comes from allowing a president — whose office should be used to serve others — to commit self-serving crimes that go unpunished. Thankfully, unlike Israel’s, our Constitution does not explicitly spell out a grant of presidential immunity. The American people don’t have to make the same mistake.

[ProfessorGAC]

1. Seems Like Apples And Oranges

Hamilton suggesting that impeachment is the only remedy seems fair, but. . .

That seems to reference PROSECUTION as a means of removal, rather than impeachment.

I'm curious as to why criminal acts can't create an indictment, with deferred prosecution until the term of office has expired.

I don't see anything in any of the pro or con arguments that suggest that approach. Admittedly, i haven't read every opinion on the matter, either.

[Bernardo de La Paz]

27. Exactly. Impeachment & Senate for removal. Prosecution for crimes because nobody above the law. . nt

[qazplm135]

2. conflating two things IMO

An indictment doesn't equate to removal. Heck, conviction doesn't equate to removal. There's no bar to a convicted felon running for and winning the presidency.

Now, incarceration might render a President incapable under the 25th Amendment but that's a different story.

Impeachment is about removal and solely removal.

Two different things IMO.

[kentuck]

3. It would seem illogical to have a criminal indictment of a President...

...and not have a discussion of removal from office?

Or to allow to remain in office until there was a conviction of the crime? The Senate could convict to remove from office but only a court of law could offer the remedies of justice.

It seems to me that the weight of history is upon the shoulders of Rod Rosenstein.

[qazplm135]

8. depends on the indictment

Could be for a misdemeanor or a minor felony.

I can think of all sorts of indictments/crimes that do not necessarily require removal.

But if one does, we have a process for that: impeachment.

In a normal world, the indictments would trigger impeachment.
A conviction in criminal court could trigger it as well, or seal Senate conviction.

No reason the processes can't run in parallel.

[lagomorph777]

4. Absolutely correct! If we wanted a President above the law, we'd call him "King"

Article 1, Section 3, Clause 7: Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.

The Constitution explicitly provides for legal punishment of the President (or any officer). It certainly draws no distinction between "sitting," "standing," or (in Trump's case) "lying" Presidents.

[gratuitous]

12. I read that to mean impeachment and removal first, then criminal prosecution

That part about "shall nevertheless be liable and subject to" is preceded by "the Party convicted," which is assumed to have already taken place (hence the past tense convicted).

In any case, there is much work to be done before a serious discussion can take place about Trump being impeached or indicted or anything else. Public opinion is coming around on the subject, but we need to get all the support we can for impeachment. Every Republican Representative and Senator has to feel like his seat is at risk if he opposes impeachment. Right now, they're far too comfortable. Some high profiles losses in November would change that in a big hurry. Republicans may routinely put party over country, but their own political hides take priority over everything.

[lagomorph777]

14. Lots of scholars have worked for many years to get you to read it that way.

However, that is adding content that is not present in the actual text. That's a spin that's been externally imposed. A more careful reading reveals that the text is inclusive, not exclusive. It says that impeachment does not exclude legal punishment. In no way does it say that impeachment is a prerequisite for legal punishment. That's pure spin, and unfortunately, many of us have fallen for it.

I agree completely with your 2nd paragraph.

[SCantiGOP]

5. Mueller stated years ago

Back when Trump was still a steak salesman, Mueller had taken the position that a sitting Prez could not be indicted.
A lot of people think the Founding Fathers wanted a high bar for removing the President (2/3 vote in the Senate) since that was the only remedy available to stop a Chief Executive.

[kentuck]

6. But what does Rosenstein think ?

He's the one that would make that decision, right?

[SCantiGOP]

7. Not sure about him

But several apparent experts on CNN and MSNBC have said they believe “impeachment not indictment” is the prevailing sentiment at the DOJ.
I would be happy with neither occurring. Let’s have an open agreement that Pence is going to pardon him upon resignation, and let the Fat Bastard slink back to his damn golf course.
Now, if he waits until he is defeated, then I say to hell with the Ford/Nixon “let the healing begin” scenario and let’s go for hard prison time so no future Prez will ever dare act like this again.

[lagomorph777]

15. Hell no. Every time we let a Thug get away with big crimes, the next one commits bigger crimes.

Look at the downward spiral: Nixon, Reagan, Bush Sr, Bush Jr, and Turd. Each one escalates the crimes because they can.

[Bernardo de La Paz]

29. Purge Pence Pronto. Purging Pence First would be best. . . . nt

[ffr]

9. I think the problem can be better answered by if the president obtained his position illegally.

That in itself would invalidate any argument, if it is determined that he obtained the office through illegal means.

Which then, I'd argue, throws into question what happens next. If tRump/Pence falsely won, then Clinton/Kaine should be sworn in.

[mythology]

11. There is literally zero chance that happens

There is no path that leads to Clinton and Kaine becoming President and Vice President.

