There are DUers who think it would be good if state AGs could indict a sitting president.

[onenote]

Are they out of their ever lovin' minds?

Does anyone here really want to open the door for some crazy-ass state AG from a ruby red state to indict a Democratic president? Who do they think would stop that from happening? And even if the charges were totally bogus, it's not as if state courts, particularly in some of the redder states, have never convicted an innocent person?

[TreasonousBastard]

1. That, and there are serious questions about the separation of state and federal powers.

[jberryhill]

2. South Carolina v. Abraham Lincoln would have been fascinating

Alabama v. Kennedy, anyone?

[unblock]

3. yeah, much better to let a sitting president commit murder in cold blood and have immunity

at least until out of office.

a president who does that would be impeached and removed you say?
but that president also has immunity if he kidnaps some senators' children and holds them hostage.


come on, there's zero basis in reality that the founders wanted a president to have immunity from prosecution. they were obsessed to creating a structure to minimize the chance of having a tyrant. there's just no way it makes sense for a president to be above the law, not even temporarily.


could states abuse the power to charge a sitting president with a crime? of course. but any such charge can be argued on its merits or lack thereof. due process. much better than giving blanket protection to a tyrant.

[jberryhill]

4. On its merits? You mean to a jury?

You mean to a jury in Arkansas considering a charge against Eisenhower for sending federal troops to enforce a federal decision with which they disagreed?

I believe they'd return a guilty verdict against Ike for inciting a riot and who knows what else.

Not everything is black and white, and this is by no means a simple question.

Has a president, to your knowledge, committed cold-blooded murder? No.

[unblock]

7. i doubt a president has committed cold-blooded murder.

but then again, i have no doubt that some presidents have committed crimes, certainly federal ones, quite possibly state ones as well.

i don't think occupying the oval office should be an excuse to escape justice. president should be subject to the same laws and legal system the rest of us have to face.

does the legal system get it wrong from time to time? sure. but why should presidents get better legal treatment than the rest of us?


and due process also provides for remedies to certain situation, e.g., potentially biased jury pools. there are courts of appeal. there is the supreme court.



i offered up the example of a president committed cold-blooded murder as a reductio ad absurdum argument. if one is arguing that a president should have complete immunity from prosecution while in office, then one is saying that a sitting president can blatantly commit the most heinous crimes -- including violent crimes, capital crimes, crimes to gain office, and crimes to remain in office -- and enjoy complete immunity until out of office.

it's one thing to think, well, if someone fudged their taxes a decade ago, maybe that should wait until an earnest president is finished saving the world. there may be some room for debate there. but i think blanket immunity from all laws while in office can't possibly be the right answer.

[jberryhill]

11. "i don't think occupying the oval office should be an excuse to escape justice"

But discussing the issue in extremes and generalities is pointless.

Nobody wants anyone to "escape justice".

And saying that there are checks on state power is kind of unrealistic. As you know, or should know, "actual innocence" is not a ground of appeal of a state conviction to the federal courts.

You have not drawn any line which protects the president from a runaway state prosecution, and the sop about general "due process" wishful thinking is not it.

[marylandblue]

17. If there is no due process there is nothing to protect you and me right now then.

And if you and I don't have it, then I am not that concerned if the President doesn't have it.

[unblock]

19. exactly. as i said, why should the president get a better deal than the rest of us.

i agree with jberryhill that our system isn't perfect and that due process can certainly lead to the wrong result.

but there's not good reason to exempt the president from a system that the rest of us face.

if anything, first hand experience with due process might lead a government to improve it.

[at140]

36. Because you are not in charge of protecting national security

and the president is. The US Constitution accords special situation to the office of president.
It does not do it to me or you or any congress critter.

[unblock]

20. just as we haven't had a president commit cold-blooded murder,

we haven't had runaway state prosecutions against sitting president, either.

the civil case and impeachment against bill clinton is the closest we've come. so i'll believe it can happen, but then again, most of the perpetrators of that effort (at least those in washington) ended up losing later at the polls, so maybe that's all the protection a sitting president needs.


i'm not sure it's my responsibility to provide a line to protect a president from something that hasn't ever happened before. i don't think anyone's been under the presumption that a sitting president would be or should be immune from state prosecution while in office. there's been a relatively recent opinion in some authoritarian circles that a sitting president is immune from federal prosecution while in office, but even that is just opinion.

so for 230 years and no apparent bar preventing state prosecutors from running amok on sitting presidents, it's never been a problem.


but more recently there has been talk of giving a sitting president blanket immunity while in office from federal or even state prosecution.

i think it's up to the proponents of that immunity to provide a line separating the crimes they think we should be willing to turn a blind eye to in a sitting president and the crimes we think a sitting president shouldn't be allowed to do with impunity. so far it seems like those proponent want us to turn a blind eye to anything and everything illegal a sitting president does, at least until out of office.

