Is it possible that Fitz could indite Bush?

[Seedersandleechers]

[tritsofme]

1. The Justice Department says no:

A Sitting President's Amenability to Indictment and Criminal Prosecution*

The indictment or criminal prosecution of a sitting President would unconstitutionally undermine the capacity of the executive branch to perform its constitutionally assigned functions.

October 16, 2000

MEMORANDUM FOR THE ATTORNEY GENERAL

In 1973, the Department concluded that the indictment or criminal prosecution of a sitting President would impermissibly undermine the capacity of the executive branch to perform its constitutionally assigned functions. We have been asked to summarize and review the analysis provided in support of that conclusion, and to consider whether any subsequent developments in the law lead us today to reconsider and modify or disavow that determination.1 We believe that the conclusion reached by the Department in 1973 still represents the best interpretation of the Constitution.

The Department's consideration of this issue in 1973 arose in two distinct legal contexts. First, the Office of Legal Counsel ("OLC") prepared a comprehensive memorandum in the fall of 1973 that analyzed whether all federal civil officers are immune from indictment or criminal prosecution while in office, and, if not, whether the President and Vice President in particular are immune from indictment or criminal prosecution while in office. See Memorandum from Robert G. Dixon, Jr., Assistant Attorney General, Office of Legal Counsel, Re: Amenability of the President, Vice President and other Civil Officers to Federal Criminal Prosecution while in Office (Sept. 24, 1973) ("OLC Memo"). The OLC memorandum concluded that all federal civil officers except the President are subject to indictment and criminal prosecution while still in office; the President is uniquely immune from such process. Second, the Department addressed the question later that same year in connection with the grand jury investigation of then-Vice President Spiro Agnew. In response to a motion by the Vice President to enjoin grand jury proceedings against him, then-Solicitor General Robert Bork filed a brief arguing that, consistent with the Constitution, the Vice President could be subject to indictment and criminal prosecution. See Memorandum for the United States Concerning the Vice President's Claim of Constitutional Immunity (filed Oct. 5, 1973), In re Proceedings of the Grand Jury Impaneled December 5, 1972: Application of Spiro T. Agnew, Vice President of the United States (D. Md. 1973) (No. 73-965) ("SG Brief"). In so arguing, however, Solicitor General Bork was careful to explain that the President, unlike the Vice President, could not constitutionally be subject to such criminal process while in office.

http://www.usdoj.gov/olc/sitting_president.htm

And it goes on like that for 50 pages or so...

[unblock]

2. this is a rehash of an opinion by robert bork in the nixon administration

of course white house weenies would claim this, even the clinton folks unearthed it just in case.

but this has never been tested in court, and not to worry, only a highly partisan supreme court would affirm such an opinion....

... oh, shit.

[onenote]

12. is there support for the claim that Bork wrote the original memo?

The 2000 memo indicates that the original memo was written by the DOJ's Office of Legal Counsel. Bork was Solicitor General, which is also part of DOJ, but is separate from OLC. Bork undoubtedly relied on the OLC memo for his brief in the Agnew case, but I'm not sure where the evidence is that Bork wrote the original memo.

onenote

[unblock]

15. link:

http://www.usdoj.gov/olc/expresident.htm

In 1972, the United States Attorney for the District of Maryland empaneled a grand jury to investigate criminal charges against Vice President Spiro Agnew. The Vice President filed a motion with the district court supervising the grand jury seeking to enjoin the grand jury from investigating or indicting him, claiming that his office gave him immunity from indictment and criminal trial. The United States filed a brief, signed by Solicitor General Robert Bork, opposing the Vice President's motion. The brief's central contention was that "all civil officers of the United States other than the President are amenable to the federal criminal process either before or after the conclusion of impeachment proceedings." Memorandum for the United States Concerning the Vice President's Claim of Constitutional Immunity, In Re Proceedings of the Grand Jury Impaneled December 5, 1972: Application of Spiro T. Agnew, Vice President of the United States, Civ. No. 73-965 (D. Md. filed Oct. 5, 1973) at 3 ("Agnew Brief").

[onenote]

16. thanks, but

that merely confirms what I wrote -- Bork, as solicitor general, submitted a brief to the court after the OLC opinion came out. It seems as likely that OLC effectively wrote Bork's opinion as that Bork wrote the OLC opinion.

onenote

[unblock]

18. i'm not sure what you're getting at

he put his name to is and submitted it to the court; that makes it his opinion even if someone else wrote it.

this is just the same as many supreme court opinions, most of which are largely written by clerks, yet the opinions are universally attributed to the justice who presents the opinion as their own.