[ffr]

13. Because case law?

Can you enlighten me?

[onenote]

21. Because Constitution.

[ffr]

25. Not. The constitution is silent on that subject.

It's been interpreted by scholars, but there's no case law that I know of preventing a candidate for president from being removed due to illegally acquiring office.

[onenote]

26. Not really. It says the president can be removed via impeachment or the 25th amendment

And it provides for presidential succession, as complemented by statute.

None of those provisions contemplates installing the candidate that didn't win the electoral vote as the president.

[ffr]

28. What does it say about a candidate for president?

Nothing.

[Bernardo de La Paz]

30. But if he is not legally President (despite being sworn in), then his candidacy & votes don't count.

So say I. But I dunno.

[onenote]

31. Except he is "legally" president under the Constitution

Last edited Thu Aug 30, 2018, 05:19 PM - Edit history (1)

Congress certified the results of the electoral college. If those result were obtained via fraud its up to Congress, via the route provided in the Constitution, to impeach and remove the president.

If impeachment wasn't meant to be the only way to depose a president, why is it in there at all? If Congress or the courts can make up new reasons and procedures that aren't reflected in the Constitution, then what other grounds for invalidating a presidency might exist?

Hell, as the birthers learned (correctly) it's damn hard to get standing to sue to invalidate a presidency.

[DetroitLegalBeagle]

38. Bingo.

Legally and constitutionally, he is President. That's it.

[2naSalit]

36. I tend to agree with that.

If the office was illegally gained by the current residents, then the actual victor should take their rightful place, otherwise everything is up in the air.

[bucolic_frolic]

10. Impeachment is a political act, by politicians, against a sovereign unable to rule in a fit manner

Crimes involve a court of law, illegal actions, judges and juries, and sentences that involve punishment.

To me they are two different things, without a lot of overlap. You wouldn't try the President, for example, if he stole a car or robbed a bank, in an impeachment trial by the Senate. The conviction in a court of law would make impeachment virtually a slam dunk with a simple vote. It wouldn't be relitigated on the Senate floor.

[onenote]

22. Of course it wouled be relitigated

First, how quickly do you think a criminal case against Trump, assuming he was indicted, would be resolved? And Trump would without doubt appeal any conviction.

There would be a trial in the Senate. With evidence etc. Even after a conviction.

[bucolic_frolic]

33. A trial in the Senate is an impeachment trial, not a court of law

It's a political trial, not by courts of law. They may act in that function, but it's still a Senate trial.

[onenote]

35. Let me try again. Apparently my post wasn't clear.

I read your post as suggesting that if Trump is convicted in a court of law, the Senate won't even bother with a trial, they'll just immediately vote to convict.

My point is that, first, assuming Trump is indicted and criminal proceedings are commenced against him without Congress first acting to impeach, it will take a while -- a long while imo -- before those proceedings are concluded and a conviction obtained. And even if that happens, there will be appeals.

Thus, it would seem like the Senate would have the following choices after Trump is convicted: do nothing and wait for the appeals process in the criminal proceedings to play out, which probably would run through the 2020 elections. Or they might start impeachment proceedings, but they would do so in the traditional manner with the managers of the impeachment process acting as prosecutors and stating for the record the evidence supporting impeachment and Trump offering a defense (which would undoubtedly cite to the pending appeals). Or the Senate could ignore the pending appeals and not put on a case against Trump (although they'd have to allow him to mount a defense) and then vote. This last option seems to be what I read you to be suggesting and it seems like the least likely option.

[lastlib]

16. Years ago, I had a discussion with a constitutional-law professor on this subject...

We boiled it down to a nifty little Latin-esque formula: "Lex Rex > Rex Lex". The rule of law supersedes the notion that the king IS the law. Every person, including the President, is subject to the law. That is the only way to truly have a democracy, where the people rule. It is fundamental to the existence of a democratic-republican form of government that the head of state is bound to the same rules of conduct as the body of people he governs. Without it, he does not govern--he rules. And that is exactly what we rebelled against in 1776.

[kentuck]

19. "Lex Rex Rex Lex"

"It is fundamental to the existence of a democratic-republican form of government..."

[honest.abe]

17. If it goes this route which I think it could, it probably will end up in the SCOTUS.

Which IMO, will rule in favor of indictment. In a case like this their "better angels" will prevail.

[DeminPennswoods]

18. The logic of the DoJ current legal opinion

seems to be that indictment prevents the president from doing his job or excessively hobbles his ability to do that.

To me, the simple reply is that section 3 of the 25th amendent that addresses this potential occurrance. If Trump cannot perform the duties of president (nothing is specified as to why), then the VP takes over as acting president, but the president is not removed from office.

[lastlib]

20. I think this is the ideal solution.

If the President is indicted, it ought to be considered a disability within the meaning of the 25th Amendment. Put the VP in to act until it's resolved.