[marylandblue]

18. The Eisenhower situation is already covered extensively in law

You can't prosecute a federal official for carrying out his official duties. It actually is fairly simple and there is extensive case law on this.

[at140]

26. Only way state indictment of Trump is good IF....

there will never be a democratic president elected in future. You know and I know as sure as the sun will come up in the east tomorrow morning, there will be a democratic president in office sooner or later. And we do not want the AG of Alabama or Mississippi or Idaho be able to indict her.

[unblock]

28. And why should I think they'll wait for us to do it first?

There's little doubt in my mind they would have indicted Hillary for... something... anything....

refraining from indicting Donnie isn't going to stop crazed Republicans one bit.

Besides, as I've said, I'd much rather have that problem than a president above the law.

[at140]

35. Sorry, no state AG could have SUCCESSFULLY indicted president Hillary!

Never can happen so long as SCOTUS is alive and well and operating.
It is just too clear from US Constitution. That does not mean some
over-zealous AG would not try it. At the end of day it can't hold up in Supreme court.

[unblock]

38. Indictment itself is possible

Trumped-up charges against Hillary wouldn't stick, though.

A president has immunity for official acts as president only. There's no immunity from indictment for crimes prior to taking office or for personal crines committed during a presidency.

[at140]

39. Of course...you are stating the OBVIOUS!

No one can be immune from indictments.

Only the president is immune from indictments ONLY DURING THE TIME HE IS C_in-C.

Once he/she is out of office, then indictment can begin for any and all past crimes.

[unblock]

40. there is nothing to indicate even that.

where does it say the president is immune from indictments while in office?

in practice, a sitting president likely can delay a *trial*, as a judge would not find it easy to proceed when a president says they need a delay due to the demands of the office. something came up, matter of national security, can't tell you details, etc. even there, there's nothing to suggest that a sitting president has an automatic delay for trial until out of office.

however, there's nothing to suggest that a president can't be *indicted* even while in office.

immunity for official acts is not the same as blanket immunity for any indictment while in office.

crimes committed before taking office or crimes committed while not acting in an official capacity are still indictable even while the president is in office.


sitting presidents have been charged with crimes before, though they were very minor (traffic tickets, e.g.) still, it's a precedent.

[at140]

43. US Constitution spells out the method to remove a sitting president

Only congress has been given that authority in the constitution.
No where in the constitution it says a local prosecutor has the authority to indict and a local court to convict.

[unblock]

44. indictment has nothing to do with that.

indictment isn't removal. an indicted president can constitutionally continue to serve as president. there is no conflict there.

no state can legally fire me from my job, either. that doesn't mean they can't indict me. then it's up to my employer to decide if they want to keep me on as an employee.

the impeachment clause is really the same thing. just because only congress can fire a president before his term is up doesn't mean a president can't be indicted.


really it's a silly argument. impeachment applies to others, not just the president. the vice-president and supreme court justices, e.g., can also be impeached, but no one thinks that they can't be indicted while serving in their jobs, or that they have to be impeached and removed first. people only say this about the president, yet the constitution doesn't distinguish between the president and others in terms of impeachment, at least not as far as anything that would suggest immunity from indictment.

[onenote]

41. Trumped up charges wouldn't stick?

Are you under the impression that no one has ever been wrongly convicted of a crime they didn't commit?

[unblock]

42. not what i said.

of course people get wrongly convicted, sometimes when everyone is acting earnestly, sometimes when some people are acting in a biased manner, and sometimes when people are acting in an entirely corrupt manner.

i just think charges against *hillary* wouldn't stick. rich and famous people have far more resources and sunlight they can shine on the situation and generally are far more capable of taking full advantage of the protections in our legal system.

as a practical matter, there are many challenges to prosecuting a sitting president. i'm just saying that it's not constitutionally forbidden, nor do i think it should be. even sitting presidents should be accountable to the law.