[onenote]

19. I agree that Bork subscribes to the opinion that the pres cant be indicted

I read an earlier post to suggest that Bork was the original author of that opinion. My point is simply that the OLC, which is separate from the Solicitor General, came to the conclusion that the President can't be indicted prior to Bork submitting his opinion.

[KoKo]

3. But the Supremes ruled with Clinton that a sitting Pesident could be

prosecuted in a civil case.... Of course that might have just been for "crimes" before they were President...which is what the Wingers were doing in pushing Paula Jones.

I guess someone would have to come forward with alleged criminal acts "before" Bush took office. Like maybe...stealing an election? Insider trading? AWOL?

[GatoLover]

17. The Supreme Court in the Paula Jones case

did not rule that the President could be "prosecuted" in a civil case, or even that he could be treated in the same way as an ordinary litigant:

http://www.pbs.org/newshour/bb/law/may97/jones_5-27.html

KATHLEEN SULLIVAN, Stanford University Law School: Well, Elizabeth, the ruling is unanimous, but I think we have to bear in mind that it's somewhat narrow. This was a case in which there was a clash of great principles, the principle of the importance of the presidency and his importance to all of us on the one hand; the importance of the rule of law and every person's right to have their day in court on the other. And I think Stuart Taylor is right to say that it was a little surprising that the court didn't split the difference between those two important principles, but the reason the court didn't do that is that Justice Stevens writing for the unanimous court said we trust the lower federal courts to split that difference; we trust the lower federal courts to manage cases well and to manage cases like this with attention to the fact that it is not just any citizen they're talking about; it's the President of the United States.

And it's very important to note that this case did not say that the President could be treated just like anybody else when he goes to court. Justice Stevens says you can't hail the President into the courthouse in Little Rock like you could another citizen; you have to allow him to engage in videotaped testimony and that sort of thing if a trial ever goes forward.

*

In other words, it was a very narrow ruling and would never apply to a case in which the defendent president might face jail time. Furthermore, it was loudly criticized at the time, and ever since, by many Democrats among others. As I understand, the Constitution contemplates and reserves the impeachment process for the task of dealing with a criminal president, and after he's removed from office he is completely fair game, the criminal justice system is then free to treat him as any other defendent.

[KoKo]

5. But the Supremes ruled with Clinton that a sitting Pesident could be

prosecuted in a civil case.... Of course that might have just been for "crimes" BEFORE they were President...which is what the Wingers were doing in pushing Paula Jones.

I guess someone would have to come forward with alleged criminal acts "before" Bush took office. Like maybe...stealing an election? Insider trading? AWOL?

[KansDem]

8. Wait, wasn't this part changed recently?

In 1973, the Department concluded that the indictment or criminal prosecution of a sitting President would impermissibly undermine the capacity of the executive branch to perform its constitutionally assigned functions.

I believe it was changed to:

In 2005, the White House concluded that the indictment or criminal prosecution of a sitting President would impermissibly undermine the capacity of the executive branch to perform its assigned functions according to that goddamn piece of paper.

:shrug:

[Seedersandleechers]

10. Thank you for the info.

[kansasblue]

14. Congress is the place for action

[JohnnyCougar]

4. It's spelled "indict"

Sorry to be a spelling nazi, but if it's in the thread title, I gotta say something.

[Seedersandleechers]

6. You are so right master, next time I'll be more careful.

[Walt Starr]

7. Indictment of a sitting president has never been tested

It's certainly possible, but would it hold up? Only one way to find out.

BTW, it's not Fitz who indicts. It's the Grand Jury.

[Catherine Vincent]

9. Indite should be Indict.

:hi:

[rd_kent]

11. Now THAT would be a chistmas present!!!!!

I will make sure to ask Santa!!!!

[KharmaTrain]

13. No Smoking Gun...

Even the biggest booosh-hating sleuths on this case can't find his fingerprints anywhere near this puppy. This is all Rove. Unless there's an Oval Office tape of booosh saying "Stonewall it", you're not gonna find anything on the boy blunder. Now Chenney is another story...

On Edit: I think the Paula Jones ruling by the SCOTUS opened up any sitting President to be prosecuted. If he could be diposed in a civil case, surely he could be in a criminal one. Another avenue would be to make him an "unidicted co-conspirator"...just like Nixon...while there's no criminality involved, the political damage is devestating.