[honest.abe]

23. Interesting take on that.

That would work.

[onenote]

24. The 25th isn't self-effectuating

It can be triggered by a written declaration from the President that he is unable to discharge the duties of the presidency. Trump isn't doing that come hell or high water.

It can be triggered by the action of the VP and a majority of the cabinet. Maybe they would, maybe they wouldn't. If Trump is merely indicted, I doubt they would invoke the 25th and there is no way to force them to do so. And even if they did, Trump could immediately send a message to Congress that he is able to perform the duties of the office notwithstanding the indictment and that would throw the question back to the VP and the cabinet again. Assuming that they, for the second time, said that he can't, then it would require a 2/3 vote by both houses of Congress to override the president's declaration.

So I wouldn't expect the 25th to provide a "solution."

[DeminPennswoods]

32. This section has really never been tested in court

or even used very often, only when the president goes through a medical procedure and is anestisized.

[onenote]

34. It's pretty detailed and clear. There is no self-effectuating element.

It doesn't matter who thinks the president isn't able to discharge his/her duties. It matters whether the procedure for invoking the amendment is followed and that requires all the steps I outlined.

[DeminPennswoods]

40. From the National Constitution Center

https://constitutioncenter.org/blog/breaking-down-the-25th-amendment-what-you-need-to-know

Sections 3 and 4 deal with scenarios where the President may suffer a “inability” or “disability,” if you recall the wording of Article II, Section 1. Starting with George Washington, who had a serious health scare as President, there were cases where the chief executive may have been “unable to discharge the powers and duties of his office.” In those cases, the 25th amendment’s Section 3 allows the President to tell Congress that the Vice President can act as President until he is able to resume work.

Section 4 is the most controversial part of the 25th amendment: It allows the Vice President and either the Cabinet, or a body approved “by law” formed by Congress, to jointly agree that “the President is unable to discharge the powers and duties of his office.” In theory, this clause was designed to deal with a situation where an incapacitated President couldn’t tell Congress that the Vice President needed to act as President.

It also allows the President to protest such a decision, and for two-thirds of Congress to decide in the end if the President is unable to serve due to a condition perceived by the Vice President, and either the Cabinet or a body approved by Congress.

I think there is a lot of wiggle room here and Mike Pence would sell out his own mother to be president.

[onenote]

41. where are you finding "wiggle" room

It appears that you're relying entirely on an assumption that Congress passes legislation establishing a "body" that would, instead of the cabinet, have to concur with the VP that the president is unable to discharge his duties.

Well, the president will veto that legislation. So now you need to get a 2/3 majority in each house to set up that body. Then that body and Pence have to agree that the president is unable to discharge his duties. Then they have to agree again after Trump sends notice that the indictment isn't making it impossible for to discharge his powers and duties (prima facie evidence: his veto of the legislation which is a power of the presidency. And then 2/3 of both house have to vote to override his declaration.

Why would they go through that process rather than simply start an impeachment proceeding that requires only a majority in the House and 2/3 in the Senate?

[Thunderbeast]

37. It would take an unlikely, but possible capitulation by 67 Senators and a house majority.

No constitutional remedy to annul an illegitimate election is specified.

If the political will to do the right thing was possible, this process would accomplish restitution of the "people's will":



Step One: Elect Hillary Clinton Speaker of the House (does not need to be a sitting member)

Step Two: Impeach and convict Mike Pence

Step Three: Impeach and convict Donald Trump

Step Four: Swear in the new President Clinton.

Step Five: Confirm the appointment of Vice President Tim Kaine

Step Six: Impeach without prejudice ALL Trump appointed Judges

Step Seven: Confirm Merit Garland to Supreme Court replacing Gorsuch.

Step Eight: Sign omnibus repeal of ALL Trump executive actions

Step Nine: Re-open negotiations with Iran to return to Nuclear treaty.

Step Ten: Restore employment and/or pension rights to FBI professionals unfairly fired.

Step Eleven: Indict Trump, Pence, and any other conspirators in Federal and State Court as appropriate.

Step Twelve: As beneficiaries of illegal abuse of power by Trump, withdraw the pardons of Arpaio, Libby, D'Souza.

Step Thirteen: Submit Barack Obama as Supreme Court nominee replacing Kennedy.

[onenote]

42. Ooh. DU is now a site for fan fiction.

Of the fantasy genre.

[Thunderbeast]

43. Just addressing the mechanics...not the likelyhood.

Calling for the GOP to act in the interest of the country is a fantasy.

[Vinca]

39. No one is above the law. If he threw Melania off the White House balcony he would be arrested

in a nanosecond. Throwing the United States to the Russians is not something that merits a slap on the wrist.

[lastlib]

44. Unless...

Throwing the United States to the Russians is not something that merits a slap on the wrist.

Unless you're a member of the Congressional GOP Russia Caucus.......