[at140]

45. So you are saying an empty indictment without punishment

is useful? What good is an indictment if it won't result in conviction and prison time?
Since US constitution has spelled out only ONE METHOD of removing a sitting president,
it seems it would be a waste of time and resources for a local prosecutor to indict the
sitting president.

The framers of US Constitution were brilliant visionaries. They knew the president was
the top commander in chief in charge of national security and did not want anyone outside
congress to have the power to tie up the president in court. One can't direct defense of the
country against foreign invasion and attack if one has to spend time in the courts defending
oneself. Kudos to the framers of US Constitution!

Presidents are term limited, and there is always the opportunity to indict and convict after
he/she is no longer a sitting president.

[unblock]

46. you're giving kudos to the framers for something they never wrote

and likely never wanted.

yes, they specified the the senate can remove a president after the impeachment by the house.

whoever said that has anything to do with a president breaking the law and getting indicted or even tried?

the idea that "you can get fired through this process" means "you have license to commit any crime without consequence as long as you hold this job" is ridiculous.


there is *no way* that the founders, obsessed with creating a government that would minimize the chance of having a tyrant in charge, would grant a president license to commit crimes without consequence for as long as he can stay in office -- conceivably with the advantage of being able to commit crimes.


as for the "empty indictment" question, it wouldn't be empty, it would carry as much weight as any other indictment. i'm acknowledging that *in practice* a presidential defendant might be able to successfully delay a *trial* until they're out of office. but there's zero basis for the *indictment* to be delayed until then.

[at140]

47. It is elementary Dr Watson...

If it's not specifically spelled out in the constitution, it is not most likely constitutional.
The US Constitution is the supreme law of the country. Many times some items are vague. That is where the SCOTUS comes in to interpret.

Removal of sitting president is explicitly spelled out in the constitution. That may be why none of the 45 presidents were ever removed by anyone outside the elected congress. May be you know something nobody ever did before or tried before.

[unblock]

48. you keep talking about removal. i'm not talking about removal.

i'm talking about indictment. not removal. not the same thing.

the constitution says "here's how a president can be removed from office." there's zero implication in that statement that a president can commit crimes with impunity and can't be indicted while in office.

the only reason there's some possible confusion is that the constitution says that impeachment and removal does *not* convey immunity from prosecution. some people try to read this as saying that that means impeachment and removal must come first and prosecution must come after, but to me the meaning is plain that impeachment and removal does *not* substitute as punishment for a crime.

[at140]

49. What good is an indictment if they can't remove him or

convict him in court or put him in prison? I already made that point earlier.
An hollow indictment is like an unfertilized egg...nothing comes out of it.

[unblock]

55. unfertilized eggs are great for omelettes! mmm, delicious!

well, first, the purpose of an indictment is never to get the defendant removed from their job.
the purpose of an indictment is to mete out justice on behalf of the government, which may result in such things as a fine and/or imprisonment.

if the defendant's employers remove them from their job through some procedure, that's a completely separate question. if i'm arrested, my employer might want to fire me. or they might wait until i'm tried and convicted and then fire me. or they might try to find some way to let me work from prison. or they might put me on leave and say my job will be waiting for me when i've served my time. that's a completely separate process from the whole indictment/trial/sentence process.

it's really no different if the job is president of the united states. if he's indicted, then as a completely separate matter, congress could decide to impeach and remove. or they might wait to see if he's actually tried and convicted. but it's a separate question.


now, as to whether an indicted president can actually be tried while president? personally i think so. at least, i can find nothing in the constitution to prevent it. the supreme court has already ruled that a president can be made to go through a civil trial while president, so why not a criminal trial.

in some cases, a president might be able to delay things quite a bit, perhaps even for four years. certainly the first president to be tried will be able to get some delay due to the unprecedented nature of such an affair. but i think it also would depend on the nature of the crimes the president is accused of.

for instance, if the president is accused of committing crimes that had a direct impact in gaining the office of president, i would think there would be a sense of great urgency that such a president should not be allowed to linger in office long without settling a question like that.


finally, even if a president is able to delay a trial until out of office, it's still public knowledge and relevant politically. and of course, it's not hollow if it means a trial as soon as the president leaves office, even if it doesn't directly result in removal from office.

[at140]

56. I am on social security, but can bet a beer Trump will not be indicted

until he is out of office. I have seen a lot, 80 candles next year.

[liberalhistorian]

32. Of course they didn't want presidents to

be above the law, but they also believed that a strong federal government was necessary and were well aware of the kind of constant chaos that would result if individual states had the legal powers of action against the executive branch that the federal government had. The nation under the Articles of Confederation proved how chaotic and unstable such a policy as you're advocating was, which was one major reason for the Constitutional Convention in the first place.

[unblock]

33. I'm not suggesting that states have the power to enforce their laws against individuals

Not against the executive branch of the federal government. There's no "l'etat c'est moi" in America.

I'm just saying Agnew could be indicted for tax evasion and such, and neither should a president get even temporary immunity for ordinary crimes. State or federal.

I don't think it's asking too much for our leaders to abide by the law, especially if they have a hand in creating it.

[duforsure]

5. I do

Just think how bad and how corrupt someone in that position could be if allowed to freely do anything they want corrupt at any time they want without any consequences , like it is now with the gop in control in the Senate , We have a career criminal in the White House now. That could be from either party. This needs to be addressed and stopped NOW, and those who are involved are fully held accountable, not protected to continue hurting this country. The gop are in deep , deep , trouble . I guess they didn't learn anything from the Mid Terms.

[at140]

50. Aha...but there is the watchdog congress who would remove the president pronto

if he/she did something really bad.

[hlthe2b]

6. Indict does not mean immediate trial. I firmly believe you can indict, but trial would be delayed

until after they leave office. That's what arraignments and ultimately trials are for--to ensure charges are bound by probable cause.

[onenote]

12. Impeach. Convict. Remove from Office. Then indict and try.

[at140]

27. Anyone is subject to prosecution by states IF

a crime was committed in their state by anyone, except a sitting president.
Reason being president is the C-in-C with the responsibility to protect entire country and
he/she must be free to carry on those duties at all times for sake of national security.
The US Constitution provides only one method to remove the president from office,
impeachment by the House and conviction by the senate.

If a president commits murder for example, chances are very high he/she would be
removed by the congress pretty quick if the evidence is irrefutable.

[walkingman]

9. No way. Texas AG Ken Paxton (indicted before election and still elected) is a perfect example

of why this would be a crazy idea. He is pure partisan and has spent most of his time filing suit against Obama when he was in office, telling local governments what they COULD NOT DO (Austin's plastic bag ordinance come to mind) and just a sorry SOB. Leave the States totally out of the equation. There are some crazy bastards (and people) involved in State government just like in the Federal government.

[marylandblue]

10. Yes, I think State AGs should be able to indict and try a President

and I don't think they would effectively be able to use the power illegitimately. First there is nothing to stop a state AG from indicting all his enemies right now. Nothing, that is, except evidence, lawyers and judges. Isn't that why these state AGs aren't already going after their Democratic opponents all over the place? Second the President will have access to the best lawyers, and judges will bend over backwards to be fair because everything will be scrutinized in public. Third, as we've seen, the President has tools to fight back against those who accuse him that you and I don't have. Fourth, because any state action will automatically be subject to Federal court review, so extra oversight. Arguably, the case can even be removed to federal court for trial under state law, a process that is occasionally done in other cases. Fifth, a corrupt state AG,.corruptly going after a President is likely to bring DOJ coming crashing down on him and perhaps his entire state. He better be a damn clean corrupt official and confident he can withstand any counterattack. Few will be so confident. Sixth, what purpose does it serve? Best case scenario is that a President is removed from power only to be replaced by a Vice President of the same party.

Weighing that against the possibility of putting someone, anyone, completely above the law, which, based on history, is a much bigger danger, I come down sharply on the side of the rule of law and letting the process take it's course. If the President can't get a fair trial, none of us can, and this very discussion is an exercise in futility in a country corrupted beyond repair.

[onenote]

13. Why will "any state action automatically be subject to federal court review"?

[marylandblue]

14. Because any halfway decent lawyer is going to ask for it.

[onenote]

15. Based on what legal theory?

What basis does a lawyer have for appealing a state criminal court decision to the federal courts? I can think of one -- that the state court lacked jurisdiction to try a sitting a president. But that basically makes my point.

[marylandblue]

16. I've seen people do this in a lot of ways for so many reasons.

I can come up with a lot of theories, not the point, it's what a smart.lawyer will do. But other than can't indict the president at all, there would also be the idea that the President can't, isn't or didn't get a fair trial in a state court, or can't effectively defend himself and do his job if he has to go to a distant state. I've seen other tactics used in ordinary cases. Point is, any state AG is going to realize that this tactic will be tried, therefore he will be in a court he can't control, at least once.

[onenote]

21. Okay. just give me one example.

One example of a federal court hearing a challenge to a state court decision on the ground that the defendant didn't "get a fair trial" in a state court.

[marylandblue]

22. You are missing the point. We are asking a federal constitutional question

Can the President be indicted in state court? Why wouldn't a federal court hear this? And if it does go to federal court, why wouldn't lawyers raised every single factual and legal objection they can think of, including all the ones we've mentioned plus a lot more.

It's being raised here that the President could be unfairly indicted in state court, therefore it shouldn't be allowed, so if a President were in fact unfairly indicted based on bogus evidence, why wouldn't his lawyers point out, among other things, that the case is in fact bogus?

[onenote]

23. I agree that a state court's authority to indict a sitting president ultimately

is a question for the Supreme Court.

But that merely strengthens my point -- which is that we should be wary of having the question come up since we might not like the answer.

And, no, the Supreme Court will not (and cannot) hear every factual or legal objection they may have to a state court criminal adjudication.

[marylandblue]

24. Don't ask because we might not like the answer?

How does that strengthen your point? Maybe we will like the answer?

If you are like most of us here, you think Trump is a criminal. Generally speaking, criminals should be prosecuted. That's a simple straightforward principle that normal society operates under. You seem to be saying that we shouldn't even ask if we can prosecute a given
criminal because either
a) The answer will be no and we won't like that because we can't prosecute him, or
b) the answer will be yes, and won't like that because it sets a bad precedent.

But a) makes us no worse off than we are now and b) would make me happy, because in b) due process is served. The only argument you have against this is a hypothetical case in which due process fails. But I'll take my chances.

Trump himself is the bad precedent. There are no good outcomes from his Presidency. So no matter how he leaves office, if he leaves office, everything is worse. So IMO, not prosecuting him because something bad may happen in the future, is no bar, because bad things will probably happen anyway, things much, much worse than the worst case scenarios if he never leaves office.

PS. I never said "Supreme Court" I said "federal court." But I think it likely the SCOTUS would take up any crimi al prosecution of a President.

[onenote]

25. I'd rather go through the impeach, convict,remove from office process

at the national level before allowing a single state to bring a politically motivated prosecution against a president.
Sure the impeachment/conviction/removal from office is hard, but i think it creates a safeguard that is necessary.

And while a constitutional challenge to a state criminal conviction can be challenged on constitutional grounds in federal court (in some circumstances directly or later by filing a petition for habeas corpus,) the general rule is that defendants in state criminal cases have no recourse to bring other challenges to the federal courts: Put another way, federal habeas corpus is not for correcting state law errors or even for correcting errors of a federal constitutional magnitude as determined by the lower federal courts. It is only for errors identified as such by actual decisions from the United States Supreme Court.

[at140]

51. A better way is to present the evidence to congress

and if the evidence is irrefutable, congress will impeach and remove.
Trying to do removal via some local or state judiciary won't hold up in SCOTUS.

[Nevermypresident]

29. States can do it. (Your statement said "if".) I would welcome a state(s) indictment of the worst

President we have ever had - an adminstration of lies, corruption, abuse of power, ineptness, criminality, bullying, a national security threat, etc., etc.,

I'll gladly take my chances.

[Adrahil]

30. No one is above the law. NT

[liberalhistorian]

31. Well, I'm certainly not one of those DUers, for the very

reasons you mention and more. Sheer craziness that would open the door to the kind of constant chaos and instability seen in too many other nations. I can't imagine why anyone other than RW foaming-at-the-mouth crazies would even consider this nonsense.

[at140]

53. +1000

[LiberalFighter]

34. Except the crime needs to be committed in the state for jurisdiction to exist.

[onenote]

37. It doesn't take a lot of imagination to meet that test

Someone dies in Alabama. The state AG seeks to indict the President for being a co-conspirator in planning the person's homicide. Merely communicating with the co-conspirators in Alabama, even if the communication originated from Washington DC, would suffice.

Or state AG brings charge against President for having solicited a prostitute while campaigning or attending event in state.

[pnwmom]

52. Fortunately, there is no good argument against New York State indicting

the Trump organization, possibly under RICO laws, and naming Trump as an unindicted co-cospirator -- if they have a good case to make.

[onenote]

54. correct